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Russell: Raising Arizona for brown people

When Americans, including even marginally assimilated Natives, see something they don’t like, the reaction is “there oughta be a law.” By “law” they normally mean a criminal law. Hence, we have a discouraging number of reservations that still ban alcohol by tribal law. The ban used to be by federal law and anybody who points out that prohibition enables a criminal class is painted as being in favor of drunkenness. This is pretty much what happened in reaction to my column supporting the boycott of Arizona to secure repeal of the brown in a no-brown zone law.

In the comments on the Indian Country Today Web site and in private e-mails, the criticisms lacked both courtesy and logic. Here I will answer the two most common complaints.

First, as my editor predicted, several people took umbrage at my passing statement that the blood of Mexicans is primarily “American Indian.” She was right in that this detracted from my main point.

I must first observe that Mexico is in America.

Then the question becomes the ratio of Indio to Hispano. Did you think the conquistadores brought their wives? Most of the literature puts the ratio at 80/20, and you have to realize this is in the context of pervasive color prejudice, giving persons of Indio blood strong reasons to deny it as soon as it became deniable by a combination of distance and color. So the records would tend to understate mixed blood Indians trying to avoid discrimination and full blood Indians avoiding being counted entirely. We can say a lot of bad things about the Spanish, but they kept excellent records compared to the U.S.

When Americans, including even marginally assimilated Natives, see something they don’t like, the reaction is ‘there oughta be a law.’

The marriage records I’ve seen from Spanish colonial times list Indians not by “race” but by tribe.

Leaving aside written evidence, my time working with the United Farm Workers tells me that many agricultural workers (those workers of lowest status) who come from Mexico do not speak Spanish but rather their native languages. My work with the Kickapoo Traditional Tribe of Texas brought me into contact with individuals for whom English was their third language, after Kikapú and Spanish.

Most Mexicans are Indians, folks. They may deny it and we may deny it but that’s the fact. They are the offspring of the Natives and the colonists and, unlike in the U.S., the colonists were a tiny minority in the gene pool.

The second criticism of my support for the Arizona boycott was that I don’t understand how it is on the border. With the exception of my childhood in Oklahoma and 10 years teaching in the Midwest, I’ve spent my entire life in the borderlands. I’ve watched it change and I am appalled at the violence. I was not asked what I would do to deal with illegal immigration if I could not abide a policy fearing Mexicans and thereby placing other Indians in the crossfire. While I still haven’t been asked, I can indeed offer alternatives to a policy both futile and racist and I can do it without engaging the criminal law.

For dope dealers and other smugglers, we have the criminal law, although they will exist as long as the U.S. prohibits the recreational use of drugs for the same reason that dry reservations create bootleggers and the great prohibition experiment in the U.S. moved the mafia from neighborhood thugs to prosperous and far-flung criminal enterprises.

For the rest of illegal immigrants, here’s my plan. Grant fast track citizenship to any undocumented worker with no criminal history who makes a factually correct report of any individual or corporate violation of the Fair Labor Standards Act, the National Labor Relations Act, the Occupational Safety and Health Act, the Clean Water Act, the Clean Air Act, state workers’ compensation laws or any immigration law.

This neatly reverses a power relationship common in the borderlands, where undocumented workers at the end of a job don’t know whether they will get their last pay or a visit from the migra. The environmental laws are included because undocumented workers are often tasked with the kind of filthy work that winds up fouling our water and air in an illegal manner.

With the exception of my childhood in Oklahoma and 10 years teaching in the Midwest, I’ve spent my entire life in the borderlands.

Of course, it would also be necessary to write substantial civil penalties into all those laws along with qui tam rules that allow private lawyers to prosecute them, because there is no way U.S. attorney offices would be able to keep up with the prosecutions at first if we started prosecuting the people who benefit from illegal immigration.

Give this a couple of years and the jobs would dry up like water on a hot rock. When the jobs dry up, the honest immigrants will quit coming and we will see how necessary they are and take the necessary steps to bring them in legally. Or we won’t, if I’m wrong.

As to the drug dealers, nothing will stop them short of ending prohibition. Those countries that have done so, by law or by practice, have not seen dramatic upsurges in drug use. After all, the reason not to use many recreational drugs is that they are bad for you. Most people are not stupid. Some are. Laws can’t change that. To the extent that criminal law can do anything about drug dealers, we have plenty of criminal laws right now.

None of this has any political legs.

Republicans have no interest in stopping illegal immigration from Mexico because their supporters benefit from cheap labor and the ability to ignore a lot of pesky regulation.

Democrats have no interest in stopping illegal immigration because great numbers of the immigrants eventually become legal voters who tend to vote Democratic. Democrats also fear offending the substantial Hispanic vote that can already swing many elections in the borderlands.

Arizona cannot enact my plan for the same reason they cannot enact the idiotic law they have. State courts are not competent to determine immigration status in contested cases. Our Constitution places responsibility for immigration policy at the federal level. How much concurrent jurisdiction may be held to exist for states is a matter to be worked out in the courts, and I suppose Arizona will be in the forefront of working it out. In the meantime, brown people who live in Arizona should stay close to home or carry papers. And brown people who don’t live in Arizona should stay away.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He is a columnist for Indian Country Today. He lives in Georgetown, Texas, and can be reached at