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Excerpted from: Rebecca Tsosie, The Politics of Inclusion: Indigenous Peoples and U.S.Citizenship, 63 UCLA Law Review 1692 (August, 2016) (386 Footnotes) (Full Document)


RebeccaTsosie. . .

I am from Arizona and my scholarly work is situated in a place that we call the Borderlands. That concept has a physical essence as well as an intangible essence. The political boundary between the United States and Mexico is not always visible, particularly when one stands upon the rocky, cactus-strewn soil of the Sonoran Desert. Nevertheless, it is a tangible boundary and one that is heavily policed by the military and law enforcement units that secure the border. Many human lives are lost daily within the Borderlands, and the nationality of the victim as Mexican or American is often the first inquiry. This Article does not explore the differentiation of nationality in those terms. What interests me is the identity of transborder indigenous peoples as citizens of the land. To be indigenous is to belong to the land, through time and through tradition. That intergenerational presence has a spiritual dimension, as well as a political dimension, according to Article 36 of the United Nations Declaration on the Rights of Indigenous Peoples, which provides:

Indigenous peoples, in particular, those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders. . . . States, in consultation and cooperation with indigenous peoples, shall take effective measures to facilitate the exercise . . . of this right.

How this process of engagement should work is not altogether clear. Typically, the members of federally recognized Indian tribes are U.S. citizens, unlike the members of culturally related groups across the U.S.-Mexico border. In that sense, the political identity of a group that has secured federal recognition controls the question of American Indian identity, rather than the group's cultural identity. Because most federally recognized Indian tribes do not see themselves as affected by the issue of competing national identities, this may seem irrelevant in the grand scheme of things. I argue, however, that there is a deeper discourse about inclusion and multinationalism that is highly relevant to the discourse of indigenous rights, and in that sense, citizenship is a cross-cutting theme for the future.

To think carefully about citizenship and inclusion requires us to explore the intangible essence of the Borderlands as “those geographic areas where distinct cultures, spaces, and ideologies meet,” and to acknowledge that “[t]his meeting can be an intersection, a confluence, a clash, or simply, just an artificial demarcation between æus' and æthem.”Æ What does it mean to belong to the land? What does it mean for an indigenous person to be an American citizen or, alternatively, a citizen of Canada or Mexico? How are our notions of citizenship crafted on a binary of inclusion or exclusion and what are the consequences of accepting that binary for our collective future? These are the questions I raise in this Article. As Professor Goldberg notes in her work, the criteria for tribal citizenship as membership constitute one of the most contested issues for contemporary tribal governments. Similarly, the national politics surrounding the identity of the Dreamers--young people who were born in Mexico and raised in the United States to be Americans-- has generated significant controversy about what birthright citizenship is and what rights it entails.

These debates over who is entitled to citizenship, taken in historical context, reveal that inclusion and exclusion have always been the twin pillars of American equality--and American oppression. Today, the politics surrounding birthright citizenship raises issues of critical importance to Native peoples, implicating political challenges and longstanding traditions about the nature of indigenous peoples as spiritual beings who are instructed to live in harmony with each other and with the lands that they belong to. In an era where politics and religion are restricted from sharing a space by the constitutional mandates of our secular democracy, we must examine our beliefs about the appropriate place of the indigenous nations of this land. Those peoples still reside within territories that predate the formation of the United States, Canada, and Mexico and the newer categories of nationality can interfere with the ancient obligations of the Indigenous peoples.

This Article interrogates U.S. citizenship and indigenous self-determination to see whether the two concepts can operate harmoniously, or whether they are hopelessly in conflict. The Article starts by examining recent controversies in Arizona that illustrate the basic tensions. It then examines the norm of equal citizenship and probes the four historical frames of citizenship for Native peoples. The Article then analyzes the contemporary norm of indigenous self-determination and asks whether the rights of American Indian and Alaska Native peoples as U.S. citizens are consistent with the rights of indigenous peoples. In doing so, I explore the fifth frame of indigenous citizenship and place the issues within a global context. The Article concludes by examining the effect of transnational movement of peoples across borders, framed by the theory of super-diversity. I examine the tensions between multiculturalism and multinationalism within domestic and international politics. In that sense, my Article has broader implications, for example, with respect to the discussion about home rule for the indigenous peoples of Greenland or the status of the people of Puerto Rico. Although this Article does not directly engage those cases, I believe that the discussion of indigenous peoples' human rights requires us to develop coherent theories about citizenship, sovereignty, and self-determination, and I hope that this Article inspires that discussion.

. . .

Many indigenous epistemologies hold that the people belong to the land, rather than the inverse premise that the land belongs to people. Under this view, many of the people deemed to be illegal immigrants are indigenous peoples on the wrong side of an international border. In North America, the traditional lands of indigenous nations have been carved into separate national boundaries for the United States, Mexico, and Canada. The United States, as of its creation in 1776, had no political claim to the lands in the Southwest. Arizona and New Mexico were originally annexed through a treaty with Mexico as a single territory, and then admitted separately to statehood in 1912. One hundred years later, that border now divides many indigenous nations, including the Tohono O'odham, Apache, Yaqui, and Kickapoo. The members of each Indigenous nation may be split by an international border, but this does not relieve them of continuing duties to carry out the spiritual obligations associated with their ancestral territories. In some cases, the right to access a sacred site or practice religious ceremonies that implicate restricted items, such as peyote and eagle feathers, may be protected by federal law. For example, the Tohono O'odham Nation's reservation straddles the border and the tribal government provides limited services to tribal members on the Mexican side of the border, with the approval of Congress. In other cases, however, the United States discounts the human rights of tribal members born on the other side of the border because they lack the political status of those peoples whom the United States recognizes as indigenous. Is the status of an indigenous people inherent or is it created by the modern nation-state?

Whether the individuals are indigenous or not, it should give us great pause to see that the current group most likely to be deprived of rights under U.S. law is the group constructed as an illegal (undocumented) immigrant. This was the only group to be denied health coverage under the Obama administration's comprehensive statute governing national healthcare. They do not merit the same due process rights as U.S. citizens or lawful permanent aliens, nor do they enjoy the same set of civil rights. Yet, do they not have rights as human beings? Many of these individuals are, in fact, indigenous peoples from Mexico and Central America, pushed out of their traditional lands by development projects and disenfranchised from legal rights by their domestic governments. Can we craft a conception of human rights that is more just and more humane than the current laws of states such as Arizona, or nation-states such as the United States? That is the question that we must address in an era of indigenous self-determination.

The human rights of indigenous peoples are both political and cultural. We must acknowledge the inherent cultural sovereignty of all indigenous peoples, including their right to exist as separate peoples within the nation-states that encompass them. This should not detract from the political rights that have been negotiated and validated with particular groups, such as the federally recognized tribes in the United States. The pervasive tendency of liberal theorists to demand equality on a categorical basis (for example, as applied to citizens) while negating the rights of others (for example, as applied to undocumented immigrants) must give way to a more nuanced account of the fundamental human rights of the indigenous peoples that belong to the lands that are now under the political control of the United States.

One of those rights might entail the need to acknowledge the histories and narratives that have shaped our conceptions of human rights and civil rights. This became clear to me in 2010, when the Arizona legislature enacted a law prohibiting any school district from offering classes that “promote resentment toward a race or class of people,” or “[a]re designed primarily for pupils of a particular ethnic group.” In an effort to comply with the law, the superintendent of the Tucson Unified School District (TUSD) banned a program intended to educate Mexican American children about their cultural histories in an effort to enhance their self-esteem and promote their educational achievement. TUSD has a long history of inequality in dispersing educational resources, purportedly due to the differential funding that exists for the schools (predominantly Latino and Native American) in the poorer neighborhoods in the southwest part of the city, as opposed to the affluent schools (predominantly white) in the northeast part of the city. As an economic issue, the disparity is constitutionally tolerable under federal law pursuant to the logic of San Antonio Independent School District v. Rodriguez. The net result of these disparities in Tucson, however, has denied equal opportunity to a broad cross section of Latino and Native American children in public school education. Not surprisingly, the schools in these neighborhoods suffer from high dropout rates and historically low achievements on standardized tests.

As Richard Delgado points out, the Mexican American Studies (MAS) program had, over eleven years, proven effective in improving student achievement and retention. Prior to the program's inception, the Latino schoolchildren in this district suffered from a 50 percent dropout rate. Eleven years later, 90 percent of the Latino schoolchildren were graduating from high school, and a significant number went on to attend colleges and universities. Students read Latino and Native American authors, studied accounts of indigenous histories on the Borderlands, and experienced an empowering account of indigenous/Latino intellectualism by teachers who often came from similar cultural backgrounds. Despite the proven success of the program, the school district acquiesced to political pressure and banned the program as promoting separatism and impairing the values of unitary democratic citizenship for all Americans. The banned books included several by Native American authors, inspiring an immediate negative reaction from tribal leaders. Amidst the resultant furor, the superintendent clarified that nothing in the ban was intended to preclude Native American students from reading Native American authors because Native American students are part of their tribal governments. Nor did the Tucson book ban preclude white students in the affluent and exclusive public high school from reading the same texts by Latino and Native American authors in their program for academically talented students. It turned out that the only group barred from accessing their cultural history was the targeted population of Latino students, largely comprising U.S. citizens of Mexican descent, as well as some children of immigrant parents. According to population geneticists, the transborder population within the Southwest Borderlands region shares a genetic heritage. But, the genetic identity (ancestry) of these individuals is irrelevant within the cultural politics of the Borderlands, which treats indigenous peoples separately with regard to race and political status.

There is an eerie similarity between the Tucson case, which primarily affects Mexican American people, and the logic of Rice v. Cayetano for Native Hawaiian peoples. Both groups have longstanding cultural and political ties to their lands, which predate the existence of the United States. Their rights are now entirely dependent upon the will of a nation-state, however, that continues to selectively include and exclude them from the benefits of citizenship and the enjoyment of their human rights. The assimilationist focus of American citizenship is apparent in both examples, and in both cases, courts and policymakers are careful to differentiate the political rights of the federally recognized Indian nations from the position of other groups within the multicultural politics of American democracy.

We might be tempted to accept that logic because it secures the special rights of members of federally recognized indigenous nations using the logic of the plenary power doctrine. In both cases, U.S. Congress has the power to define who may be a citizen and which groups may be recognized as having a trust relationship with the United States. But, by reviewing the four historical frames of American citizenship for indigenous peoples, we can see the perils of an essentialist account of birthright citizenship. In fact, members of the Bush administration formally opposed efforts to extend federal recognition to Native Hawaiian people on the grounds that it would open the door to a similar movement among Mexican Americans in Texas, which was also annexed into the United States by a joint resolution. Similarly, the people of Puerto Rico are carefully examining their political status, which also positions U.S. citizenship in relation to self-determination. If, as Bethany Berger claims, the individual citizen and the nation-state are the “fundamental legal categories” defining civil rights in the United States, then all “nonstate . . . self-governance rights” exist as a limited exception to the norm. They can then be categorically included or excluded from the structures and institutions of the nation-state, depending upon the will of the political majority.

The politics of citizenship and multiculturalism must be reconciled with the right of self-determination in a manner that honestly engages the multiple histories and cultural identities of the affected peoples. It is likely that the fifth frame of citizenship for Native peoples will require articulation of a framework of multinationalism that serves the human rights of indigenous peoples to self-determination.