Paul Spruhan (Navajo Nation AG’s Office) has published, “The Canadian Indian Free Passage Right: The Last Stronghold of Explicit Race Restriction in United States Immigration Law” in the North Dakota Law Review. Paul continues his long string of outstanding articles in legal history and Indian law. This one should be of special interest to immigration specialists as well.

Here is an excerpt:

[T]his article reviews the tangled legal history of the Canadian Indian free passage right to answer the question why such a racial restriction continues to exist today. Part II-A discusses the origins of Indians’ free passage right in treaties between the United States and Great Britain, and a congressional statute passed in 1928. Part II-B, through an analysis of cases and administrative policies, shows how officials struggled to define “Canadian Indian” under the 1928 act, conceptualizing Indian status at first as a “political” status defined by Canadian law and then as a “racial” status defined by American law. Part II-C then discusses the adoption of the blood quantum restriction as part of a comprehensive overhaul of American immigration law in 1952, and the apparent reasons for why Congress adopted a half-blood rule.

In section III, the article discusses problems arising after 1952 for Canadian Indians, like Peter Roberts, who must prove their amount of Indian blood to invoke their passage right. Section IV discusses the implications of the explicit racial restriction for federal Indian law and immigration law. It notes that both are premised on congressional “plenary power,” historically outside constitutional review by the United States Supreme Court. It discusses how the Supreme Court, since the 1970s, has reviewed the constitutionality of Indian legislation under equal protection principles, but has not done so for immigration legislation premised on race. Contrasting the current state of racial legislation under Congress’s powers to legislate in Indian affairs with its power to legislate concerning immigration, the article suggests that the blood quantum restriction for Canadian Indian free passage may present an opportunity to distinguish definitions in federal Indian law that use blood quantum and to challenge prior precedent exempting immigration legislation from judicial scrutiny.