Settler Colonialism, Race, and the Law. Natsu Taylor Saito
examples drawn from the histories of certain communities while omitting entire peoples.
Because colonialism is an economically driven enterprise, I expect that this framework could add much to an understanding of working-class White communities, lured by the prospect of inclusion into the settler class yet consistently excluded from the full benefits of settler privilege. I have not attempted, however, to incorporate that dimension into this work. Perhaps more controversially, I have not addressed the gendered dynamics of colonial relations in any meaningful way. European states and their derivative colonial ventures have been unremittingly patriarchal, and the colonial construction of the Other is permeated by the imposition of gendered constraints and expectations. This dimension deserves a level of thoughtful analysis beyond the scope of this book, and I cannot bring myself to pretend to address it by superficially sprinkling references to gender, sexuality, or sexual orientation throughout my text.
There are three sections to this book. The first three chapters lay the groundwork for understanding structural racism as a function of ongoing colonization. Chapter 1 summarizes some contemporary racial realities that motivate our inquiry. Recognizing that all stories are rooted in particular epistemologies or worldviews, chapter 2 discusses both the triumphalist narrative of the American state and the alternative histories and perspectives that can inform our understanding of this society. Chapter 3 provides a brief overview of colonialism and settler colonial theory, the conceptual lens I find particularly useful in understanding the functions served by racialization.
The second section encompasses chapters 4 through 8, each presenting historical narratives highlighting the strategies used to accomplish the objectives of the settler class with respect to different sectors of the population. These chapters provide what I hope are convincing, although certainly not definitive, illustrations of the explanatory value of a paradigm that frames race, racial privilege, and structures of racial subjugation not as the product of personal bias and prejudice but in terms of the perceived needs of a settler colonial society that has always used race to justify its occupation and appropriation of Indigenous lands and natural resources, and its exploitation of the labor of those deemed Other.
Early Angloamerican colonizers were unable to envision systems of shared land tenure and governance, and unwilling to adapt themselves to extant Indigenous polities. They perceived Indigenous peoples to be incompatible with their claim to sovereign prerogative, and racialization provided the justification for the strategies they utilized—and, in many cases, continue to use—to eliminate, displace, contain, and conceptually “disappear” American Indians.4 These strategies are the focus of chapter 4.
European settlers asserted an exclusive right to own the land based on their claims to be making it “productive” when, in fact, the bulk of the labor that made the occupied territories so profitable was done by Others—indentured, contracted, enslaved, or imprisoned. Chapter 5 examines strategies employed to create, expand, contain, and control a workforce of enslaved Indigenous, African, and Afrodescendant peoples.
In the wake of the Civil War, it appeared that the racial hierarchy so closely associated with enslaved labor might crumble, but racial domination remained critical to the colonial project, for it undergirded the settlers’ claims to the land, their continued expansion of that land base, their ability to control the benefits of that occupation, and their presumed prerogative to govern every aspect of American life. Chapter 6 considers means utilized to contain and control “emancipated” African Americans and to exclude them, structurally, from opportunities that might facilitate their economic and political independence.
Chapters 7 and 8 examine strategies utilized to subordinate and manipulate peoples of color who have been incorporated into the American polity, with greater or lesser degrees of volition, primarily as a result of the settlers’ desire for a labor force that is both readily accessible and easily disposed of. In an attempt to provide a coherent framework for addressing hugely disparate populations and histories, chapter 7 provides a summary of how some peoples have been forcibly included as the result of US territorial expansion, how others come in response to the push-pull dynamic that pits the desire for cheap labor against exclusionary citizenship and immigration policies, and how some migrants arrive as refugees, many the collateral damage, as it were, of US political, economic, and military interventions around the world.
Noting both parallels and divergences in their histories, chapter 8 considers how the “dynamic of difference”14 that is critical to all colonial enterprises functions with respect to migrant Others. It describes the racialization of these groups as not only inferior but inherently “foreign,” and discusses the illusory nature of assimilationism. It then provides a more detailed look at some of the highly racialized strategies used to maintain an exploitable yet readily disposable workforce and to reinforce racial hierarchies in the United States. While many of these strategies are familiar, having been developed to eliminate and subjugate Indigenous peoples and African Americans, they are unique in the symbiosis they develop between their purported promotion of inclusion and the ways in which they consistently invoke “foreignness” to exclude.
The final four chapters comprise the third section of the book, which focuses on remedial options. Our assessments of the origins and purposes of racism necessarily shape the measures we employ to counter racialized injustice. If racial privilege and subordination are simply vestiges of a bygone era, strengthening the constitutionally mandated guarantees of due process and equal protection may suffice. If our primary concerns are personal prejudice or socially perpetuated stereotypes, education and exposure may be called for. However, if racism is essential to the continued well-being of the settler state because it continues to enrich and empower those who benefit most from colonial relations, eliminating racism will require us to move beyond nondiscrimination to decolonization.
Chapter 9 discusses why our struggles to implement formal guarantees of equal rights and protection under domestic law have failed to ensure racial justice. Chapter 10 identifies ways in which international human rights law provides a more expansive understanding of racial discrimination as well as more effective remedies. While acknowledging the importance of this body of law, it concludes that the statist nature of the international legal system precludes structural remedies capable of redressing institutionalized racism in settler societies. International law does, however, clearly mandate decolonization and recognize (albeit in an arbitrarily constricted manner) that all peoples have the right to self-determination. The potential of these legal norms to transform the ways in which we understand our struggles for racial justice in the United States is addressed in chapter 11.
Chapter 12 concludes with some strategies we might employ as we move beyond the constraints of civil rights discourse, as well as some examples of grassroots efforts that spark the imagination. I have, of course, no magic road map. My hope is simply to jump-start a conversation about race and racialization that is not constrained to making exploitative structures a bit kinder or more equitable, but energized by the liberatory potential of self-determination in the complex, multilayered, and overlapping realities that comprise American society today.
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Racial Realities
“Racial Realism” . . . enables us to avoid despair, and frees us to imagine and implement racial strategies that can bring fulfillment and even triumph.
—Derrick Bell
Racial justice has been both elusive and contested throughout the history of the United States. In the wake of World War II, as decolonization movements swept across Africa and Asia, the civil rights movement gained momentum and powerful grassroots organizations emerged advocating community control and self-determination. It was a period of tremendous hope and energy, but over the next several decades, the formal recognition of racial equality achieved during the 1960s had little discernible impact on the material conditions of life confronted by most people of color in the United States.1 This led the late law professor Derrick A. Bell Jr. to observe that “even those herculean efforts we hail as successful will produce no more than temporary ‘peaks of progress,’ short-lived victories that slide into irrelevance as racial patterns adapt in ways that maintain white dominance.”2 In the early twenty-first century we have seen a resurgence of popular actions to combat racism and to promote many