Friday’s Comment of the Day from Kansas Rep. Ponka-We Victors

Here, from the Topeka Capital Journal, via Jamelle Bouie

The Legislature’s annual attempt to repeal a statute allowing in-state tuition for Kansas students without legal residency drew an emotional crowd to a House committee Wednesday.


But nothing drew a bigger reaction than when Rep. Ponka-We Victors, D-Wichita, wrapped up a series of questions to the bill’s chief proponent, Secretary of State Kris Kobach.

“I think it’s funny Mr. Kobach, because when you mention illegal immigrant, I think of all of you,” said Victors, the Legislature’s lone American Indian member.

The heavily pro-immigrant gallery burst into cheers and applause — a rare reaction in normally staid hearings.


Merits Briefs (so far) in Arizona v. Inter Tribal Council of Arizona, Inc.

From the ABA:

New Scholarship on Plenary Power and Indian Affairs and Immigration

Susan Bibler Coutin, Justin B. Richland, and Veronique Fortin have posted Routine Exceptionality: The Plenary Power Doctrine, Immigrants, and the Indigenous Under U.S. Law on SSRN.

Here is the abstract:

Our paper examines how law-making regarding Native and Central Americans in the United States gives rise to documentary forms that challenge binaries that have plagued sociolegal scholarship. In the United States, plenary power gives the federal government what former U.S. attorney general Michael Mukasey termed the “administrative grace” to grant privileges to members of groups, such as immigrants and Native Americans, who are citizens of other nations, and thus whose allegiance is questioned. Matter of Compean 24 I&N Dec. 710 (A.G. 2009). Plenary power is understood by the Supreme Court as having “always been deemed a political one, not subject” to judicial oversight. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). This understanding makes plenary power something of a legal black box – analysis typically ends with the determination that the authority in question is a political one beyond legal review. Yet members of these groups experience plenary power precisely in its regulatory form, in the ways in which they are demanded to produce documents to establish juridical and political identities before the state. Such documents, which simultaneously produce and contest accounts of immigrant and indigenous histories, create alternative understandings in which law is characterized neither by gaps nor by gaplessness, but rather by embodiment in material form.

Illegally Deported Canadian Indian May Not Sue Dept. of Homeland Security for Constitutional Violations

Here are the materials in McDonald v. Dept. of Homeland Security (S.D. Cal.):

DCT Order Dismissing McDonald Complaint

Homeland Security Motion to Dismiss

McDonald Opposition

DHS Reply

Ninth Circuit Affirms Conviction of Fake Indians for Immigration Violations

Here is the Ninth Circuit’s unpublished opinion in United States v. Stowbunenko-Saitschenko. Here is a summary of the case from the opinion:

Oleh Rostylaw Stowbunenko-Saitschenko (“Stowbunenko”) appeals his conviction and sentence for Bringing in Illegal Aliens to the United States … and his conviction for Encouraging Illegal Aliens to Enter the United States …. These convictions resulted from an incident in which Stowbunenko, a naturalized American citizen who claims to be a member of an Indian tribe known as the Little Shell Pembina Band of North America (“PNLSB”), issued certificates of PNLSB membership to two Mexican nationals and then attempted to cross the border from Mexico to the United States with the Mexican nationals. At Stowbunenko’s urging, the Mexican nationals tried to use their tribal membership documents to secure entry to the United States. Stowbunenko was convicted of the above counts following a jury trial and sentenced principally to time served.

Here are the briefs in which the appellant’s make some startling (and frivolous) Jay Treaty and Indian law claims:

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Jay Treaty-Related Immigration Case News Coverage


VANCOUVER – A Canadian aboriginal who has spent months fighting with U.S. Customs for his treaty right to cross the border freely has been given an American green card once again.

But Peter Roberts’ lawyer expects more First Nations will run into challenges at the border, despite a 200-year-old treaty granting free border access rights to North American aboriginals crossing into the United States.

Roberts, a Tsawwassen, B.C. dentist, invoked his Jay Treaty rights last year when border guards at the Point Roberts, B.C. border crossing questioned his status.

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The Jay Treaty in U.S. Immigration Court

From the Seattle Times:

Immigration case hinges on degree of Indian blood

BLAINE, Whatcom County — A government attorney told an immigration judge on Friday that a native Canadian man claiming indigenous treaty rights to the U.S. lacks sufficient Indian blood to qualify for those rights.

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