Who's Afraid of "Settler Colonialism"?

Previous articleNext article FreeReading Regents and the Political Significance of LawCristina M. RodríguezCristina M. Rodríguez Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreWhen the Supreme Court handed down its decision in Department of Homeland Security v. Regents of the University of California, in June 2020, advocates celebrated. DACA—an acronym that no longer requires definition—lived to see another day.1 Newspaper headlines marked the decision as a decisive rebuff of the Trump administration’s efforts to end the Obama-era program that shielded so-called Dreamers from deportation while authorizing them to work in the United States.2 Initiated in 2012, the Deferred Action for Childhood Arrivals program had survived almost four years of a presidential administration overtly hostile to immigrants and immigration—a government bent on unraveling as much of the administrative and political legacy of its immediate predecessors as possible.3 The Supreme Court largely affirmed the Ninth Circuit’s holding that efforts by the Department of Homeland Security (DHS) to rescind DACA were arbitrary and capricious and therefore invalid, sending DHS back to the drawing board to accomplish its objectives.4 With the 2020 presidential election less than five months away and the very real possibility of regime change in the air, the decision seemed decisive. The Supreme Court had saved DACA, at least for the time being.On the other side of the presidential election, we can now say that the Dreamers and their lawyers succeeded in using the courts to run out the clock on one of the more high-profile efforts of the Trump presidency. This success calls for an explanation. The original legal theory of DACA was predicated on its discretionary and therefore defeasible character. The government justified DACA as a series of individual acts of prosecutorial discretion, defined as the inherent discretion law enforcement officials possess to forbear from enforcement, at their convenience, in order to prioritize enforcement resources. DACA’s founding document—a memorandum issued by the Secretary of Homeland Security—included the disclaimer standard in Executive orders and agency guidance documents: “this memorandum confers no substantive right.”5 DACA’s promise, then, lasted as long as the Executive wanted it to. The promise was durable as long as President Obama remained in office but unenforceable should the Executive branch fall into the hands of officials hostile to the program.Given the apparently weak anchor DACA provided, why was it so difficult for a new administration, whose enforcement priorities did not include categorical forbearance for Dreamers, to reorient the enforcement system in its preferred direction? A conventional answer, repeated as a description of many of the Trump administration’s stumbles across regulatory arenas, was that officials were incompetent, sloppy, and disingenuous. The myriad court opinions in the DACA rescission litigation of the Trump years, from across the country and up and down the judicial hierarchy, reflected a version of this thesis. No court concluded that DACA was required by law. All parties, including the Supreme Court, seemed to agree that an administration could end the program.6 But despite efforts to respond to the demands and criticisms of the lower courts, the Trump administration could not find its way to its desired conclusion.But if the Court has implicitly acknowledged that DACA is not legally required and expressly stated that the government has the authority to wind it down, in what sense was Regents a major victory? In this essay, I argue that Regents is not a triumph in immigration law or even a decision of immigration law; far from it, the opinion contains a roadmap to DACA’s demise. The decision’s salutary outcome for immigrants also distracts us from a more ominous turn in the Roberts Court toward a reading of the immigration laws that empowers both Congress and the President to do as they please—a reading exemplified by one of the Term’s other decisions, Department of Homeland Security v. Thuraissigiam, in which the Court rejects a Suspension Clause challenge to expedited removal proceedings.7Regents does reflect a kind of political triumph, however, not just because DACA was saved but because the Court calls attention to the profound interests its recipients have in remaining in the United States and thus to their new social status, separate and apart from their legal status. And yet, within the Regents decision itself, as well as in the legal claims made against the Trump administration, are the very tools with which courts might again stymie political change designed to advance immigrants’ rights, relying on the exacting procedural regularity championed in Regents by Chief Justice Roberts.I. The Trump Administration’s Failed RescissionChief Justice Roberts opened his opinion in 2012, at the moment of DACA’s inception. But to understand what DACA sought to achieve as a matter of administration, it is important to understand what it replaced. As most every court to have heard a DACA-related dispute has recognized, implicit in the operation of an immigration enforcement regime is the authority of Executive officials to set priorities for law enforcement agents. Those priorities can encourage agents to forbear from arresting or deporting otherwise removable non-citizens as part of a larger systemic interest in channeling resources toward removals in the government’s highest interests. Beginning in 2010, Obama-era DHS officials articulated a set of priorities in guidance documents (known as the Morton Memos) in an effort to encourage line-level officials to consider non-enforcement against certain types of individuals, including those who met the criteria that would eventually define DACA – the hundreds of thousands of non-citizens lacking immigration status who had been brought to the United States as youth.8 After two years of trying to steer the enforcement system with these exhortations, DHS officials determined that few obvious or publicly visible changes to enforcement practices had occurred. The Department’s political leadership, in conjunction with the White House, thus devised DACA to protect Dreamers from deportation. The program, adopted by what came to be known as the Napolitano memorandum, invited applications for forbearance from those who satisfied carefully drawn eligibility criteria, virtually ensuring, though not guaranteeing, protection and work authorization for Dreamers.9By the time President Donald Trump took office, more than 750,000 Dreamers had been granted DACA status,10 which provided them actual and psychological relief from removal and enabled them to enter the workforce and live as if their immigration status were immaterial. As a candidate, Donald Trump vowed to rescind DACA immediately, but in his initial months in office, President Trump himself expressed ambivalence and even reservations.11 In September 2017, however, Attorney General Jefferson Sessions sent a one-page, four-paragraph letter to Acting DHS Secretary Elaine Duke to “advise” that DHS should rescind the Napolitano memorandum initiating DACA on the ground that DACA was “an open-ended circumvention of immigration laws” and “an unconstitutional exercise of the authority of the Executive Branch.”12 The next day, in what had to have been a coordinated decision within the administration, Secretary Duke released her own memorandum terminating DACA,13 citing the Attorney General’s letter and the litigation that had called into question the legal authority for a second but now moribund Obama-era deferred action policy (Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)).14 The timing and content of each of these two administrative documents became central to the Supreme Court’s resolution of the legal question before it—whether the Trump administration’s efforts to rescind DACA had been lawful.The court case began in three different circuits, where an array of plaintiffs raised numerous substantive claims, two of which ended up before the Supreme Court: that the rescission of DACA was arbitrary and capricious in violation of the Administrative Procedure Act and that the rescission violated the Equal Protection Clause of the Constitution. In its culminating opinion, the Supreme Court first concluded that DACA did not fall into the class of non-enforcement decisions long held to be unreviewable by courts on the authority of Heckler v. Chaney.15 DACA amounted, instead, to a full-blown program for granting immigration relief and attendant benefits, justifying judicial review—review that jurisdiction-stripping provisions of the Immigration and Nationality Act (INA) also did not preclude. The Court then proceeded to hold that the rescission of DACA in its entirety was indeed inconsistent with the requirements of the APA but that none of the plaintiffs’ allegations established a “plausible” claim of racial animus under the Equal Protection Clause.But DACA was a discretionary program that the administration should have been able to undo easily, not a program that should have survived more than three years of a concerted rescission effort (assuming Trump officials’ hearts were in it). Why did a clearly permissible outcome evade the Trump administration? Though incompetence has been charged repeatedly in public commentary, the explanations offered by Chief Justice Roberts underscore that the federal courts’ conceptualization of the administration’s fault changed throughout the litigation.In his letter to Secretary Duke, Attorney General Sessions justified the rescission as legally required, in part citing the litigation risk that maintaining the program posed, given that the Fifth Circuit had invalidated President Obama’s similarly structured DAPA initiative.16 At the time, Adam Cox and I argued that the administration was hiding behind flimsy legal arguments to duck political responsibility and accountability for ending a widely popular and successful program.17 The lower courts quickly put a stop to this evasion by demanding that the Trump administration provide reasons for the rescission beyond what the courts viewed to be erroneous legal claims.18 Judge John Bates in the District for the District of Columbia actually gave the administration an opportunity to remedy the APA violation by providing the court with a more extended rationale for the rescission.19 The administration obliged with a memorandum from a new DHS Secretary, Kirstjen Nielsen, in which she purported not to disturb the Duke memorandum and its legal conclusions but added multiple policy reasons to justify the rescission.20 By elaborating on its legal reasoning and offering a policy rationale for ending DACA that could justify the rescission if the court continued to find the legal reasoning wanting—just the sort of rationale courts typically do not second-guess—the path to rescission seemed to have been cleared.And yet, at the Supreme Court, the sufficiency of the Nielsen memo went untested. In its opinion, the Court dismisses the memo’s relevance because it had been framed as an elaboration of the Duke memo and yet bore “little relationship” to the original purported basis for the agency action.21 Under hornbook administrative law, then, the Nielsen memo constituted an irrelevant post hoc rationalization. In support of this conclusion, the Court lists the familiar case law, for which the standard citation is SEC v. Chenery Corp.22, and the reasons for rejecting an elaborated justification and insisting that the agency start a new policy process or issue a new decision to invoke new reasons: that such requirements promote accountability, ensure the parties and public can respond to the agency’s authority, preserve the orderly process of review, and constrain the agency from making its reasons and therefore its policy a moving target.23Thus focused on the Duke memo, the Supreme Court offers a two-part reason for finding the rescission procedurally flawed, each part of which I consider in more detail in Part II. The first is a legal rationale not yet hit upon by the federal courts but offered by the respondents from the District of Columbia: according to the Court, the Sessions letter had concluded that DACA was unlawful because it contained the same legal defects the Fifth Circuit had found in DAPA. Because the Fifth Circuit focused its analysis on the benefits DAPA conferred (primarily eligibility for work authorization), the Secretary failed to appreciate that the Sessions letter left her with discretion to decouple the two parts of DACA and consider whether its forbearance policy standing alone, without benefits, passed legal muster.24 The second of the Court’s rationales also sounds in basic administrative law—that when it changes a policy, an agency must consider the reliance interests engendered by that policy, not because those interests are necessarily legally dispositive, but because they are always substantively relevant.25 Leaving aside the puzzlement expressed by Justice Thomas in his partial dissent—why should these reliance interests matter if some or all of the program itself was without legal foundation?—the Court gave the administration two clear assignments on remand if it hoped to continue the rescission effort.With this move, Chief Justice Roberts found a political sweet spot for someone hoping not to take sides on the merits. He did not allow the rescission to proceed, but he also avoided concluding that DACA was lawful. He thus did not close the door to an eventual gutting of DACA through elimination of the path to work authorization that made it so valuable. But whether Regents amounts to a “win” depends both on whose perspective we take and the timeframe we adopt. In the months after the decision, DACA recipients had clearly triumphed. The story’s denouement unfolded in a courtroom in the Eastern District of New York. After Regents, the government did indeed return to the drawing board. Attorney General William Barr rescinded all DOJ authorities relevant to the case, including a 2014 memorandum from the Office of Legal Counsel elaborating why the much larger DAPA program was consistent with the INA and within the Secretary’s authority.26 At DHS, Acting Secretary Chad Wolf rescinded the Nielsen and Duke memoranda and styled his own memo as beginning the process of considering DACA anew. He pledged that, while DHS conducted its fresh process, the agency would honor existing DACA grants but would no longer adjudicate new or pending applications. In his memorandum explaining these steps, Acting Secretary Wolf acknowledged the reliance interests of existing DACA holders by repeating back the Supreme Court’s articulation of those interests. But he then offered: “[w]hatever the merits of these asserted reliance interests on the maintenance of the DACA policy, they are significantly lessened, if not entirely lacking” for those who had never received deferred action in the first place.27Litigants immediately challenged this new quasi-rescission. But rather than determine if DHS had properly adhered to the procedural path cleared by the Supreme Court, Judge Nicholas Garaufis found Wolf’s appointment to have been unlawful, thus invalidating his actions as lacking authorization—a conclusion reached by numerous courts reviewing various DHS actions in the waning days of the Trump administration.28 Whether DHS could correct this structural defect and try yet again to rescind DACA became moot with the election of Joseph R. Biden to the presidency in November 2020. Biden pledged during the campaign to shore up DACA. Not long after his inauguration, he followed through by declaring his intention to “fortify” the program.29But even though the election brought the rescission saga to an end, a deeper, more speculative strain of Regents is now in play. Despite being a procedural decision on its surface and in its holdings, Chief Justice Roberts’s novel reasoning forecasts still more legal wrangling over both DACA’s validity and, more generally, the capacity of a new president to chart a different path on immigration policy.II. Immigration and the Roberts CourtRegents ensured that DACA would survive into a new administration determined to preserve it. But the decision itself is neither a victory for immigrants’ rights in a jurisprudential sense nor a particularly probative data point in a more holistic account of immigration law in the Roberts era. Most immediately, the opinion provides a roadmap to DACA’s demise by inviting litigants and judges to separate its two pillars—categorical forbearance from removal on the one hand and eligibility for work authorization and benefits tied to deferred action status on the other—and to invalidate the latter. Beyond DACA, the prospects for a jurisprudence that restrains the coercive power of the government against non-citizens grew even dimmer this Term, despite Regents. In the unrelated decision, the Roberts Court yet another challenge to the of a enforcement and removal power expressly by what to be the Court’s from its of of the INA with a for basic process This opinion much less interest from the and public than the of DACA, but it is of far to the of immigration law first to DACA through the courts is its which the Regents Court to do As DACA was an exercise of the Secretary’s enforcement of typically from judicial The so-called benefits of DACA from the decision to forbear from removal in of and administrative back that those benefits to a of deferred it that the Obama administration deferred action as the through which to provide Dreamers some relief because of these legal discretion to an established regulatory with a and process by which recipients of forbearance could for authorization documents in various of the litigation over both DACA and the Supreme Court and the lower courts have the government’s across that the are unreviewable of enforcement In Regents, the Court to Heckler v. and its holding that the decision to to the law is not to judicial because it is to agency discretion, that is not a non-enforcement By an process to who met criteria, the administration a for immigration not a non-enforcement By DACA as a program with each to legal review, the Court thus the for the government by the of what the administration to accomplish in a way that more procedural and the of judicial despite finding DACA to be the Court does not to the of its parts on the merits. the Court fault with the Secretary’s own to decouple DACA’s two and then the and of a In finding this legally to the Secretary, Roberts is the Sessions letter to Secretary Duke, as the Chief Justice himself the Secretary’s in not clearly the Roberts and legal on DACA as a But Roberts on the that DACA policy has the same legal defects that the courts as to to chart his through the In the litigation over the Fifth in v. United had determined the relevant legal question to be whether the Secretary had authority to DAPA recipients for benefits, not whether he had authority to forbear from the class of who into the In other even under letter and the of litigation risk raised by the Fifth the Secretary could have a version of DACA. And under administrative v. agency to rescind a policy must consider in its whether the of the existing might be Because forbearance was at the very of DACA, DHS to have a policy of without and the Sessions letter did not that Regents opinion thus gave the Trump administration a a to DACA and for The agency could return to the drawing find the benefits to be legally while maintaining a policy, which it then could have out if it had articulated policy reasons for this of enforcement that took into account reliance interests on which And as in what out to be the waning months of the Trump administration, Chad Wolf the rescission process to a that the Court’s before Judge Garaufis found his authority the Court’s roadmap is no longer of to the administration But it does steer litigants of for to challenge DACA’s very down a clear path that the Court Despite not DACA’s the and reasoning of the Court’s opinion are both forbearance the of work authorization and other benefits is in This in part from the on by the Chief Justice of the Fifth Circuit’s reasoning in v. United which after a lower court decision an immigration relief program not actually at issue in Regents and that did not in a Supreme Court decision on the merits. be Attorney General Sessions put the Fifth Circuit opinion at issue by to on it in his DACA letter to the But not does Chief Justice Roberts v. United States and the of DAPA into his of the of the DACA he in an extended of the Fifth Circuit’s analysis when Secretary that she had no legal discretion to continue DACA. In his of the decision, Chief Justice Roberts up making a case for the of the And by that the Secretary consider this he is at the very least that it well be legally if not legally put if the Chief Justice it that a forbearance policy the legal it would have been for to the matter back to the agency for of an to the litigation over DAPA its not to raised the categorical forbearance it same legal Justice Thomas in his Regents opinion from the APA in which he Congress has not categorical to the removal But by the time the DAPA case had reached the Fifth that court seemed to have forbearance as a of the authority to prioritize removal for a court to the forbearance of DACA would be a of a very basic enforcement As Adam Cox and I have DACA is no less enforcement discretion for the of discretion to the Secretary and away from individual even as individual agents continue to that we have a presidential administration that to rather than wind down DACA, the central of in the Regents opinion into the courts the Biden administration to continue eligibility for work authorization other to recipients of deferred action under the DACA DACA’s to its on the to this Though a promise of forbearance the and psychological with the of eligibility for work authorization is what has made DACA for hundreds of thousands of non-citizens without legal status who are Chief Justice Roberts does not on the merits whether DHS has the authority to eligibility for work But he also does not take the of of the lower courts, which the Trump administration’s conclusion that DACA was He offers as an for the agency a that work authorization for being Sessions had but on with if the administration had through with such an and it had reached the Supreme Court a second time, Roberts and his upon would have in that of work authorization was After the making deferred action recipients to for back to the The administration would then have had to rescind or those after through and and why it was so – that, as even Justice recognized, would be no But would the Chief Justice have sent the Trump administration back for more memoranda he them to and for all up with articulated policy reasons for all of DACA, the for the Court to the of DACA on the the Court was to a decision on the the 2020 election have its the Biden administration has its intention to DACA through and This to more procedural to the program in the of it through what be a legal by the of and some of its in the District of where the who invalidated DAPA now on the and when DACA to the Court under this new no one should be if forbearance at the end, it to Congress to provide a anchor of for the The way the Chief Justice in Regents the work authorization question as for legal and the expressed by some of the at in the DAPA case back in justify the litigation risk with DACA as the Court does indeed to on a version of DACA, its decision Regents as an of the Court’s of administrative and an that Executive be by clear and even In so the Court would the of the Executive branch to and into its of a deportation regime that Congress thus far has been or to This of the Executive in the of accountability and the of would in turn another of immigration law that the Supreme Court but has been in years, including during the a of decisions over the years, the Court has the of its opinion in Regents, finding that DHS has power to to the immigration laws in of In at least two the Court rejects the of and on the political in that from And in other the Court provisions with to that would be of immigrants’ including in that in basic In other the real of the Roberts Court’s immigration jurisprudence has been to the political in with waning interest in the Executive the power Congress has to

Reproductive Injustice at the Southern Border and Beyond: An Analysis of Current Events and Hope for the Future.

Wakefield's Offspring

Buttered Bagels

<i>Security Theology, Surveillance, and the Politics of Fear</i> by Nadera Shalhoub-Kevorkian

Locating Settler Colonialism in Early American History Jeffrey Ostler (bio) Is settler colonialism simply a trendy buzzword, or will it become an enduring and useful concept in North American history in general and early American history in particular? Recent criticisms (some seen in print, some heard in conference sessions and hallways) object to theorizations and applications of settler colonialism that appear reductionist and teleological, arguably leave little room for contingency, and risk reversing advances in the field that highlight Native agency and resist declensionist narratives of Native disappearance. Other critical commentary seems to imply that settler colonialism may be a useful framework (at least for some times and places) if modified and more carefully applied, while still other commentary suggests that the concept is more or less useless, if not dangerous, and should be encouraged to expire.1 Whether or not criticisms of settler colonialism will lead to the concept's elimination is anyone's guess. In my view, however, the concept is useful not simply as a theoretical construct but because it identifies an actual historical phenomenon. For that reason, it should be interrogated and refined, but it should also be retained. In other words, in the same way that scholars who object to particular theories of capitalism seldom deny capitalism's reality, problems in theorizing settler colonialism do not mean that it does not exist. If settler colonialism is a name for an actual historical phenomenon, where and when can it be found in early American history? [End Page 443] One place is in the founding of the United States, a process beginning with the Treaty of Paris in 1763 and ending around twenty-five years later with the Constitution's ratification. Although some accounts of the coming of the American Revolution continue to focus exclusively on matters of taxation and urban protest, a growing body of scholarship, partly inspired by a general recognition that American Indians are central to early American history, has emphasized the role of the 1763 Royal Proclamation, which restricted western settlement and created uncertainties for speculators in Indian lands.2 Although this scholarship has not necessarily invoked the concept of settler colonialism, it leads to the conclusion that a central purpose of the founding of the United States was to secure the freedom to convert Indian lands into private property, a process that meant, to use settler colonialism's terminology, the elimination of Indigenous people. This purpose was revealed during the Revolutionary War through U.S. military operations against Native nations that aimed not simply to defeat Indians allied with the British but to destroy Natives' resistance to colonial settlement in general and thus gain control over their lands.3 The importance of obtaining Native lands was also evident in the making of the Constitution, which established mechanisms for funding a national army to subjugate the multinational confederacy (including Shawnees, Delawares, Wyandots, Ottawas, Potawatomis, Miamis, Chickamauga Cherokees, and others) formed to defend its Ohio Valley territories in the late 1780s and early 1790s.4 Combined with the Northwest Ordinance (1787), which allowed new states to be admitted "on an equal footing" while at the same time sanctioning genocidal war against Native nations that resisted U.S. demands for their lands, the Constitution's federalism provided a framework for containing tensions between frontier/localism on the one hand and metropolitan/national authority on the other. In doing so, the nation's founding document created the cohesion necessary to pursue elimination.5 [End Page 444] To identify the elimination of Native people as central to the United States' founding does not mean that they were actually eliminated. Although the United States claimed a good portion of eastern North America, its ambitions often exceeded its capacity, especially in its early years. But the United States was nothing if not relentless, and even after military failures, most notably the Native confederacy's defeat of Arthur St. Clair's army in 1791, the federal, state, and territorial governments continued to mobilize fresh bodies for war and thereby wear down Native resistance. Using treaties as a mechanism for dispossession, the United States chipped away at Native lands in the Southeast, the Ohio Valley, and the lower Great Lakes...

Reflections on Settler Colonialism, the Hemispheric Americas, and Chattel Slavery Stephanie E. Smallwood (bio) Attention to "settler-driven" colonies as a distinct form first emerged in the context of the long nineteenth century of modern British imperial expansion.1 It was in that context that geographer A. Grenfell Price extolled the vision of British colonialist Edward Gibbon Wakefield, to whom "credit" was to be given for "evolving an economic, social and political theory of colonisation, calculated to be of equal benefit both to England and her colonies," that prioritized emigrant settlement.2 More precisely, what Price valorized in his analysis of colonizing was racial differentiation and its enduring reproduction across time. Measured against a standard that valued "permanent colonization" of European emigrants and their reproduction as exogamous and racially exclusive settler communities, Price figured the long history of "white" colonial settlement (by which term he meant to designate a plurality of [End Page 407] "white races of European ancestry," inclusive of both "northern whites" and "Mediterranean whites") as an extended litany of failures reflecting what he characterized as "the problem of white settlement in the tropics."3 Amid growing British metropolitan anxiety and debate about the management of imperial rule, the settler colony merited analysis and praise, then, as an exemplar that modeled lessons learned from the past and portended a stable and enduring means to the end of British global hegemony.4 The critical theorization of settler colonialism that has emerged in the wake of anticolonial mobilizations of the 1960s and 1970s turns this imperialist romanticism on its head.5 In its most widely cited iteration, settler colonial critique posits that settler colonizing turns specifically on an expropriation of Native land that rejects, rather than exploits, Native labor. "Settler colonialism," writes anthropologist Patrick Wolfe, "seeks to replace the natives on their land rather than extract surplus value by mixing their labor with a colony's natural resources."6 Instead, Wolfe elaborates, settler colonialism "brings its own labor."7 The result is a colonialism that seeks to eliminate Native societies. Indeed, this "logic of elimination" is the "organizing principle" of the settler colonial form.8 What Wolfe calls "franchise colonialism" is the correlate against which the particular features of the settler colonial form are posited. Offering British India and Dutch Indonesia as examples of the former, he defines the "franchise" colonial phenomenon as "a situation where Whites oversaw a system in which natives worked for them." If settler colonists seek to [End Page 408] eliminate and replace Indigenous peoples whom they regard as superfluous and in the way of their own arrogation of territorial dominion, then in the franchise colonial setting, colonists "sit on top of native society and set it to work for them on their own land," making the Indigenous "indispensable to the project of extracting surplus value."9 The difference between settler and franchise colonialisms manifests itself most clearly in the outcome of nationalist mobilizations for independence. In the franchise setting, postcolonial independence results in white colonists being "throw[n] . . . out," according to Wolfe.10 Having only ever been a demographic minority, "the Whites turn out not to have been established in the same way that settler colonizers have been established."11 But the opposite is the case in the settler context. Regarding Australia, for instance, Wolfe explains that white colonists "went to Australia to replace Aborigines and themselves become Australians, so their children would be Australians and Australia would then go on forever."12 Given that, what settler colonial critique problematizes most directly is the enduring continuity of colonial relations of power that imperialists such as Price celebrated and romanticized. As the claim most readily associated with settler colonial critique asserts, "settler colonizers come to stay," with the result that the invasion at the heart of settler colonialism "is a structure not an event."13 Settler colonial theory's problem space, then, is the as-yet-unfinished project of decolonization, and the principal work the settler colonialism concept does is to account for the process of supersession whereby the settler colony is replaced by the "settler-colonial state"—the independent polity born of (white) colonizing settlers turned sovereigns and the eliminatory logic that authorizes the...

The Trump administration has made the construction of an “impregnable” 2,000-mile wall across the length of the US-Mexico border a centerpiece of its executive orders on immigration and its broader immigration enforcement strategy. This initiative has been broadly criticized based on: • Escalating cost projections: an internal Department of Homeland Security (DHS) study recently set the cost at $21.6 billion over three and a half years; • Its necessity given the many other enforcement tools — video surveillance, drones, ground sensors, and radar technologies — and Border Patrol personnel, that cover the US-Mexico border: former DHS Secretary Michael Chertoff and other experts have argued that a wall does not add enforcement value except in heavy crossing areas near towns, highways, or other “vanishing points” (Kerwin 2016); • Its cost-effectiveness given diminished Border Patrol apprehensions (to roughly one-fourth the level of historic highs) and reduced illegal entries (to roughly one-tenth the 2005 level according to an internal DHS study) (Martinez 2016); • Its efficacy as an enforcement tool: between FY 2010 and FY 2015, the current 654-mile pedestrian wall was breached 9,287 times (GAO 2017, 22); • Its inability to meet the administration's goal of securing “operational control” of the border, defined as “the prevention of all unlawful entries to the United States” (White House 2017); • Its deleterious impact on bi-national border communities, the environment, and property rights (Heyman 2013); and • Opportunity costs in the form of foregone investments in addressing the conditions that drive large-scale migration, as well as in more effective national security and immigration enforcement strategies. The Center for Migration Studies (CMS) has reported on the dramatic decline in the US undocumented population between 2008 and 2014 (Warren 2016). In addition, a growing percentage of border crossers in recent years have originated in the Northern Triangle states of Central America (CBP 2016). These migrants are fleeing pervasive violence, persecution, and poverty, and a large number do not seek to evade arrest, but present themselves to border officials and request political asylum. Many are de facto refugees, not illegal border crossers. This report speaks to another reason to question the necessity and value of a 2,000-mile wall: It does not reflect the reality of how the large majority of persons now become undocumented. It finds that two-thirds of those who arrived in 2014 did not illegally cross a border, but were admitted (after screening) on non-immigrant (temporary) visas, and then overstayed their period of admission or otherwise violated the terms of their visas. Moreover, this trend in increasing percentages of visa overstays will likely continue into the foreseeable future. The report presents information about the mode of arrival of the undocumented population that resided in the United States in 2014. To simplify the presentation, it divides the 2014 population into two groups: overstays and entries without inspection (EWIs). The term overstay, as used in this paper, refers to undocumented residents who entered the United States with valid temporary visas and subsequently established residence without authorization. The term EWI refers to undocumented residents who entered without proper immigration documents across the southern border. The estimates are based primarily on detailed estimates of the undocumented population in 2014 compiled by CMS and estimates of overstays for 2015 derived by DHS. Major findings include the following: • In 2014, about 4.5 million US residents, or 42 percent of the total undocumented population, were overstays. • Overstays accounted for about two-thirds (66 percent) of those who arrived (i.e., joined the undocumented population) in 2014. • Overstays have exceeded EWIs every year since 2007, and 600,000 more overstays than EWIs have arrived since 2007. • Mexico is the leading country for both overstays and EWIs; about one-third of undocumented arrivals from Mexico in 2014 were overstays. • California has the largest number of overstays (890,000), followed by New York (520,000), Texas (475,000), and Florida (435,000). • Two states had 47 percent of the 6.4 million EWIs in 2014: California (1.7 million) and Texas (1.3 million). • The percentage of overstays varies widely by state: more than two-thirds of the undocumented who live in Hawaii, Massachusetts, Connecticut, and Pennsylvania are overstays. By contrast, the undocumented population in Kansas, Arkansas, and New Mexico consists of fewer than 25 percent overstays.

Hidden from view, underneath the tourism landscape of the California redwoods, is a genocidal settler colonial history of warfare, massacres, and forced removal of Native Americans from their ancestral lands. This history has been ignored in the touristic narrative of people and place presented by a redwoods attraction in northern California, which are rife with unacknowledged histories and geographies of violence. Framed by scholarship on violent geographies in tourism development, this study shows how redwoods tourism has erased Indigenous people and history from the landscape, and how new ‘power-laden’ tourism imaginaries have been created in their place. The new tourism narrative is found in the spatial layout, interpretive signage, exhibits, website, museum of Native American artifacts, and interpretive trails in a roadside attraction called Trees of Mystery. Secondary historical literature and maps of local Yurok ancestral territory and land ownership construct a counter-narrative of the site's geography and history. Findings reveal a fanciful settler colonial history highlighting heroic male loggers on the ‘frontier’, and representations of ingenious Native Americans as historic people who produced beautiful tools, clothing and artwork but are now defeated, dead, and exotic. In fact, white settlers, backed by the U.S. Army and local militias, appropriated and logged Native American redwood lands, and in doing so massacred resident Yurok People and forced the survivors from their traditional territories. Conversely, the Yurok People have been reclaiming ancestral lands, reviving cultural practices, and resisting settler colonialism from the early 1800s to the present-day. Across the Americas, countless other settler colonial tourism sites like these sit upon violent geographies. Unearthing the hidden geography of this particular site shows how decolonizing research might be undertaken at other tourism sites situated on stolen Indigenous lands in the U.S. and beyond.

This paper analyzes Donald Trump's political rhetoric and strategy through the lens of revanchism, settler colonialism, and racial capitalism. Focusing specifically on Trump's declared intent for retribution, it situates his discourse within a longstanding geographical imagination embedded in settler-colonial logics. The paper illustrates how this rhetoric intensifies existing social inequalities and fuels reactionary political movements that seek to reinforce traditional hierarchies of race, class, and gender, which are rooted in neoliberal restructuring. Drawing on historical and contemporary examples—from Confederate symbolism invoked by Trump's supporters to racialized conspiracies propagated during electoral campaigns—the paper's analysis calls for scholars and political actors to engage with the geographic imaginaries that sustain Trumpism. By illustrating the interconnections between settler colonialism, racial capitalism, and neoliberalism this research contributes to a broader understanding of the spatial dimensions of reactionary political movements, highlighting the necessity for confronting revanchist strategies and their implications for American democracy and society.

Immigrant doctors have helped fill physician shortages for years. In the current political climate, are they welcome?

Migrant Protection Protocols and the Death of Asylum Austin Kocher the death of asylum From January 2019 to January 2021, a Trump-era policy known as the Migrant Protection Protocols (MPP) forced asylum seekers arriving at the U.S.-Mexico border to wait for their hearings in dangerous parts of northern Mexico (Department of Homeland Security, 2019). MPP had disastrous consequences: very few migrants in MPP had a meaningful chance to request asylum compared to other asylum seekers (Transactional Records Access Clearinghouse, 2019a), and migrants forced to wait in Mexico faced pervasive violence (Human Rights First, 2021b). President Biden suspended new enrollments in the program on his first day in office (Department of Homeland Security, 2021b) and, by late February 2021, migrants who were living in one of the refugee camps that emerged as a result of MPP in Matamoros, Mexico, began to enter the United States to pursue their asylum claims (Green, 2021). As the MPP program—also known as Remain in Mexico—appears to come to a close, this essay examines key aspects of the program through the perspective of ontological, political, and physical death that Alison Mountz theorizes in her recent book The Death of Asylum (Mountz, 2020). Drawing on Mountz's work, I view MPP as symptomatic of a concerted though spatially uneven assault across the developed world on both the institutions and operations of asylum as a practice as well as on asylum seekers themselves. By looking more closely at how MPP used to undermine the asylum process, this essay adds to the literature on the death of asylum. Specifically, I show that MPP led to lower rates of attorney representation, created new barriers to hearing attendance, and all but prohibited asylum for migrants who were forced into the program. Finally, I want to issue a word of caution in the context of the recent slate of policy changes implemented by the Biden administration, which, in contrast to the Trump administration, do provide both symbolic and material relief to migrants, but which also risk normalizing more fundamental inequalities and fissures within the asylum system itself. the legal topologies of "remain in mexico" The Migrant Protection Protocols were announced in December 2018 by the Department of Homeland Security (DHS) Secretary Kirstjen Nielsen as a response to what the agency called an "illegal immigration crisis" at the U.S.-Mexico border (Department of Homeland Security, 2018, para. 1). As Mountz and Hiemstra (2014, p. 383) argue, the frequent use of "crisis" by state agencies [End Page 249] in the context of migration is "intimately tied to geographic assertions of sovereign power." To put it differently, when the Department of Homeland Security (DHS) starts talking about a crisis, something wicked is waiting just around the corner. Indeed, starting in January 2019, asylum seekers arriving at the border were given a notice for their asylum hearing and forced to wait in Mexico until their hearing date with a judge. As a result, migrants formed tent encampments near ports of entry, such as the one in Matamoros across the border from Brownsville, Texas (Bassett et al., 2020). The camps symbolized legitimate concerns about the legality of MPP and raised questions about the safety of migrants enrolled in the program. On the face of it, MPP appeared to violate domestic and international refugee law by sending asylum seekers back to locations where they were likely to face unsafe conditions or further persecution, thus violating the principle of non-refoulment. Plaintiffs in a lawsuit filed against the Department of Homeland Security in 2019 alleged precisely this (Manning, 2020), and although federal judges granted an initial injunction against MPP (which would have forced DHS to pause the program), the courts also granted a stay on the injunction, which allowed the program to continue unimpeded while the case was litigated in court. Shortly after taking office, the Biden administration stopped defending MPP in court (Barnes, 2021), a move that has effectively ended MPP for now while also leaving questions surrounding MPP's legality unanswered. The legal challenges to MPP illuminate the ways in which MPP sought to undermine asylum at the border. As the Congressional Research Service explained (Harrington & Smith, 2019), typically, when migrants...

The Trump administration undertook a variety of actions related to the southern U.S. border in late 2018 and early 2019. Pointing to the progress of thousands of migrants traveling together from Central America to the U.S. border, President Trump deployed troops to the border and issued a proclamation providing that access to asylum would only be available at the southern border to those who entered through an authorized port of entry. Legal challenges to this proclamation and its implementation by the Department of Homeland Security (DHS) immediately followed, and a federal district court issued a temporary restraining order on November 19 and a preliminary injunction on December 19 against its enforcement. In addition, after ongoing negotiations with Mexico, the Trump administration announced that it would implement an arrangement under which asylum seekers would await their court date in Mexico rather than the United States. These ongoing developments are part of broader attempts by the Trump administration to erect barriers to migration across the southern border.

The Trump administration has continued its efforts to restrict immigration through a series of measures designed to limit the availability of asylum in the United States and to promote increased immigration enforcement in Mexico. In July of 2019, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) promulgated an interim final rule disqualifying asylum applicants who transited through third countries without seeking protection in those countries. This rule immediately became the subject of ongoing litigation, and, in September of 2019, the Supreme Court stayed an injunction that had been issued against its enforcement, with two justices dissenting. At the international level, over the summer and early fall of 2019, threats of economic sanctions led Guatemala, El Salvador, Honduras, and Mexico to make agreements with the United States aimed at curbing unauthorized migration into the United States. Guatemala signed an agreement with the United States under which asylum applicants in the United States who had transited through Guatemala on the way could be returned to Guatemala to pursue their asylum claims. El Salvador and Honduras also reached agreements with the United States relating to migration. Mexico committed to increasing its efforts to stem the flow of unauthorized immigration through its borders and assented to the U.S. expansion of its Migrant Protection Protocols. The Trump administration has continued pursuing other tactics to limit immigration and the availability of asylum, including through the issuance of legal decisions by Attorney General William Barr and continued litigation surrounding the construction of a border wall.

Reviewed by: I've Been Here All the While: Black Freedom on Native Land by Alaina E. Roberts Circe Sturm (bio) I've Been Here All the While: Black Freedom on Native Land by Alaina E. Roberts University of Pennsylvania Press, 2021 IN HER FIRST BOOK, I've Been Here All the While: Black Freedom on Native Land, historian Alaina E. Roberts offers a powerful and sophisticated account of Indian Territory in the Reconstruction era. Letting the land guide her lines of inquiry, Roberts makes a number of provocative arguments that upend traditional accounts of Reconstruction. By focusing on land contests in Indian Territory, she showcases the intimate connections between Black freedom and Indigenous sovereignty that were articulated and enacted during this period, especially as they were expressed in debates about tribal citizenship, community belonging, and territorial authority over land. In doing so, she extends the timeframe of Reconstruction another thirty years to include the allotment era at the turn of the century, when Indian freedpeople, meaning the former Black slaves of Chickasaws, Creeks, Choctaws, Cherokees, and Seminoles, were allotted tribal lands by the Dawes Commission. She argues that this often-overlooked time and place are in fact critical to historical accounts of Reconstruction because for a short time Indian Territory was one of the last places where Black people could escape Jim Crow, find land, and exercise political rights until Oklahoma Statehood in 1907. Roberts is careful not to romanticize the nature of this land holding or to ignore the contests over political authority that were taking place in the region. In fact, throughout the book she makes a strong case that all the various groups that arrived in Indian Territory, whether by force or choice, participated in settler colonialism and that they did so consciously and strategically to improve their own standing. According to Roberts, that strategic participation is as true for the Five Civilized Tribes that were removed from their homelands in the east and forced to settle on the traditional territories of other tribal communities, such as the Caddo, Kiowa, and Comanche, as it is for their former slaves who once walked the Trail of Tears to Indian Territory alongside them. What is so provocative about this argument is that Roberts convincingly challenges the standard racial narratives that are associated with settler-colonial theory, principally the idea that settlers are typically white. Instead, she carefully demonstrates how Blacks, Indian freedpeople, and Native Americans also participated in the project of settler [End Page 148] colonialism whenever they built communities on the homelands of other Indigenous people. The story of Indian Territory centers on the promise of freedom and autonomy that comes with land tenure, a longing that was shared by all the different migrants to the area; however, as Roberts so carefully points out, these dreams were largely realized through the expropriation of Indigenous land. She is unflinching in her critiques of the anti-Blackness and anti-Indigeneity that are at the heart of settler-colonial processes and are so evident in her historical account. Yet Roberts still manages to write with sympathy and compassion about all of the actors in her narrative. Her capacity to do so, I think, stems in part from her own positioning and how it informs her work. As a descendant of African Americans, Chickasaws, and whites who settled in Indian Territory, Roberts weaves her own family history into the narrative, bringing to light stories that might otherwise be left untold. In fact, of all the former slaves of the Five Civilized Tribes, Chickasaw freedpeople are the ones about which we know the least. Often, they have been marginalized in the historiography because they were the one group of emancipated slaves who were never granted tribal citizenship by their former owners. Though its subject matter ranges far beyond the case of the Chickasaws, Roberts's book does an excellent job of addressing these historical lacunae. This book establishes Roberts as a powerful new voice in the field of African American and Native American history. Rarely have I encountered a first book that is so meticulously researched, methodologically innovative, theoretically sophisticated and original, while also being entirely accessible to a general reader. Readers...