Settler Colonialism, Race, and the Law. Natsu Taylor Saito
of the population. Trump is not “being divisive” so much as exposing some of the deepest schisms that permeate this society.4 The vision of America as a White supremacist, patriarchal, settler society is alive and well today. Ignoring this reality is no longer an option.
We all have visions of better worlds, ones we’d like for ourselves, or to bequeath to our children and their children. To build these futures, we need to understand what’s wrong with where we are, and how it got to be wrong. Tracing the problem to its source allows us to conceive structural, rather than superficial, solutions. Michel Foucault articulated this in terms of “historical genealogy,”5 but it doesn’t take a French philosopher to make this point. Analogizing political struggle to a journey across the Northern Plains, Lakota elder Mathew King observed that it is necessary to look back over your shoulder periodically because “to know how to get to where you want to go, you have to first know where you are, and to know where you are, you always have to know where you’ve been.”6
This process requires conceptual frameworks unconstrained by the “consensus reality” reflected in the master narrative of American history, for we know it to be a narrative that does not accurately reflect the realities of life for most peoples of color or, indeed, most White people in this country.7 Tracing our histories back to locate the origins of racialized subordination leads us inevitably to the colonization of this continent by Euroamerican settlers, to their determined attempts to eliminate the Indigenous peoples of this land, and to the various strategies the settlers have employed—and continue to use—to profit from occupied lands.2 That genealogy, and what it can tell us about deconstructing racial privilege and subjugation, is the focus of this book.
I have found that discussing race as a function of colonialism meets with considerable resistance from those who contest the status quo as well as those who support it, from non-Indigenous people of color and from those who identify as White. This may be because most struggles for racial justice focus almost exclusively on the enforcement of rights and the expansion of opportunities within extant state structures. For those of us engaged in such efforts, the suggestion that we might be trying to obtain “our fair share” of lands and opportunities built on the shifting sands of genocide and continuing colonial occupation is virtually unthinkable. As a result, discussions of Indigenous sovereignty are generally cabined in their own discursive sphere while broader discussions of racism tend to include American Indians as, at best, simply another “minority” in the requisite list of racial “food groups.”8
The relationship between Indigenous rights and the subordination of other people of color is only occasionally confronted. It is the elephant in the room (or, perhaps, still waiting in the hall), a subject few non-Indigenous people are willing to address except in the past tense.9 Yet if racialized power and privilege in the United States today are rooted in the historic and ongoing colonization of Native North America, dismantling the colonial relationships that still undergird the state is in the interest of not only Indigenous nations and peoples but all subordinated peoples of color and, quite possibly, a large majority of those who identify as White Americans.
In exploring the genealogy of race and racism in the United States from this perspective, the conceptual framework of settler colonial theory provides a good starting point. Briefly put, it assesses the impact of colonizers who did not just intend to exploit the land, labor, and resources of other peoples and then go home, but who came to stay. Over the past several centuries, a largely Angloamerican settler class has exercised a presumed prerogative to appropriate Indigenous lands and resources; to establish a state over which it wields total control; and to decide who could, could not, and had to live within its claimed territorial boundaries.10 To date, most settler colonial analysis has focused—quite appropriately—on settler-Indigenous relations; the structural implications for other peoples of color in the US context have been explored only minimally.11 There is, however, much to be learned by viewing the relationship of voluntary and involuntary migrants of color to both Indigenous peoples and Euroamerican settlers in terms of the ongoing colonization of this continent.
Most contemporary writing on race in America presumes that implementing the Constitution’s guarantee of equal protection is the best—or perhaps only—way of remediating racialized domination and subordination. However, an equal protection framework presumes that we start from a level playing field, and addresses the persistence of racial disparities in terms of explicit or implicit personal bias and/or the lingering effects of historic dispossession or exploitation. This means that potential remedies are, for the most part, limited to some variant of sensitivity training, laws and regulations prohibiting intentional discrimination, and compensation for a narrow range of past wrongs. Collectively, we have followed this path for well over a half century only to see that any gains we make can readily be stripped away by those determined to maintain the political, economic, and racial status quo. By framing our struggles in terms of the state’s responsibility to implement its promises of procedural fairness and nondiscrimination, we have already foreclosed the possibility of fundamental structural change arising from grassroots movements for self-determination.
This book explores the possibility that if racial hierarchy is rooted in, and was essential to, the establishment of the United States as a settler colonial state and those foundational colonial relationships of power and privilege persist, then racism can be meaningfully eliminated only in conjunction with decolonization. Deconstructing the narratives we have come to accept and developing more accurate understandings are messy processes, particularly since there is considerably more overlap in the construction and experiences of various “races” than we have been led to believe. However, much light can be shed on contemporary racial dynamics if we are willing to come to grips with the foundational and continuing colonization of Indigenous lands and peoples, the functions of enslaved African labor in the settlers’ early efforts to consolidate and profit from occupied lands, the ways in which the settler class maintained its hegemony in the wake of the abolition of chattel slavery, and the strategies subsequently utilized to recruit, exploit, and maintain a preferably disposable labor force consisting largely of migrants of color.
To some extent all peoples of color within the United States have been subjected to what philosopher Georgio Agamben calls “inclusive exclusion,”12 the transformation of those who have been coercively included in American society into excluded and subjugated Others. Those who struggle for racial justice often find it necessary to advocate for, or challenge, administrative actions, laws, and judicial decisions. However, relying solely on such measures cedes power to the state. Rather than assuming that inequities can be remediated only by governmental action, we can also support local initiatives that empower subordinated communities and help us to envision paths that lead not only toward equality but also self-determination. Incorporating colonization into our narratives complicates the picture by suggesting that constitutional remedies are inadequate, but it also opens up a host of alternatives rooted in a framework of decolonization.
I write as a lawyer, a student and professor of international law, and a descendant of Asian migrants and European settlers. As a Japanese American from a family deeply scarred by internment during World War II,13 I have struggled to understand the impulse to assimilate into a society so dependent upon the maintenance of racial hierarchy. As a relatively privileged person of color, I am trying to develop a structural analysis that takes into account the commonalities of those who are subordinated in this society on the basis of race or national origin, while acknowledging our very distinct histories and cultures and the particularities of our relationships to US power. Having spent most of my adult life in families and communities that are predominantly African American and American Indian, I cannot ignore the devastating effects that American colonialism continues to have on these communities.3 That said, I do not presume to articulate their perspectives or to prescribe particular solutions.
Theory, of course, will not save us, and I have no interest in adding yet another layer to the already overburdened discourse about race. Instead, this book is an effort—admittedly tentative and certainly incomplete—to frame painful and seemingly intractable racial realities in a manner that encourages us to envision liberatory options and to conceptualize the decolonization of American society. To this end, I highlight those historical patterns and “strategies” of racialized colonization I find most helpful. Given the scope of the project, I am only