Indigenous Anti/Deportation: Contesting Sovereignty,Citizenship,and Belonging in Canada and Australia

Abstract

This article focuses on attempts by settler colonial states to deport Indigenous non-citizens. The concept of “Indigenous anti/deportation” is introduced to capture both the inseparability of deportation from its contestation, as well as the unique stakes involved in contesting the imminent deportation of members of Indigenous communities. Comparing cases in Canada and Australia, Indigenous anti/deportation highlights fundamentally divergent claims of sovereignty, the assertion of Indigenous citizenship orders, and a transformation of how belonging is understood in contexts of settler colonial occupation. This article concludes by considering the implications of cases of Indigenous anti/deportation for future struggles for Indigenous sovereignty and for solidarity-building between migrants and Indigenous peoples.

Keywords

deportation indigenous peoples sovereignty citizenship belonging settler colonialism

Freedom of movement is one of the most fundamental human freedoms. Hannah Arendt once argued that it constitutes “the substance and meaning of all things political” (2005: 129). In a world carved up into nation-states––each with their own citizenship, border, and immigration regimes––it is unsurprising that the freedom to move has become the target of immense governmental regulation. Indeed, the authority and capacity to govern people's movement into, and presence within, national territory has been argued to be an “essential aspect of the ‘state-ness of states’” (Torpey, 2000: 3). It follows, then, that “the freedom of movement, as an inherently unpredictable and definitively open-ended precondition for human self-determination, can only ever be a perpetual and troublesome affront to the self-anointed sovereignty of state power” (De Genvoa and Peutz, 2010: 68).

In contexts of ongoing settler colonialism, the governance of mobility is a key mechanism of sovereign power. Indeed, settler colonial governments have often used forced sedentarization to render Indigenous peoples less mobile and therefore more governable (Blake, 2011; Lelièvre, 2017). Whyte et al. (2019) argue that settler colonial occupation involves inscribing settler mobilities through the displacement and replacement of Indigenous mobilities. As a “mode of structured dispossession” (Coulthard, 2014: 7), settler colonialism involves policing Indigenous peoples’ mobilities and presences to facilitate land theft and maintain settler access to lands, waters, and natural resources. Against the immobilizing pressures of settler colonialism, Indigenous peoples continue to assert sovereignty through their movement, which is sometimes clandestine, sometimes unauthorized, and usually met with settler anxiety (Lightfoot, 2021; A. Simpson, 2014). As Gerald Vizenor notes, “native sovereignty is the right of motion… the vision and the ability to move in the imagination and the substantive rights of motion in native communities” (1998: 182; cf. Goeman, 2013).

Inseparable from the freedom to move, however, is the freedom to stay. Assertions of the freedom to stay––exemplified in the blockade, the land reclamation, the sit-in, the protest in the streets, and so on––are frequently enacted by Indigenous peoples and non-Indigenous allies in struggles for Indigenous sovereignty and justice. While settler colonial states have historically attempted to render Indigenous peoples less mobile, immobility becomes problematic when it is connected to Indigenous sovereignty. Therefore, as a radical political commitment, the freedom to stay must be understood as a wholly distinct from other modes of immobility such as colonial processes of settlement, the forced sedentarization of Indigenous peoples, and racialized histories of confinement and incarceration. Instead, integral to the freedom to stay is a commitment to cultivating “grounded normativities” (Coulthard, 2014), “homespaces” (Maynard and L.B. Simpson, 2021), and “affective relationships” (Barker, 2021); processes that involve building ethical and reciprocal relations with specific places and their social ecologies. For Indigenous peoples, this means restoring and strengthening reciprocal relations with traditional territories, while for non-Indigenous peoples this means a complete rejection of the ways in which we are differentially implicated in processes of settler colonization and reconstitution of our presence here as something that is negotiated in relationship to Indigenous sovereignty (Snelgrove et al., 2014). In this way, the freedom to stay pairs a refusal of displacement with a deep commitment to cultivating responsible and ethical presence. And so, just as Indigenous mobilities are a mode of enacting Indigenous sovereignty, so too are intentional immobilities that assert the freedom to stay.

In this article, I consider specific cases of Indigenous assertions of the freedom to stay: anti/deportation. The attempted deportation of Indigenous peoples by settler colonial states is a particularly stark and undertheorized site of colonial power and Indigenous resistance. Following the work of Peter Nyers (2019), I use the term “anti/deportation” to draw attention to the inseparability of deportation from its contestation. However, I develop Indigenous anti/deportation as an extension of Nyers’ concept that is more attuned to the specific stakes and implications of Indigenous resistance against deportation by the settler colonial state.

In particular, I analyze two cases of Indigenous anti/deportation in settler colonial societies. The first case occurred in 2006, when the Sandy Bay Ojibway First Nation (SBOFN) intervened in the deportation of Nkemhurunaya Juliana Eligwe. Eligwe was a migrant from Nigeria who had been customarily adopted as a member of the SBOFN, which argued that the Canadian government could not deport a recognized and accepted member of a First Nation. The second case occurred in 2021, when Daniel Love and Brendan Thoms challenged their imminent deportations in the High Court of Australia by arguing that, as Indigenous peoples, they inherently belonged to the lands and waters now claimed by Australia and could not be subject to deportation.

Below, I begin by reading across the fields of migration studies and Indigenous and settler colonial studies in order to trace the both the points of convergence and distinctness involved in cases of Indigenous anti/deportation. As distinct phenomena, cases of Indigenous anti/deportation highlight fundamentally divergent claims of sovereignty, involve the assertion of Indigenous orders of citizenship, and transform the meaning and content of belonging beyond the confines of settler colonialism. I then turn toward an analysis of two cases of Indigenous anti/deportation. By tracing the arc of legal contestation in each case, I consider the unique constellation of political legal claims that were made in these contested deportations. After this, I offer a comparative discussion about the implications of cases of Indigenous anti/deportation on concepts of sovereignty, citizenship, and belonging in Canada and Australia. I conclude by considering how the use of immigration policies to (try to) deport Indigenous peoples also produces opportunities to build solidarity between struggles for Indigenous sovereignty and migrant justice that are rooted in the freedom to stay.

Conceptualizing Indigenous Anti/Deportation

Providing a historical genealogy of deportation, William Walters distinguishes it from other practices of expulsion, defining it as specifically “the removal of aliens by state power from the territory of that state, either ‘voluntarily,’ under threat of force, or forcibly” (2002: 268). Noting that deportations rarely proceed uncontested, Peter Nyers (2019) offers the term anti/deportation as a conceptual conjoining of deportation and anti-deportation. In his work on irregular citizenship, he concludes with a brief consideration of the specific questions that arise from Eligwe's adoption and subsequent deportation. In this section, I develop Indigenous anti/deportation as a concept that responds to this gesture through which to investigate the unique political stakes and implications involved in attempts by settler colonial states to deport members of Indigenous communities. Specifically, I read across the fields of migration studies and Indigenous and settler colonial studies to consider three key areas that are central to understanding Indigenous anti/deportation: sovereignty, citizenship, and belonging.

Sovereignty

Scholarship in migration studies has convincingly demonstrated that state sovereignty emerges, at least in part, as an attempt to govern human mobility (Mau et al., 2012; Papadopoulos et al., 2008; Torpey 2000). So, in addition to definitions of sovereignty that hinge on a monopoly on the legitimate use of force over a defined territory and population, scholars have shown that sovereign states must also exercise a monopoly on the legitimate means of movement (Kotef, 2015; Torpey, 2000). State sovereignty relies on the exclusive authority and administrative capacity to authorize movements into, and presences within, the national territory. However, given the immutability of human movement (Keshavarz and Khosravi, 2022; Nyers, 2015), unauthorized movements and presences come to be a constant problem of state concern––to which deportation becomes one solution. Deportation is therefore a juncture where the state's monopolies on the legitimate use of force and the legitimate means of movement. To contest a deportation and assert the freedom to stay, then, is to challenge a fundamental aspect of state sovereignty (de Genova and Peutz, 2010).

In part, this perspective resonates with analyses focused on Indigenous mobilities within and against settler colonialism, which have documented the particular ways that settler colonial states police Indigenous peoples’ mobility within (Blake, 2011; Lelièvre, 2017) and across (Riley and Carpenter, 2021; A. Simpson, 2014) national borders. Ann Stoler writes that this is a key function of the colony more generally, noting that it is defined by

a principle of managed mobilities, mobilizing and immobilizing populations, dislocating and relocating peoples according to a set of changing rules and hierarchies that orders social kinds: those eligible for recruitment, for subsidized or forced resettlement, for extreme deprivation or privilege, prioritized residence or confinement. (2018: 52)

In settler colonies, claims to settler sovereignty rest upon the negation of Indigenous connections to territory paired with racialized justifications of European conquest, ownership, and superiority (Barker, 2005; Moreton-Robinson, 2007). In many cases, colonial invasion and occupation was justified by the Doctrine of Discovery and the fiction of terra nullius, which provided the legal and moral justification for settler sovereignty. Of course, sovereignty requires a captive population (of settlers and Indigenous peoples alike) to govern and extract labour and resources from. Settler sovereignty thus relied on a series of forced mobilities and immobilities, including the displacement, relocation, and confinement of Indigenous peoples, enslaved people, indentured and migrant labourers, poor European settlers, and others. This had to be constructed against a backdrop of pre-existing Indigenous political, economic, and social orders, which were both ignored by the fiction of terra nullius and deeply felt through Indigenous resistance to colonization and the contested process of treaty-making. In most cases, sovereignty was asserted by decree, but in some cases, processes of treaty-making were used (e.g., Canada, Aotearoa/New Zealand), though these were highly problematic and deeply manipulative.

Following Manu Karuka (2019), we can perhaps more accurately understand colonial sovereignty in these cases as a “countersovereignty”: an anxious and reactive claim that responds to and rebuffs pre-existing Indigenous presence. In this way, settler colonial sovereignty is animated by a racialized “logic of possession” (Moreton-Robinson 2015), the content of which seems to rely more on a nervous denial of Indigenous sovereignty than any substantial claims to settler presence or authority (Rifkin, 2009: 91). The persistence of Indigenous sovereignty in settler colonial societies is what Audra Simpson (2011: 11) describes as “the secret of settlement,” an enduring and “nightmarish” reality that challenges the very foundations upon which settler colonial society rests (see also Nicholl, 2002). Importantly, Indigenous articulations of sovereignty and nationhood are often wholly distinct from Western conceptualizations (Barker, 2005), and are often articulated in less authoritarian and more relational ways that prioritize commitments to reciprocity between human and non-human life (Moreton-Robinson, 2007; L.B. Simpson, 2017). Taken together, cases of Indigenous anti/deportation combine challenges to deportation with direct challenges to settler state sovereignty, producing especially potent instances of contestation that give them a unique character when compared to anti-deportation efforts focused on migrants.

Citizenship

The outcome of a deportation is not only the removal of an alien from the national territory by the state. It is a “basic truth,” argues Nicholas De Genova, that deportation is also a means by which the boundaries between citizenship and non-citizenship are clarified (2018: 24). In essence, the act of forcibly removing of non-citizens functions to constitute and reinscribe the boundaries of citizenship (Walters, 2002). Vulnerability to deportation, therefore, becomes synonymous with non-citizenship, while citizenship has come to imply a protection from deportation (but see Nyers, 2019). As such, struggles against the deportation of non-Indigenous non-citizens often involve a demand for citizenship and formal inclusion into the political community as a means of stopping their removal.

For Indigenous peoples living in contexts of ongoing settler colonialism, the concept of “citizenship” itself is fraught (Green, 2017). For Indigenous peoples, citizenship has historically been a privilege denied. And when it was eventually offered, it went hand-in-hand with violent and genocidal policies aimed at assimilating Indigenous peoples while undermining their claims to sovereignty and nationhood (Green, 2001; Henderson, 2002; Weizman, 2022). Therefore, many Indigenous peoples view settler colonial citizenship and inclusion into settler society as mechanisms through which Indigenous sovereignty is pacified and obstacles to Indigenous liberation (A. Simpson, 2014; Coulthard, 2014; Green, 2017). So, while cases of Indigenous anti/deportation centre on Indigenous non-citizens, it would be inaccurate to reduce them to struggles for inclusion into settler colonial citizenship. Instead, in both cases explored below, Indigenous peoples challenged their deportations not by appealing to settler colonial citizenship but by enacting their own citizenship orders. Indeed, a key aspect of Indigenous self-determination––as enshrined, for example, in the UN Declaration on the Rights of Indigenous Peoples––is the authority to decide on questions of their own identity and membership. As examples of “Indigenous naturalization” (Snowden et al., 2001), these cases demonstrate alternative understandings of citizenship that both challenge as well as gesture beyond the authority of the settler colonial state (Borrows, 2002; Lee and Horn-Miller, 2018; A. Simpson, 2014).

Belonging

As noted above, the basic definition of deportation is the state removal of “aliens,” a term often found in state constitutions and immigration policies that classifies someone as foreign, other, and not belonging to the political community. A common assumption is that alienage correlates to non-citizenship: citizens “belong” to the nation, and non-citizens do not. As such, Bridget Anderson (2013) argues that, beyond a legal status of belonging, citizenship also signals inclusion within a “community of value, composed of people who share common ideals and (exemplary) patterns of behaviour expressed through ethnicity, religion, culture, or language—that is, its members have shared values” (2013: 2; original emphasis). Deportation, then, is an unambiguously normative judgement that an individual does not belong and must therefore be removed (Anderson et al., 2011). This judgement of non-belonging is the basis for the multitude of violences and exclusions inflicted upon non-citizens, aliens, and anyone deemed to be “out of place” in world divided into nation-states (Sharma, 2020).

Against equations of settler colonial citizenship with belonging, Indigenous philosophies often describe an ontological and sui generis belonging to lands and waters they have stewarded over many generations (Moreton-Robinson, 2015; L.B. Simpson, 2011). The sui generis nature of Indigenous peoples’ rights and claims to belonging have been sporadically and narrowly recognized in settler legal systems (Borrows and Rotman, 1997; Morris, 2021). But even the symbolic recognition of this connection has raised important and enduring questions about the inherent rights of Indigenous peoples in territories claimed by settler colonial states. Significantly, it also highlights a contradiction at the heart of cases of Indigenous anti/deportation: that Indigenous non-citizens targeted for deportation as “aliens” cannot be said to belong anywhere else. As we will see in the cases below, belonging is not only the product of one's biological connection to an Indigenous community, but is also cultivated through a process of relationship-building tied to customary adoption and other citizenship orders (Bhatia, 2018; Lee and Horn-Miller, 2018). Cases of Indigenous anti/deportation ultimately contest settler state's claim that there can be “Indigenous aliens” on stolen land. Against claims of alienage, Indigenous peoples’ assertions of the freedom to stay challenge the normative boundaries of the settler community of value and articulate belonging is ways that defy settler political and legal definitions.

Two Cases of Indigenous Anti/Deportation

With the contested concepts of sovereignty, citizenship, and belonging in mind, I now turn toward an exploration of two illustrative cases of Indigenous anti/deportation. In each, I provide a brief overview of the relevant political and legal context in Canada and Australia, followed by a more in-depth consideration of the legal contestations themselves. In Canada, I focus on Sandy Bay Ojibway First Nation v. Canada (Minister of Citizenship and Immigration) (herein Sandy Bay), which occurred in 2006. And in Australia, I focus on Love v Commonwealth (herein Love) and, to a lesser extent, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor v. Montgomery (herein Montgomery), which were concluded in 2020 and 2022, respectively.

Canada: “Today she is a Member… tomorrow she may not!”

The first instance of Indigenous anti-deportation centres on the SBOFN's intervention against the deportation of Nkemhurunaya Juliana Eligwe, a Black Roman Catholic nun from Nigeria. Despite repeated attempts to legally remain in Canada, Eligwe was facing deportation in 2006. In response to the deep connections she had made with members of the SBOFN, the band customarily adopted Eligwe and challenged her deportation in the Federal Court of Canada. The argument put forward by the SBOFN was that, as a recognized member of their First Nation, Eligwe was entitled to remain in Canada and could not be subjected to deportation by the Canadian government.

Context

In Canada, the Constitution affords the federal government sole jurisdiction over policies related to “Indians, and Lands reserved for the Indians.” This provides the basis for the Indian Act, Canada's main tool of colonial and genocidal governance over Indigenous peoples. Among other things, the Indian Act sets out the criteria for who is recognized as Indigenous––or a “status Indian”––for the purposes of Canadian political and legal administration. There are more than 1.8 million “status Indians” in Canada belonging to 600 recognized First Nations––that is, distinct communities (or “bands”) of “status Indians”––recognized across Canada. The criteria to be registered under the Indian Act are complex, subject to multiple interpretations, and have changed several times since its creation in 1876. Unsurprisingly, then, not all Indigenous peoples in Canada are currently recognized by the Canadian government as “status Indians.” This includes Métis, Inuit, and otherwise-unrecognized Indigenous peoples. Importantly, the 1982 patriation and amendment of the Constitution included (among other things) the addition of Section 35, which offered a broad recognition of “Aboriginal and treaty rights”¹ and has since been understood to include a commitment to Indigenous peoples’ self-determination.

The Constitution similarly affords the federal government exclusive jurisdiction over “naturalisation and aliens.” These two categories are broadly governed by Citizenship Act and the Immigration and Refugee Protection Act (herein IRPA) respectively. Section 19(1) of IRPA stipulates that “every Canadian citizen within the meaning of the Citizenship Act and every person registered as an Indian under the Indian Act has the right to enter and remain in Canada.” Conversely, IRPA categorizes anyone else as a “foreign national,” simply defined in Section 2(1) “a person who is not a Canadian citizen or a permanent resident, [including] a stateless person.” While the terms “alien” and “non-citizen” are not contained in IRPA, their meaning is broadly interpreted as synonymous with foreign national: someone who does not possess a sanctioned status and therefore is not legally recognized as belonging to or in Canada. If a foreign national is found to have entered Canada without authorization or is found to be unlawfully present in Canada, they become subject to a removal order (deportation). Deportations can be legally appealed and contested, but, as we will see below, not all these mechanisms include a stay a foreign national's removal order.

Anti/Deportation

In 2001 Eligwe was invited by a family in Winnipeg to work as a live-in caregiver and housekeeper. It seems she was misinformed and arrived through a visitor's visa rather than through the Live-In Caregiver Program, which would have authorized her work and provided a pathway to permanent residency (Canadian Press, 2002). After four months, the family lied to Eligwe that her visitor's visa had not been extended (it had), and told her she had to return to Nigeria. After contesting her treatment by the family in court and receiving extensions to her visa, the government became aware that she had been working without authorization, making her vulnerable to deportation. Fearing religious persecution if she returned to Nigeria, in she applied for refugee status in 2003 but was denied later that year. She then appealed for a judicial review in 2004 but was similarly rebuffed, causing a removal order in her name to be issued (Bhatia, 2018: 78–79).

In an attempt to remain in Canada, she filed a pre-removal risk assessment (PRRA) and a humanitarian and compassionate (H&C) claim, only the former of which included a temporary stay of her removal order. As she awaited decisions on these applications, she formed a close relation with members of SBOFN, specifically with youth and other community members dealing with a series of deaths by suicide in the community (Winnipeg Free Press, 2006). Her PRRA received a negative decision in 2006, and while her H&C claim was still pending, it did not entitle her to remain in Canada while she awaited a decision (Bhatia 2018, 79–80). As such, Eligwe became an unlawfully present foreign national, and her removal order became active again. Here Eligwe joined thousands of others in Canada who had been continuously rebuffed in their attempts to navigate the “chutes and ladders” of the Canadian immigration system to obtain citizenship (Goldrin and Landolt, 2013). Eligwe, like many others, was forced to make the difficult decision to remain in Canada “illegally” in an attempt to avoid deportation. However, in a stunning act of solidarity the SBOFN customarily adopted Eligwe as a member of their First Nation and subsequently intervened on her behalf to challenge her deportation in the Federal Court of Canada. The First Nation claimed Eligwe could not reasonably or legally deported because she was a recognized and legitimate member of a First Nation. The SBOFN argued that, as customarily adopted member of their First Nation, Eligwe was entitled to the inherent rights of Aboriginal peoples to enter and reside in Canada, as stipulated in IRPA. The SBOFN was articulating their sovereign authority to determine who could legitimately be considered a member of their First Nation for the purposes of political and legal administration in Canada. In other words, the SBOFN was asserting the freedom to stay for members of their First Nation and indeed for all Indigenous peoples in Canada.

For the Court, however, the essential question in Sandy Bay was considerably more narrow than the claims advanced by the SBOFN. The Court was to simply rule on whether Eligwe could be considered “a person registered as an Indian under the Indian Act” as stipulated in section 19(1) of IRPA. If so, she would possess the mobility rights laid out in IRPA and be entitled to lawfully reside in Canada, and if not, she would be a foreign national vulnerable to deportation. So, the Crown's arguments focused on the fact that Eligwe was not registered under the Indian Act, sidestepping the deeper claims being advanced by the SBOFN about their sovereign authority to determine their membership and their inherent belonging to the territory claimed by the Canadian state.

In its submissions, the SBOFN asserted the “inherent right to determine its own membership,” carefully demonstrating to the Court that this right (1) pre-existed the assertion of British sovereignty, (2) was preserved against more than a century of colonial rule and treaty-making, and (3) had been affirmed in the Bill C-31 amendments to the Indian Act in 1985 (in Bhatia 2018, 84–85). The SBOFN also pointed out that they and other First Nations in Canada had members that were not registered under the Indian Act but who could nonetheless access many of the same rights laid out for “status Indians.” As Eligwe was a recognized and legitimate member of the SBOFN, they argued that IRPA should “be read in a manner which equates membership in a First Nation with status pursuant to the Indian Act” (in Bhatia, 2018: 86). In essence, the SBOFN submitted that, as a self-determining Indigenous nation, they shared in the authority to decide who was Indigenous for the purposes of interpreting Section 19(1) of IRPA.

Against this perspective, the Crown pointed out that while Eligwe was indeed a member of the SBOFN, she was not recognized as a “status Indian” under the Indian Act and therefore excluded from IRPA's stipulating that citizens and “Indians” may freely enter and reside in Canada. From the Crown's perspective, Eligwe was simultaneously a legitimate member of a First Nation and an unlawfully present foreign national vulnerable to deportation. The Canadian government's authority to deport Eligwe as a foreign national was argued to eclipse the SBOFN's authority to claim her as a member and entitle her to stay. The Crown's argument, bolstered by some additional procedural “irregularities,” ultimately won the day (Sandy Bay, 2006). The SBOFN's application to the Federal Court was dismissed and Eligwe was unfortunately subject to deportation.

Despite its disappointing conclusion, the deliberations and ruling within Sandy Bay raise several important questions about how sovereignty, citizenship, and belonging are contested by Indigenous peoples living in Canada. Against the federal government's claim to exclusive jurisdiction over “Indians” and “naturalization and aliens,” the SBOFN argued that members of First Nations could not reasonably be understood as “aliens” in their own lands and were entitled to enter and reside in Canada. The SBOFN claimed the authority, based on their sui generis rights as Indigenous peoples, to self-determine their own citizenship in ways that should parallel the authority of the Indian Act. Essentially, Sandy Bay was an attempt to stop Eligwe's deportation by asserting Indigenous sovereignty. This attempt to contest Eligwe's deportation is a salient example of, to paraphrase Kahente Horn-Miller, an Indigenous community acting as a nation while being confined to a reserve (2018: 362).

By asserting an Indigenous citizenship order parallel to that of the settler colonial state, the SBOFN asserted a sovereign authority that rivalled and challenged that of the settler colonial state. This can be plainly seen in the SBOFN's submissions to the Court that claimed, for example, that “the immigration authority has no power or jurisdiction to deport a person who has formally been adopted by an Aboriginal First Nation” (in Bhatia, 2018: 87; my emphasis). In his ruling in Sandy Bay, Justice Harrington rightly discerned the wide-ranging political implications embedded in the SBOFN's claim. Effectively, the SBOFN was asserting their authority to make decisions about citizenship and deportation in Canada. His ruling noted that such an argument was a “serious issue” that, if accepted, would suggest

each and every band (and there are more than 600) has the power to usurp the discretion of the Minister of Citizenship and Immigration by accepting non-residents as band members and thereby granting them permanent resident status. (Sandy Bay, 2006: para. 11).

While Justice Harrington did not find it prudent to comment any further on the issue, Amar Bhatia has insightfully observed that “the prospect of more than 600 First Nations making immigration decisions only seems unreasonable if one adopts the perspective of the state” (2018: 347). Indeed, as authority over matters of citizenship and deportation form fundamental aspects of state sovereignty, Indigenous citizenship orders and assertions of sui generis belonging are profoundly unsettling to the settler colonial state. Indeed, they reveal a profound irony involved in a settler state judging an accepted member of an Indigenous community as an “alien” who does not belong. For Indigenous peoples asserting their enduring sovereignty within and against settler colonial occupation, the sovereignty claimed by the Canadian state was wrongly “usurped” by settlers in the first place. From this perspective, it is only reasonable that the SBOFN (and all other Indigenous nations) would defend and assert their inherent sovereignty and self-determination––especially over matters of their own membership and who possessed the right to stay.

While the SBOFN's intervention was contentious in its own right, the added element of Eligwe's adoption into the community contributed to further controversy. Thinking here with the work of Damien Lee and Kahente Horn-Miller, Indigenous adoption functions as a “wild card” in settler societies (Lee and Horn Miller, 2018; Lee, 2017). That is, claims to Indigeneity via adoption can be invoked in vastly different ways and for vastly different purposes––from a non-Indigenous person intent on “playing Indian” for individual gain, to an Indigenous community asserting their self-determination through the act of claiming someone as their own (Lee and Horn-Miller, 2018, 295; Deloria, 1998). Indigenous adoption is further complicated by racism and white supremacy, with white-passing men often receiving the benefit of the doubt with regard to the veracity of their claims, while racialized people may face more scrutiny and doubt. For example, Lee and Horn-Miller (2018) note how, on the one hand, settler claims to Indigeneity conveniently rely on fluid understandings of race. Yet, on the other, Indigenous nations have faced criticism for adopting racialized individuals who fall outside stereotypical, biological, and settler colonial definitions of Indigeneity.

Eligwe's adoption by the SBOFN is illustrative in this regard. Ruling against a stay on her removal, Justice Harrington seemed to brush aside the submissions detailing Eligwe's meaningful connections to the community as the basis for her customary adoption, reducing it to solely a political stunt to stop her deportation (Sandy Bay, 2006: para. 13). It would appear that, from the perspective of the Court, a Black woman from Nigeria without immigration status could not be accepted as a legitimate member of the First Nation. But Eligwe's customary adoption was not merely an attempt by the SBOFN to stop her deportation: it was an act of reciprocity and mutual recognition that emerged from the deep relationships she had cultivated with the community. Multiple submissions to the Court by SBOFN members emphasized this (Bhatia, 2018: 82). The social and relational meaning embedded in Eligwe's adoption clearly exceeded Justice Harrington's formalistic and instrumental understanding, obscuring or ignoring the rich and varied Indigenous traditions of adoption and citizenship. Curiously, the SBOFN's authority to confer membership to Eligwe was actually framed as the cause of her precarity. Signaling his discomfort with Eligwe's adoption, Justice Harrington claimed that she had become “indentured to the First Nation…. today she is a member of the Band, tomorrow she may not!” (Sandy Bay, 2006: para. 13; my emphasis). Such a claim plainly demonstrates the ignorance or disinterest in understanding the relational and reciprocal character of Anishinaabe adoption and citizenship orders, while also conveniently overlooking the precarious and exploitative features of Canada's immigration system that effectively denied Eligwe access to citizenship in the first place (Nyers, 2019).

Sandy Bay offers an instructive case of Indigenous anti/deportation. The SBOFN's insistence that Eligwe's customary adoption placed her beyond the authority of the Canadian state to deport her represents a significant challenge to fundamental understandings of sovereignty, citizenship, and belonging in Canada. While unsuccessful in staying Eligwe's removal order, Sandy Bay both emphasizes the deeper political stakes of Indigenous anti/deportation as well as highlights some of the significant and unresolved tensions upon which settler society rests in Canada. Ultimately, the SBOFN advanced a clear assertion of both the self-determining authority of Indigenous peoples to decide questions of membership, as well as the freedom to stay for all Indigenous peoples living in the territories now claimed by Canada.

Australia: What's Love got to do with it?

The second case of Indigenous anti/deportation centres on Daniel Love and Brendan Thoms, who successfully challenged their imminent deportations from Australia in 2020. There are many parallels between Love and Thoms’ circumstances. Both were born outside of Australia (Papa New Guinea and Aotearoa/New Zealand), and each had one parent with Australian citizenship. Both possess citizenship in their respective countries of birth. Both resided for prolonged periods of time as permanent residents in Australia, where both were convicted of separate criminal offenses in 2018. After they were sentenced, the Minister of Home Affairs revoked their residency status––Love's permanent residency visa and Thoms special category visa––rendering them “unlawful non-citizens.” Both Love and Thoms were subsequently placed in immigration detention until their deportation.

So far, this story is relatively unremarkable: every year the Australian government deports hundreds of people whose residency visas are revoked by the Minister of Home Affairs due to suspected or confirmed involvement in criminal activity (Department of Home Affairs, 2022). But what thrust Love into the national spotlight was that Love and Thoms challenged their immanent deportations on the basis of their Indigeneity. Love is a descendant of the Kamilaroi nation, self-identifies as a member of that nation, and is recognized by an Elder in the community. Thoms is a member of Gunggari people, and holds native title in Australia. The only question for consideration in Love was whether Indigenous people living in Australia could be legally be considered “aliens” in their own territories, and thus subjected to deportation under the Migration Act. In 2020, the seven High Court justices ruled 4–3 in favour of Love and Thoms, stating that “Aboriginal Australians” inherently belonged to the lands and waters claimed by Australian government. This meant that they could not be considered “aliens” in the legal or constitutional sense, and could not therefore be subject to deportation.

Context

Section 51(xix) of the Australian Constitution states that Parliament has the power to make laws with respect to “naturalization and aliens.” These powers form the basis for Parliament's Citizenship Act and Migration Act, the latter of which “regulate[s], in the national interest, the coming into, and presence in, Australia of non-citizens” (s 4[1]). An essential question of law in the Migration Act is who can be considered an “alien,” and therefore be subject to Parliament's “aliens powers.” Since the time of Australia's federation, the state's authority to decide who was an “alien” and who could become part of the political community was considered a fundamental attribute of sovereignty (Love, 2020: para 6). In 1983, the Migration Act was amended to substitute the term “alien” for “non-citizen,” implying a synonymity between the terms in policy. However, because “alien” remains the term used in the Constitution, Parliament's power to determine who is an alien and how they might be governed is subject to legal interpretation.

Like in Canada, Indigenous peoples in Australia occupy a unique political, economic, and socio-cultural position as a result of ongoing settler colonial occupation. The criteria for who can be recognized as Indigenous by the Australian government has been set out in Mabo v Queensland (no. 2) (herein Mabo). Mabo offers three criteria for who constitutes an “Aboriginal Australian” as a matter of law: Aboriginal descent, self-identification as member of an Indigenous community, and recognition by that community. Only people legally recognized as “Aboriginal” may possess “native title” in Australia, a claim that offers a limited set of uniquely Indigenous rights for members of Aboriginal communities. Scholars have critically noted that native title is limited to Indigenous communities who have been judged to have not “disappeared,” remained sufficiently “traditional,” and whose practices are not “repugnant” to settler conceptions of justice (Motha, 2005). Taken together, the tripartite test and native title criteria mean that not all Indigenous peoples in Australia are recognized as “Aboriginal Australians,” and not all Aboriginal Australians are recognized as possessing native title. As well, neither Indigenous rights nor representation are included in the Australian Constitution; though this is a subject of sustained national debate (Morris, 2021; Uluru Statement from the Heart, 2017).

Anti/Deportation

In Love, the disagreement between the four majority and the three minority justices hinged on divergent understandings of alienage and belonging in relation to the Australian settler political community. The four majority justices agreed with the arguments advanced by Love and Thoms that Indigenous peoples could not be considered aliens because of the “spiritual and cultural” connection they shared with the lands and waters claimed by Australia (Love, 2020: para. 391). The majority justices took this to mean that Indigenous peoples were inherently part of “the people of Australia.” As such, Love affirms Indigenous peoples’ sui generis connection to the territory now claimed by Australia, which necessarily placed them outside of legal alienage and therefore beyond the reach of Parliament's powers under the Migration Act (Love, 2020: paras. 74 & 333). Indigenous peoples––by virtue of their Indigeneity—were recognized as possessing a unique mode of belonging in Australia that could not be superseded by the authority of the settler state.

Against this view, the three minority justices argued that the ordinary definition of “alien” was synonymous with “non-citizen.” This meant that non-citizenship made someone vulnerable to deportation and rejected the claim that an individual's identity could have any bearing on one's status as an alien. Here the minority justices effectively argue that “there is no pre-legislative fact of a person's alienage” (Davenport, 2021: 594). Alienage, then, is a status solely determined by Parliament via its power to enact legislation. As unlawfully present non-citizens, Love and Thoms therefore could be subject to deportation under the Migration Act. But this conveniently erases the history of settler colonization in Australia; a violent process carried out by “aliens.” The minority justices seemingly imagine Australia as post-colonial: where the status of “belonging to elsewhere” can only be attributed after the consolidation of settler sovereignty and government. Settler colonial invasion and occupation are rendered invisible; ironically positioning the colonial government as the legitimate authority on matters of alienage. But the success of Love and Thoms’ case in the High Court confirms that this perspective elides a simple fact: that settler society's “alienage” and Indigenous peoples’ “belonging” are precisely “pre-legislative facts.”

Another important element of the High Court's ruling in Love has to do more directly with Indigenous sovereignty. Love recognized that Indigenous non-citizens occupy a peculiar “intermediate region” of membership in Australia: the “non-citizen, non-alien” (2020: para. 447). This unique status expresses a contradiction: non-citizenship implies exclusion from a political community, but non-alienage implies a belonging. Its recognition in law currently does not confer any special rights to these individuals, nor place any obligations on the Australian state. But the belonging of Indigenous non-citizens potentially constitutes a recognition by the settler state of an enduring Indigenous sovereignty, even if implicitly. The enduring Indigenous political, economic, and social orders––that long preceded the arrival of European settlers––in what is now known as Australia pose a challenge to the settler claim of a singular sovereignty asserted over a post-colonial political community. Instead, the recognition of sui generis Indigenous belonging sheds a disruptive light on the Audra Simpson calls “the secret of settlement”: an enduring Indigenous sovereignty that is immutable and wholly independent from the sovereign authority of the Australian state. It is from this fundamental fact that Love and Thoms argued that all Indigenous peoples in Australia were immune from deportation by the Australian state––in other words, the freedom to stay.

Interestingly, the Justices writing in the majority routinely emphasized that their ruling in Love was not a recognition of Indigenous sovereignty. Consider this passage from Justice Gordon, writing in support of the arguments advanced by Love and Thoms:

Recognition of Indigenous peoples as a part of the “people of Australia” is directly contrary to accepting any notion of Indigenous sovereignty persisting after the assertion of sovereignty by the British Crown. Recognition of Indigenous peoples as part of the “people of Australia” denies that Indigenous peoples retained, or can now maintain, a sovereignty that is distinct or separate from any other part of the “people.” (Love, 2020: para. 356; my emphasis)

Here the majority Justices understand their acceptance of Indigenous peoples’ belonging as a kind of assimilation into the Australian body politic; Indigenous peoples are imagined as belonging to Australia in a distinct but ultimately equivalent way that settlers do.

But the minority Justices believe that Love brings settler society to a precipice. They argue that, by affirming Indigenous peoples’ inherent status as “belongers” (para. 396) to Australia, Love comes “perilously close” to recognizing the existence of Indigenous sovereignty (para. 125). Of course, such a recognition is “not legally sustainable” in settler colonial societies (para. 128). While the primary impact of Love was to constrain Parliament's power to deport Indigenous non-citizens, the Justices in the minority warned that it was “a serious matter” to infringe upon the power of Parliament to determine “who is to be part of the body politic and who is not to be” (para 14). As discussed earlier, the authority to confer citizenship and carry out immigration enforcement against unlawfully present non-citizens are fundamental incidents of state sovereignty. As one minority Justice argued, “to suggest that traditional laws may be determinative of the legal status of a person in relation to the Australian polity is to attribute sovereignty to Aboriginal groups” (para. 37), the “kind of sovereignty which was implicitly rejected by Mabo [no. 2]… and expressly rejected in subsequent cases” (para. 25). By recognizing that Indigenous peoples’ belonging in Australia placed them out of the settler state's sovereignty authority, the minority Justices feared that Indigenous communities could be empowered to make the kinds of “immigration decisions” that Justice Harrington feared in Sandy Bay. Thus, similar to Sandy Bay, what is at stake for the minority Justices in Love is the unrivalled sovereignty of the Australian state over matters of citizenship and immigration. By recognizing Indigenous peoples’ sui generis connection and belonging to territories claimed by Australia, Love implicitly accepts that Indigenous peoples possess an authority that parallels and might even undercut that of the Australian state.

The Australian government reacted swiftly to the uncertainties and questions that lingered after Love by challenging the High Court's ruling as invalid. In Montgomery, the Commonwealth submitted that “the effect of Love is that an Aboriginal elder's decision as to whether a person is a member of an Aboriginal society has determinative consequences for whether or not the person is a member the Australian body politic” (High Court of Australia, 2021a: para. 11). As such, the Commonwealth echoed the concerns of the minority Justices in Love by arguing that the ruling was invalid because of its “implicit conferral of political sovereignty on Aboriginal societies” (Arcioni and Gover, 2022: 144). In a notable parallel to Sandy Bay, Montgomery also included discussion about the role of adoption in the determination of “Aboriginal descent.” Similar to Love and Thoms, Shayne Paul Montgomery had challenged his detention and imminent deportation on the basis of his Indigeneity: he had been adopted into the Mununjali community in accordance with traditional laws and customs, self-identified as a Mununjali man, and was recognized as such by authority figures in the community (Montgomery, 2021). The Commonwealth submitted that Montgomery did not possess “Aboriginal descent” and therefore was not immune from Parliament's power to detain and deport “aliens.” But Montgomery and several interveners in the case argued that “Aboriginal descent” could, and should, include those adopted into communities through customary and traditional processes. Further, they argued that Indigeneity is ultimately a matter for Indigenous people, not settler governments or courts, to decide. Indeed, the National Native Title Council stated that the determination of someone's Indigeneity––in this case, through customary adoption––is “a question of self-determination” for Indigenous communities, an “authority that has not yet been fully appreciated in Australia” (High Court of Australia, 2021b: para. 8). Before the case saw its day in court, however, the newly-elected Labour government quietly dropped the appeal in 2022, leaving key questions raised in Love and Montgomery yet to be answered. Taken together, these two cases of Indigenous anti/deportation demonstrated the possibility of affirming Indigenous peoples protection from deportation by the Australian government and their sui generis belonging. And though the interpretation of what this belonging means will likely continue to be debated in settler courts, Indigenous peoples have made very clear what it means to them: sovereignty and the freedom to stay.

Discussion: The Freedom to Stay as Anti-Colonial Praxis

Reading these cases together as instances of Indigenous anti/deportation, we can see the multiple and complex understandings of sovereignty, citizenship, and belonging that arise. In some ways, the cases are noticeably divergent. In Canada, the Federal Court ruled that Eligwe's customary adoption as a member of the SBOFN did not afford her rights under the Indian Act nor change her categorization as an “alien,” so her deportation was allowed to proceed. Conversely, the High Court of Australia found that Indigenous non-citizens could not legally be considered “aliens” in their own territories. The Indigeneity of Love, Thoms, and Montgomery––some biological, some adoptive, but all mutual in recognition––were found to legally place them out of reach of the sovereign powers to detain and deport aliens under the Migration Act. Underpinning all the cases surveyed above, however, is an Indigenous assertion of the freedom to stay against deportation by the settler state. Conceptualizing these cases as Indigenous anti/deportation therefore also illuminates multiple similarities across them.

While scholars in Migration Studies correctly identify deportation as a fundamental feature of state sovereignty, cases of Indigenous anti/deportation nuance this claim. Indeed, returning to the work of Manu Karuka (2019), we might more accurately understand the attempted deportation of members of Indigenous communities as exemplary of colonial countersovereignty: an anxious reaction to assertions of Indigenous sovereignty, citizenship orders, and sui generis belonging. By asserting the freedom to stay based in inherent Indigenous authority, cases of Indigenous anti/deportation do not seek inclusion into settler citizenship nor its reform. Instead, these cases directly challenge the precarious legal foundations of settler colonial claims of sovereignty. In Canada, the political authority of the SBOFN was anxiously rebuffed by a Federal Court justice who correctly understood the broader political stakes of what might otherwise have been a simple ruling on the removal of a foreign national. Sandy Bay did not only represent an attempt by the SBOFN to stop the deportation of a member of their community; it was also a fundamental challenge to the legitimacy of the Canadian state's self-appointed role as the sole arbiter of who “belongs” on stolen and contested lands. In Australia, the Love and Thoms’ arguments were accepted by the High Court, which recognized Indigenous peoples’ sui generis connection to their territories and constrained the Australian government's authority to detain and deport Indigenous non-citizens. However, the majority Justices made sure to clarify that non-Indigenous peoples were also part of the “people of Australia,” effectively differentiating and equating settler and Indigenous claims to belonging. The potentially controversial implications of Love thus emerge from the contradiction at the heart of countersovereignty: contemporary settler states teeter between recognizing antecedent and enduring Indigenous presence and political orders and denying that such recognition amounts to an acceptance of Indigenous sovereignty or threatens the inevitability of settler society.

In both Sandy Bay and Love, Indigenous sovereignty oscillates between cultural, legal, and ontological registers. From the perspective of settler legal systems, recognition of Indigenous sovereignty and rights must be constrained to the cultural realm whenever possible, delimiting this recognition to specific rights or obligations that arise through cultural practices that have survived, relatively uninterrupted, settler colonial genocide. Such recognitions get codified and enclosed in legal doctrine, and therefore are presumed to be subsumed under settler colonial sovereignty. But as Eileen Moreton-Robinson (2015) points out, Indigenous sovereignty is not a legalistic and authoritarian concept, but is constituted through an ontological relationship to land that defies, and directly contests, legal claims of settler colonial sovereignty (see also: L. Simpson, 2017). We can see the dissonance between these divergent understandings of sovereignty in both cases of Indigenous anti/deportation discussed above, like the SBOFN's claims to an inherent authority that pre-existed and survived Canadian sovereignty or Love and Thoms’ assertion of a sui generis relationship to land that extends beyond the thieving grasp of Australian sovereignty. Thus, cases of Indigenous anti/deportation offer a stark reminder that the settler colonial project remains a failure: Indigenous peoples have not disappeared, their sovereignty has endured, and their political orders have flourished despite centuries of genocidal violence.

An essential element of Indigenous sovereignty is self-determination over questions of citizenship. Across both cases, Indigenous communities rejected that non-citizenship rendered them “aliens” in their own territories––an assertion that was accepted in Love and rejected in Sandy Bay. Part of what makes Indigenous anti/deportation unique is that Indigenous peoples refused to appeal to the state for inclusion into settler colonial citizenship. Instead, they asserted their own citizenship orders, which preceded the violent imposition of colonial law and legislation. Many states already recognize forms of dual nationality or dual citizenship, but the possibility of doing so in relation to Indigenous nations was wholly rejected. This is because, at least in part, Indigenous nations in these cases are contesting the legitimacy (and desirability) of settler colonial citizenship itself. Specifically in the cases of Eligwe and Montgomery, Indigenous peoples used traditional and customary processes of adoption to engage in a form of “Indigenous naturalization” (Snowden et al., 2001) toward individuals who had cultivated deep relations of kinship with the community. As “an act of self-determination,” Lee and Horn-Miller argue that Indigenous adoption forms “a small part of a larger citizenship governance order that claims people according to each nation's respective inherent authority” (2018: 294). In cases of Indigenous anti/deportation, the customary adoption of non-citizens represents a refusal of the universality of settler citizenship. In this way, Indigenous anti/deportation demonstrates how the assertion of Indigenous citizenship orders are vital to the process of decolonization and the regeneration of Indigenous sovereignty. As John Borrows writes,

Aboriginal citizenship must be extended to encompass people from around the world who have come to live on our land. After all, this is our country. As holders of a prior but continued Indigenous citizenship, Aboriginal people have an ongoing stewardship and a legal obligation to participate in its changes. (2002: 140; original emphasis)

I understand the cases discussed in this paper as potential examples of the process that Borrows describes. In Sandy Bay, Love, and Montgomery, Indigenous peoples enacted and extended their own citizenship orders to challenge the settler state's deportation of members of their communities. But were Eligwe and Montgomery citizens of their respective Indigenous communities, or merely “members?” Nyers argues that “this is a difficult and contentious question, not least because the categories of membership and citizenship are not necessarily coterminous” (2019: 163). While membership can flow from official and mutual recognition of an individual's inclusion and belonging, citizenship may entail something different. As Nyers points out, citing the work of Audra Simpson (2014), citizenship “describes forms of connectivity, recognition, and responsibility that cannot be easily expressed through statist or juridical scripts about citizenship, state, or society (2019: 163). Here the mutual relationships of care formed between individuals and Indigenous communities move to the front of our considerations about citizenship, providing the basis for Eligwe or Montgomery, for example, to be understood as citizens of their respective Indigenous communities. Ultimately, however, such questions are for Indigenous communities to decide for themselves; and it is this claim of autonomous authority that forms anxious object of the settler state's opposition.

Deportation is a particularly stark means by which the state enforces its judgement of an individual's belonging. But as Volpp (2015) observes, in settler colonial societies terms such as “citizen” and “alien” fail to capture the colonial relationship between Indigenous peoples and settler colonial states. Historically, Indigenous peoples “have been considered citizen and alien, as well as neither citizen nor alien; they have been described as simultaneously foreign and domestic; and they have been categorized in terms unfamiliar to immigration law: as quasi-sovereign nations, as domestic dependent nations, and as “wards ‘in a state of pupilage’ of the federal government” (Volpp, 2015: 293–294). Because cases of Indigenous anti/deportation assert sui generis claims to belonging, they represent potent challenges to the settler understandings of belonging. Such claims disrupt the legal equation of settler citizenship and belonging as well as settler fantasies of being the rightful and inevitable owners of stolen Indigenous lands. Significantly, the sui generis nature Indigenous peoples’ belonging is something that cannot be stolen by settlers: it is, by definition, unique to a particular relationship between a people to both their territories and their colonial oppressors. This fact fundamentally reframes any claim settler belonging as something that must be cultivated in relationship, rather than asserted by force or claimed by decree. Eligwe's belonging as a member of the SBOFN emerged from the reciprocal relationships she had built with the community, belying Justice Harrington's attempt to reduce her adoption to a political stunt. In Australia, Love, Thoms, and Montgomery similarly asserted a sui generis belonging based in the traditional and customary practices of Indigenous peoples in their territories. Rather than right conferred by a state or seized by an individual, these cases ultimately reveal that the freedom to stay is a social freedom; a freedom enacted in relationship.

Conclusion

Indigenous anti/deportation is a distinct genre of anti/deportation, one that attends to the unique set of stakes and implications involved in settler colonial attempts to deport members of Indigenous communities. In particular, I found that the meaning and substance of sovereignty, citizenship, and belonging were contested and, occasionally, transformed through cases of Indigenous anti/deportation. The implications of these cases of Indigenous anti/deportation are far from settled. Despite the disappointing conclusion of Sandy Bay, the claims advanced by the SBOFN remain unresolved. Indeed, in Justice Harrington's ruling, he noted that if, in the future, Indigenous citizenship is more comprehensively recognized by the Canadian state, “then Sister Eligwe may return” (2006: para. 12). In Australia, the High Court's landmark ruling in Love remains the site of continued controversy and is lingering target for future legal challenges.

The implications of cases of Indigenous anti/deportation beyond the specificities of these two cases are far-reaching. Obviously, such cases are merely one site of multi-generational struggle for Indigenous sovereignty and self-determination in settler colonial contexts. In particular, as the process of reckoning and reconciliation continue in Canada and Australia, questions about the relationship between Indigenous sovereignty and the self-determination of membership will continue to be central. This is especially relevant as Australia considers the addition of Indigenous Constitutional recognition and the addition of an “Aboriginal Voice” in Parliament, and as Canada considers the scope and meaning of legislatively implementing the UN Declaration on the Rights of Indigenous Peoples. In both processes, the authority of Indigenous peoples over basic matters such as who is recognized as Indigenous and the relationship between Indigenous peoples at the settler state will be central to their success or failure.

Articulations of citizenship and belonging in cases of Indigenous anti/deportation also raise important questions about the role of biological ancestry in the constitution of Indigenous identity. In these cases, Indigenous peoples assert the authority to decide these questions for themselves. It is against this backdrop that Indigenous citizenship orders and acts of customary adoption represent both clear acts of self-determination and laudable demonstrations of solidarity with non-citizens. Indeed, John Borrows argues that Indigenous traditions can “support a notion of citizenship that encourages autonomy and at same time unifies and connects us to one another, and to the lands we rely on” (2002, 150). In this way, enactments of Indigenous citizenship order offer a glimpse into alternate modes of relationship and responsibility that extend beyond the confines of the settler colonial present. Against narrow understandings of Indigenous identity that rely on biology and/or discriminatory settler legislation, cases of Indigenous anti/deportation invite the consideration of far more expansive conceptualizations of citizenship, membership, and belonging that

Cases of Indigenous anti/deportation highlight the importance of the sui generis connection shared between Indigenous peoples and the lands and waters they have stewarded since time immemorial. Importantly, however, they also reveal deeper questions about the nature and scope of sui generis connections between Indigenous identity and land. As customarily adopted members of Indigenous communities, did or could Eligwe and Montgomery legitimately share in this sui generis relationship? Or were they merely protected from deportation by the assertion of this connection by the Indigenous communities that customarily adopted them? Such cases invite us to consider whether ontological relation between Indigeneity and land can be articulated beyond genetics. That is, can such relations be ethically and consensually cultivated, shared in, or joined by people who are not biological members of Indigenous communities? Why do “pretendians” fraudulently claiming Indigenous identity seem to get the benefit of the doubt from settler institutions, but racialized people customarily adopted into Indigenous communities receive doubt about their membership (for more discussion see: Gaudry and Leroux, 2017; Lee and Horn-Miller, 2018)? The implications of these questions require careful consideration, and certainly extend beyond the scope of this article. But what the above cases of Indigenous anti/deportation highlight is that Indigenous assertions of the freedom to stay articulate a politics of belonging based in sovereignty and mutual recognition, and therefore challenge settler definitions of Indigeneity and indeed their own feeble claims to belonging on stolen land.

The freedom to stay is a central claim in struggles against deportation. In addition to the argument that Indigenous mobilities are vital modes of asserting Indigenous sovereignty, this article contributes an analysis of how Indigenous immobility might do the same. Cases of Indigenous anti/deportation are important instances through to analyze Indigenous articulations and contestations of sovereignty, citizenship, and belonging in contexts of ongoing colonial occupation. Recognizing the freedom to stay as a central aspect of struggles for justice, we should consider its potential to form a common political terrain upon which to build solidarity with other groups of people categorized as “aliens,” “illegals,” and “people out of place” (Sharma, 2020) by the settler colonial state. Indeed, Indigenous anti/deportation opens up space to reflect on alienage as a common experience shared by precarious and non-status migrants, refugees, Black and racialized communities, as well as Indigenous peoples in settler colonial societies. As racial capitalism, the climate crisis, and imperial war continue to fuel unprecedented levels of global displacement and migration, wealthy settler colonial countries will only make migrants’ and refugees’ journeys even more precarious by ramping up their violent border regimes. Indeed, we are already seeing a rise in precarious and non-status migrants and an intensification of immigration policing, detention, and deportation practices in these countries. This is a vital time to continue the work of building solidarity between migrants and Indigenous peoples, who share a desire for the freedom to move and the freedom to stay unencumbered by settler colonial states. Fortunately, movements for migrant justice are increasingly integrating critiques of settler colonialism into their work and building solidarity with Indigenous peoples’ struggles for sovereignty. And cases of Indigenous anti/deportation––which involve contestations of settler sovereignty, citizenship, and belonging––provide important examples of what this solidarity can look like too, offering glimpses into how these concepts might be differently enacted in decolonizing ways.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Karl Gardner

Notes

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