Peter d'Errico

The debate on immigration requires addressing the domination of the original peoples of the land

“Why has xenophobia been such a force in a country built by immigrants?” asked history Professor Moshik Temkin in a recent op-ed piece in the New York Times. Temkin provided no answer to his question. He posed it as an example of the type of historical inquiry—about “social and political change over time…the meat and potatoes of the historian’s craft”—that ought to take precedence over the sound-bite role historians play in current media debates.

I have no quarrel with Temkin’s main point, his “worry about the rapid-fire, superficial way history is being presented, as if it’s mostly a matter of drawing historical analogies. The result is that readers and viewers get history lessons that are often misleading when it comes to Mr. Trump, and shed little light on our current travails.” Anyone familiar with Indian country knows the truth of this statement, and not simply about Trump. As Phillip Deere once said, referring to university students mimicking the stereotypical “Indian war cry,” “Those kids went to university to get a higher education and why didn’t they get it? … In their minds, they’re still in John Wayne movies.”

Nevertheless, Temkin’s question itself carries a sound-bite view of history—namely, the reference to “a country built by immigrants.” This notion has become a kind of fetish in the polarized debates roiling the status of “foreigners” in the U.S. Those who embrace immigration frequently assert “we are all immigrants.” Opponents demand deportation of immigrants who are not “legal.” While both sides pat themselves on the back for their “correctness,” neither steps back to examine the history—the “social and political change over time”—that would shed light on the issue. Let’s pause and shed some light.

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History problematizes the notion of “the country.” Many peoples had countries in these lands prior to the colonial invasion of Christian settlers. That those colonies would eventuate in a “country” called the United States does not erase the continuing existence of the original countries, despite the strenuous efforts of the colonizers, who resorted to genocide, political violence, and myth-making in their erasure attempts. The invaders—immigrants to these lands—even developed quasi-scientific historical narratives like the increasingly discredited notion of the Bering Strait theory to insist that the original peoples were themselves immigrants. This colonialist imagery reverberates in the rhetoric of those who support immigration by claiming we’re all immigrants.

The position of those who distinguish between “legal” and “illegal” immigrants presents an equally problematic history. The most outlandish (to play with words: “outlandish” means “foreign”) aspect of the insistence on “legality” arises from the colonizers’ efforts to claim “title” to the lands they invaded through the “extravagant pretension” of “Christian Discovery.” The U.S. Supreme Court laid down that doctrine in 1823 (Johnson v. McIntosh), not to portray the original peoples as immigrants, but to dispossess them of their status as landowners and thereby “legalize” the status of the colonizers. This judicial sleight-of-hand echoes in the rhetoric of those who demand deportation of “illegal immigrants.”

These historical precedents to the current debate allow us to suggest a response to Professor Temkin’s question about xenophobia. A dictionary definition of xenophobia describes it as “intense or irrational dislike or fear of people from other countries.” We probably can’t find a better word to describe the world-views of the Christian colonizers, who arrived with full-blown xenophobia directed at the “foreign” peoples they discovered in the “new world.” The fact that these peoples typically welcomed and even assisted the colonists had little effect on calming the outsiders xenophobia.

The “American Empire” grew from a violent, messianic crusade to eliminate non-Christian peoples, practices, and beliefs everywhere it found them. Indeed, the command of Christian authorities was to “go forth and multiply,” and assert “dominion.” Vatican decrees and colonial charters insisted that Christian “discoverers” were to dominate non-Christian peoples. In the Johnson case, the U.S. Supreme Court said, “These claims have been maintained and established … by the sword.” The imposition of empire has not eliminated the original peoples, but the rhetoric of American law and politics obscures and disallows their existence as separate peoples.

As Jens Bartelson put it in his 1996 book, A Genealogy of Sovereignty, the 16th century “discovery of non-Christian forms of life in the Americas posed [a] … threat to the stability of Christian values,” which were already staggering from the “fragmentation of Christianity” in the “old world.” Bartelson adds, “The discovery of the American Indians…posed the problem of [a] confrontation with something radically different from the Christian way of life [and] raised the question of what kind of relations it is possible to entertain with this Other. First, to what extent is it possible to know the Indian except as something inferior to the Christian civilization? Second, … to what extent is it possible to [give] him the status of a legal subject?” These very questions animated colonization and propelled the Johnson decision.

In short, xenophobia—”intense or irrational dislike or fear of people from other countries”—has characterized American history from its inception in rival colonies bent on domination and exploitation of the continent. The U.S. position on this has been consistent throughout the twists and turns of what we call “federal Indian law,” from the so-called “Marshall trilogy” of U.S. Supreme Court cases (Johnson v. McIntosh and the two Cherokee cases) through the Allotment Act and Termination policies and into the 21st century era of “government-to-government” relations. The foundational position of the United States is that Indigenous Peoples of the continent are inherently subjugated to the political authority of the federal government. “Columbus Day” and “Thanksgiving” provide fantasy holidays for Americans to speak about the “discovery” of the “new world,” trying to forget the bloodiness of the encounter.

Courts and politicians—and even, strangely enough, some Native leaders—have repeatedly emphasized what they call the “plenary power” of the U.S. Congress to do as it wishes with Indians and Indian lands. A critical and accurate history of U.S. laws, including laws that many people think are “pro-Indian,” shows the process at work: The 1924 Citizenship Act “further[ed] the project of assimilating Native Nations into the United States rather than recognizing their sovereignty.” The 1934 Indian Reorganization Act “replace[d] traditional governance structures with Western, electoral system…tribal constitutions.” The 1944 Indian Claims Commission was “the beginning of the termination era.” The “friends of Indians” calling for “equal rights” today are aiming for the final elimination of separate Native Nationhood.

We return to Professor Temkin’s call for historians to do “a better job of explaining Mr. Trump, and make clear that Americans can make a better history for themselves.” It will not do to celebrate an “inclusiveness” that muddies the debate—as in the strange phenomenon of the Broadway show “Hamilton,” where non-white actors sing and dance the story of the white men who founded the federal scheme of empire-building—nor will it be acceptable to sanctify “legal” status as the determining factor of immigration rights. The history Americans have made still exists. The debate about immigrants requires addressing the legacy laws, practices, and policies that to this day exert a dominating force over the original peoples of the land.

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinébe’iiná Náhiiłna be Agha’diit’ahii Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on Indigenous issues.