UNSETTLING IMMIGRATION LAWS: SETTLER COLONIALISM AND THE U.S. IMMIGRATION LEGAL SYSTEM.

Author:Kashyap, Monika Batra
 
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TABLE OF CONTENTS Introduction 549 I. The Foundational Processes of U.S. Settler Colonialism 554 A. Indigenous Elimination 554 B. Subordination of Racialized Outsiders 557 C. Establishment and Enforcement of Laws 559 II. Contemporary Immigration Laws Through a Settler Colonialism Lens 561 A. NSEERS 561 B. Trump's 2017 Muslim Bans 564 C. Trump's Immigrant Family Separation Policy 566 III. Indigenous/Immigrant Solidarity and Resistance 569 A. Aboriginal Passport Ceremony Movement (Australia) 569 B. Canada: No One Is Illegal Indigenous/Immigrant Solidarity Movement 572 C. United States: Indigenous Resistance to Trump's Family Separation Policy 573 IV. Unsettling Pedagogies 575 A. Indigenous Land Acknowledgement 575 B. Modifications to the "Personal Immigration History" Exercise 577 Conclusion 579 INTRODUCTION

The United States sits on invaded Indigenous (1) lands. European settler colonizers invaded Indigenous lands with the intent to permanently settle and form new ethnic and religious sovereign communities on the newly acquired land. (2) These settler colonizers have continued to occupy invaded Indigenous lands by establishing an ongoing complex social structure of invasion called "settler colonialism." (3) This structure of invasion functions through the ongoing processes of Indigenous elimination and subordination of racialized outsiders (4)--as well as through the creation and enforcement of laws that maintain the ongoing invasion. (5) U.S. settler colonialism's invasion may have started in the past, but it is a continuing structure of elimination and subordination that is happening now. (6)

On February 15, 2019, Trump declared a national emergency in order to secure funding for a border wall to confront the "national security crisis" created by what he calls an "invasion" of immigrants at the southern U.S.-Mexico border. (7) The border wall is part of Executive Order 13767, Trump's "Border Wall" executive order, (8) which not only calls for the immediate construction of a costly physical wall along the U.S.-Mexico border, but also institutes new immigration policies that criminalize and dehumanize immigrants. For example, the order increases immigrant detentions, expands immigrant detention capacity, increases the power of state and local enforcement of immigration laws, limits humanitarian protection to asylum seekers, increases criminal prosecutions at the border, and drastically increases expedited deportations. (9)

It will cost over 8 billion dollars to build the wall Trump hopes will stop the "invasion" of immigrants at the U.S-Mexico border (10)--the very border that was created when the United States invaded, occupied, and annexed half of Mexico's territory. (11) Indeed, almost all of Texas, New Mexico, Arizona, California, Nevada, and Utah, as well as portions of Colorado, Kansas, and Oklahoma, were part of Mexico until the Mexican-American War (1846-1848). (12)

The 2,000-mile border created by U.S. invasion and conquest of northern Mexico not only represents a manifestation of the "geographical violence of imperialism," (13) but also bisects Tohono O'odham Nation lands which stretch across southern Arizona and northern Mexico. (14) Specifically, sixty-two miles of the U.S.-Mexico border run through Tohono O'odham Nation lands. (15) Members of the Tohono O'odham Nation live on both sides of the U.S.-Mexico border and have traveled throughout their lands to visit family, as well as to participate in cultural and religious ceremonies and traditions. (16) Bv blocking the ability of Tohono O'odham Nation members to travel throughout their ancestral lands, Trump's proposed border wall is an affront to Indigenous sovereignty and a threat to the future existence of Tohono O'odham Nation members: it closes off vital traditional passages and ancestral connections. (17)

Just weeks after Trump issued his "Border Wall" executive order, the Tohono O'odham Nation Legislative Council passed a resolution in opposition to Trump's border wall. (18) The resolution states that a continuous wall would further divide Tohono O'odham Nation's historic lands and communities; prevent tribal members from making traditional crossings for ceremonial and religious purposes; deny tribal members access to traditional cemeteries for burying family members; prevent wildlife from conducting essential migrations; harm endangered species of wildlife that are sacred to the Tohono O'odham Nation; destroy culturally significant plants; militarize the lands on the Tohono O'odham Nation's southern boundary; and destroy tribal sacred sites and human remains. (19) Tohono O'odham Nation activists and leaders have joined the Council's opposition to Trump's border wall. (20)

In addition to the Tohono O'odham Nation, over twenty-four Indigenous communities who live along the U.S.-Mexico border will be impacted by a physical border wall. (21) Trump's Border Wall executive order not only flagrantly disregards--and threatens the continued existence of--Indigenous communities, but also criminalizes and dehumanizes all immigrants who are seeking entry at the southern border. (22) Trump's Border Wall executive order brings into laser-focus the enduring processes of U.S. settler colonialism and exposes the United States as a present-day settler colonial society--a society whose laws and policies continually support the ongoing processes of Indigenous elimination and the subordination of racialized outsiders.

At a time when U.S. immigration laws and policies continue to be used to oppress, exclude, subordinate, racialize, and dehumanize, this Article seeks to broaden the understanding of the U.S. immigration system using a settler colonialism lens. (23) The Article proceeds as follows. Part I begins by explaining the foundational and enduring processes of settler colonialism and situating the U.S. immigration system within those mechanisms. Part II locates the U.S. immigration legal system at the heart of the settler colonialism project by providing a settler colonialism-framed analysis of the National Security Entry-Exit Registration System (NSEERS) and Trump's immigration policies. Part III showcases solidarity movements between Indigenous and immigrant communities and acts of resistance to engender transformative visions and solutions that ignore the boundaries of the U.S. immigration legal system. Finally, Part IV sets forth pedagogies

that disrupt traditional immigration law pedagogy by increasing awareness of settler colonialism in the immigration law classroom.

  1. THE FOUNDATIONAL PROCESSES OF U.S. SETTLER COLONIALISM

    The United States represents "the most sweeping, most violent, and most significant example of settler colonialism" in the world. (24) U.S. settler colonialism's ongoing structure of invasion operates through three separate vet interconnected mechanisms: Indigenous elimination, the subordination of people of color, and the creation and enforcement of laws designed to maintain the processes elimination and subordination.

    1. Indigenous Elimination

      Indigenous elimination is foundational to U.S. settler colonialism. (25) Elimination refers to the liquidation of Indigenous people through a variety of methods including: genocide, (26) enslavement, (27) forced removal, (28) confinement to reservations, (29) and intricate biological and cultural assimilation programs that strip Indigenous people of their culture and replace it with settler culture. (30) The forced removal of Indigenous children from their families to government-funded residential boarding schools provides a quintessential example of a settler colonial cultural assimilation program of elimination--a program that was proudly designed by a U.S. settler colonialist to "kill the Indian and save the man." (31) In his poignantly titled book, Education for Extinction, David Wallace Adams remarks, "the white man had concluded that the only way to save Indians was to destroy them, [and] that the last great Indian war should be waged against children." (32)

      In 1879, settler colonialist Richard Henry Pratt established the first government-funded residential boarding school in order to assimilate Indigenous children. (33) Indigenous parents who refused to allow their children to attend the boarding schools were either subdued by police while their children were taken from them, (34) or else imprisoned. (35) Once in these schools, Indigenous children were literally stripped of their culture--stripped of their clothes, hair, names, language, spiritual practices--and often subjected to dismal housing conditions, poor food quality, forced labor, physical and sexual abuse, sexual exploitation, starvation, and incarceration. (36)

      The detrimental psychological, social, and cultural impacts of these boarding schools on Indigenous families and communities continue into the present. (37) The trauma of shame, fear, anger, loss of language, loss of culture, loss of connection with family, loss of identity-compounded by the trauma of abuse and exploitation--has led to enduring and devastating impacts on subsequent Indigenous generations, resulting in higher rates of substance abuse, domestic violence, and incarceration. (38) The ongoing impact of the residential boarding school program on Indigenous communities underscores settler colonialism's ongoing process of Indigenous elimination. In fact, some government-funded residential boarding schools continue to operate in the United States today. (39)

    2. Subordination of Racialized Outsiders

      In addition to Indigenous elimination, settler colonialism depends on the subordination of racialized outsiders in order to extract value from the invaded and expropriated Indigenous lands, secure its colonial foothold, and fuel its expansion. (40) Subordination refers to a variety of methods and practices such as enslavement, exploitation, exclusion, criminalization, manipulation, and elimination. (41) The transatlantic African slave trade, in which...

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