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Native American Precedent in the 2020 Census Citizenship Question Debate

ARTICLE by Maria Villegas Bravo

There are currently upwards of 11 million unauthorized immigrants residing in the United States, and roughly 8 million are ethnically Latinx.1 For the upcoming 2020 census, Secretary of Commerce Wilbur Ross announced his intention to introduce a question concerning the citizenship status of each individual who receives a census form in the United States. His official reasoning was that reinstating the question would give the Department of Justice accurate citizenship information to better enforce Section 10301 of the Voting Rights Act of 1965, which bans a dilution of minority voting power.2 In Department of Commerce v. New York, the plaintiffs brought those motives into question, alleging that the decision to reinstate the question was a ploy to disenfranchise the Latinx community. There is evidence that adding Ross’ question would dramatically reduce the response rate of noncitizens, especially in the Latinx community.3 Despite not having legal status, unauthorized immigrants still have a stake in public policy, and this deliberate attack against their communities should be condemned.

On appeal to the U.S. Supreme Court, the case evolved to become an accusation of Secretary Ross violating the Administrative Procedure Act of 1946 by being “arbitrary” and “capricious” in making the decision to include the citizenship question.4 The Supreme Court, in a majority opinion written by Chief Justice John Roberts, held that while Secretary Ross weighed all the relevant evidence, his error was procedural. The addition of the question to the 2020 census was unconstitutional because Ross provided a flawed official 

reasoning for proceeding, not because of his personal motives or logical processes. Justice Stephen Breyer’s dissent, however, states that Secretary Ross did violate the Administrative Procedure Act by ignoring scientifically sound reports to push forward his policy.

As stated in Chief Justice Roberts’ majority opinion, “[the] history matters,” and in such cases, the Supreme Court bases its interpretation of the Constitution on government practices that are “open, widespread, and unchallenged since the early days of the republic.”5 Like the Latinx community, Native Americans have had a troubled history with citizenship and interactions with the federal government. However, the federal government has worked diligently to drastically improve the census data gathered about Native Americans since 1915. The government created task forces and adapted the census questions to better fit the tribes, citing the importance of accurate census data.6 There is no reason that the Latinx community should be any different. This community should still be treated with a level of fairness and respect that has been historically afforded to similarly situated groups. The record shows that Secretary Ross ignored these longstanding Congressional practices and willingly opted for a practice that would dramatically reduce the accuracy of the census data and millions of people’s political power.

I. Undercounting Native Americans

The U.S. Constitution establishes that the population should be enumerated with only vague directions for Congress.7 Section 2 of Article 1 of the Constitution specifies that “Indians not taxed” shall not be enumerated.8 Despite a long and complicated history of colonization and exploitation, Congress has made significant steps to improve Native American census data, understanding the improved data’s impact on the population. 

Native American tribes were originally treated as foreign nations and were not taxed by the federal government. Westward expansion pushed the Native Americans further out onto reservations, and policymakers became more interested in the Native American population.9 In 1846, Congress passed an appropriations bill that gave funding for Native American Census Bureau officials to account for Native Americans in the communities and on reservations. The 1850 census was the first to include official information on Native Americans who counted as taxed individuals.10

As the years progressed and the nation fulfilled its manifest destiny, the census called for even more detailed data points regarding Native Americans. The 1880 census asked Native Americans outrageous questions, including the rate of which they felt they have adopted European ways of life.11 The new data were all estimates, varying wildly between the Census Bureau officials due to personal individual biases. Interracial marriages between Native Americans and white people became more common during this period, and because there was not a mixed race category on the census, census takers had to choose one race over the other, which skewed the data.12 A series of conflicts collectively known as the Sioux and Plains Wars in the latter half of the 19th century contributed to harsh cultural barriers.13 These wars pitted Native Americans and American soldiers against each other as Native Americans were chased onto reservations and slaughtered. Native Americans had a credible fear that their personal information would be used against them to gain an advantage in the increasingly violent conflicts.14

In 1887, Congress passed the Dawes Act and changed the landscape of Native American communities forever. This act stripped Native Americans of their communal land ownership by breaking up 

the land to be owned by heads of households or individuals over 18.15 Since this was against the customs of most tribes, not all the land was claimed, and the remaining land was made available for sale to American settlers. The division of land made it easier to account for Native Americans in the census blocks instead of attempting to count large groups of roaming people.

Despite this advance, Native Americans were still severely undercounted and erroneously labeled. Each iteration of the census since has inched toward better enumerating the Native American population in a respectful way. For example, in a 1915 special report by the Census Bureau, a more objective anthropological angle was adopted with terms like “half breed” being replaced with “mixed blood.”16 In 1960, the Census Bureau overhauled the system and moved to self- identification for racial identity instead of guesswork on the part of a Census Bureau official. The numbers of recorded Native Americans skyrocketed. People who did not previously disclose their Native American ancestry or were not counted due to not looking the part were finally able to count themselves.17

In 1924, Congress passed the Indian Citizenship Act, which gave all Native Americans citizenship, pursuant to the Fourteenth Amendment. Different tribes had different requirements for being “full blooded,” and wildly different proportions of the population lived on reservations as opposed to in the general population. This made it difficult to cohesively implement widespread legislation in regards to the Native American population. These changes still left linguistic, cultural, and physical barriers to accurate enumeration. Many Native American populations were labelled as “hard to count” communities that required special attention to acquire more accurate data as recently as the 2000 census. Consequently, the bureau teamed up with tribes, taking recommendations from within the tribal governments. They also hired a throng of new Census Bureau officials who could act as 

translators for the tribes and do in-person interviews to collect data.18 The Census Bureau even ran dress rehearsals in 1999 to collect data in person before it was supposed to be recorded and recommended creating a task force specifically focused on ensuring a complete count of the Native American population.

When evidence exists of a large population being undercounted, great lengths are taken to fix them. The plight of noncitizens and the Latinx community should be no different to that of the Native Americans and should get the same level of both respect and care in enumeration.

II. Credible Fear and What Noncitizens Stand to Lose

Secretary Ross and the Department of Commerce argued that their decision to implement the citizenship question should not be penalized for the “unfounded” fear of noncitizens’ reactions to the question.19 The Trump administration argues that the census information is confidential and personal information will not be shared on an individual level, so the Census Bureau should not be at fault for the way respondents answer the survey.20 However, this is not necessarily true.

In its amicus brief, the Puerto Rico Legal Defense and Education Fund (PRLDEF), a Latinx civil rights group, included an analysis that validates a credible fear on the part of noncitizens and the Latinx community.21 Executive Order No. 13767 mandated all executive departments to take actions to “repatriate illegal aliens swiftly.”22 This led to a sharp increase in deportations, and the Latinx community was understandably scared. Members of the Latinx community started reporting crimes at lower rates, did not seek government assistance after Hurricane Harvey devastated Texas, and avoided court proceedings due to a risk of being deported as a result of their 

immigration statuses.23 This fear stretches back to the Great Depression, when approximately 1 to 2 million Mexicans and Mexican-Americans were deported from cities across the nation, regardless of proof of their nationalities.24

Like the Native American community during the Sioux Wars, the noncitizen-Latinx community has a real, credible fear that its information will be used against it. The Census Bureau conservatively asserted that based on the 2010 census and three analyses they conducted, at least 5.8 percent of noncitizen households would either not respond or would respond erroneously to the short form census if the question was added.25 This means billions of dollars in federal funding for education, healthcare, and many other important programs would not be appropriately dispersed and Congressional seats would not be correctly apportioned.26 This would be a loss to any population, but in a population that has already been designated a “hard to count population” similar to Native Americans before them, it is disastrous.27

III. The Present Case

At the beginning of his tenure as Secretary of Commerce in 2017, Ross reached out to several executive agencies and departments to request their opinions on instating a citizenship question on the census. The Department of Justice responded affirmatively, saying that it could use the information to enforce Section 10301 Voting Rights Act of 1965, which bans the deprivation of single-member districts from areas with high percentages of minority voters.28 Despite this response, the Department of Justice declined to discuss alternative ways to gather the information, suggesting that the department was more interested in helping the Department of Commerce than 

collecting accurate data.29 Ross’ explanation that the citizenship question should be added at the request of the Department of Justice is pretextual, since he was the one who first suggested it to the Department of Justice and was the driving factor for the formal request. Furthermore, the information that the Department of Justice requested regarding the enumeration of citizens and noncitizens in the United States could easily be found in other administrative data collected by the federal government, such as the Annual Alien Registration.30

The Supreme Court stopped short of deciding whether Secretary Ross violated the Administrative Procedure Act by acting in an “arbitrary” or “capricious” manner in his decision making.31 The Supreme Court held that Secretary Ross’ repudiation of the Census Bureau, the American Sociological Association, and countless other relevant data analysis experts was his own to decide.32 He was appointed to the position and confirmed by the Senate, and the Census Act of 1790 gives him broad and unchallenged power on what he may or may not do.33 The Supreme Court ruled narrowly, zeroing in on his explanation and whether or not it adhered to Section 706 (2)(a) of the Administrative Procedure Act.

Justice Breyer’s dissent, joined by Justices Ginsburg, Sotomayor, and Kagan, points out that this power is not completely unchallenged. Under the Act, the Court can decide “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgement.”34 There must be a “rational connection between the facts found and the choice made” after examining “the relevant data” and giving a “satisfactory explanation.”35 Justice Breyer asserts that Secretary Ross failed to 

consider serious risks of harm, failed to link his conclusion to available evidence, and failed to explain his refusal to minimize risks.36

When deciding whether or not to add the question, Secretary Ross placed three options on the table to calculate how many people in America are citizens. The first option would have continued asking the citizenship question on the American Community Survey, a long-form questionnaire which is sent to a rotating 3 percent of the population. The numbers for the rest of the population would be estimated using statistical models. The second option was to add the question to the short-form questionnaire sent to each household in America for a complete headcount. The final option was to use existing citizenship data to provide the Department of Justice the requested information. The Census Bureau warned that using the shorter form for the citizenship question would discourage people from responding to the short form at all, or at the very least, stop them from responding once they reached the citizenship question.

The bureau conducted three analyses of the 2010 census to determine the predicted nonresponse rates for a census form with the citizenship question. Based off of these data analyses, the bureau estimates that over 630,000 households would not respond if the citizenship question were added. This means that Census Bureau officials will have to go into the field and either follow up on the survey or get proxy information, which can lead to a great deal of error in the data.37

Not only did Secretary Ross ignore these warnings, he directly contradicted and attempted to discredit them. He asserted that the data the Census Bureau found were not statistically significant, despite the clear statement by the Census Bureau in its report to the Secretary.38 The third-party researchers that Secretary Ross cited, however, stepped forward and urged Ross to not include the question by arguing that their findings were different since the respondents in their surveys 

were directly paid to complete the surveys, whereas the census does not offer that incentive.

The empirical evidence clearly spells out that the Latinx community, especially the noncitizen Latinx community, would be drastically undercounted if the citizenship question is added to the short- form questionnaire. Being undercounted in the census directly accounts for losing federal funding, representation in Congress, Spanish voting ballots, and many other benefits that would ordinarily be received by these communities.39

When previous groups have been so drastically undercounted in the past, Congress took measures to ameliorate the situation and accurately enumerate the people. Despite this historical precedent, Congress has recently taken action against the Latinx community. For both the 1990 and 2020 censuses, members considered changing the apportionment base from “persons” to “citizens,” arguing that since noncitizens are not able to vote, they should not be counted for seats in the House of Representatives.40 Only the 2016 Supreme Court decision in Evenwel v. Abbott began the wave of protection for the noncitizen population.

Justice Ruth Bader Ginsburg wrote in the opinion of the court for Evenwell that “the Framers of the Fourteenth Amendment considered at length the possibility of allocating House seats to States on the basis of voter population,” but ultimately still counted slaves as part of the apportionment population despite not enfranchising them.41 The history matters, and so does representation. Justice Ginsburg stated that “Nonvoters have an important stake in many policy debates,” and should therefore be accurately accounted for regarding those stakes.42 

IV . Conclusion

Secretary Ross intentionally ignored congressional precedent and multiple experts in the field. In his attempt to instate the citizenship question into the 2020 census short form, Ross turned his back on the precedent set by congressional treatment toward Native Americans. Now is the time to give the Latinx community, especially the noncitizen-Latinx community, an olive branch just like Congress gave the Native American community in 1915. This process began with Justice Ginsburg and President Obama, but there is still a long way to go. While an estimated 8 million people in the Latinx community are undocumented, there are still an estimated 42 million people who are documented United States citizens. None of them should be forgotten or lose political voting power due to an arbitrary and capricious decision by the Secretary of Commerce.

1 Jeanne Batalova, Sarah Hooker, & Randy CappsJennifer Van Hook, Profile of the Unauthorized Population: United States,Mɪɢʀᴀᴛɪᴏɴ Pᴏʟɪᴄʏ Iɴsᴛɪᴛᴜᴛᴇ, 2 Opinion of the Court, Department of Commerce v. New York, No. 18-966, 588 U.S. 1, 4 (2019).

3 Department of Commerce v. New York, 588 U.S. 1, 8 (Breyer, J., dissenting) (2019).
4 5 U. S. C. §706 (1966).

5 Supra note 2 at 13.
6 Margaret M. Jobe, Native Americans and the Census: a Brief Historical Survey 30 J. ᴏꜰ Gᴏᴠ’ᴛ Iɴꜰᴏ. 66-80 (2004).
7 U.S. Cᴏɴsᴛ. art. I, § 2.
8 Id.

9 Jobe, supra note 6 at 70. 10 Jobe, supra note 6.
11 Id. at 72.
12 Id. at 71.

13 History and Culture: Sioux Wars 1851-1890, Aᴍᴇʀɪᴄᴀɴ Iɴᴅɪᴀɴ Rᴇʟɪᴇғ Cᴏᴜɴᴄɪʟ, 14 Jobe, supra note 6 at 72.

15 Id.
16 Id. at 73. 17 Id. at 76.

18 Oversight Hearing on the Census 2000 Implementation in Indian Country; Hearing before the Senate Comm. on Indian Affairs, 106th Cong. 9 (1999). 19 Supra note 2 at 10.
20 Id.

21 Amici curiae briefs from PRLDEF and 15 Other Organizations in Support of Respondents, Commerce v. New York, No. 18-966, 588 U.S., at 8 (April 1, 2019). 22 Exec. Order No. 13767, 82 FR 8793 (2017).

23 Supra note 21.
24 Christine Valenciana, Unconstitutional Deportation of Mexican Americans during the 1930s: Family History and Oral History, 13 Mᴜʟᴛɪᴄᴜʟᴛᴜʀᴀʟ Eᴅᴜᴄ. 3, 4–9 (2006).
25 Supra note 2 at 9–10.
26 Supra note 21 at 18.
27 Maryann M. Chapin et al., 2020 Census: Counting Everyone Once, Only Once, and in the Right Place, Uɴɪᴛᴇᴅ Sᴛᴀᴛᴇs Cᴇɴsᴜs Bᴜʀᴇᴀᴜ 1 (Nov. 2, 2018).
28 Supra note 2 at 4.

29 Id. at 27.
30 Ib. at 3.
31 Supra note 2 at 21.
32 Supra note 3 at 10.
33 13 U.S.C. § 141(c) (1976).
34 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 416 (1971). 

35 Motor Veh. Mfrs. Ass’n v. State Farm, 463 U.S. 29, 43 (1983).

36 Supra note 3 at 4. 

37 Id. at 9.
38 Id. at 11.

39 Supra note 21 at 4.
40 Rᴏʏᴄᴇ Cʀᴏᴄᴋᴇʀ, Aᴘᴘᴏʀᴛɪᴏɴɪɴɢ Sᴇᴀᴛs ɪɴ ᴛʜᴇ U.S. Hᴏᴜsᴇ ᴏғ Rᴇᴘʀᴇsᴇɴᴛᴀᴛɪᴠᴇs Usɪɴɢ ᴛʜᴇ 2013 ᴇsᴛɪᴍᴀᴛᴇᴅ Cɪᴛɪᴢᴇɴ Pᴏᴘᴜʟᴀᴛɪᴏɴ, H.R. Rᴇᴘ. Nᴏ. R41636 (2015). 

41 Evenwel, v. Abbott, 578 U.S. 10 (2016).
42 Id at 18.

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