Russell: Don’t Visit Arizona Without Your Papers 

by Steve Russell
Indian Country Today
27 April 2010

I was slow to learn about Indians and complexion, having been born with the name Teehee in a small Oklahoma town. Nobody would question my ethnicity and if I wished to deny it there was no chance. Indians were the largest “minority” in town and I was a Cherokee on Creek territory, a double minority. However, just about all of the discrimination based on color was inflicted upon African-Americans.

When I got involved in the repatriation movement in Texas, I learned that my light complexion was a mixed blessing. I spent a lot of time playing tag team with a dark-skinned Pawnee lawyer and it was plain to us both that some people would rather listen to me than to him. On the other hand, one legislator made me prove I was “a federal Indian” because in his mind I did not look the part. And I overheard, at a meeting of archeologists where I was being discussed as a troublemaker in advance of my speech (but not quite enough in advance because I was just outside the door) this backhanded compliment: “if he would work half as hard at being white as he does at being Indian, he could!”

One thing about being Indian is that, regardless of complexion, you always have “papers.” In my tribe, there’s the “white card” (CDIB) and the “blue card” (Cherokee Nation Registry). Lucky I keep these cards in my wallet, since I may not be able to avoid setting foot in Arizona, though I will avoid it if I can.

Republican Gov. Jan Brewer has just signed a law that empowers, or, I should say, requires Arizona police officers to stop anybody they suspect may be an undocumented person and demand papers. For people insufficiently light complexioned, it will be like the old Soviet Union, where internal passports were required for travel. In my formative years, during the Cold War, I thought the freedom to travel from one end of the continent to the other without having some bureaucrat demanding “papers” distinguished the Free World.

Then I learned about the Indian nations whose homelands cross the United States and Canada border, who retain the right to cross under the Jay Treaty. The Indian nations whose homelands cross the U.S. and Mexico border are not as well-fixed. The best legal argument they have is by implication in the Treaty of Guadalupe-Hidalgo, but they have historically managed to live in peace because deserts and sparse population made the border fairly insignificant in the days before drug smugglers and terrorists.

Now, blaming drug smugglers and terrorists and the federal government, not necessarily in that order, the great state of Arizona has undertaken enforcement of its international border, a power that appears in the U.S. Constitution to be reserved to the federal government.

If I am forced to visit Arizona while this license to harass brown people is in effect, I shall have to as a matter of principle speak only Spanish to police officers. Having spent the last 10 years in the Midwest, my Spanish needs a lot of brushing up. I presume that if I get arrested they will find my white card and my blue card at the booking desk and decide that I’m a U.S. citizen.

However, that presumes they know the geographical location of the Cherokee Nation and they know that Indians were declared to be U.S. citizens by Congress in 1924. While I’ve heard some Indians complain about that declaration, my understanding of the context is that Indians were drafted to serve in the U.S. military in World War I but were not allowed to vote. The Indian Citizenship Act, of course, did not resolve the voting rights of Indians because the states still resisted.

This digression about citizenship and the right to vote circles back to Arizona. It’s commonly known that Indians in Arizona finally got the right to vote in an Arizona Supreme Court decision in 1948, the lawsuit having been brought by Frank Harrison, Yavapai. It’s less commonly known that Harrison had attempted to register before serving in World War II and was denied.

The privileges of citizenship were slow to come for Indians while the responsibilities came right away. It’s hard not to think of the island-hopping campaign in the Pacific, some of the toughest combat of WWII. The Navajo code talkers served though that campaign at a time when Arizona was still denying them the vote. Now, it appears that Arizona Indians who visit the cities will have to be careful about being brown in a no-brown zone, whether or not they are veterans.

It would be hilarious watching Gov. Brewer claim that this law can be enforced without racial profiling if I had fewer relatives who could get profiled. Make no mistake: This law is not aimed at Europeans without papers, even though by its plain words a German tourist could be locked up for leaving her Phoenix hotel without her passport. This law is aimed at Mexicans and the blood of Mexicans is primarily American Indian.

Like my childhood in Oklahoma, a Tohono O’odham person in Sacaton or a Navajo person in Chinle will have little to fear. In a small town, you are known to be who you are. However, you take your chances in Phoenix or Tucson. I wonder how the enforcement will go around the spectacular national parks in Arizona that draw visitors from all over the world?

What is a “reasonable suspicion” that a person is undocumented? Pre-existing law instructs us that it’s considerably less than “probable cause,” which is sometimes explained as “more likely than not.” Since “suspicion” does not require a whole lot of objective facts, it’s safe to say that the real reason for most arrests will be brown in a no-brown zone or failure of the attitude test. If you are then put in jail because they don’t believe you are a citizen, I’m not clear how you are supposed to prove your lawfulness if you can’t pay a bail bondsman to get released?

For those Indians who can, it would be a good idea to join the boycott of Arizona while this law is in force. For the many Indian tribes whose ancestors called Arizona home before the white people who made this law appeared on the continent, staying out of Arizona is not an option. They can only carry their cards in the cities and be careful not to offend white people by their presence. It’s hard to believe that I’ve lived into the 21st century and I’m still learning about Indians and complexion.

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



Reprinted as an historical reference document under the Fair Use doctrine of international copyright law.