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,
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
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
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
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