Skip to main content
PRINT EDITION

Let Indians Decide: How Restricting Border Passage by Blood Quantum Infringes on Tribal Sovereignty

By March 1, 2021July 22nd, 2022No Comments

Abstract: American immigration laws have been explicitly racial throughout most of the country’s history. For decades, only White foreign nationals could become naturalized citizens. All racial criteria have since vanished from the Immigration and Nationality Act (INA)—all but one. Section 289 of the INA allows “American Indians born in Canada” to freely cross into the United States if they possess at least 50% blood “of the American Indian race.” Such American Indians cannot be prohibited from entering the United States and can obtain lawful permanent residence status—if they meet the blood quantum requirement. Such racialized immigration controls arbitrarily restrict cross-border Indigenous communities and have since their inception in the mid-1800s.
Indigenous communities were never confined within national borders prior to colonization, and they continue to span both the U.S.-Canada and U.S.-Mexico borders. The free passage of these individuals is restricted by INA section 289. This Comment focuses on how the question of who is “Indian” should be defined not by the federal government based on blood quantum, but by Indigenous nations themselves. Ultimately, this Comment argues that Congress should remove the blood quantum requirement entirely and expand the free passage right to include American Indians born in Mexico.

Download the Full Article

Other Articles from WLR Print Edition

October 1, 2022 in PRINT EDITION

Protection for Indian Sacred Sites

PROTECTION FOR INDIAN SACRED SITES The Honorable William A. Fletcher U.S. Court of Appeals for the Ninth Circuit 34TH ANNUAL INDIAN LAW SYMPOSIUM RESTATEMENT OF THE LAW OF AMERICAN INDIANS…
Read More
October 1, 2022 in PRINT EDITION

Reflections on the Restatement of the Law of American Indians

34TH ANNUAL INDIAN LAW SYMPOSIUM RESTATEMENT OF THE LAW OF AMERICAN INDIANS APRIL 21, 2022 INTRODUCTION I’ve been asked to talk about and give some reflections about the Restatement project.…
Read More
October 1, 2022 in PRINT EDITION

Off-Reservation Treaty Hunting Rights, the Restatement, and the Stevens Treaties

Abstract: The underdevelopment of the law of off-reservation treaty hunting and gathering poses challenges for treatises like the groundbreaking Restatement of the Law of American Indians (“Restatement”). With particular attention…
Read More