Crossing Borders, Criminality, and Indigenous Sovereignty

In 2017 a man named Maximino Rodriguez-Robles was charged with illegally reentering the United States after being previously removed. Rodriguez-Robles was one of almost seventeen thousand persons charged under 8 U.S.C. section 1326 with illegal reentry that year.¹ Although the prosecution of border crossing began reaching epidemic proportions under the Obama administration, the practice received relatively little attention until a horrified public learned that the Trump administration's “zero tolerance” policy toward border crossing was causing the separation of families.² After the Washington Post published an article drawing upon research by the historian Kelly Lytle Hernández showing that the laws criminalizing border crossing were enacted in 1929 by eugenicists who believed that immigration from Mexico posed a racial threat, federal public defenders filed challenges in multiple jurisdictions, pointing to the law's racially discriminatory origins.³ In 2021, Judge Miranda Du of the District of Nevada found for the first time that section 1326 was unconstitutional as racially discriminatory in a case that received international media attention, although the decision was subsequently overturned by the Ninth Circuit.⁴

This sudden spotlight on the criminalization of border crossing in the United States failed to foreground an important question—that of Indigenous sovereignty. Maximino Rodriguez-Robles, in fact, raised this precise question, arguing that he could not be prosecuted under section 1326 as a member of a transborder Indigenous nation whose territory spans the United States and Mexico. In a strange twist, the case was heard by Judge Gonzalo Curiel, who was famously attacked by Donald Trump as inherently biased, as a “Mexican judge,” when presiding over the lawsuit against Trump filed by former students of Trump University.

Rodriguez-Robles challenged the criminalization of his movement as a “Native American Indian and member of the Kumeyaay Nation and the recognized tribe of San Jose de la Zorra,” whose territorial lands are bisected by the US-Mexico border, asserting an “inherent right of sovereign Native Americans to pass and repass the borders of the United States and Mexico, irrespective of immigration laws.”⁵ This was an “existing right,” not one “granted to the Native American Indian.”⁶ He pointed to multiple examples where the passage rights of other tribes had been “confirmed” by treaty or in US law—the Jay Treaty, which recognized passage rights for members of Indigenous nations through whose lands the Canada-US border was drawn; congressional legislation enacting these same rights within the Immigration and Nationality Act; congressional legislation establishing express passage rights for the Texas Band of Kickapoo; an aborted congressional attempt to clarify passage rights for the Tohono O'odham; language in the United Nations Declaration on the Rights of Indigenous Persons indicating that states should in particular facilitate the right of Indigenous peoples divided by international borders to maintain Indigenous relations across borders; and a Kumeyaay Border Task Force working with US immigration officials to create a border crossing card for the Kumeyaay—as pertinent precedent for his assertion.

Judge Curiel refused to find these sources relevant. In so doing, Judge Curiel noted that the court did not question Rodriguez-Robles's membership in the Kumeyaay Nation, the nation's “historical and moral claim to lands south and north of the United States-Mexico border,” or “the Kumeyaay's sovereign power.”⁷ Yet, because Rodriguez-Robles could not “point to any recognized source of law” that permitted passage rights relevant to his situation, the federal government was free to prosecute Rodriguez-Robles for criminal reentry, as the court had no “authority to declare that immigration law does not apply to him.”⁸

What does it mean to ostensibly recognize a “historical and moral claim” and Indigenous “sovereign power” while crushing any claim or power under the superseding force of US immigration law? Judge Curiel disposed of Rodriguez-Robles's arguments by reading them through the lens of US sovereign power, pointing to the US government either affirmatively recognizing the right to pass through enacting legislation or not recognizing the right. In Judge Curiel's words, “Defendant has offered no source of law exempting him from the prohibitions set forth in 8 U.S.C. sec. 1326.” This is the immigration law version of Justice Marshall's opinion in Johnson v. M'Intosh (ruling that Native Americans held no title to land), which states, “Conquest gives a title which the courts of the conqueror cannot deny.”⁹ We can rephrase that here as “Conquest creates the sovereign with the power to control borders, which the courts of the conqueror cannot deny.” In other words, the colonizer's courts must apply the colonizer's law, the only relevant source of law.

Settler colonialism turns Indigenous people and peoples into immigrants; immigration's role in the settler state is to serve as the reason for Indigenous dispossession and as the alibi for that dispossession.¹⁰ We are witnessing here both the violence of settler colonialism and the violence of law. In Renisa Mawani's words, this violence is evident in how law functions as “a self referential system” that “conceives of . . . and assimilates some knowledges as pertinent to legality while dismissing others as extraneous and nonexistent.”¹¹ Law conceals its “originary, and ongoing violence” while generating “the veracity of its own legality.”¹² The US legal system refuses the sources of authority proffered by Rodriguez-Robles for the truth claim “I have an inherent right to pass and repass the US-Mexico border because I am a member of the Kuymeaay nation that preexisted the creation of that border.” They are irrelevant to the epistemological system of US law and are relevant only to the past (as “historical”) and to ethics (as “moral”) rather than to law.

The Mohawk scholar Audra Simpson suggests that what is characterized as border crossing can be understood as a collective assertion of sovereignty. Simpson writes that for Iroquois peoples, the border acts “as a site not of transgression but for the activation and articulation of their rights as members of reserve nations, or Haudenosaunee. . . . Although crossers may perceive themselves as members of a sovereign nation, the state may not.”¹³ Settler law represents Mohawk people as “without law, as people who transgress borders, rather than refuse them lawfully.”¹⁴ But they should be understood as neither border crossers nor transgressors but as sovereign refusers of the settler border.

On this reading, Rodriguez-Robles's assertion in the court of the settler state is the trial of a claim for the activation and articulation of his rights as a member of the Kumeyaay Nation; we might understand Rodriguez-Robles's motion to dismiss the charge of illegal reentry as a sovereign refusal of the settler border. Yet the claim of Rodriguez-Robles also registers differently from the claims that Simpson describes. Rodriguez-Robles tried to contest the law of a sovereign that does not respect his own sovereignty in two ways: through asserting Indigenous sovereignty and the right of self-governance, including the right to pass and repass international lines as a form of long-standing freedom; and through invoking the settler sovereign's law, seeking recognition by the courts of the settler state, trying to turn the force of US law against itself, in a kind of failed jiujitsu move. This dual argument could be understood as simultaneously engaging not only in refusal (I root my claim in another political regime, incommensurate with the system of US law) but also in an attempt at recognition (I ask you to see and respect my inherent right as you have not yet taken it away). We can comprehend the desire for recognition when Indigenous sovereignty is reduced to savagery (a “condition of beastlike association that is defined as being without law”)¹⁵ and when one's freedom is so restricted by the violence of the settler state that movement is criminalized. This violence is manifest in what happened to Rodriguez-Robles. As Rodriguez-Robles had, according to Judge Curiel, “offered no source of law exempting him from the prohibitions set forth in 8 U.S.C. sec. 1326,” he was sentenced to nineteen months in prison, immobilized through human caging in response to the audacity of his movement.

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Works Cited