Settler Colonialism, Race, and the Law: Why Structural Racism Persists 0814723942, 9780814723944

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Settler Colonialism, Race, and the Law

CITIZENSHIP AND MIGRATION IN THE AMERICAS General Editor: Ediberto Roman

Tierra y Libertad: Land, Liberty, and Latino Housing Steven W. Bender No Undocumented Child Left Behind: Plyler v. Doe and the Education of Undocumented Schoolchildren Michael A. Olivas Marginal Workers: How Legal Fault Lines Divide Workers and Leave Them without Protection Ruben J. Garcia Run for the Border: Vice and Virtue in U.S.-Mexico Border Crossings Steven W. Bender Those Damned Immigrants: America’s Hysteria over Undocumented Immigration Ediberto Roman Strange Neighbors: The Role of States in Immigration Policy Carissa Hessick and Gabriel G. Chin Revoking Citizenship: Expatriation in America from the Colonial Era to the War on Terror Ben Herzog Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases Shoba Sivaprasad Wadhia The New Deportations Delirium: Interdisciplinary Responses Daniel Kanstroom and M. Brinton Lykes At Home in Two Countries: The Past and Future of Dual Citizenship Peter J. Spiro Settler Colonialism, Race, and the Law: Why Structural Racism Persists Natsu Taylor Saito

Settler Colonialism, Race, and the Law Why Structural Racism Persists Natsu Taylor Saito

NEW YORK UNIVERSIT Y PRESS New York

NEW YORK UNIVERSIT Y PRESS New York www.nyupress.org © 2020 by New York University All rights reserved References to Internet websites (URLs) were accurate at the time of writing. Neither the author nor New York University Press is responsible for URLs that may have expired or changed since the manuscript was prepared. Library of Congress Cataloging-in-Publication Data Names: Saito, Natsu Taylor, author. Title: Settler colonialism, race, and the law : why structural racism persists / Natsu Taylor Saito. Description: New York : New York University Press, [2020] | Includes bibliographical references and index. Identifiers: LCCN 2019008926| ISBN 9780814723944 (cl.; acid-free paper) | ISBN 0814723942 (cl.; acid-free paper) Subjects: LCSH: Race discrimination—Law and legislation—United States—History. | Minorities—Legal status, laws, etc.—United States—History. | Racism—United States— History. | United States—Race relations—History. | United States—Colonization—History. | Indigenous peoples—Legal status, laws, etc.—United States—History. | Decolonization— United States—History. | United States—Territorial expansion. Classification: LCC KF4755 .S25 2020 | DDC 305.800973—dc23 LC record available at https://lccn.loc.gov/2019008926 New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability. We strive to use environmentally responsible suppliers and materials to the greatest extent possible in publishing our books. Manufactured in the United States of America 10 9 8 7 6 5 4 3 2 1 Also available as an ebook

For Ward

Contents

Introduction

1

1. Racial Realities

9

2. Unsettling Narratives

25

3. Settler Colonialism

41

4. Land and Indigenous Peoples

57

5. Enslaved Labor and Strategies of Subjugation

79

6. “Emancipated” African Americans: Rights and Redundancy

94

7. Others of Color: Inclusions and Exclusions

111

8. Others of Color: Subordination and Manipulation

133

9. Constitutional Protection and the Dynamic of Difference

154

10. International Law and Human Rights

166

11. Decolonization and Self-Determination

186

12. Mapping New Worlds

201

Conclusion: We Won When We Started

215

Acknowledgments

219

Notes

221

Works Cited

281

List of Cases

347

Index

351

About the Author

373

Introduction How do we rectify a system that so brilliantly serves its intended purpose? —Dorothy E. Roberts

Racialization has always been essential to the establishment and maintenance of structures of power and privilege in the United States. Racial realism, as the late Derrick A. Bell Jr. termed it, forces us to acknowledge that communities of color in the United States remain economically, politically, and socially subordinated, long after the formal abolition of American apartheid.1 An honest assessment of these realities makes it clear that neither the Constitution’s guarantee of equal protection nor the “nation of immigrants” mantra can effectively dislodge structural racism. Yet we continue to return to the courts, the legislatures, and “our” political leaders in these terms, seeming, collectively, at a loss for meaningful alternatives. The 2008 election of Barack Obama, the country’s first Black president, generated a wide range of public reaction.* It gave those contesting racialized subordination renewed hope for meaningful structural change. Those generally content with the status quo hailed it as evidence that the United States was already a “postracial” society.2 And for those clinging to the perceived benefits of White supremacy, it signaled the crumbling of their world. The visuals shifted during the Obama era, but ultimately very little changed with respect to racial disparities in the distribution of power and wealth. Since the beginning of 2017, President Donald Trump’s administration has illustrated how quickly and easily the perceived gains of subordinated groups can be reversed by executive action. Within just a few weeks of taking office * Other than in direct quotations, I capitalize the term “Black” because, as Kimberlé Crenshaw observes, “Blacks, like Asians, Latinos, and other ‘minorities,’ constitute a specific cultural group and, as such require denotation as a proper noun.” Crenshaw, “Race, Reform, and Retrenchment,” 1332 (emphasis in original). Although “Indigenous” describes a relationship peoples have to their lands rather than a racial or ethnic group, I capitalize it when referencing a collective identity. I also capitalize “White” where referencing those of (purportedly) exclusively European descent, because they have claimed “group” status in American society. See Cheryl I. Harris, “Whiteness as Property”; and Lipsitz, Possessive Investment.

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| Introduction

he expedited approval of oil pipelines contested by Indigenous peoples, intensified immigration enforcement and approved a travel ban targeting persons from predominantly Muslim countries, undercut enforcement of healthcare legislation, and appointed an attorney general who—despite the mass incarceration crisis—ordered federal prosecutors to seek the toughest charges and harshest sentences possible, even for persons accused of nonviolent drug offenses.3 Of equal significance, Trump’s call to “make America great again,” with its thinly veiled racial overtones, clearly resonates with a large sector 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.* That genealogy, and what it can tell us about deconstructing racial privilege and subjugation, is the focus of this book. * The settlers at issue are predominantly White, but I generally use the term “settler” to emphasize that the issue is not a purportedly immutable racial identity but the structural implications of identification with the colonial project. I am grateful to Moana Jackson for pointing out that “settler” can be a deceptively benign substitute for “colonizer” or “invader.” Keeping this caution in mind, I employ the term because I believe that a cognitive shift from race to relationship can help us overcome widespread reluctance to acknowledge ongoing colonialism in the United States.

Introduction

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3

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 play-

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ing 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.

Introduction

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5

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.* 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 able to provide cursory summaries and illustrative 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 * I use “American Indian” to refer to peoples indigenous to the contiguous territory in North America claimed by the United States, but prefer “Indigenous” as it also encompasses Native Hawaiians and Alaska Natives. I avoid “Native American” because it implies that Indigenous peoples are a subset of “Americans,” a construction many find problematic. See Robert B. Porter, “Demise of the Ongwehoweh,” 108.

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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.* 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 re* In accordance with contemporary human rights law, I use the term “disappear” to reference the state-sponsored or sanctioned arbitrary detention or killing of persons perceived as socially or politically undesirable. See Kyriakou, “International Convention for the Protection of All Persons from Enforced Disappearance,” 425–44.

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mained 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.

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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 selfdetermination 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 other forms of social justice. Will these mobilizations develop into movements that bring about fundamental, structural change or will they, too, soon “slide into irrelevance”? According to Bell, only by acknowledging the persistence and adaptability of racism—an approach he termed racial realism—will we be able envision strategies capable of bringing about meaningful structural change and perhaps even liberation.3 This book is about imagining and implementing such strategies. As a precursor to doing so, I believe we need to acknowledge that, despite the elimination of legally mandated apartheid, racial disparities have not changed significantly over the past fifty years. At the same time, we will need to recapture the energy of movements with liberatory visions, mindful of the ways in which struggles for racial justice have been both repressed and diverted throughout US history. These themes are explored in this chapter, which lays the groundwork for reframing the narrative of race in America—the specific histories and lived realities of communities of color—to incorporate the functions served by racialization. 9

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Persistent Disparities Moving toward strategies with liberatory potential requires us to acknowledge our current racial realities. In my experience it is rare to have a public discussion about race in which someone doesn’t say, “But don’t you think things are getting better?” Thanks to the displays of White supremacist sentiment attending Donald Trump’s campaign and presidency, the question gets asked less often these days. Nonetheless, there is a deep-seated presumption that despite occasional setbacks, the United States is moving, inexorably, toward racial equality.4 This makes it difficult for many Americans to acknowledge the racial disparities that persist in all indices of social well-being, much less to recognize these as the result of well-entrenched structural dynamics.5 Social and economic relations have changed over the past half century, but the statistics tell us that overall, in both absolute and relative terms, things have not “gotten better” for people of color in the United States. Since the 1970s, community-based programs focusing on health, education, and economic self-sufficiency have been replaced by increasingly restrictive governmental programs whose funding tends to shrink with each budget cycle.6 In what is still one of the richest countries in the world,7 the United Nations special rapporteur on extreme poverty and human rights found in 2017 that forty million Americans (almost 13 percent of the population) lived in poverty, and almost half of them reported family incomes of less than one-half the poverty threshold.8 The gap between rich and poor is widening, and by a number of measures, race-based inequities are also increasing.9 Despite laws prohibiting racial discrimination and a growing number of elected officials of color—even a Black president—nothing approaching socioeconomic parity has been achieved. More than one-quarter of all Black, Latina/o, and American Indian or Alaska Native residents continue to live below the poverty line, compared to about one-tenth of White residents.10 In 2010 the Census Bureau estimated the median household income of Black heads-of-household to be less than 60 percent of their White counterparts, a percentage that had not changed significantly since 1972.11 Moreover, a majority of African Americans born to middle-income families in the late 1960s have been “downwardly mobile” since the civil rights era.12 Disparities in wealth—as distinct from income—are even more glaring. According to the Pew Research Center, the median wealth of White households in 2013 was thirteen times that of Black households and ten times that of Hispanic households.13 Similar disparities are reflected in healthcare,14 housing,15 education,16 and employment.17

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In all communities of color, the effects of poverty and unemployment are reflected in and compounded by rapidly rising and disparate rates of arrest and incarceration. Since 1972, the American prison population has grown sixfold to over 2.2 million people, giving the United States the dubious distinction of having the world’s largest prison population and highest rate of incarceration.18 In addition, more than twice that many people are on probation or parole.19 Over 60 percent of the US prison population is now comprised of racial or ethnic minorities; almost 40 percent is African American.20 Communities of color have diminished political power due to the disenfranchisement of those with felony convictions and, more fundamentally, they are being stripped of some of their most vital human and economic resources.21 The National Bureau of Economic Research noted in a 2014 study that rising incarceration and unemployment rates “have left most black men in a position relative to white men that is really no better than the position they occupied only a few years after the Civil Rights Act of [1964].”22 Not surprisingly, settler colonial occupation impacts Indigenous communities with particular intensity. About one-third of those identifying only as American Indian or Native Alaskan live on reservation or “tribal” lands, where poverty rates average 36 percent.23 At the end of the 1990s, “the average on-reservation [American] Indian citizen still had per capita income of less than $8,000, compared to more than $21,500 for the average US resident,” making American Indians “the economically poorest identifiable group in America.”24 There is no evidence that economic conditions have improved since then. Shannon County, South Dakota, is 93 percent American Indian, and between 2009 and 2013, over half its population lived below the poverty line.25 At least fifteen federally recognized tribes have unemployment rates above 80 percent,26 and even in urban areas such as Rapid City, South Dakota, and Minneapolis, Minnesota, about 50 percent of American Indians live in poverty.27 In concrete terms, this means that Indigenous peoples in the United States continue to live with hunger and preventable illness, in overcrowded and substandard housing, with life expectancies decades shorter than the national average.28 These harsh realities are compounded by a systemic disregard for criminal assaults on Indigenous people and the transgenerational trauma resulting from the federally imposed boarding school system,29 leaving the most vulnerable members of the community chronically exposed to violence. According to a 2014 study commissioned by the US Department of Justice (DOJ), American Indian and Alaska Native children experience post-traumatic stress disorder (PTSD) “at the same rate as veterans returning from Iraq and Afghanistan and triple the rate of the general population.”30

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Not coincidentally, the suicide rate among Indigenous youth in the United States is more than three times the national average; in some communities it is almost twenty times as high.31 All of these disparities are likely to intensify, for this is an era in which those who profit from poverty and disenfranchisement—as well as those who overtly advocate White supremacy—have been empowered. It is quite clear that President Trump will never acknowledge the harm done to people of color by structural racism.32 Indigenous sovereignty is under direct attack by a man whose business interests have long clashed with Native gaming rights.33 His administration is revoking fair pay and workplace safety requirements; rolling back regulation of the financial services industry; reducing funding for healthcare, education, and basic social welfare; and promoting policies that will result in higher incarceration rates for people of color.34 The Justice Department has prioritized harsh sentencing and dramatically expanded immigration detention as well as deportation.35 Black and Central American immigrants are particularly harshly affected by intensified immigration policies.36 Islamophobia is on the rise as Muslims are targeted by programs purporting to counter “violent extremism” and, more generally, activists of color are being depicted by federal law enforcement agencies as “identity extremist” threats to the national security.37 Simultaneously, it is becoming more difficult to address the racially disparate impacts of such policies directly. The Justice Department is not enforcing consent decrees arising from egregious abuses of police powers, and is calling for an end to affirmation action in education.38 Ethnic studies programs and other sources of information about the histories of communities of color are being eliminated, making it more difficult to understand that many social measures now described as “welfare” or “racial preferences” were instituted to redress long histories of institutionalized racial exclusion.39 Poverty, crime, healthcare, education, and migration are portrayed as unrelated phenomena, and scrubbed of their racialized dimensions. As a result, the structural dynamics of systemic disparities are rarely acknowledged, much less addressed by those with access to institutional resources.

Activism Rekindled The good news is that we see renewed political engagement across a wide spectrum of the population, and the neoliberals seem to have abandoned their claims to have brought us to the “end of history.”40 Since the dawn of the twenty-first century, millions of Americans have taken to the streets, advocating for social justice. Hundreds of thousands joined the anti-war protests

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that swept the globe in 2003, as the United States prepared to invade Iraq.41 In the spring of 2006, some five million people participated in the immigrant rights marches taking place in hundreds of US cities.42 Inspired by the Arab Spring of 2011, the Occupy Movement motivated tens of thousands of (mostly) young people to contest economic inequality.43 Despite widespread insistence that the United States was a “postracial” society during the presidency of Barack Obama, protests over the killing of Black men by the police dramatically shifted popular discourse about the persistence of racism. In 2014 Michael Brown, an unarmed eighteen-year-old Black man, was shot by a White police officer in Ferguson, Missouri, and left to die in the street, just a few blocks from his home.44 Although such killings are not uncommon, Brown’s death and the state’s failure to indict the officer sparked weeks of large demonstrations and increasingly militarized governmental responses.45 Under the banner of “Black Lives Matter,” grassroots protests swept the country, “propelled by high-profile deaths of unarmed African-Americans at the hands of police in Cleveland, New York and Baltimore” and a consistent failure to hold these officers accountable.46 In 2015 and 2016, tens of thousands of protesters again took to the streets in the wake of the police killings of Black men in Baltimore, Baton Rouge, and St. Paul, and national demonstrations continue as men, women, and children of color are killed by law enforcement officials.47 Simultaneously, in late 2016 over ten thousand people—including three thousand veterans—travelled across the country to join the water protectors encamped on or near the Standing Rock Sioux Reservation in North Dakota, determined to prevent the completion of a 1,200-mile oil pipeline that endangers Indigenous lands and sacred sites and threatens significant ecological damage.48 Those joining the camps—Indigenous people from hundreds of nations throughout the Americas, environmentalists, and activists from a diverse range of groups, including the Black Lives Matter movement—were supported by demonstrations in scores of cities across the United States.49 In 2017 and 2018 Americans took their political opinions to the streets in numbers we had not seen since the 1960s. President Trump’s inauguration was met by a massive Women’s March50 and “J20” protest,51 shortly followed by mobilizations across the country contesting his anti-Muslim travel ban and intensified immigration restrictions, raids, and deportations.52 In 2018, tens of thousands protested the Trump administration’s policy of separating migrant families at the US border.53 We saw marches for “science” advocating evidence-based governmental policies, and the contestation of Confederate monuments in many locations.54 While White supremacists were also emboldened, they were less inclined to take to the streets, perhaps because after

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their “Unite the Right” rally in Charlottesville, Virginia—where a counterprotester was killed—they found themselves substantially outnumbered.55 The willingness of so many individuals to engage in public protest—largely, although not exclusively, to support the rights and well-being of marginalized people—has had tangible effects. Many of the president’s immigration proposals were delayed if not derailed. Several iterations of the Muslim ban were rejected, attempts to rescind the Deferred Action for Childhood Arrivals (DACA) program were enjoined, and the DOJ had to reverse course on its policy of separating migrant children from their parents.56 While these were minimal gains, one expects that in the absence of highly visible protests and constant scrutiny, considerably less humane immigration practices and policies would have long since been implemented. Although the Ferguson grand jury failed to indict the officer who shot Michael Brown,57 the Justice Department was compelled to document the routine violations of the Constitution and federal law by the Ferguson police, illustrating how the city’s “law enforcement practices are shaped by [its] focus on revenue rather than public safety needs” and confirming that “African Americans experience disparate impact in nearly every aspect of Ferguson’s law enforcement system.”58 In the wake of widespread protests over Freddie Gray’s killing by the Baltimore police in 2015, the DOJ issued another scathing report acknowledging pervasive racial discrimination in police practices that routinely involved unconstitutional stops, searches, arrest, and wanton use of unreasonable force.59 Such reports do not, of course, resolve the abuses of state power at issue, but they identify structural mechanisms that perpetuate racial injustice and create opportunities for us to move beyond the dominant narrative’s insistence that racism is an individualized rather than systemic phenomenon. In 2016, concerted resistance to the Dakota Access pipeline resulted in executive intervention that, in essence, overruled a federal court’s decision to allow construction to continue while the Standing Rock Sioux Tribe’s claims were being litigated.60 Going further, the DOJ, the Army, and the Interior Department jointly acknowledged “the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects” and proposed formal consultations on the adequacy of the existing statutory framework for “the protection of tribal lands, resources, and treaty rights.”61 The federal government is never going to dismantle the colonial paradigm upon which the state relies for its existence as well as its wealth and power, but the resistance of Indigenous peoples and their allies forced it to acknowledge the extent to which colonial power undergirds the status quo.

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In these actions we have seen a willingness to directly confront state and corporate power and a refusal to accommodate policies and practices that relentlessly destroy lives and communities, sacred sites, traditional lands, and natural resources. The movements being led by Indigenous and African American youth, in particular, are rooted in and carry forward long traditions of resistance to invasion, occupation, enslavement, apartheid, and racial subjugation in US history, and they reflect a commitment to profound structural change. Thus, the pipeline protests have not only been about stopping environmentally and culturally devastating construction projects. They are very concrete expressions of a fundamental responsibility to protect the land and the life it supports, unconstrained by colonial law or power. According to Nataanii Means, a young Indigenous leader, “We are making this stand for water. For your future’s right to clean water, for our futures’ right, for all the winged, four-legged, water beings, things that crawl and cannot speak for themselves’ right to clean water.”62 The water protectors have been clear that they are contesting not simply a pipeline but also any further incursions into Indigenous sovereignty. As Oglala Lakota elder Regina Brave stated at the Standing Rock occupation, “If you want to protest here, you must incorporate [this] belief: We are Nations. We are enacting our sovereign right to say what happens to our children, our water and our land.”63 Similarly, “young Black activists are showing us once again what it means to step into history as subjects, not objects . . . challenging a system not attuned to their needs, or the needs of their communities,” according to professors Bernardine Dohrn and Bill Ayers.64 Legal scholar Charles R. Lawrence III observes that “Black Lives Matter articulates the everyday violence visited on black communities by the savage inequalities of segregated schools, by unemployment, and an ever-increasing wealth gap, by our disproportionate numbers in prisons and our declining numbers in universities and the professions.”65 In August 2016, after a year of consultation among more than sixty organizations, the Movement for Black Lives (M4BL) presented a comprehensive policy paper identifying six demands, or goals, supplemented by forty specific proposals and thirty-four policy briefs. As summarized by history professor Robin D. G. Kelley, it is a platform “aimed at ending all forms of violence and injustice endured by black people; redirecting resources from prisons and the military to education, health, and safety; creating a just, democratically controlled economy; and securing black political power within a genuinely inclusive democracy.”66 While the water protectors at Standing Rock and the M4BL activists articulate goals that differ in many significant respects, both have moved beyond

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protesting governmental policies and practices to envisioning and strategizing the restructuring of social relations in very fundamental ways. Rather than accepting that power rests with the state and its agencies, these activists are recognizing and reclaiming the power that rests with the people. In this respect, much of what is being said and done is reminiscent of efforts made in the 1960s and early 1970s to empower communities of color. The conceptual framework of colonialism that informs this book has emerged from my attempts to understand both what gave the movements of that era their tremendous vitality and what has since happened to that energy. Taking to heart Mathew King’s advice that we need to know where we have been in order to figure out where we’re going, the following sections look back at some of the movements for racial justice that envisioned meaningful structural change a half century ago, with an eye to understanding how the resistance they encountered largely precluded them from achieving their goals.

Liberatory Visions The civil rights movement can take much credit for the Supreme Court’s acknowledgment in Brown v. Board of Education that legally mandated apartheid violated the Constitution’s guarantee of equal protection and for Congress’s passage of the 1964 Civil Rights and 1965 Voting Rights Acts. Subsequently, the dominant narrative insisted that the playing field was level and presumed racial injustice to be anomalous. But formal legal equality resulted in little change for most people of color. As early as 1967, psychology professor Kenneth Clark observed, “The masses of Negroes are now starkly aware that recent civil rights victories benefited a very small number of middle-class Negroes while their predicament remained the same or worsened.”67 According to Derrick Bell, the successful elimination of formal, visible racial barriers encouraged White society to dismiss racism as a historical aberration while leaving Black Americans in “anguish over whether race or individual failing” explained their continued exclusion.68 “Either conclusion,” he noted, “breeds frustration and eventually despair.”69 Oblivious to this reality, mainstream American complacency was shaken to its core by the hundreds of urban rebellions that occurred in US cities in the mid- to late 1960s.70 Like many recent protests, most were triggered by police violence. Analyzing these “riots,” the National Advisory Commission on Civil Disorders, better known as the Kerner Commission, determined that the underlying causes were “pervasive discrimination and segregation in employment, education and housing” and the resulting “frustrations of powerlessness” that permeated the “ghettos.”71 Significantly, the commission—

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comprised of powerful political and business leaders appointed by President Lyndon Johnson—bluntly acknowledged that “white institutions created [the racial ghetto], white institutions maintain it, and white society condones it.”72 Motivated by their desire to preclude further urban rebellions, these leaders recommended governmental action to alleviate some of the most egregious manifestations of racial subjugation.73 These programs, as well as others associated with Johnson’s War on Poverty, provided much-needed resources and opportunities for the poorest Americans, but many people of color in the United States had more extensive visions of change, inspired by the movements for fundamental social transformation sweeping the planet.74 In 1957, under Kwame Nkrumah’s leadership, Ghana had won its independence from British colonial rule, and in 1960 alone, eighteen African colonies were recognized by the United Nations (UN) as independent states.75 The Vietnamese ousted their French colonizers in 1954, and their resistance to the United States’ military presence in Southeast Asia was widely perceived as an extension of their war for independence.76 Anti-colonial struggles and mass movements against military dictatorships were succeeding in Asia and Latin America, inspiring student and youth uprisings throughout Europe and North America.77 As Argentine journalist Adolfo Gilly observed in his introduction to Frantz Fanon’s Studies in a Dying Colonialism, “The whole of humanity has erupted violently, tumultuously onto the stage of history, taking its own destiny in its hands.”78 The liberatory potential of this new world order was palpable. Against this backdrop, movements emerged in African American, American Indian, Chicana/o, Puerto Rican, and Asian American communities that identified themselves, to some degree or another, with national liberation and anticolonial struggles in Africa, Latin America, and Asia.79 More generally, a significant sector of activists and scholars saw the struggles against racism in the United States as integrally related to the global movement for decolonization and framed their goals in terms of liberation and self-determination rather than the achievement of civil rights.80 Invoking a long tradition of describing African Americans as a “nation within a nation,”81 many Black leaders in the 1960s referenced the international legal paradigm that now condemned colonialism. Thus, for example, in 1966 Student Nonviolent Coordinating Committee (SNCC) chair Stokely Carmichael—later known as Kwame Ture—observed that integration and assimilation were designed to abolish the cultural integrity of the African American community. “What must be abolished,” he argued, “is not the black community, but the dependent colonial status that has been inflicted upon it.”82

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The Movement for Black Lives’ 2016 platform calls for community control and “collective liberation,” while supporting global efforts by Afrodescendant peoples to redress “the historic and continuing harms of colonialism and slavery” and recognizing “the rights and struggle of our Indigenous family for land and self-determination.”83 In this, one can hear echoes of the nationalist movements of the 1960s and, in particular, the ten-point Platform and Program of the Black Panther Party for Self-Defense (BPP). Issued in 1966, the BPP Platform began, “We want freedom. We want power to determine the destiny of our Black Community.” After addressing employment, housing, education, military service, police brutality, and criminal justice, as well as compensation for slavery and genocide, it identified as its “major political objective” a plebiscite supervised by the United Nations “for the purpose of determining the will of black people as to their national destiny.”84 Similarly, the legacy of the American Indian Movement (AIM), which emerged in 1968 against the backdrop of Red Power activism, can be seen in the Standing Rock water protectors’ occupation of unceded treaty land, their invocation of international law, and their ability to galvanize people from so many Indigenous nations. Like the Black Panther Party, AIM’s initial focus was the curbing of police brutality, but its activities soon encompassed a wide range of community-based programs, struggles to defend land rights, and the protection and promotion of traditional ways. In 1972 the American Indian Movement organized a cross-country caravan to highlight the “Trail of Broken Treaties” by taking a twenty-point platform focusing on land and treaty rights to Washington, DC.85 In 1973 it achieved international renown as a result of the federal government’s seventy-one-day siege of AIM members and supporters at Wounded Knee on the Pine Ridge Reservation in South Dakota. The following year, at the behest of Lakota elders, Russell Means and other AIM leaders organized the International Indian Treaty Council, which worked with peoples from North and South America to obtain recognition of Indigenous rights—most notably the right to self-determination—at the United Nations.86 The influence of such formulations can be seen in the visions developed by other organizations in this period. “Affirm[ing] the right of self-definition and self-determination,” the Asian American Political Alliance at the University of California–Berkeley asserted that “to be truly liberated,” “all minorities must have complete control over the political, economical and educational institutions within their respective communities.”87 The Asian American Red Guard’s Political Program of April 1969 began, “We want freedom. We want the power to determine the destiny of our people, the Asian community,”

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and went on to address housing, education, healthcare, employment, police brutality, and criminal justice.88 Similarly, the Puerto Rican Young Lords’ thirteen-point Program and Platform, promulgated later in 1969, began with calls for self-determination for Puerto Ricans, all Latina/os, and all Third World peoples. It emphasized “community control of our institutions and land,” including “people’s control of police, health services, churches, schools, housing, transportation and welfare,” and education appropriate to the “culture of our people.”89 In 1970 the Chicano Brown Berets issued a “13 Point Political Program—To Unite All Our People under the Banner of Independence” that first addressed the return of “all land that was stolen from our people,” and then highlighted issues of criminal justice, education, employment, and housing.90 As these excerpts illustrate, community empowerment was a consistent theme of these organizations, and their agendas reflected a conviction that fundamental social change was both necessary and attainable. Their platforms were not simply demands made to those with institutional or economic power; they were plans of action to be implemented by their members and generally included breakfast programs for children, free medical clinics, community-based liberation schools, independent news services, transportation for prison visits, support for workers’ struggles, and patrols to protect community residents against police brutality.91 Young Lords leaders Iris Morales and Denise Oliver-Velez reflect, “We woke up each day to serve the people . . . and at night we dreamed about the new society that we would create, convinced that the richest country on the globe had sufficient resources to make a better world.”92 These groups represent only a handful of the hundreds of organizations that emerged in the United States during the 1960s and early 1970s, but they are still considered iconic, perhaps because of their ability to galvanize the popular imagination. Providing a liberatory vision of what could be, each had a network of chapters dedicated to empowering people within their own communities as they struggled to survive on a daily basis. Simultaneously, these local formations participated in regional, national, and international coalitions that transcended the boundaries of race or ethnicity. Their analyses situated their communities’ problems and potential solutions within the global context of anti-colonial movements and evolving interpretations of collective rights under international law, particularly the right to self-determination. But the fact remains that, despite their commitment, these movements were not able to implement most of their goals, or to sustain the institutions they created. If contemporary struggles are to be more effective, there is much we need to learn from both the successes and failures of these movements.

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Retrenchment and Repression What happened to the energy and vision of the organizations and social movements struggling so hard for structural transformation during the “long sixties”? More than half a century later, how is it that overt acts of racialized violence still dominate the headlines,93 Americans have elected a president endorsed by the Ku Klux Klan,94 and structural racism remains largely undisturbed?95 These developments are not simply a reaction to the Obama years; instead, they reflect the retrenchment that followed the civil rights era much as, in the wake of the Civil War, the gains of Reconstruction were quickly eviscerated. By 1991, the late author and activist Maya Angelou was lamenting, “In these bloody days and frightful nights when an urban warrior can find no face more despicable than his own, no ammunition more deadly than self-hate and no target more deserving of his true aim than his brother, we must wonder how we came so late and lonely to this place.”96 The despair she described continues to permeate many communities and, because we cannot afford to keep “circling the same old rock,” as Nakota legal scholar and theologian Vine Deloria Jr. put it,97 we must confront this question head-on. Direct governmental repression is, no doubt, part of how we came to this place, a phenomenon that has not abated over the past several decades, regardless of who is president or which political party controls Congress.98 All of the movements of the 1960s were subjected to intensive surveillance, infiltration, and the use of disinformation to create splits within organizations and to discredit them in the public eye, most famously through the COINTELPRO (counterintelligence program) operations of the FBI.99 Organizations perceived as the most “radical” faced barrages of criminal prosecutions that relied on false testimony and fabricated evidence to incarcerate their leadership and to divert their resources into protracted legal defense efforts.100 When these tactics failed to meet their stated goal of “neutralizing” threats to the status quo, leaders such as Fred Hampton and Mark Clark of the Illinois Black Panthers were simply assassinated.101 In other cases, as in the 1973 siege of American Indian Movement activists and supporters at Wounded Knee, armed force was intensively deployed and military counterinsurgency methods subsequently used to undermine support for AIM on the Pine Ridge Reservation.102 Under these conditions it is not surprising that many of those who once identified as “warriors” would come to consider defending their communities and creating alternative institutions to be, at best, an exercise in futility. No one was held responsible for the violations of constitutional rights attending COINTELPRO or similar governmental operations, despite their being

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condemned as illegal and unconstitutional by a Senate oversight committee. Instead, many victims of these operations remain incarcerated today.103 For the most part, organizations that advocated self-determination for people of color under US jurisdiction have been erased from mainstream history or are portrayed as “gangs” of criminals and thugs.104 Numerous COINTELPRO tactics have since been legalized in the “war on terror”105 and advocates of “separatism” are now classified as extremists and potential terrorists not only by the FBI but also by liberal organizations such as the Southern Poverty Law Center.106 The evolution of broader governmental policies and programs also helps explain what has been described as political apathy. Responding to the mass movements that swept the country in the 1960s, the urban rebellions, and the recommendations of governmental commissions, the federal government instituted a wide range of programs intended to improve employment, education, the welfare system, and housing in poor communities.107 Despite evidence that these programs had positive effects and that criminal activity was not increasing, President Richard Nixon shifted his focus to an ever-intensifying “war on crime” soon after his 1968 election.108 As Christian Parenti summarizes, “Crime meant urban, urban meant Black, and the war on crime meant a bulwark built against the increasingly political and vocal racial ‘other’ by the predominantly white state.”109 By the early 1970s, the war on crime had morphed into a “war on drugs,” whose disproportionate effect on Black communities is well documented and succinctly summarized in the fact that, by 1999, African Americans comprised about 13 percent of the US population and its drug users, but 74 percent of those imprisoned for drug offenses.110 The drug war was accompanied by a rise in the militarization of police forces throughout the country, altering their character, in Kenneth Nunn’s terms, “from law enforcement agencies to military occupation forces.”111 All of these dynamics have intensified in the “war on terror” generally associated with the attacks of September 11, 2001, but more accurately traced, at least domestically, to draconian legislation passed in the 1990s during the administration of President Bill Clinton.112 Counterterrorism provides the backdrop for the “Countering Violent Extremism” or CVE policing programs initiated in predominantly Muslim communities by President Obama, and for the current targeting of “Black Identity Extremists” by the FBI.113 Trump’s first attorney general, Jeff Sessions, was an Alabama senator who had been nominated but not confirmed as a federal judge in the 1980s, apparently because of racist statements he had made.114 Evincing a complete disregard for the crisis of mass incarceration, Sessions instructed federal

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prosecutors to “charge and pursue the most serious, readily provable offense,” describing this as a “core principle” of DOJ policy.115 Trump has reversed the promises of the post-Ferguson Obama administration to demilitarize local policing, with the result that “police departments will now have access to military surplus equipment typically used in warfare, including grenade launchers, armored vehicles and bayonets.”116 Thus, over the past half century, crime, drugs, and terrorism have been invoked consistently to dramatically expand governmental power, militarize policing, eviscerate constitutional rights, and significantly curtail the rights of immigrants. In the meantime, people of color have been particularly hardhit by the deindustrialization of the American economy and by the attendant shift from relatively stable manufacturing jobs to low-wage, part-time service sector employment.117 Welfare “reform” has virtually eliminated any safety net, with the result that—to give just one example—in 2011, six million Americans had no income besides food stamps.118 While these rollbacks have had a disproportionate impact on people of color, Peter Edelman observes that they were instituted with little explicit discussion of such effects because “welfare,” like “crime,” “had become a code word for race.”119 Predictably, more and more people are consumed by the struggle to ensure food, shelter, healthcare, and schooling for their families. Trump’s priorities are reflected in his budget proposals, which have urged cutbacks in healthcare, education, housing, labor, and environmental protections, while proposing expanded funding for law enforcement and the military.120 As summarized by the UN special rapporteur in late 2017, the welfare cuts will “shred crucial dimensions of a safety net that is already full of holes” and “the proposed tax reform package stakes out America’s bid to become the most unequal society in the world.”121 The movements of the long sixties that envisioned liberation and decolonization were thus undermined by (1) multifaceted political repression that was both overt and covert, legal and illegal; (2) the dramatic expansion of criminalization and incarceration, accompanied by increasingly militarized policing; and (3) massive cutbacks in social welfare programs that forced most poor people to devote their energies to survival. These dynamics, still at work in American society today, combine to reinforce a regime of “structural violence” that outstrips the more overt uses of armed force.122 When the nature of oppression is apparent, many individuals are willing to define themselves in opposition to systemic subjugation, as illustrated by the mobilizations against American apartheid.123 But resistance becomes much more complicated when the institutional dynamics are so deeply rooted that they seem to perpetuate themselves without any obvious discriminatory in-

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tent. When that happens, it is easy to believe that we—or those closest to us— are the primary source of our own problems.124 Considered in the broader context of structural violence, it is not difficult to understand why the energy fueling the movements of the 1960s dissipated or why it has taken so long for mass mobilizations to resurface.

Moving Forward What will it take to actually dismantle the racial hierarchy in evidence throughout American society? It has been 150 years since Congress amended the Constitution to guarantee all persons equal protection under law, and a half century since the Civil Rights and Voting Rights Acts were passed. In the interim we have had Democratic and Republican administrations, and our first Black president. The rhetoric of race has shifted considerably over this period, but de facto segregation, disproportionate incarceration rates, and racial disparities in wealth and income, as well as in access to healthcare, housing, and education, persist. State actors are taking full advantage of the newly expanded opportunities to restrict social welfare programs; to roll back protections against discrimination on the basis of race, gender, sexuality, religion, national origin, or immigration status; to minimize the exercise of Indigenous rights; and to assign natural resources to corporations. As a result, we have every reason to expect that racial disparities will continue to grow. A lot of people have taken to the streets since Donald Trump’s election. In most cases, however, it is not evident that they have plans for constructive engagement that go beyond expressing their dissatisfaction with particular governmental actions, actors, or policies. We find ourselves in an era of renewed energy and activism, but we also face intensified versions of all the factors that neutralized the movements of the 1960s and 1970s: the rollbacks of programs supporting access to basic social goods and services, a general expansion of police power, and intensified political repression in the form of counterinsurgency as well as counterintelligence operations. In response to the growing number of protest actions, federal, state, and local officials are seeking heightened criminal penalties for protesters and criminalizing many forms of resistance. Thus, for example, in Washington, DC, in January 2017, following massive inauguration protests, more than two hundred protesters faced riot-related charges that could have resulted in up to eighty years’ imprisonment.125 Ultimately most of the charges were dropped, but the government had served notice that virtually any form of political protest will, henceforth, trigger a draconian response.126 Even before Trump became president, many state

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legislators were targeting those who contest oil pipelines or protest police killings. According to the Intercept, as of January 2017, legislation had been introduced that “would allow motorists to run over and kill any protester obstructing a highway as long as a driver does so accidentally,” “allow prosecutors to seek a full year of jail time for protesters blocking a highway,” “reclassify as a felony civil disobedience protests that are deemed ‘economic terrorism,’” and “make it easier for businesses to sue individual protestors for their actions.”127 State legislatures have considered making protesters pay for policing, and debated “Blue Lives Matter” bills that characterize attacks on law enforcement as hate crimes.128 While most of these proposals have not yet been passed, it is clear that the personal risks associated with political engagement are increasing. Can creative and energized responses to political, economic, and sociocultural repression be maintained under these conditions? What is needed for popular activism to transform not just the discourse about race and social justice but the structures that perpetuate inequality? What kinds of options, legal and political, might truly be effective? For most of the past half century, we have relied on the Constitution’s guarantees of due process and equal protection to rectify racial injustices. But this strategy has proven inadequate, for it does not address the underlying dynamics of power.129 To effectively challenge the institutionalization of racial hierarchy, violence, and exploitation in this country, we will need strategies grounded in conceptual frameworks capable of explaining the underlying functions of racialization and the mechanisms through which race-based privilege and subordination are created and maintained. A first step toward developing such frameworks involves overcoming the “false consciousness” under which we have been operating.130 If, as Dorothy Roberts observed, this system “brilliantly serves its intended purposes,”131 meaningful change will require forgoing the comfort of a narrative that promises constant if gradual “progress.” Instead, we will need narratives that incorporate the histories and lived realities of peoples of color in this country, for without these, our ability to envision and construct alternative futures will be hopelessly constrained.

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Unsettling Narratives The silent spaces of history raise the most profound questions. —Howard Berman

Narratives of origin, identity, and purpose tell us who we are, where we have come from and where we are going, what we should fear, what we should want and how we should try to attain it. These understandings structure social relations, identifying who belongs in any given grouping, each person’s status with respect to others, and how decisions for the collective will be made and enforced.1 Our stories can convince us that the status quo is right, natural, and inevitable, or they can open up a world of transformative possibilities. Nigerian author Ben Okri observes, “One way or another we are living the stories planted in us early or along the way, or we are also living the stories we planted—knowingly or unknowingly—in ourselves. We live stories that either give our lives meaning or negate it with meaninglessness. If we change the stories we live by, quite possibly we change our lives.”2 The stories that shape our lives are embedded in the broader cultural and historical narratives “planted in us” by our families and communities, by our interactions with friends and strangers, by what we see—or do not see—in the media, and by what we are taught—or not taught—in school. In other words, they are refracted through, if not entirely defined by, the dominant social narrative. Social narratives situate both individual stories and those of entire peoples within cultural paradigms or worldviews, and the master narrative of how the United States came into being and what it now represents is no exception. It is a story firmly situated within a Eurosupremacist paradigm and told from the perspective of the early settler colonists and those who identify as their successors. Not surprisingly, this narrative extols the colonial mission, reinforces the status quo, and promises ever-expanding wealth and well-being. It is also a story that reinforces the racial domination and subordination that are deeply rooted in the psyches of all who live in this society. To effect meaningful change, we will need to live different stories—stories that more accurately represent the origins of the country and the varied experiences of its peoples, stories that recognize the emancipatory potential of multiple and overlapping identities, perspectives, and worldviews. 25

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This book tells a story about racialization—the construction of “races” and the attribution of particular characteristics to them—that diverges from the dominant narrative by focusing on how race and racial inequities have been used, quite strategically, to generate power and wealth for the state and to consolidate control of that power and wealth in the hands of the settler class. Laying the foundation for this alternative perspective that I believe can help us change our lives, this chapter presents an overview of the master narrative—the “consensus reality” we confront on a daily basis—and interrogates some of its silent spaces.

The Master(’s) Narrative The slogan “Make America Great Again” was coined by Ronald Reagan in his 1980 presidential campaign and revived by Donald Trump in 2016.3 Without mentioning race, it evokes an era in which White privilege was the presumptive domestic norm and the United States exercised global hegemony in the name of Western civilization. It is a construction squarely rooted in the dominant—or master—narrative of American history and identity. It has many dimensions, but most significantly, for our purposes, it is a story about progress and about property and, because of the ways those constructs are framed, it is inevitably also a story about race and gender.

A Story of Progress The versions of US history most commonly presented in education and entertainment are explicitly Eurocentric, often beginning with a reference to Christopher Columbus’s “discovery” of the Americas before moving quickly past the Pilgrims and Puritans to the “pioneers” who “settled” the West.4 Like the origin stories of other settler states, it begins with the arrival of the colonizers, rendering invisible the societies being displaced and replaced, or recasting them as part of the wilderness transformed by the settlers’ “civilizing mission.”5 It is a triumphal tale of Europeans who “braved the wilderness”—and its “roaming savages”—to transform “wastelands” into agricultural bounty. Their sacrifices enabled the development of the cash crops and mineral resources that fueled the industrial revolution in the United States and its eventual rise to global economic dominance.6 As summarized by President Trump in his 2018 commencement address at the Naval Academy, “our ancestors trounced an empire, tamed a continent, and triumphed over the worst evils in history.”7 The founders’ desire for democratic governance and religious freedom is emphasized in this story, the country’s population growth and territorial

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expansion attributed to their righteousness. The early Angloamerican colonists’ assertion of “a pre-emptive right to the continent,” embodied in colonial charters that “designated the Pacific Ocean . . . as the western boundary of the several colonies,” and their presumption of sovereignty over territory they had never seen8 provide the ideological foundation for their subsequent appropriation—and continuing occupation—of the continent.9 We are presented with color-coded maps that take us from sea to shining sea, from the original thirteen colonies, through the Louisiana Purchase and the annexation of northern Mexico, to the Pacific coast. This was all made possible, we are told, by the European immigrants whose experiences set the stage for the narrative’s embrace of an assimilative pluralism. Until recently, at least, the story emphasized the United States as a “nation of immigrants.”10 This characterization underscores the desirability of being an American—why else would so many people go to such lengths to come here?—and suggests that American society has always been open to people of diverse backgrounds. It is a framing that conveniently omits the selectivity with which voluntary immigrants have been admitted and elides the histories of both those who were here all along and those who were forced to migrate. This is a narrative of constant and inevitable progress that asserts its universality and overwrites the stories of all those it encounters. Its world is anthropocentric and hierarchically structured, with humans second only to a presumptively male God who instructs them to exercise “dominion . . . over every living thing that moveth upon the earth.”11 For those who reject the religious framing, the hierarchy nevertheless remains, with civilization or science replacing God at the pinnacle. Once this paradigm is accepted, it is equally logical to envision and construct hierarchical relations among humans, with some closer to God—or scientific “truth”—and others closer to nature. Given this framing, it is not surprising that settler societies would be organized in a patriarchal and hierarchical manner. Likewise, as everyone is assigned a particular place in this order, it is not surprising that both individual and social identities tend to be understood as singular and exclusive rather than multiple, overlapping, or interpenetrating. “Rationality,” particularly in the form of science and technology, provides the path to conquering nature, and therefore is cast as the basis of civilization. History is the record of linear human “progress,” and Western civilization represents the highest stage of human development.12 The American master narrative takes this a step further, positing the United States as the culmination of Western civilization, the product of a genealogy that, in anthropologist Eric Wolf ’s words, takes us from ancient

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Greece and Rome to Christian Europe, from the Renaissance and the Enlightenment to political democracy and the industrial revolution.13 “Industry, crossed with democracy, in turn yielded the United States, embodying the rights to life, liberty, and the pursuit of happiness.”14 In this telling, historic injustices are inadvertent rather than constitutive, the growing pains of an emergent democracy mitigated by the presumption that those in power were acting for a higher purpose and in accordance with the standards of their time.15 As Israeli historian Benny Morris put it, “Even the great American democracy could not have been created without the annihilation of the Indians. There are cases in which the overall, final good justifies harsh and cruel acts in the course of history.”16

A Story of Race and Gender The master narrative is also a story of race and gender, despite the fact that its protagonists are almost exclusively men of European ancestry. This is because the colonists assumed that mutually exclusive classifications of race and gender simply existed or could be constructed, that these classifications were or could be ordered hierarchically, and that imposing the resulting relations of domination and subordination upon the peoples they encountered was essential to their “civilizing mission.” Indigeneity is erased by pretending that the land was vacant when the settlers arrived—thereby facilitating their pretense to be “native” to it—and by overwriting extant forms of self-identification with colonial constructs of gender, race, and citizenship. To the extent Indigenous peoples are acknowledged—usually as part of the settlers’ depiction of their valorous conquests—they are characterized not as independent sovereigns but as a “savage race.” Globally, with the expansion of European colonial rule over the past five centuries, several thousand nations have been arbitrarily (and generally involuntarily) incorporated into the approximately two hundred political constructs we call independent states.17 States are generally understood to have relatively well-defined boundaries and populations under the jurisdiction—that is, effective control—of a centralized government.18 “Nations,” as I am using the term, refers to those who identify “as ‘one people’ on the basis of common ancestry, history, society, institutions, ideology, language, territory, and, often religion,” as well as to “the geographically bounded territory” of such a people.19 The United States, of course, is an internationally recognized state that exercises jurisdiction over the lands and peoples of perhaps five hundred Indigenous nations, over those who migrated to this land involuntarily as well as voluntarily, and over externally colonized territories such as Puerto Rico.

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The imposition of state formations upon Indigenous peoples represents a transformative moment in the relationship between gender, identity, and power. The “civilized” European state is unremittingly patriarchal; the worldview it embodies insists not only on gendered identities that are binary and mutually exclusive but also hierarchically ordered, with presumptively heterosexual males always dominant. By contrast, many of the nations being subsumed by these states have had—and often still have—a much more fluid understanding of gender and gendered relations designed to promote balance rather than domination and subordination.20 Most North American Indigenous societies are matrilineal, and women hold considerable decision-making authority, often being responsible for the use of land, the distribution of goods, the maintenance of stable social relations, and the appointment of political leaders.21 But the issue is not one of women being “equal” or having more “rights” in Indigenous societies; rather, it is that gendered balances are an integral aspect of the cosmos itself.22 The subordination of complex, multilayered, and organic understandings of gender identities and relations constitutes part of the collateral damage of the colonial encounter. In their place, the master narrative imposes exclusionary, binary, and biologically assigned gendered identities as well as patrilineal and patriarchal forms of social organization, and then frames “women’s rights” solely as a matter of achieving formal equality with men. I cannot do the subject justice here, but must note that I believe decolonization to be as essential to gendered freedom as it is to overcoming racial subordination. Like gender, race is presented by the master narrative as a preexisting reality rather than a colonial construct. In fact, we know that Indigenous peoples in what is now the United States have consistently identified themselves not as “a race” but in relation to their clans and nations—from the Penobscot and Lenape of the northeast coast to the O’odham of the southwest borderlands, to the Salish peoples of the Pacific Northwest. We know, too, that the Europeans arriving in North America did not initially see themselves as White but as, perhaps, English, French, Dutch, or German; that Africans did not come as Black but as Hausa or Mandingo, Yoruba, Ibo, Ashanti, or any of the other nations swept up into the colonial slave trade.23 The same holds true, of course, for most migrants from Asia, the Americas, and the Middle East. “Race” is a social and legal construct, not a biological reality.24 There is more genetic variation within “racial” groups than between them;25 beyond that, common sense tells us that there is no inherent logic in, or biological rationale for, a system that limits Whiteness to those of exclusively European ancestry, defines persons with but “one drop” of African ancestry as Black, and refuses to recognize persons indigenous to these lands as “Indian” simply

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because their ancestors’ names were not inscribed on lists created by White colonizers.26 Nonetheless, we live in a society in which “race mediates every aspect of our lives,”27 and “has consistently functioned as a proxy for power.”28 Race is an integral part of our personal identity, and a primary determinant of our educational and economic prospects, our access to healthcare or housing, the infrastructure and social resources in our neighborhoods, and the nature of our interactions with law enforcement and the judicial system. We inhabit, in other words, what Eduardo Bonilla-Silva terms a racialized social system.29 Racialization as we know it is a product of colonial expansion, on this continent and globally.30 While racism and colonialism are distinct phenomena, they are genealogically inseparable. As a result, the ways in which “race” has been constructed, and the presumptions of racial hierarchy that flow from that construction, have always been at the core of the American settler colonial narrative. The legitimacy of the United States rests on the purported supremacy of its “values,” which are said to include liberty, democracy, and equality—or, at least, equal opportunity. To reconcile the discrepancy between these claimed values and actual social conditions, the dominant narrative must consistently resort to racialization. Thus, for example, the Supreme Court could not declare the United States a “government of laws”31 and simultaneously declare American Indians incapable of owning land without identifying Indigenous peoples not only as a distinct race, but one characterized by savagery and lawlessness.32 Similarly, chattel slavery could not exist in a society in which all persons—or at least men—were deemed equal, unless some people were racially identified—“raced”—as less-than-human.33 Thus, even as race has been erased from the story of America, it permeates the narrative at every turn.

A Story of Property Finally, it is important to note that the master narrative is a story of property. From the arrival of the first British colonizers, European understandings of property and property rights have been superimposed upon this land and its residents, with the result that racialized and gendered34 constructions of property are deeply, inextricably embedded in the prevailing paradigm. Like race and gender, the existence of property—that which can be owned and alienated—is simply asserted. There may be questions about whose property it is, but the construct itself is rarely questioned and, for the most part, ownership is envisioned in terms of exclusive rights rather than collective responsibilities.

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The early Angloamerican settlers considered “canonical” John Locke’s contention that, under natural law, the transformative power of human labor allowed commonly held natural resources to be converted into private property.35 From this perspective, settler appropriation of Indigenous lands and resources contributed to the betterment of humanity as a whole for, as Locke put it, “he who appropriates land to himself by his labour, does not lessen but increase the common stock of mankind.”36 This “productive use” justification for appropriating American Indian territory is belied by the colonizers’ knowledge of the extensive agricultural cultivation of American Indian communities,37 as well as the fact that, until the mid-1860s, much of the country’s productive activity was not carried out by the White settlers, but by enslaved people of African as well as Indigenous descent.38 The resulting gap between reality and ideology is bridged by racialization. The settlers were unwilling, of course, to concede that enslaved persons were entitled to own the lands they were rendering productive.39 Instead, the colonial narrative transformed the workers themselves into “a highly volatile and unstable form of property,” property that could be bought or sold; raped, tortured, or abused at will; pledged as collateral; deeded and inherited.40 As Chief Justice Roger Taney explained in the 1856 Dred Scott case, when the Constitution was adopted, “negroes” were considered “an ordinary article of merchandise,” adding that this “opinion was at that time fixed and universal in the civilized portion of the white race.”41 As this illustrates, not only did the opinions of those deemed White provide the foundation for legal decision making, but White people who were unwilling to view Black people as property could be disregarded as insufficiently “civilized.” If property is understood as something to which a person may have legal entitlement,42 then some people may be designated as property and others as owners only if we posit a distinction between them that transcends personhood. That distinction, in our history, has been Whiteness. It is not simply that some humans, or their labor, were commodified. Rather, according to Taney, all those of the “African race,” whether enslaved or not, were “regarded as beings of an inferior order . . . so far inferior, that they had no rights which the white man was bound to respect.”43 Only those identified as White were legally recognized as full persons and, as law professor Cheryl Harris has brilliantly explained, this identification—their personhood, in the form of Whiteness—itself became a form of property.44 The fact that racialization once allowed human beings to be defined as alienable property in the United States is commonly acknowledged, a dimension of the master narrative that most often falls under the heading of “look how far we’ve come,” thereby reinforcing its presumption of continuous

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and inevitable progress. We generally fail to recognize, however, that “real” property—land capable of being bought and sold—is a construct equally dependent upon racialization. The US assertion of ownership of the continent rests on a legal theory that vested land rights in the “first possessor,” defined possession in Lockean terms of “productive use,” and then recognized only Euroderivative colonial activity as “productive.”45 In other words, the earth was transformed into property when lived on by some people but not others. In Johnson v. McIntosh, the Supreme Court’s 1823 opinion that still undergirds the United States’ territorial claims, Chief Justice John Marshall held that only the settler state (not the Indians) could hold title to the land.46 After noting that the doctrine of discovery gave the European colonial power making first contact the right to assert title vis-à-vis other European powers, Marshall then inverted the doctrine—which was, in essence, a non-compete agreement between European states—to hold that because American Indian nations could not “dispose of the soil at their own will, to whomsoever they pleased,” they could not have owned it.47 At its most basic level, Marshall’s argument was an assertion of settler prerogative rather than an appeal to legality or justice. The United States’ power to grant title to lands “has been exercised uniformly over territory in possession of the Indians,” he noted, and “must negative the existence of any right which may conflict with” it.48 Why? Because “conquest gives a title which the Courts of the conqueror cannot deny.”49 The chief justice candidly added that these “principles” may “find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.”50 Thus, an exercise of raw power became a foundational principle of American law based on the racialization of American Indians. As explained by Justice William Johnson, concurring in Cherokee Nation v. Georgia, American Indians were simply “wandering hordes, held together only by ties of blood and habit, and having neither laws or government, beyond what is required in a savage state.”51 Depicting American Indians as savages or animals with no natural right to own land allowed the settlers—racialized as White, Christian, and civilized—to assert an exclusive right to hold title to land.52 This conceptualization did not, of course, mean that the Indigenous peoples of North America would simply cede their territories to the colonizers, but it did lay the ideological foundation for the settlers’ forcible “clearing” of the lands they claimed by any and all means available to them, and for reconciling their seemingly contradictory claims that the lands they occupied were both “vacant” and legitimately obtained by conquest.53 The racist stereotypes embedded within the settler narrative were as essential to the Angloamerican transformation of land into property as they were to the construction of enslaved persons as property.54

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The American origin story thus justifies the occupation of the continent (and beyond), the appropriation of its resources, and the exploitation of its peoples by inventing “races,” attributing particular characteristics to these classifications, and constructing property as a racially contingent social good. While many of its specifics are now contested, the dominant narrative’s triumphalist framing of American history in terms of “progress”—the constant expansion of its claimed territory, its scientific and technological prowess, its economic and military might—continues unabated. President Trump was channeling this narrative as he ended his “taming of the continent” speech by saying, “America is the greatest fighting force for peace, justice and freedom in the history of the world. . . . We are not going to apologize for America. We are going to stand up for America.”55 This is a story of origins and identity comforting to those who benefit—or believe, or want to believe, that they benefit—from the status quo. Its core message is that the United States represents the most advanced and democratic form of sociopolitical organization available, so those fortunate enough to be identified as Americans should be grateful. Moreover, we are assured, the United States has deployed and will continue to deploy its unparalleled military, political, and economic power for the greater good of all humanity.56 Across the political spectrum, the presumption is that contemporary social problems result from a failure to adequately implement the founders’ vision of American society; rarely are the problems understood to be a necessary consequence of that vision. Those who wish to “make America great again” are invoking the trope of America-as-pinnacle-of-human-progress in the past tense, warning that White supremacy is under attack and calling for restorative action. Liberal critics of the status quo generally perceive political exclusion, racialized injustices, and social inequities as aberrational and diminishing, and rely on America’s uniquely egalitarian values to ensure their disappearance.57 There is no room in the master’s narrative for the voices of those who have been disappeared, literally or figuratively, from the story, for the stories of the enslaved or indentured, or those who live with the constant fear of violent attacks, incarceration, or deportation. That means that within the dominant narrative there are no effective paths to freedom for those deemed Other. Moreover, just as men can be oppressed by gender discrimination, those who are at least nominally of the White settler class and, therefore, privileged may also be limited by the constraints of settler hegemony. The conflation of “American” with “White” in both law and popular culture has obscured the histories of varied European immigrant populations and the pressures they have felt to conform to a homogenizing norm, relinquishing their own stories

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as well as their cultures, languages, and other aspects of a distinct ethnicity.58 The racial privilege built into the dominant narrative masks the exploitation of White workers and leaves those who do not “succeed” in accordance with the expectations it creates to blame themselves or, as we have seen repeatedly, people of color for their failures.59 This book does not attempt to address the impact of settler colonialism on the settlers themselves. Nonetheless, as we consider alternative narratives, it seems worth noting that the dominant narrative not only conceals the realities of those deemed Other, but also limits and controls those who identify as White. Speaking as a beneficiary of “the privilege of Western patriarchy,” American studies professor Eric Cheyfitz describes this as being “locked away in our comfort.” “We cannot afford to enter most of the social spaces of the world,” he says, for “they have become dangerous for us, filled with the violence of the people we oppress, our own violence in alien forms we refuse to recognize. And we can afford less and less to think of these social spaces, to imagine the languages of their protest, for such imagining would keep us . . . in continual contradiction with ourselves.”60 The result, he observes, is that “we talk to ourselves about ourselves, believing in a grand hallucination that we are talking with others.”61

Silent Spaces We turn now to some of the silent spaces in the master(’s) narrative, the voids that “raise the most profound questions.”62 There are many for whom the hegemonic American narrative rings hollow, their experiences irreconcilable with its storyline of ever-expanding prosperity. The “progress” promised by the civil rights era—the abolition of legalized apartheid, the temporary expansion of social welfare and affirmative action programs, the purported recognition of American Indians’ right to self-determination—brought a degree of material benefit to many individuals. But the disparities and exclusions have persisted, leaving people of color collectively no better off, no more secure, than we were. The dominant narrative neither adequately accounts for this reality nor provides effective remedial options, and the exclusion of the perspectives of subjugated peoples makes it almost impossible to have meaningful dialogue across racial, ethnic, or class lines.

The Violence of Colonization The lived realities of Indigenous peoples and others who, as a rule, have been excluded from the settler class are notably absent from the master narrative.

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While the specifics of their experiences differ widely, the most consistent shared theme may be the violence visited upon them as a means of achieving the colonizers’ objectives; a violence that always seems to be minimized, distorted, or erased by the silent spaces of the dominant narrative. This warrants emphasis as we think about social transformation because maintaining the status quo is almost inevitably portrayed as a nonviolent—usually, the nonviolent—option; the violence inherent to constructing and preserving that status quo is rarely acknowledged. American history as disseminated through the popular media and public education generally provides a highly sanitized version of the exploitation of Indigenous peoples, persons of African descent, externally colonized peoples, and certain immigrant groups. As a result, the violence attending such exploitation becomes invisible. Thus, for example, American Indians are typically depicted as “inadvertently” being killed by disease or miraculously “vanishing.” When violence on the part of the colonizers is admitted at all, it is almost invariably characterized as individual or collective self-defense.63 The horrors of enslavement endured—and resisted—by African as well as American Indian peoples for several centuries are collapsed into a sidebar, the main story of slavery being the conflicts it engendered within the settler class and their eventual (triumphal) resolution. Several hundred years of slavery and economic exploitation, exclusions from citizenship or political participation, and legalized apartheid are depicted as passing phases in the gradual extension of democratic rights to White women and to people of color.64 To the extent that violence in the interest of racialized repression is admitted, the mainstream narrative relegates it to a past for which no one is today responsible.65 And the violence faced by people on a daily basis as a result of their (perceived) race, ethnicity, national origin, or religion is continuously dismissed as anomalous.66 The legitimacy of acquiring Indigenous lands in violation of treaties, by aggressive warfare, or through agreements with other colonial powers is never seriously questioned, for the narrative begins from the premise that the United States was divinely ordained to exist in its current form. The seizure of northern Mexico in 1848, the “purchase” of Alaska in 1868, the overthrow of the Kingdom of Hawai‘i in 1893 and its subsequent annexation, the colonization of Puerto Rico, Guam, and the Philippines beginning in 1898—these are just color-coded building blocks on the map of US territorial expansion, evidence of the settlers’ “manifest destiny.”67 Neither the violence entailed in these invasions nor their consistently questionable legal rationales are acknowledged. In essence, all the United States’ wars have been “good” wars, enabling its territorial consolidation as well as its rise to global power and

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influence. The underlying realities cannot be interrogated for fear of exposing the conflict between the means used and the “ideals of justice, political representation, and opportunity” central to the settlers’ justification for the establishment and maintenance of “their” country.68 All of this is important to understanding where we are, collectively, and how we got here. But if we want to develop liberatory visions of the future, we will need to look beyond the silent spaces of the narrative that is being told to the narratives that are not being told. This means making the effort to understand what was here before the colonizers arrived and opening our minds to the fact that there are many perspectives from which the world around us, and all of our relationships, can be and is understood.

Indigenous Worlds The master narrative cannot accurately recognize the myriad Indigenous cultures that long predated the colonization of this continent, because doing so would disrupt its story of linear progress, discredit its “civilizing mission,” and expose the crude motivations underlying the racialization of American Indians and, subsequently, other peoples of color. To justify the United States’ very existence, as well as the wealth and power it has derived by appropriating Indigenous lands and resources, the settler narrative contends, implicitly or explicitly, that this was, or might as well have been, uninhabited land.69 As we question the prevailing paradigm and consider more liberatory options, it is particularly important to address this “silent space.” This is not because returning to a precolonial past is an option but because there is much it can teach us about human relations, forms of social and political organization, and ways of relating to other societies and the natural world outside the colonial paradigm. These insights, in turn, undermine the narrative’s disempowering message that what we see, here and now, is the best of all possible worlds. We can start by noting that as of the fifteenth century, “most likely, over 100 million inhabitants who spoke at least 1000 languages inhabited the Americas”70 and, prior to the European invasion, some fifteen million people probably lived in what is now the continental United States and Canada.71 Indigenous narratives are rooted in epistemologies very different from those of the colonial powers, and generally begin with origin stories. None support the settlers’ assertion that American Indians walked from Siberia to North America some fifteen thousand years ago, a story that conveniently sets the stage for settler claims that Indigenous peoples are really just immigrants, too. Thus, for example, Hopi history incorporates the destruction of their lands by volcanic fire, flooding, and ice, events that geologists correlate to floods as

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well as glacial and volcanic activity that took place twenty-five thousand or more years ago.72 In other accounts, the People emerged from worlds beneath this one, or came from the sky when the earth was still covered with water.73 Many peoples trace their origins to specific geographic sites, such as the Lakotas’ understanding of their emergence from Wind Cave in the Black Hills;74 others tell of traveling great distances, “listen[ing] to the Earth” in order to find where they were supposed to be.75 Whatever their particularities, Indigenous “origin stories connect the People to the land.”76 Their cultures, histories, and identities are usually rooted in a given location—defined, perhaps, by particular mountains or rivers— and they are correspondingly responsible for ensuring the well-being of these nonhuman relatives. As Cree attorney Sharon Venne notes, “Every indigenous ‘legal code’ devolves upon . . . requirements that humans shoulder an individual/collective responsibility to preserve the balance of the natural order.”77 This approach allowed the Indigenous peoples of the Americas to develop complex cosmologies and cultures, sophisticated systems of agricultural production, and extensive networks of trade and communication that survived for millennia.78 American Indian scholars John Mohawk and Oren Lyons provide this much-condensed but very revealing summary: Long before Columbus made contact . . . some Native American civilizations had developed vast irrigation networks that rivaled those of Rome; they had domesticated crops that would eventually save Europe from starvation; they had developed medical and psychotherapeutic knowledge that made medieval Europe’s medical model . . . look primitive; they had advanced astronomical calendars; they had a body of literature, both oral and in some cases written, that is only today finally being recognized as the equal of any found in the world; and they had developed highly sophisticated forms of representative government in which freedom was not only prized, but was the foremost principle.79

The Haudenosaunee (Rotinonshón:ni) or Iroquois League, composed of the Mohawk, Onondaga, Seneca, Cayuga, Oneida, and Tuscarora nations, is one example of these sophisticated forms of governance.80 The Haudenosaunee Great Law of Peace provides for a complex, consensus-based system of checks and balances among the constituent nations of the League, including the election of leaders, delineation of their responsibilities, and provisions for their removal.81 The Articles of Confederation and the US Constitution were strongly influenced by the Great Law of Peace, illustrating the settlers’ consciousness of Indigenous political and legal structures.82 Structured to govern relations between independent nations, it constitutes a body of international

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law, and in the early years of European settlement, the colonies of New York, Pennsylvania, Maryland, and Virginia agreed to join the Haudenosaunee Covenant Chain, a “relationship of trade and collective security” built upon treaties.83 As the utilization of Haudenosaunee political insights by the Angloamerican “founders” illustrates, the colonizers were quite well aware that the Indigenous peoples they were encountering had highly sophisticated forms of social organization, extensive agricultural production, and well-developed trade routes. As early as 1614, John Smith was recruiting settlers for the Plymouth Colony by describing the land as “planted with Gardens and Corne fields” and “well inhabited with a goodly, strong and well proportioned people.”84 The settlers themselves wrote countless accounts of their attacks on Indigenous peoples’ towns, villages, and crops.85 Even as Removal was underway, the Cherokee nation had a national council, a written constitution and laws, a supreme court, schools, libraries, newspapers, large towns, farms with tens of thousands of head of cattle, and dozens of mills and blacksmith shops.86 The settlers’ portrayals of American Indians as “uncivilized” were simply counterfactual, and the colonial leaders knew it.

Many Worldviews Envisioning more equitable and fulfilling ways of relating to one another, and of organizing our social, political, economic, and legal relations will require stories lived outside the constraints imposed by the dominant narrative. To survive within a colonial paradigm without being defined by it requires the development of multiple consciousness.87 As noted earlier, American settler society presumes a hierarchical social order that places humans second only to God (or some variant of Truth), and measures their superiority to other beings by the extent to which they dominate or control them. Not only human relations but property rights have been framed in accordance with this “natural order.” As Cherokee author Thomas King recounts in his playful retelling of the biblical scene in which Adam eats an apple in the garden of Eden: “Wait a minute, says that god. That’s my garden. That’s my stuff.”88 The perils of failing to comply with this system of domination and subordination are illustrated by Adam’s “fall from grace” and the eviction of humans from the garden of Eden.89 Those at the top own the “stuff,” decide who should have it, and are responsible for ensuring that everyone and everything remains in his/ her/its place, literally and figuratively. Many cultures see the world quite differently. To quote Seneca historian Barbara Alice Mann, “starting with a solitary, male and—most stunningly—

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portable god necessarily leads one onto a very different pathway from that which one treads by starting in the Old Way, in a cosmos of balanced Twinships made up of interactive Spirits of Place, in sky or earth, not to mention women as important cultural functionaries.”90 As Vine Deloria reported, within many American Indian religious traditions, “the whole of creation was good, and because the creation event did not include a ‘fall,’ the meaning of creation was that all parts of it functioned together to sustain it.”91 Humans can be understood not as destined to dominate or destroy nature, but as very literally related to all living beings. “Indigenous identity is formed by the intersection of land, culture, and community, and the way we respond to those critical elements of our existence defines the meaning of ‘sovereignty’ and ‘property’ for the First Nations of this land,” according to law professor Rebecca Tsosie. It is a reciprocal relationship, with the land looking after the people and “orient[ing] the people in understanding how to meet their responsibilities to each other and to the land.”92 According to Mann, “The entire Iroquoian world is made up of complementary pairs,” which “function[] synchronously so as to maintain a balanced cosmos.”93 The clans and the nations were consciously created and organized according to a twinship principle to ensure balance, and their equilibrium is maintained by a gendering that posits men and women as “natural halves that parallel one another, socially, politically, economically, and religiously.”94 Thus, while the only governing bodies acknowledged in settler accounts were composed of men, the Clan Mothers had their own councils that, among other responsibilities, “appointed warriors, declared war, negotiated peace, and mediated disputes.”95 This system of governance allowed the Haudenosaunee Confederation to prosper for many centuries prior to European contact, ensuring the wellbeing of the people through consultation with, and participation of, the individuals, families, clans, villages, and nations comprising the greater Iroquois League.96 Lumbee law professor Robert A. Williams Jr. notes that, in striking contrast to Western understandings of political authority, “above all, the Iroquois political system sought to assure that the Iroquois listened seriously to each other.”97 Councils met, often at length, until consensus was achieved, and the League Council’s decisions did not impose its decisions, but communicated them “‘to the people, hoping they would agree.’”98 These are just a few examples of the many worldviews, and ways of organizing society, that the American settler colonial state has done its best to destroy. Neither Indigenous perspectives and histories nor contemporary manifestations of Indigenous cultures can be incorporated into the master narrative in any meaningful way because they would undermine the legiti-

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macy of the colonial project itself. More fundamentally, they cannot be acknowledged because there is no place in the European colonial zeitgeist for epistemological alternatives. Expanding our narratives to incorporate the stories and realities of those deemed Other can free us to recognize that we live in a “pluriverse” of worldviews, as Gustavo Esteva and Madhu Suri Prakash frame it, and to recognize the constraints of our own.99 As we come to see that we need not limit our vision of future possibilities to the master narrative’s constructions of indigeneity, property, or civilization, its linear framing of progress, or the gendered and racialized social hierarchies it imagines, we may be able to break out of the highly circumscribed conceptual paradigm of individual rights and formal equality within which we have been operating, and come to understand racial justice in a richer way. While remaining mindful of the pitfalls of substituting one universalizing narrative for another, we can begin to construct theoretical frameworks capable of explaining historical consistencies and disparities in structural rather than exceptional terms. In this process, I find it helpful to conceptualize racialization and racial hierarchy as a function of colonialism—settler colonialism in our case. To the extent that racism serves to consolidate colonial rule, its dismantling will require decolonization, and we will need narratives that accurately reflect this relationship in order to envision liberatory options. Because settler colonial theory is unfamiliar terrain for many of us, the following chapter briefly summarizes the constructs of colonialism that provide a conceptual framework for the remainder of the book.

3

Settler Colonialism Colonial subjugation and racial domination began much earlier and have lasted much longer in North America than in Asia and Africa, the continents usually thought of as colonial prototypes. —Bob Blauner

Indigenous peoples have consistently recognized the impact of colonization on their communities, and in recent decades a strong body of scholarly analysis has emerged to address its ongoing manifestations.1 The situation of other peoples of color within the United States, however, is rarely discussed, much less theorized, in terms of colonialism.2 This was not always true. As noted in chapter 1, during the global “decolonization era” of the 1960s, powerful movements emerged in African American, American Indian, Chicano, Puerto Rican, and Asian American communities that identified themselves, to some degree or another, as internally colonized peoples, and it was not uncommon for scholars of color to also articulate this perspective.3 Since then, however, internal colonialism has come to be regarded as—at best—an empowering analogy rather than a framework for meaningful structural analysis, at least with respect to non-Indigenous peoples of color.4 The demise of the approach has been attributed to the systematic and violent repression of organizations and movements that framed their goals in terms of national liberation, as well as the (perhaps related) failure of mainstream social science to recognize it as a legitimate inquiry.5 These developments, however, tell us only that the depiction of “racial minorities” as colonized peoples is perceived as a threat to the status quo; they do not address the underlying question of the extent to which ongoing colonization accounts for structural racism in the United States today. This was the question that led me to write this book. Did the construct of internal colonialism largely disappear from the discourse on race simply because of social and political repression or was the theory itself structurally flawed? Upon closer examination, I realized that most of the analyses invoking internal colonialism with respect to non-Indigenous peoples in the American context employ the lens of external or “classic” colonialism, as exemplified by European expansion into Africa and Asia. From this perspective, many parallels emerge between the histories and conditions of colonized 41

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peoples in Africa and Asia and people of color in the United States. But there are also many aspects of American racial hierarchy and exploitation that are not easy to account for within this paradigm. Viewing the United States as a different kind of colonial power, however, can fill in many of the narrative gaps that exist in each of these approaches. While the United States has maintained external colonies, it is first and foremost a settler state.6 Settler colonialism is structurally distinct from classic external colonialism and, thus, it is not surprising that a model based upon external colonization has limited utility when applied to a settler state. Analyzing the histories of American Indians, African Americans, and other peoples of color in the United States through the lens of settler colonial theory can explain a great deal about our contemporary racial realities. In particular, we can see how structures of racial subordination have been employed strategically to consolidate the settler state and to enhance the wealth and power of the settler class. Chapters 4 through 8 explore those strategies in more detail. Establishing a framework for those explorations, this chapter provides an overview of the concept of colonialism and describes briefly what is meant by external or “classic” colonialism, internal colonialism, and settler colonialism. It concludes by acknowledging potential benefits and pitfalls of “triangulating” settler colonial analyses by distinguishing non-Indigenous peoples of color from the settler class.

Colonialism: An Overview Colonialism has taken many forms and is described in numerous ways. The Oxford English Dictionary defines a colony as “a settlement in a new country; a body of people who settle in a new locality, forming a community subject to or connected with their parent state; the community so formed, consisting of the original settlers and their descendants and successors, as long as the connexion with the parent state is kept up.”7 To colonize is simply to establish such a colony. The mainstream narrative of the early history of British colonies in North America most often invokes this very benign understanding of colonialism. However, as English professor Ania Loomba observes, it is a framing that “evacuates the word ‘colonialism’ of any implication of an encounter between peoples, or of conquest and domination.”8 Loomba emphasizes the need to recognize that there were, in fact, peoples occupying virtually all colonized territories. “The process of ‘forming a community’ in the new land necessarily meant unforming or re-forming the communities that existed there already, and involved a wide range of practices including trade, plunder, negotiation, warfare, genocide, enslavement and

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rebellions.”9 This dimension is incorporated into professor Jürgen Osterhammel’s theoretical overview of colonialism, which defines colonization as “a process of territorial acquisition,” a colony as “a particular type of sociopolitical organization,” and colonialism as “a system of domination.”10 Colonialism, Osterhammel notes, is a relationship “in which an entire society is robbed of its historical line of development, externally manipulated and transformed according to the needs and interests of the colonial rulers.”11 Or, as Stokely Carmichael put it, “Colonization is not just the economic raping of someone” but the “destroying [of] the person’s culture, his language, his history, his identification, his total humanity.”12 This is why colonization is inherently genocidal, for genocide, by definition, involves the intended destruction, “in whole or in part, [of] a national, ethnical, racial or religious group, as such.”13 The exploitation of land, labor, and natural resources by people or entities not indigenous to the territory is a common feature of all forms of colonialism, as is the imposition of economic, political, and social institutions intended to facilitate such exploitation. As a general rule, the European colonial domination of the past several centuries was exercised by states over lands and peoples not recognized by the colonial powers as sovereign.14 State sovereignty is a peculiarly circular construct, dependent on the recognition of one state by other states, and a commitment by the latter to respect the former’s territorial integrity and powers of government.15 A state, as summarized by cultural geographer Bernard Nietschmann, is “a centralized political system within international legal boundaries recognized by other states,” which “uses a civilian-military bureaucracy to establish one government and to enforce one set of institutions and laws.”16 A “nation,” on the other hand, may be understood as the “geographically bounded territory of a common people as well as . . . the people themselves,” where they identify as “a people” based not only on common ancestry but also common culture, history, worldview, and social institutions.17 Until recently, state recognition has been a dimension of international law controlled by colonizing powers and dependent on their assessment of the level of “civilization” possessed by those wishing to be so recognized.18 This reflects another important dimension of colonial relationships—the assertion that the colonizing power and its representatives are inherently more civilized than the peoples being colonized.19 In fact, the hallmark of European colonial expansion, later emulated by the United States and Japan, among others, has been its self-described “civilizing mission.” Legal scholar Antony Anghie explains this as “the grand project that has justified colonialism as a means of redeeming the backward, aberrant, violent, oppressed, undeveloped people of the non-European world by incorporating them into the universal civiliza-

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tion of Europe.”20 Such redemption, in turn, has been the rationale for imposing extensive administrative structures intended to eradicate the cultures, languages, religions, and histories, as well as the social, economic, legal, and political structures and institutions of the colonized. Osterhammel identifies three salient characteristics of colonialism. The first is that it goes beyond domination or exploitation to sunder societies from their “historical line of development,” transforming them “according to the needs and interests of the colonial rulers.”21 A second characteristic is its emphasis on the differences, real or perceived, between the colonizers and the colonized, and “the unwillingness of the new rulers to make cultural concessions to subjugated societies,” a dynamic that has not necessarily characterized other forms of empire or expansion in world history.22 Finally, colonialism is not only a structural relationship, but also an “ideological formation” in which, “rejecting cultural compromises,” “the colonizers are convinced of their own superiority and of their ordained mandate to rule.”23 The construction and imposition of racial identities facilitate colonial administration, but also go beyond that to render racialized privilege and subordination more or less permanent. Anghie calls this the “dynamic of difference”—an “endless process of creating a gap between two cultures, demarcating one as ‘universal’ and civilized and the other as ‘particular’ and uncivilized, and seeking to bridge the gap by developing techniques to normalize the aberrant society.”24 Colonial domination is justified only to the extent that “civilization” is being promoted and, thus, the colonized must be rendered perpetually inferior.25 As historian Lorenzo Veracini explains, “A triumphant colonial society is a state of affairs where . . . the promised equality between colonizer and colonized . . . is forever postponed, where colonizer and colonized know and ultimately retain their respective places.”26 The contemporary construct of “race” has functioned as a kind of shorthand for the cultural differences used to justify colonialism’s “civilizing mission.” This mission, in turn, has served—and continues to serve—as the rationale for the exploitation of the land, labor, and natural resources of those deemed Other. Race has the added benefit, from the colonizers’ perspective, of being considered a “scientific” descriptor of physical characteristics, serving to perpetuate the dynamic of difference by linking cultural attributes identified as savage, barbaric, or otherwise uncivilized to relatively immutable biological factors.27 Racialization allows colonial administrators to claim they are uplifting and civilizing “the natives” through assimilationist measures intended to eradicate Indigenous identities while simultaneously invoking characteristics they claim are innate to “cap” the political, social, or economic rights of the peoples subjected to their rule.28

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It is an oversimplification, however, to posit racism (at least as we now understand the term) as the driving force of colonialism, for factors other than perceived racial differences have served the same purposes in other eras. Thus, for example, before Europe could engage in colonial expansion, the various peoples and nations of that region had to be “Europeanized,” a process that involved the conquest and assimilation of many “pagan” peoples indigenous to the region we now call Europe.29 In this process, religious and cultural differences were emphasized to justify political domination and consolidation.30 As European colonialism extended out of what had become Europe into Africa, Asia, and the Americas, “race” emerged as a shifting political and social construct that conveniently incorporated the notion of more and less civilized peoples and provided markers of “difference” relied upon by colonizing powers to justify their ventures.31 Generally speaking, the characteristics summarized above apply to all European (and many non-European) colonial encounters of the past several centuries. There are, however, some significant distinctions between external and settler colonial formations. External or “classic” colonialism has been characterized rather famously by Jürgen Osterhammel as “a relationship of domination between an indigenous (or forcibly imported) majority and a minority of foreign invaders.”32 Decisions are made and implemented by colonial administrators in pursuit of interests often defined in a distant metropolis; they generally involve exploitation of the land, labor, and natural resources of territories where, for the most part, the colonists do not intend to settle permanently.33 By contrast, settler colonists plan not only to profit from but also to occupy permanently the territories they colonize.34 These divergent purposes have resulted in distinct colonial narratives and forms of social organization. Their differences are explored in more detail below, as they help explain why the global movement for decolonization had so little effect on settler colonial regimes, and why analyses of internal colonialism that rely on classic colonial models have been inadequate to explain racialized domination and subordination in the United States.

External Colonialism European colonialism emerged as participation in networks of trade—initially in spices, textiles, precious metals, and enslaved humans—evolved into assertions of exclusive control over these and other profitable resources.35 This control rested on the colonial powers’ claims to “own” the territories from which these resources were obtained. In this respect, external or “classic” colonialism can be seen as a form of imperialism, defined by Michael Doyle,

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an international relations scholar, as “a relationship, formal or informal, in which one state controls the effective political sovereignty of another political society,” a control that is “achieved by force, by political collaboration, [or] by economic, social or cultural dependence.”36 According to Osterhammel, external colonies were “usually the result of military conquest, often after extended phases of contact without land claims.”37 They were primarily acquired for purposes of economic exploitation and governed in an “autocratic” manner by a “relatively insignificant” number of colonial administrators “who return[ed] to their mother country after completing their assignments.”38 The logic and law of colonialism were developed by and among those European states that recognized each other as “civilized.”39 International law as we now know it evolved from the agreements initially entered into between these powers, each interested in minimizing conflicts with the others so that its economic and military resources could be put to more profitable ends. The sovereignty of non-European societies was not recognized within this legal framework, and the colonizing states developed what were, in essence, non-compete agreements to respect each other’s claims to territories not encompassed within recognized states.40 Colonial boundaries were artificially imposed, often from afar, as a result of these agreements.41 Territorial demarcation tended to reflect the relative political, economic, and military strength of the European states involved rather than the local population’s historic understanding of the (often permeable) geographic boundaries and patterns of land use that had evolved in relation to local topography or ecosystems. As a result, the traditional territories of Indigenous peoples were often divided between colonial powers, and any given colony might incorporate many different nations and peoples.42 Colonial regimes developed extensive political and administrative structures to ensure the subjugation of these peoples and the efficient exploitation of their resources.43 Local systems of law and governance were rendered dysfunctional, and dual legal systems frequently imposed different rights and responsibilities on the colonizing and colonized populations.44 As Europe industrialized, colonial administrations increasingly emphasized the creation of roads, railroads, and communication infrastructure, the consolidation of agricultural plantations, and the development of sanitation and educational or training programs. These initiatives were often described in terms of the colonizers’ “civilizing mission,” but in fact were vital to their goals of efficient resource extraction and the creation and maintenance of a productive—that is, profitable—workforce.45

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In external colonies, the representatives of the colonizing powers tended to identify with and maintain allegiance to their countries of origin. Assigned to colonial outposts for some fixed period of time, these residents did not see themselves as permanently settling in the colony; rather, they intended to return to their homes in the metropolis, or “mother country,” at the end of their assignments or upon retirement. For this reason, Veracini describes classic colonial narratives as circular, “an Odyssey consisting of an outward movement followed by interaction with exotic and colonised Others in foreign surroundings, and by a final return to an original locale.”46 While in the colonies, the administrators’ self-identification as British, or French, or Belgian, for example, may have intensified as a result of their immersion in a society that was structured to ensure that their rights and status were contingent upon not being “native” to the colony.47 By contrast, the identities of colonized peoples were eviscerated by the pervasive control exercised over all aspects of their lives and societies. The complex forms of colonial administration that developed over time required the participation of “native” overseers, functionaries, or collaborators of some sort, a process facilitated by the creation and exploitation of distinctions among the colonized.48 Thus, while colonial administrations ultimately relied on the military power of their home states, internal control was often maintained by privileging one Indigenous people over others.49 One result is what anthropology professor Gwendolyn Mikell describes as the emergence of “static and intransigent” understandings of ethnicity.50 Observing “that African cultural groups have traditionally moved in pluralistic environments, and that peaceful and integrative interactions with others having different identities has been common in Africa until recent periods,” Mikell concludes that “what we now call African ‘ethnicity’ was very much the outcome of the nineteenth-century period of colonial conquest, when western metropolitan or settler groups used force to divide, conquer, and then politically subjugate the African indigenous populations.”51 This phenomenon is but one facet of perhaps the most destructive dynamic of colonial relations. Because ideological justifications of European colonialism rested on the presumed superiority of Western civilization, the colonial project required the denigration and attempted eradication of the identity and knowledge base of the colonized. In the words of French Tunisian author Albert Memmi, the colonized was “removed from history,” stripped of a role in “every decision contributing to his destiny and that of the world, and all cultural and social responsibility.”52 This was achieved not only by brute force but also by what Kenyan scholar Ngũgĩ wa Thiong’o calls the “cultural bomb”

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that “annihilate[s] a people’s belief in their names, in their languages, in their environment, in their heritage of struggle, in their unity, in their capacities and ultimately in themselves,” thereby eventually “mak[ing] them want to identify with that which is furthest removed from themselves.”53 Today, classic colonialism is largely deemed a thing of the past. As a result of intense struggles for national liberation—waged “amid tears, fire, and blood,” to quote Patrice Lumumba, the first prime minister of the Congo54— most external colonies were recognized as independent states in the mid- to late twentieth century.55 Thus, as the international legal order began to acknowledge the right of colonized peoples to self-government, “the scramble for colonies that started at the end of the nineteenth century . . . ultimately produced colonial polities that could be turned over to successor states in a symmetrical process of counter-scramble.”56 Despite these changes, much of the colonial world order remained firmly in place. European rule had constructed political entities that possessed most of the attributes of a contemporary state—with the glaring exception of genuine sovereignty. These attributes included internationally recognized territorial boundaries, bureaucratic structures designed to provide relatively uniform governance throughout the territory, and internal political, legal, and educational institutions established by the colonizers. And it was these entities that were recognized as independent and purportedly postcolonial states. Insofar as the new countries were only recognized in accordance with colonially imposed boundaries, “national” identities were thrust upon peoples who had been “coercively amalgamated into unitary, foreign-ruled states, without any regard whatsoever for extant economic, demographic, cultural, linguistic, religious, and other social factors.”57 These states were then precluded from exercising sovereignty over their own wealth and natural resources by the Western powers’ insistence that concessionary rights acquired by foreign interests prior to independence be honored and that any nationalization of property required compensation in accordance with international legal standards that had been developed by and for the colonial powers.58 As Ghanaian leader Kwame Nkrumah explained, they were now subjected to “neocolonialism,” a situation in which a purportedly independent state “has all the outward trappings of international sovereignty” but “in reality its economic system and thus its political policy is directed from outside.”59 “Decolonization” has thus resulted in both the internal colonization of subordinated peoples and the continuation of external colonialism in other forms.

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Internal Colonialism One can see from this very rudimentary description of classic colonialism that there are many similarities between the experiences of colonized peoples around the world and peoples of color in the United States. These parallels explain why scholars and activists have described racialized Others within the United States as internally colonized and why that characterization has a compelling resonance. There are, however, conceptual limitations to a model that relies extensively on analogies derived from political, economic, and cultural contexts that are structurally distinct from the situation at hand. In a seminal work published in 1975, sociologist Michael Hechter employed the Gramscian concept of internal colonialism to explain the disparities attending economic development within the British state. For Hechter, internal colonization results from a “spatially uneven wave of modernization” that produces an “unequal distribution of resources and power” between “relatively advanced and less advanced groups.”60 The dominant group uses its power to monopolize and institutionalize its privilege, creating a system of social stratification—what he terms “a cultural division of labor”—that reinforces ethnic identification.61 As with classic relations between metropolitan centers and their colonies, power resides in the core and is “characterized by a diversified industrial structure,” while “the pattern of development in the periphery is dependent, and complementary to that in the core.”62 Hechter illustrates how a framework that acknowledges colonial exploitation can explain, in structural terms, the illusory nature of the presumption that internal “minorities” will inevitably, if gradually, be fully incorporated into a unified state. This latter perspective, the diffusion model, predicts that economic disparities will decrease and cultural differences become less significant over time. In this respect it is much like the models of assimilation or multicultural pluralism prevalent in the United States today. The internal colonial model, on the other hand, predicts that economic inequities will persist or increase, “peripheral culture” will be more strongly asserted in reaction to “domination by the core,” and “political cleavages will largely reflect significant cultural differences between groups.”63 These are, of course, developments we have seen within the United States. The models’ divergent predictions result from their differing analyses of structural and institutional dynamics, and they lead us toward distinct— indeed incompatible—remedial options. Hechter’s analysis suggests that people of color in the United States might appropriately be characterized as internally colonized and that the disparities between privileged and subordinated groups will not be eliminated until the underlying institutions and

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political relations have been decolonized. Nonetheless, this is a model derived very directly from, and reliant upon, the conceptual framework of external colonialism. Its geographically oriented core/periphery distinction is of limited applicability in settler societies that, as historian Norbert Finzsch notes, “have no periphery and no core, since the capital-owning elites in the cities and the social actors on the frontier form one complex interactive community.”64 Further, its framing of colonization primarily in terms of economic exploitation and underdevelopment reflects a very Western, linear notion of progress that disregards the fact that contemporary goals of “development” and “modernization” are, themselves, colonial impositions. Internal colonization is a construct critical to understanding contemporary struggles for self-determination within “postcolonial” states whose boundaries now encompass multiple preexisting nations. However, to the extent that internal colonialism is understood as a derivative of external colonialism—as it was by many US activists of the 1960s—it is of limited utility in explaining or remediating settler colonial exploitation. In settler societies, there is no geographically distinct metropolitan “mother country” or “core” to which the colonizers may retreat, and the full incorporation of subordinated peoples would simply consummate their colonization.65 Recognizing internal colonialism gives us a starting point for understanding that racial subordination in the United States is deeply, structurally embedded. Pursuing that analysis, however, requires us to acknowledge that settler states represent a distinct form of contemporary colonialism.

Settler Colonialism Settler colonialism replaces classic colonialism’s hierarchical relationship of center to periphery with one in which the settlers reject the suzerainty of the metropolitan center and directly assert control over colonized lands and peoples in order to establish a state of their own. “Settler colonialism was foundational to modernity,” according to anthropologist Patrick Wolfe.66 It is widely acknowledged that Europe’s industrial revolution and its attendant economic “development” were fueled by external colonial expansion, that is, the appropriation of African and Asian natural resources and labor.67 Less appreciated is the critical role North American settler colonies played by using occupied land, appropriated resources, and colonized labor to generate commodities and expand markets for the goods being produced in Europe.68 Individual settlers’ desire for land “dovetail[ed] with the global market’s imperative for expansion,”69 with the result that, according to historian James

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Belich, “it was settlement, not empire, that had the spread and staying power in the history of European expansion.”70 In the classic colonial model, the colonizers’ primary goals are to extract wealth from the land, labor, and resources of the colony and to create captive markets for the goods they produce. The wealth thus generated is intended to enrich the colonizing power, and the colonists themselves intend to return home. By contrast, settler colonists intend to remain in the colonized territory. They bring with them a purported sovereign prerogative to establish a new state on someone else’s land; to create social, political, legal, and economic institutions intended solely for their own benefit; to determine who may or may not—or must—live within their claimed borders, and exactly how they are to live. The acquisition and occupation of the land itself thus becomes the colonizers’ first and foundational principle. “Territoriality is settler colonialism’s specific, irreducible element,” Wolfe notes.71 Land is what allows the settlers to create and control a society of their own imagining and then, using that land and its resources, to generate the profits that enable them to consolidate and expand their sovereign prerogative.72 The settlers’ assertion of sovereign entitlement distinguishes them not only from Indigenous peoples but also from the voluntary and involuntary migrants who come to join an existing society rather than to establish a new one.73 Thus, Mahmood Mamdani observes that settlers “are made by conquest, not just by immigration.”74 Or, as Belich puts it, an “emigrant joined someone else’s society, a settler or colonist remade his own.”75 Because settlers view the occupied lands as the site of their own reproduction, Indigenous peoples become the obstacles to the realization of their vision. Wolfe explained that although settler colonization relies upon the appropriation of Indigenous labor, it is “at base a winner-take-all project whose dominant feature is not exploitation but replacement.”76 Replacement, of course, requires the elimination of that which already exists—Indigenous peoples, along with their towns, farms, and hunting grounds; their names and sacred sites; their languages and cultures. Warfare between Indigenous peoples and colonizers is central to the origin stories of most settler societies— certainly that of the United States—but in the process of colonial expansion, armed conflict is “necessitated” not by Indigenous peoples’ acts of aggression but by their mere existence. “People got in the way just by staying home,” as professor Deborah Bird Rose aptly observes.77 As Indigenous peoples are “disappeared” in various ways, settlers turn to strategies of replacement, and what they describe as putting appropriated lands and resources to “productive” use.78 This requires the active recruitment

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of a critical mass of settlers; the development of a unique cultural identity; the formation of independent structures of governance and social control, including but not limited to law; and the maintenance of military and economic power sufficient to sustain themselves in these endeavors. Settlers also perceive a need for a readily available labor force that is not intended to share the benefits accruing to the settler class and, accordingly, develop strategies to acquire and control those workers.79 Settler states establish, maintain, and protect their dominion by subjugating Indigenous peoples, non-Indigenous Others, and “deviant” members of the settler class.80 The colonizers assert a possessory right to the state and establish legal systems designed to ensure that each population subgroup remains in its assigned place, geographically, socially, economically, and politically.81 The settler class portrays these as prerogatives of sovereignty but, as Aboriginal legal scholar Irene Watson observes, “The myth of colonialism is that it carried with it and applied sovereignty. The truth is that state sovereignty was claimed and constituted through colonialism.”82 The exercise of colonial power remains in constant tension with its ideological justifications—the settlers’ superior civilization, their democratic and humanitarian values, the leading role they play in their own narrative of progressive human development.83 On the one hand, settler society is presumed sacrosanct and the inclusion of Others cannot be allowed to corrupt it. On the other, it needs to demonstrate, continuously, that humanity writ large will benefit from accepting its social and political structures and internalizing its worldview. The result is a constant and “unresolved tension between sameness and difference”84 that lays the foundation for the construction of racial identity and hierarchy. Settlers both identify with and reject their metropolitan centers of origin. They seek to distinguish themselves from Indigenous peoples, but also need to legitimize themselves as “indigenous” to the lands they settle.85 They also want to distance themselves from those forcibly brought to provide labor as well as those who migrate to join “their” society. From the settlers’ perspective, voluntary migrants range from the potentially assimilable to the hopelessly different, with the result that integration and exclusion “co-define each other.”86 The resulting tensions between inclusion and exclusion are mediated by the dynamic of difference essential to all colonial relations.87 Ethnicity and national origin are subsumed within racial identities that, in turn, are designed to keep the assimilationist vision proffered by the colonizers just out of reach.88 These are patterns common to all settler states and they help explain why, as Wolfe concluded, settler colonial “invasion is a structure not an event.”89 The narrative framework of settler colonialism resonates with the lived expe-

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riences of Indigenous peoples, migrants of color in the United States, and all those consigned to the margins of the master narrative. It explains, in structural terms, why Indigenous peoples continue to be the poorest and most consistently ignored “racial” group in the United States, and why racism has proven so intractable. Considering the structural dynamics of racialization in the United States from this perspective can facilitate a realistic assessment of the conditions currently faced not only by Indigenous peoples, but also by peoples brought to this country as enslaved workers, incorporated by virtue of territorial annexation, or induced to migrate without the option of becoming part of the settler class. Such analyses, in turn, can help us envision a wide array of remedial options for race-based injustices.

Colonialism and Genocide The narrative presented in this book begins from the premise that, notwithstanding its insistent self-identification as a land of freedom and equality, the United States was established as a settler colonial state and—like Canada, Australia, New Zealand, and Israel—it remains one today.90 Patrick Wolfe’s insight that settler colonization is a structure rather than an event means that colonialism cannot be relegated to history. We live in a society whose most fundamental relationships have been, and largely continue to be, defined by the settlers’ goals of occupying the land, controlling its natural resources, rendering it profitable, and maintaining a social order reflective of their own priorities. In other words, we live within colonial (not postcolonial) economic, political, and social structures.91 Colonialism cannot function without perpetuating difference between the colonizers and the colonized; therefore, the social, political, or economic institutions of a colonial power cannot ultimately be made equitable. More fundamentally, colonialism is “by its nature” genocidal, as the philosopher Jean-Paul Sartre pointed out.92 This does not mean that it operates only by engaging in slaughter, although that certainly has happened and continues to happen. Raphael Lemkin, the Polish Jewish jurist who coined the term, wanted to clarify that it was criminal to “destroy, cripple, or degrade entire nations, racial and religious groups,” thereby eradicating their cultures and the contributions they had made or might make to humanity.93 Genocide thus encompasses a wide range of actions “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such,” to quote the 1948 Genocide Convention.94 In his seminal work, Axis Rule in Occupied Europe, Lemkin explained that “genocide has two phases: one, destruction of the national pattern of the op-

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pressed group; the other, the imposition of the national pattern of the oppressor.”95 The latter, he noted, “may be made upon the oppressed population which is allowed to remain, or upon the territory alone, after the removal of the population and the colonization of the area by the oppressor’s own nationals.”96 Sartre observed that “colonialism cannot take place without systematically liquidating all the characteristics of the native society,” and this is why he concluded that it is intrinsically genocidal.97 The historical patterns of destruction and imposition identified by Lemkin are characteristic of American settler colonialism.98 As the following chapters illustrate, people of color have been racialized in ways that facilitate strategies intended to eliminate them, physically and conceptually, to exploit their labor, to contain and control them, and to force them into an assimilationist paradigm that nullifies their extant identities, thereby preempting them from exercising their inherent right to self-determination. This is why structural racism cannot and will not be eliminated if its colonial foundations are not recognized.

First Principles In developing a narrative that frames racialization and racialized subjugation as a function of colonialism, I find it helpful to remain mindful of a few basic principles. The prime directive of settler colonization is to secure a territorial base, and this requires—from the settlers’ perspective—the elimination of those who, since time immemorial, have lived on, defined themselves in terms of, and taken responsibility for that land. Two central points emerge from this bedrock premise. The first is that settler societies, including the United States, cannot function as such without continuously enforcing their jurisdiction, political and military, over their claimed territories. This requires them to ensure that their assertion of sovereignty is accepted as legitimate within the larger global order, notwithstanding any illegalities involved in the acquisition or occupation of the lands at issue.99 The second point is that the decolonization of settler colonial states requires challenging their underlying territorial claims.100 Reforming settler societies to be kinder, gentler, more environmentally sustainable, or more inclusive legitimizes and, therefore, entrenches the underlying colonial relationships. Such reforms are incapable of dismantling settler hierarchies of power and privilege. Moving from an analysis that focuses solely on the relationship between settlers and Indigenous peoples to a triangulated analysis that distinguishes migrants who are not intended to become part of the settler class from both settlers and Indigenous peoples runs the risk of glossing over the centrality of territorial occupation, thereby reinforcing settler hegemony.101 For this

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reason Kanaka Maoli (Native Hawaiian) scholar Haunani-Kay Trask insists that portraying immigrants to Hawai‘i as anything other than the functional equivalent of settlers means that “the history of our colonization becomes a twice-told tale” because it allows the political and economic “success” story of Asian immigrant laborers to reinforce a settler regime that keeps Indigenous Hawaiians landless and poor, lacking access to decent healthcare or education, institutionalized in the military, and disproportionately imprisoned.102 From this perspective, the status of Asians in Hawai‘i should be defined not in relation to White settlers but solely in terms of “their relationship to indigenous peoples in a settler state.”103 The same issues arise with respect to other non-Indigenous peoples of color throughout the United States. Stokely Carmichael articulated this very clearly with respect to those of African descent. Speaking in 1970 at Morehouse College in Atlanta, he identified the United States as a settler colony and explained in his typically straightforward manner: In order to be a successful settler colony, one must commit genocide against the traditional owners of the land. This is exactly what the Europeans have done. . . . When you call them Americans, you make it sound as if they belong here. You do that because you want to call yourselves black Americans and you want to feel that you belong here too. . . . [But] if we say we are Americans . . . it means that we participated in committing genocide against the red man and support the genocide that “Americans” are committing in Vietnam, Asia, Africa, and Latin America.104

Much as any of us may wish to “belong here,” if we are not indigenous to this land we would not be here but for settler occupation, and our relationship to structures of power and privilege must be understood in that context. Because our very presence as non-Indigenous peoples can legitimate settler society and its genocidal appropriation of Indigenous lands, struggles we wage to rectify the disparities between the settler class and non-Indigenous Others run the risk of rendering settler colonial institutions invisible while simultaneously reinforcing them.105 As Veracini explains, “The colonising settler can disappear behind the subaltern migrant” and settler states “can then be recoded as postcolonial migrant societies.”106 This danger must not be ignored or minimized. It need not, however, preclude development of accurate analyses of structural racism in the United States through particularized inquiries into the ways in which the settler class—defined as those who came with, and still live with, the presumption

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that this is their country—has facilitated the migration, voluntary or involuntary, of persons it never intended to fully incorporate into American society and developed a panoply of social institutions to ensure that non-settler migrants remain marginalized and subordinated. Such endeavors can help us understand the significance of the differences between the treatment of Indigenous peoples and the treatment of non-Indigenous Others, and how these distinctions are rooted in the diverse purposes served by various segments of the population over whom the settler class asserts hegemonic control. The choice faced most immediately by non-Indigenous people in the United States is not necessarily “stay or leave,” but whether we are choosing to function as colonizers or to consciously pursue decolonization.107 The dominant narrative attempts to disappear Indigenous peoples and to convince the rest of us that we are simply part of a “nation of immigrants.” In that construction, the well-being of non-Indigenous people of color is enhanced by the consolidation of settler state hegemony. If, however, we understand the persistence of racialized injustices and disparities as reflective of the dynamic of difference essential to the maintenance of a colonial state, and accept that the subjugation of so-called racial minorities is rooted in the displacement of Indigenous peoples, we may see that Indigenous struggles for selfdetermination are, in fact, our struggles, too.

4

Land and Indigenous Peoples In order to be a successful settler colony, one must commit genocide against the traditional owners of the land. —Stokely Carmichael (Kwame Ture)

In the Angloamerican master narrative, the United States represents the culmination of Western civilization, and Western civilization, in turn, embodies the highest stage of human development. The narrative is embedded in a worldview that presumes its own universality, sees human history as linear and progressive, defines progress in terms of human dominion over the natural world, and constructs hierarchies of peoples based upon their level of “development.” As the origin story of the settler state, it begins with European colonizers and unfolds as a tale of their triumph over all enemies, including the “wilderness.” A primary theme is territorial control, for land “is not merely a component of settler society but its basic precondition.”1 Securing its land base has been and remains integral to the United States’ establishment and expansion, the creation of its wealth and power, and the maintenance of its global hegemony. This is why the cry of “border control” has such resonance among those who see their interests aligning with those of the state. The central narrative is also, of course, a story about people, but only as seen through settler eyes. The primary actors are European colonizers and their descendants—particularly male settlers, in accordance with their patriarchal worldview. Indigenous peoples are problematic to this narrative. Their very existence calls into question the legitimacy of settler occupation and, thus, their nations have been targeted for destruction, containment, and conceptual disappearance. As Cherokee artist Jimmie Durham put it, “The settlers must consume us. There is no one to challenge their ownership except ourselves, which of course cannot be allowed.”2 The appropriation of land and natural resources thus “requires the elimination of the owners of that territory, but not in any particular way.”3 This is a foundational premise of American history, a reality that—as Derrick Bell noted about the intractability of racial subordination— “many will wish to deny, but none can refute.”4 At this point it is tempting, at least to many non-Indigenous people, to say, “Yes, yes, we know it was ugly, 57

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but it’s all in the past and we just need to move on.” Exasperated by being told “Don’t go there” when she talks about race, Korean American comedian Margaret Cho responds, “I live there. I bought a house there.”5 We, too, live there—here—and we cannot deconstruct the racism that permeates American society without being willing to confront its origins and the functions it continues to serve. How the United States acquired and maintains its territorial base is rarely subjected to close scrutiny. Among non-Indigenous people, some attribute this to the belief that there is no point in feeling guilty about things we cannot change. However, if we really could not change anything it is unlikely that the resistance would be so adamant. It is the possibility of fundamental change that makes “going there” scary, tempting us to simply accept colonial occupation as a given, rather than to consider the implications of decolonization. A functional analysis that begins with space—the acquisition and maintenance of territorial control—is critical to understanding and countering the strategies that have been and continue to be used to keep all those deemed Other literally and figuratively “in our place.” The exploitation of non-Indigenous peoples of color forced or induced to migrate to the United States required land, the “basic precondition” of settler society, and the institutionalized racism we live with today originated in the strategies utilized to occupy Indigenous lands. This chapter lays the foundation for an analysis of the racial subordination of non-Indigenous Others by summarizing some of the strategies employed by American settlers to occupy the land, appropriate its resources, and exercise their claimed sovereign prerogative. Lorenzo Veracini identifies twentysix practices or “transfer strategies” commonly used by settler colonists to remove Indigenous peoples from their lands and from settler consciousness.6 Using his taxonomy as a starting point, this chapter looks at settler attempts to “disappear” American Indian nations, beginning with the “racing” of Indigenous peoples in the colonial narrative and then addressing strategies of elimination, displacement and containment, and conceptual disappearance.

Racialization “The organizing power of the idea of the Indian as incommensurable savage inspired a new art of imperial government administered by the West’s first modern settler-state society. . . . [and] was the inaugural step in defining a white racial identity for the United States as a nation,” according to Robert A. Williams Jr.7 By racially constructing Indigenous peoples as part of that wilderness, as “beasts” rather than as fellow human beings, the colonizers

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could justify virtually any atrocity they perpetrated. Veracini describes this as “perception transfer,” an assertion that Indigenous peoples do not really exist, except as part of the natural landscape.8 Thus, the United States’ Indian policy began with George Washington’s proclamation that “the gradual extension of our settlements will as certainly cause the savage, as the wolf, to retire; both being beasts of prey, tho’ they differ in shape.”9 The relegation of American Indians to nature—and, therefore, in the settlers’ view, outside the bounds of human society—is embedded in law, as well. The Supreme Court’s defense of settler property rights rests, to this day, on the premise that Indigenous peoples were “wandering hordes” and “fierce savages,” that “to leave them in possession of their country, was to leave the country a wilderness.”10 Such depictions reflect a colonial strategy of conceptual displacement that allows Indigenous peoples to be excluded from “civilized” spaces. But the narrative of American Indians as “pathologically mobile and ‘nomadic’”11 goes beyond facilitating their exclusion from territory claimed by the colonizing power. It also means that “when really existing indigenous people enter the field of settler perception, they are deemed to have entered the settler space and can therefore be considered exogenous.”12 In other words, American Indians become a threat to society simply by virtue of existing. The settlers deny that “wandering savages” come from any given area; therefore, they have no cognizable rights anywhere. This is why it took twenty years of contestation for US scientists and judges to concede that the Native peoples of the Columbia River Valley were entitled to bury the remains of their Ancient One (“Kennewick Man”) who died some nine thousand years ago in the Pacific Northwest, in accordance with the Native American Graves Protection and Repatriation Act.13 The tropes of American Indians as not only uncivilized but part of the “wilderness” continue to pervade popular consciousness. Into the early 2000s, natural history museums across the country routinely displayed “American Indian cultures alongside dinosaur fossils, gemstones, and taxidermied animals.”14 In 2016 presidential candidate Hillary Clinton analogized her opponent Donald Trump to men who “get off the reservation in the way they behave and how they speak,” to which Trump gloated, “the Indians have gone wild” over her use of the phrase.15 Contemporary examples abound, but one need look no further than the settlers’ furious insistence on a “right” to preserve the name and imagery of the Washington, DC, “Redskins” football team—despite well-documented association of the term with scalp bounties—to appreciate American society’s profound cultural attachment to the image of Indian-as-savage.16

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The dominant narrative attempts to transform hundreds of sovereign nations into “a race,” and then to racialize Indigenous people as inherently backward or—at best—ecologically conscious holdovers from a bygone era. The focus on “race” facilitates the incorporation of Indigenous peoples into a minority rights framework that presumes the legitimacy of the settler state and undermines their right to self-determination. Thus, the Trump administration’s 2018 call for a racial definition of American Indian identity was intended not only to subject Indians to the work requirements of the new healthcare law, but to undermine their political status as well.17 More generally, the racialization of Indigenous peoples as other than human, as uncivilized and always a potential threat, has facilitated the colonizers’ many attempts to “disappear” those whose very existence calls the legitimacy of settler sovereignty into question.

Strategies of Elimination Early Angloamerican settlers were unable to envision systems of shared land tenure and governance, and unwilling to adapt themselves to extant Indigenous polities. As a result, the elimination of Native peoples became essential to their mission. Employing the fiction that the land was “vacant,” the colonists quickly set about making it so. While more subtle means have been utilized subsequently, it is important to acknowledge that the settlers’ preferred method, at least initially, was simply to kill those who lived here—men and women, children and elders. The “absence” of these peoples continues to be invoked by settler society to legitimize the occupation of their lands, and the strategies employed to diminish their presence continue to inflict harm on Indigenous individuals and communities.

Direct Killing, or Officially Sanctioned Massacres Despite the early British colonists’ claims that the lands they intended to occupy were “not inhabited,”18 the Eastern Seaboard—indeed, all of North America—was well populated by Indigenous peoples, who were driven from their lands only with considerable effort.19 The Virginia Company established the Jamestown Colony in 1607 and recruited settlers by offering them land grants.20 By 1610 the colony’s aptly named governor Thomas West De la Warr had initiated military campaigns to counter the Algonquin leader Powhatan’s “prowde and disdaynefull” attitude toward these settlers, launching attacks in which Indians were indiscriminately killed, entire villages burned, and crops destroyed. According to American studies professor David Stannard, from

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that point forward “the only controversy” among the colonists was “whether it was preferable to kill all the native peoples or to enslave them.”21 By 1622 over eighty English settlements extended along the James River, deep into Algonquin territory.22 Faced with the settlers’ refusal to recognize or respect Indian life or property, Powhatan’s successor Opechancanough countered the invasion by attacking outlying settlements. To the English, this was a “barbarous massacre.”23 It could not be a legitimate defense of the Indians’ homeland because, in the settlers’ estimation, those without land rights or sovereignty could not wage a legitimate war. Rather, as noted in The Records of the Virginia Company, “the treacherous violence of the savages” gave the English a “right” to “invade the country and destroy them who sought to destroy us.”24 British tactics included the deceptive use of peace treaties, mass poisonings, the deployment of dogs to hunt and kill people, the kidnapping and holding hostage of Indian children, the burning of villages, and the destruction of crops, canoes, and other means of livelihood.25 By 1700 there were over sixty thousand English settlers in the mid-Atlantic region and perhaps six hundred Algonquins.26 Similar tactics were employed throughout the Northeast. Between 1636 and 1638, troops from the Massachusetts and Plymouth Colonies waged a war of extermination against the Narragansetts and Pequots. In one raid alone, some seven hundred Pequots were burned to death; their “frying in the fire and the streams of blood quenching the same” deemed a “sweet sacrifice” by William Bradford, five-term governor of the Plymouth Colony.27 Survivors were hunted down and killed or sold into slavery. Thereafter, even the word “Pequot” was banned, removed from landmarks and from maps. “Having virtually eradicated an entire people, it now was necessary to expunge from historical memory any recollection of their past existence.”28 These were prototypical, not exceptional, events in American settler colonialism; in the histories of the Jamestown, Plymouth, and Massachusetts Colonies, we see a template that would be utilized in the occupation of North America over the next 250 years.29 British attempts to limit the colonizers’ territorial expansion, particularly the Royal Proclamation of 1763, prohibiting settlement west of the Allegheny and Appalachian mountains, provided a major impetus for the war for independence.30 As Seneca historian Barbara Alice Mann documents, the western front of the American “revolution” was fought primarily against Indigenous nations, not the British.31 The Iroquois League, for example, had long endeavored to remain neutral, but its lands were squarely in the path of American expansion. Thus, in 1779 George Washington sent some five thousand troops to destroy forty-one Iroquoian towns, from New York through Pennsylvania

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to eastern Ohio, with explicit instructions not to “listen to any overture of peace before the total ruin of their settlements is effected.”32 In other words, the objective was not the colonists’ security but the acquisition of land. After formal recognition of their political independence, American leaders continued to “clear” the lands they claimed from coast to coast. While these wars were frequently described as “exterminating the hostiles,” Indigenous people did not need to be “hostile” to be attacked and driven from their lands.33 In November 1864, for example, an all-volunteer regiment in the Colorado Territory attacked a village of sleeping Cheyenne and Arapaho noncombatants who had placed themselves under US military protection at Sand Creek. Well over a hundred people were simply slaughtered, their bodies mutilated, and their “private parts” exhibited as trophies as the regiment paraded through downtown Denver to the cheers of the citizenry.34 In December 1890, Wizard of Oz author Frank Baum opined that “the Whites . . . are masters of the American continent, and the best safety of the frontier settlements will be secured by the total annihilation of the few remaining Indians.”35 Just a week later, more than three hundred unarmed Minneconjou Lakotas were massacred at Wounded Knee, South Dakota, and the “frontier” declared closed.36

Privatized Violence The Wounded Knee and Sand Creek massacres are often depicted as “excesses” associated with legitimate military campaigns.37 This is not only inaccurate, but reinforces the perception that Indian killing was primarily a military venture. In fact, it was a settler project, engaged in by “ordinary” civilians. From the early seventeenth century, British, French, and Dutch colonists offered bounties for Indian heads and then scalps, and as of 1694 the Massachusetts Colony was paying up to four times a farmer’s expected annual income for the scalp of an adult Indian man, with lesser amounts for the scalps of women and children under ten. By 1717 similar bounties were being offered in all the New England colonies and in New Jersey.38 After the so-called French and Indian War, the British reinstated a scalp bounty in Pennsylvania “due to settler demand,” and during the war for independence, the Americans proclaimed a “premium” for “Indian Prisoners, Scalps, or Tories in arms.”39 Ultimately, scalp bounties were issued in every continental US state and territory.40 By the mid-nineteenth century, Angloamerican colonists were pushing their “frontier” past the Mississippi and onto the Plains, and “acquiring” the northern half of Mexico as well as the Oregon Territory. While troops were occasionally called in, hundreds of nations in these territories were decimated by local settlers. “In California, even after official bounties were ended,

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consortia of private businessmen established their own and continued paying until a number of peoples in the northern part of the state—the Yuki, Yahi, Yana, and Tolowa among them—were entirely extinct.”41 Every settler had a “right”—and possibly a civic duty—to murder Indians.42

Indirect Killing, or Disease The Angloamerican settlers’ presumption of a sovereign prerogative to occupy the land, with its corollary requirement of eliminating its Indigenous residents, is manifest in many ways that go beyond direct killing. In the dominant narrative, the “vanishing” of American Indians is attributed primarily to diseases unwittingly transmitted by European colonists. Certainly Indigenous peoples of North America and the Hawaiian Islands were decimated by the introduction of a wide variety of diseases, including typhoid, measles, influenza, syphilis, tuberculosis, and, perhaps most notoriously, smallpox.43 While some of the epidemics that ensued upon the arrival of European invaders may not have been intentionally induced, the colonizers were well aware that these diseases were rampant in Europe, that they were infectious, and that their crews were often ill when they arrived.44 We also know that in numerous instances disease was deliberately introduced into Native populations, and that long before some of the most virulent smallpox epidemics, the settlers possessed and utilized vaccines that were denied to Indigenous peoples.45 Thus, regardless of the percentage of diseaserelated deaths attributable to settler intent, it is clear that what was in essence biological warfare was utilized to “clear” the land of peoples who, by staying home, were hindering settler expansion.46 Perhaps most notoriously, in 1763 Lord Jeffrey Amherst, commander-in-chief of the British colonial forces, instructed his subordinates to infect “the Indians by means of blankets as well as to try every other method that can serve to extirpate” them, a task his men duly reported to have accomplished.47 In 1775 Iroquoian delegates to a treaty negotiation were given disease-infested “gifts” by their hosts, and in 1837 government agents distributed smallpox-infected blankets to the Mandan and other peoples in North Dakota and then advised those who had been infected to seek refuge among their healthy relatives.48 The resulting pandemic in the Upper Missouri and the Plains is estimated to have killed at least 100,000 people.49 Deaths attributed to other “natural” causes were the commonplace, predictable, and often intended consequence of colonial practices and policies. The massacres and epidemics described above, as well as the settlers’ routine destruction of housing and crops, were inevitably followed by famines and

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death from exposure. Fifty percent mortality rates were common—and therefore, quite predictable—in conjunction with the forced removals and internments discussed below, as well as in the boarding schools American Indian children were compelled to attend.50 The deliberate subjection of peoples to these conditions, with full awareness of their consequences, constitutes the imposition of “slow death measures,” described in the Genocide Convention as “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”51 These are not concerns that can be relegated to the past. The Centers for Disease Control and Prevention (CDC) report that between 1999 and 2009 the overall death rates of American Indians and Alaska Natives, men and women, were nearly 50 percent greater than those of White Americans.52 Native people are twice as likely as the general population to have diabetes, almost eight times as likely to contract tuberculosis, and at significantly higher risk for asthma, chronic liver disease, heart disease, and stroke.53 In 2014 suicide was the second leading cause of death for American Indian/Alaska Natives aged ten to thirty-four, and the leading cause among girls aged ten to fourteen.54

Sterilization Reproductive control allows for the disappearance of entire peoples without killing individuals. For this reason international law recognizes attempts to eliminate a people by “imposing measures intended to prevent births within the group” as a form of genocide.55 During the 1960s and 1970s about onethird of Puerto Rican women and one-quarter of African American women were sterilized, generally as the result of some form of coercion and often without even being informed.56 As mind-boggling as those statistics are, the highest rate of sterilization—42 percent—was among American Indian women, who were generally dependent on the Bureau of Indian Affairs (BIA)’s Indian Health Service (IHS) for all of their medical care.57 In 1965 the IHS began “family planning” programs and in 1970 the agency inaugurated a sterilization campaign. Women were routinely sterilized without their knowledge, or after signing “consent” forms that they did not understand, or without being informed that they had a right to refuse.58 As a result, the average number of children born to American Indian women between 1970 and 1980 dropped by more than 50 percent.59 While federally mandated sterilization was clearly intended to reduce the American Indian population, is it accurate to attribute it to American settler society’s drive to possess and control the land? The doctors who told teenage

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girls that they were getting tonsillectomies and then removed their ovaries probably did not expect to be personally rewarded with land grants.60 Nevertheless, the program was conceived, funded, and implemented by institutional actors intending to trigger a dramatic decline in the American Indian population, at a time when the legitimacy of US claims to the “integrity” of its land base were under serious attack. The direct and predictable result of this sterilization program is that the current generation of young American Indian adults is perhaps half as large as it might otherwise have been.61

Contemporary Violence The officially sanctioned elimination of Indigenous peoples is often dismissed as a thing of the past, masking the extent to which its legacy permeates American culture, allowing Indians to be killed with impunity. As of 2012, the violent crime rate on reservations was two and a half times that of the general population, Indigenous women were being raped or sexually assaulted four times more frequently than other US women, and on some reservations women were being murdered at ten times the national average.62 Almost 90 percent of the survivors of rape or sexual assault reported non-Indigenous perpetrators.63 Nonetheless, the Justice Department, with exclusive jurisdiction over such crimes, was filing charges in only about half of the murder cases and a third of the sexual assault cases.64 In a 2019 report on its inquiry into missing and murdered Indigenous women and girls, the Canadian government described the crisis as part of a “genocide” that “has been empowered by colonial structures,” but the United States has yet to respond to the crisis, equally severe, on this side of the border.65 In some jurisdictions it is only recently that murders of an American Indian are treated as crimes. In the winter of 1972 Raymond Yellow Thunder, a fifty-one-year-old Oglala Lakota, was picked up by two young White men in Gordon, Nebraska, close to the border of the Pine Ridge Reservation. They severely beat and stripped Yellow Thunder, and threw him into an American Legion dance hall to be further humiliated and abused. His body was found a week later, but his relatives were unable to convince the Bureau of Indian Affairs, the FBI, or local authorities to take the murder seriously.66 Only after several hundred American Indian Movement activists and supporters descended on Gordon were serious criminal charges filed against the perpetrators, making them the first White people in the history of Nebraska to be imprisoned for killing an Indian.67 In early 1973, the United States initiated a seventy-one-day siege of AIM members and supporters gathered at Wounded Knee, the site of the 1890

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massacre. Claiming an AIM “occupation,” the federal government sent special warfare experts, military personnel, armored personnel carriers, grenade launchers, and aircraft to the scene and placed an Army assault unit nearby, on full alert. Ultimately, “more than 500,000 rounds of military ammunition were fired into AIM’s jerry-rigged ‘bunkers’ by federal forces.”68 The following year, federal agents worked closely with handpicked tribal leaders and BIA police to subvert the election of AIM leader Russell Means as president of the Pine Ridge tribal council, in part because Means’s election would derail federal plans to appropriate a portion of the reservation rich with uranium and other natural resources.69 Between 1972 and 1976 nearly seventy AIM members and supporters on the Pine Ridge Reservation were murdered, giving the reservation a documented political murder rate equivalent to that experienced in Chile following the 1973 US-backed coup that killed its president Salvador Allende.70 What accounts for the intensity of the governmental reaction to American Indian activism during this era? Political activists and organizations around the country were being repressed routinely, and often lethally, but no other group met with the overwhelming military force seen at Wounded Knee and no other community was subjected to politically sanctioned murders at the rate seen on Pine Ridge.71 To understand the distinction, we need to remember that most—although certainly not all—political movements of the 1960s and 1970s were struggling for inclusion in the American settler polity. By contrast, American Indian activists, at the behest of traditional elders, were bringing the illegitimacy of the occupation of their lands to the attention of the world. The Wounded Knee siege—like the recent resistance at Standing Rock— focused on treaty rights that, if enforced, could encourage a host of other land claims.72 According to legal scholar Russel Barsh, by 1900 the United States had asserted jurisdiction over some two billion acres of Indigenous territory. “Half of this area was purchased by treaty or agreement at an average price of less than seventy-five cents per acre,” 325 million acres “were confiscated unilaterally by Act of Congress or Executive Order, without compensation,” and another 350 million acres in the “lower” forty-eight States and Alaska had been taken “without agreement or the pretense of a unilateral action extinguishing native title.”73 By 1970, even the Interior Department was warning that the United States had never acquired valid title to about one-third of its purported land base.74 These issues could have been—and could still be—addressed straightforwardly, through negotiations with the Indigenous nations involved. Instead, the state has chosen to ignore its legal obligations in favor of continued repression.

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Thus, in the winter of 2016–17 Standing Rock witnessed a militarized response reminiscent of Wounded Knee in 1973, with chemical weapons, concussion grenades, so-called rubber bullets, LRAD sound devices, and water cannons unleashed on unarmed opponents of the pipeline construction.75 The settler state has never acknowledged any limitations when responding to Indigenous resistance. In 1792 Thomas Jefferson opined that “the native possessors” had “no right of soil” with respect to “a white nation settling down and declaring that such and such are their limits.”76 Some 225 years later, this characterization echoed in the Army Corps of Engineers’ demand that Standing Rock water protectors retreat to the reservation, and its pretense that “to protect the general public” it was “necessary” to treat those who remained on unceded treaty lands as “trespassers” subject to forcible removal and criminal prosecution.77

Strategies of Displacement and Containment The American settlers’ presumed colonial prerogative extends not only to determining who may live within the state’s claimed boundaries, but also where they are allowed to be. Throughout US history various forms of removal, relocation, incarceration, and exclusion have been utilized to maximize settler landownership, ensure its profitability, and maintain social control. As the American Indian population base, along with its ability to effectively defend itself, was reduced to the point where complete physical elimination no longer made economic or military sense to the settlers, they “cleared” coveted territories by removing the remaining Indigenous populations to what were considered, at that time, the least desirable lands. These removals met with considerable resistance, and the military often was deployed to forcibly transfer peoples and to prevent them from leaving their assigned locales.

Forced Removals By 1801 Thomas Jefferson was already predicting that “our rapid multiplication will expand itself . . . [to] cover the whole northern, if not the southern continent, with a people speaking the same language, governed in similar forms, and by similar laws,” a vision not to be sullied by “blot or mixture.”78 Between 1790 and 1840 some 4.5 million Euroamerican settlers appropriated lands west of the Appalachians, and by 1850 the United States claimed the Pacific Ocean as its western border. Just forty years later, “North America’s Native peoples would be living mainly on reservations controlled by the US government or in its rapidly growing cities,” their “pre-contact” population and land base reduced by more than 95 percent.79

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The terms “removal” and “relocation” are deceptively benign, masking the horrors attending this genocidal process. Between 1813 and 1855 most of the eastern peoples who had not already been coerced into moving west were forcibly removed. The best-known example, of course, is that of the Cherokee Trail of Tears. Snatched from their homes at gunpoint, often by settler vigilantes who then burned their houses, the Cherokees were concentrated in military stockades before being force-marched some 1,200 miles from their Georgia/North Carolina homeland to Oklahoma. The Choctaws, Chickasaws, Creeks, and Seminoles, as well as numerous smaller nations, were similarly “removed.” Suffering from exhaustion, exposure, starvation, and disease, many nations lost 50 percent or more of their populations as a result.80 Why were these nations so brutally expelled from their traditional lands? Incompatibility of Indigenous and settler lifestyles is often presumed, but at the time of their displacement the Cherokees had signed numerous treaties with the United States protecting their right to remain on their lands, and there were no hostilities occurring.81 They were settled agriculturalists with a sound economic base and political, legal, and social institutions easily recognized as such by the colonizers.82 The real problem may well have been “the Cherokee’s unmistakable aptitude for civilization,”83 for this undermined the settlers’ justifications for seizing coveted lands. As Wolfe observed, the Cherokees’ adoption of settler practices was particularly provocative because it “signified permanence.”84

Internments Mass incarceration was the inevitable consequence of the “removals.” Recognizing that the Indigenous peoples who survived relocation had to live somewhere, the government assigned them to “agencies,” that is, reservations. The notion of “reserved lands,” like “relocation,” sounds relatively benign; it might not be home, but it is land upon which to start a new life. This is, however, an entirely inaccurate perception. Even under the most humane conditions, forced relocation is devastating, and it has an intensified effect on peoples for whom land is not a fungible commodity. As former UN special rapporteur James Anaya notes, Indigenous peoples “are indigenous because their ancestral roots are embedded in the lands on which they live, or would like to live.”85 Cultures, cosmologies, languages, identities, and responsibilities that have evolved in relation to particular territories cannot simply be transplanted.86 Compounding this problem, virtually all of these peoples were being forced onto the territories of other Indigenous nations, “turn[ing] eastern tribes into proxy invaders of Indian territory across the Mississippi.”87

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And, of course, the conditions under which Indigenous peoples were “removed” and “relocated” were anything but humane. Invariably, American Indians were confined to the poorest and least hospitable lands available, a significant problem even when their assigned reservations were located within their traditional territories. Thus, a Chiricahua Apache described the San Carlos reservation as “the worst place in all the great territory stolen from the Apaches. If anybody had ever lived there permanently, no Apache knew of it.”88 The government’s failure to provide adequate food or shelter dramatically intensified the trauma of forced relocation and triggered the rapid decline of already decimated populations.89 Trapped on barren lands without adequate food or shelter, survival seemed unlikely, prompting many interned peoples to attempt escape. But they were prisoners, allowed to leave their assigned agencies only with the permission of the military or a federal Indian agent,90 and fleeing provided the state with an excuse to revert to wholesale slaughter. The Northern Cheyennes, for example, had been forced from their traditional Montana territory in 1877 and imprisoned in Oklahoma. By the fall of 1878, with their people dying of malaria, dysentery, and other illnesses, some three hundred Cheyennes made a desperate attempt to go home.91 Hoping to deter other escapes, General Philip Sheridan sent about fifteen thousand US troops in pursuit, with orders to “spare no measure . . . to kill or capture” the small group of escapees.92 The Cheyennes were incarcerated at Camp Robinson, Nebraska, where the government denied them food and firewood in the dead of winter to coerce them into returning to Oklahoma. In January 1879 the Cheyennes again escaped but were quickly tracked down, and about half their number, children included, were simply butchered.93 There could be no mistaking the message conveyed by such practices: American Indians had no alternative but to remain in their assigned locations, under whatever conditions the settler state chose to impose. Within the settler imaginary that invented and asserted an exclusive entitlement to the land, Indians were, by definition, a military threat. This construction was not merely theoretical or rhetorical but enshrined in law and enforced by the police powers of the state well into the twentieth century.94 The experiences of the Chiricahua Apache illustrate this aptly. Finding their confinement at San Carlos intolerable, Geronimo’s band escaped and eluded government forces for a year and a half. In retaliation, following his 1886 surrender, the government shipped the entire Chiricahua population—children, elders, women, and even men who had fought for the United States—to military prisons in Florida and then Alabama. During their first eight years of incarceration, some 40 percent of the imprisoned Chiricahuas died, and it

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was not until the winter of 1913–14 that the survivors were transferred to a reservation in Oklahoma.95 Citing the expropriation of their lands and their lengthy imprisonment, in 1947 the Chiricahuas filed a claim with the Indian Claims Commission (ICC), a body established by the federal government in 1946 in an attempt to distinguish its territorial acquisitions from those of the Germans it was then prosecuting at Nuremberg.96 In 1971 the ICC finally awarded the Chiricahuas token payment for their lands, but refused to consider the imprisonment claim.97 On appeal, the Court of Claims acknowledged “that ‘the Apache Tribe did not prosper’ from twenty-seven years of imprisonment,” but refused to hold the government liable.98 In 1974 the Supreme Court denied certiorari, thereby confirming the settler state’s prerogative to indefinitely intern entire peoples in order to consolidate control over its claimed land base.99

Strategies of Conceptual Disappearance Indigenous peoples have consistently resisted the occupation of their territories, not only by refusing forced relocations and defending their lands, but also by pressing claims for treaty violations and wrongful takings.100 While such actions rarely succeed, the United States has consistently had to justify itself, both in US courts and in international forums. As long as Indigenous peoples survive and continue to assert their rights, the legitimacy of the settler state’s occupation remains in question. This is why, even today, the dominant narrative simultaneously asserts that American Indians have not been subjected to genocide and denies their continued existence.101 It is also why a range of strategies has been employed to conceptually “disappear” Indigenous identities, cultures, and worldviews. A few key examples are discussed in this section.

“Recognition” One of the hallmarks of settler colonial dominion is the imposition of identity on those over whom the state claims jurisdiction. Repeatedly, we see racialized identities thrust upon peoples in ways that are arbitrary and inconsistent, yet clearly intended to serve particular purposes. With respect to American Indians, a primary goal of such identity construction has always been the numerical reduction of the population. Using the pseudoscientific notion of “blood quantum,” the settler state has counted Indigenous people “out of existence,” at least from the colonial perspective, by requiring them to prove a particular “degree of Indian blood”—usually one-quarter or one-half—to be

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recognized as Indians, a practice Veracini terms “transfer by accounting.”102 This system has predictably shrunk the federally recognized American Indian population as well as its land base.103 In the 1880s, the US government employed such definitions to limit the number of Indians eligible for individual allotments of land and to open up the resulting “surplus” lands—territories that had been held collectively by Indian nations—to White settlement.104 Between 1885 and 1934 this process resulted in the loss of two-thirds of the land still in Indigenous possession.105 Since then federal and state governments have extended their power to define peoples by selectively according “recognition” to American Indian “tribes,” a process that has been used to dictate how they will be organized, to allocate or withdraw funding based on their willingness to comply with settler state policy, and to un-recognize or “terminate” them at will.106 By “allowing” tribal authorities some discretion with respect to membership while allocating “benefits” in lump-sum fashion, the settler state has incentivized tribal governments to pare down their membership rolls to maximize benefits for remaining members, thereby internalizing the process of counting themselves into extinction.107 Beyond numerical reduction, the settler state’s usurpation of the right of Indigenous peoples to define themselves constitutes an attempt to erase indigeneity by racialization. Innumerable distinct polities, cultures, and relational networks are collapsed into a vacuous identity based on arbitrarily assigned phenotypical and cultural characteristics.108 The result is the transformation of hundreds of nations into a single “race,” which is then categorized as a “minority group” within the settler body politic. This strategy, as Veracini points out, lays the groundwork for “resolving” the underlying problem of illegitimate occupation through a process of “reconciliation” intended to result in “relegitimation and settler self-supersession.”109 It also has serious legal implications for Indigenous rights, since “minorities” are generally guaranteed only equal treatment under international law, whereas “peoples” have a right to self-determination.

Assimilation Racialization leads, perhaps counterintuitively, to the nullification of identity. The “race problem” having been constructed as one of difference, the “race solution” becomes the elimination of difference. Framed in terms of assimilation, this solution has been, and continues to be, a critical strategy of colonization because if Native peoples can be absorbed into the general population, their land claims and their challenges to settler hegemony disappear

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with them.110 Thus, for example, Russel Barsh reports that in 1979 opponents of Catawba land claims in South Carolina argued in congressional hearings that the claims should be dismissed because the Catawbas “are no longer an entity, which is good. They have been absorbed into the mainstream of life.”111 Assimilationism provided the ideological foundation for the allotment policy of the late 1880s that purported to facilitate the transformation of Indians into independent farmers. As historian Blue Clark notes, “reformers” of this era urged “the Indian’s absorption ‘into the common life of the people of the United States’” so that they would no longer “block American progress and stand in the way of the public good.”112 As part of this “civilizing mission,” US citizenship was unilaterally conferred upon American Indians in 1924, making it that much easier for them to be viewed and treated, and to see themselves, as racial minorities rather than sovereign peoples.113 In the meantime, Indigenous spiritual practices had been outlawed, “a measure expressly intended to eradicate all vestiges of the traditions that afforded cohesion and continuity to native cultures.”114 American Indians were subjected to criminal penalties for accessing sacred sites, collecting and using natural medicines, or performing the ceremonies required to maintain balance and harmony in their worlds.115 These prohibitions were not officially rescinded until 1978, when the American Indian Religious Freedom Act was passed, and Indigenous spiritual realities remain under attack as governmental authorities and the courts consistently find a “higher” use for sacred sites and require Indians to “prove” that their practices deserve protection by virtue of being sufficiently analogous to the religious rituals of the dominant culture.116 Cultural continuity was intentionally disrupted through the forcible removal of American Indian children from their homes and communities. In the late nineteenth century, federal officials began sending American Indian children to remote boarding schools that were, in fact, juvenile prisons.117 From about 1890 to 1970, approximately half of the Native children in each generation were subjected to these institutions, where, in the name of “civilizing” them, the students were stripped of all vestiges of their cultures, forbidden to speak their languages, and taught that all things Indian were unworthy.118 Subjected to harsh corporal punishment, sexual predation, involuntary labor, malnutrition, and communicable diseases, during some periods up to half the children died.119 For these reasons, Indian “education” could quite appropriately be considered one of the strategies of indirect killing discussed earlier. Predictably, most of the survivors of these institutions suffered—and continue to suffer, as do their children and grandchildren—the effects of sustained traumatic abuse.120

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A related strategy for assimilating Indigenous peoples out of existence has been the widespread termination of parental rights and the “out-adoption” of American Indian children. Facilitated by an Indian Adoption Program organized by the Child Welfare League of America in cooperation with the BIA, by the early 1970s perhaps one-third of all American Indian children were in adoptive homes, foster care, or institutions, and 90 percent of the placements were in non-Indian homes.121 Just as the stated objective of the boarding schools had been to “kill the Indian, save the man” in each child, the adoption program was explicitly intended to preclude these children from knowing their cultures, thereby eviscerating the ability of their nations to survive.122 As such, these policies were explicitly genocidal, designed—in the words of the Genocide Convention—“to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” by “forcibly transferring children of the group to another group.”123 Eventually congressional hearings “documented the existence of a crisis in the Indian family of sufficient proportion to threaten tribal survival,” in the words of law professor Barbara Atwood,124 and resulted in passage of the 1978 Indian Child Welfare Act (ICWA). Nonetheless, these practices continue. In March 2015, for example, a federal judge found South Dakota officials still removing hundreds of Indian children from their homes every year, after hearings that routinely took just a few minutes.125 Native families were not allowed to present testimony and often did not know why their children were taken. Eighty percent of these children were being placed in White foster homes, illustrating the assimilationist presumptions that underlie assessments of children’s “best interests.”126 Ultimately, of course, assimilation is futile because its success is “never dependent on indigenous performance” but instead requires absorption by settler society.127 Such absorption does not happen, except in isolated instances, because the maintenance of settler privilege requires unassimilable difference. In the meantime, however, assimilationist ideology “allows indigenous people to be envisaged as only temporarily excluded” and supports settler claims to be “ultimately representing all residents.”128 Simultaneously, it paves the way for vilifying and criminalizing those Indigenous peoples who are either structurally prevented from assimilating or do not wish to do so. The assimilationist model allows the dysfunction found in all impoverished, colonized, and traumatized communities to be, in this case, attributed to Indians being “drunk,” “lazy,” “violent,” or “incompetent.” It justifies high rates of incarceration and the continued removal of Indian children from their communities.129 In turn, such vilification and criminalization are “crucial to the disavowal of the inherently political character of indigenous de-

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mands.”130 In sum, within the dominant narrative, American Indians may be assimilated out of existence and, therefore, have no legitimate claims against the settler state, or they may be insufficiently assimilated (“civilized”) to have such claims.

Indians as Anachronism The final strategy of conceptual disappearance considered here is the consignment of Indigenous peoples to a different time rather than space; a construction so pervasive that even today American Indians are almost always discussed by non-Indigenous people in the past tense. As part of the past, they cannot exist in the present; in Wolfe’s words, the “primary effect” of defining “authentic” indigeneity “as a frozen precontact essence . . . is to provide a formula for disqualification.”131 This can be seen in the common social practice of presuming that someone is or is not “really” Indian based on stereotypes about what Indians should look like, or how they should act.132 To the extent Indigenous realities reflect such imagery, the settler narrative deems them to be vestiges of a prior era that, for better or worse, is now irrelevant. When Indigenous people do not conform to the stereotypes, they are ignored as not-really-Indian. This construction of the-Indian-as-anachronism (a practice Veracini terms “narrative transfer”) serves to render Indigenous peoples—and their claims—invisible in contemporary settler society. They may exist as individuals, but their “Indian-ness” is not allowed to intrude into the present. In one contemporary example, Mike Taylor, an American Indian blogger, explained that he had taken down his Facebook page after discovering that his White “friends” overwhelmingly believed that he “lived in the past” and needed to “get over” it, apparently because about 15 percent of his posts addressed Indigenous issues.133 Noting that virtually all of these posts discussed current tribal issues or upcoming events, Taylor concluded that the real problem was that these contemporary reminders of “our very existence” constituted “an unpleasant reminder . . . that Turtle Island is not their land.”134 In other words, just as the settlers in the Southeast found the Cherokees too civilized and, therefore, likely to be permanent, the dominant narrative resists the injection of Indian-ness into the present not because Indigenous people are living in the past, but because they should be. This framing serves to alleviate settler guilt, for if real Indians exist(ed) only in the past, nothing needs to be done in the present. More insidiously, it facilitates the repression of resistance, for, as Veracini observes, when Indigenous peoples’ “defeat is irretrievably located in the past, their activism in the present is [rendered] illegitimate.”135

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Looking Ahead Between April 2016 and February 2017, some ten thousand water protectors gathered in prayer camps just north of the Standing Rock Reservation in North Dakota to contest construction of the Dakota Access oil pipeline.136 The pipeline, which now threatens the water supply of the Standing Rock and Cheyenne River Reservations, was initially slated to run slightly north of Bismarck, a city that is over 90 percent White, but the Army Corps of Engineers rejected this route because it would endanger the municipal water supply of a “high consequence area.”137 In an act described by the Reverend Jesse Jackson as “the ripest case of environmental racism I’ve seen in a long time,”138 the pipeline was rerouted through unceded lands in the Great Sioux Nation, as recognized by the 1851 and 1868 Fort Laramie treaties.139 The resistance camps were located where the pipeline would ultimately cross the Missouri, known as Inyan Makangapi Wakpa, the River That Makes Sacred Stones, because of whirlpools that created large sandstone spheres.140 Pointing out the historical significance of that land as well as the burial grounds and other sacred sites located along the river, LaDonna Bravebull Allard, who established the Sacred Stone camp in April 2016, explained: This river holds the story of my entire life. . . . The US government is wiping out our most important cultural and spiritual areas. And as it erases our footprint from the world, it erases us as a people. These sites must be protected, or our world will end, it is that simple. . . . If we allow an oil company to dig through and destroy our histories, our ancestors, our hearts and souls as a people is that not genocide? . . . We are the river, and the river is us. We have no choice but to stand up.141

The local settler population had a very different perspective, of course, and their hostility toward the water protectors, and to American Indians generally, was palpable. In the surrounding, overwhelmingly White counties, residents received “reverse 911” calls to warn them about areas that were “unsafe” because prayer circles or demonstrations were occurring, and local businesses were encouraged to deny service to persons supporting the occupation.142 Prior to the trials of arrested water protectors, a National Jury Project survey found that well over three-quarters of the juror-eligible population was already convinced of the defendants’ guilt.143 The local White residents’ reactions reflected a deep-seated fear that the legitimacy of their presence on Indigenous lands was being questioned. “I’m the son

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of farmers, and we worked hard for everything we have,”144 a local sheriff ’s deputy explained. In this simple statement, the deputy sheriff captured the essence of the settler narrative. The state’s response to the nonviolent opposition manifest at Standing Rock reveals the extent to which American settler society will still go to ensure hegemonic control over its claimed territorial base. Responding to the North Dakota governor’s request for assistance in this “state of emergency,” counties and cities across ten states sent law enforcement personnel to help quash the resistance and clear the camps. In this process, the water protectors—men, women, children, and elders, often in prayer—were attacked with mace and dogs, concussion grenades, water cannons in subzero winter weather, and “less than lethal” weaponry.145 The violence deployed by a virtual army recruited from over seventy law enforcement and security agencies was severe enough to warrant quick condemnation by six United Nations special rapporteurs and other UN officials.146 Why would President Obama—who just months earlier had denounced police brutality as “an American issue” about which “all fair-minded people should be concerned”—decide to simply “let it play out” at Standing Rock?147 When confronted with anti-Indian racism, one senses a consciousness, or dis-ease, about who has a right to be on the land. Patrick Wolfe has described settler colonialism as “a winner-take-all project,”148 and it is clear that, from the settler perspective, the occupancy of North America continues to be an either/or proposition. Ultimately over eight hundred water protectors were arrested and, in February 2017, the main camps were destroyed by heavily armed police units.149 Throughout the occupation, the pipeline owners also deployed private contractors from TigerSwan, a mercenary firm employed by the US government in global counterterrorism missions. A TigerSwan assessment, written after the water protectors had been removed, compared the water protectors to “jihadist insurgents” and concluded that “aggressive intelligence preparation of the battlefield and active coordination between intelligence and security elements are now a proven method of defeating pipeline insurgencies.”150 In a very literal sense, the “Indian Wars” are not over. American Indians and other Indigenous peoples under the United States’ purported jurisdiction have not disappeared, but continue to survive and resist after more than five centuries of colonization. Currently, the federal government recognizes some 566 Indian nations,151 and about 5.4 million people, or 2 percent of the total population, identify as American Indian or Alaska Native, with almost half that number identifying exclusively as such.152 Nearly one-third of this population is under the age of eighteen, as compared to

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about a quarter of the population as a whole,153 indicating that the Indigenous population is rebounding, to some extent, from the sterilization programs and slow death measures imposed upon it over the past several generations. This does not mean, however, that settler society has come to terms with the fact of Indigenous existence. Instead, it continues to use every means available to it to deny, suppress, and subvert the sovereignty of Indigenous nations and their peoples’ right to self-determination. Indigenous peoples’ claims to their traditional lands are consistently disregarded. This cannot be dismissed as “a phenomenon of the past” because, as law professor Joseph Singer observes, “the law continues to confer—and withhold—property rights in a way that provides less protection” for American Indian nations than non-Indian individuals or entities.154 Today, American Indian nations hold approximately fifty million acres of land—about 2 percent of the country’s continental land base155—but their control over even these lands and resources remains subject to the absolute, plenary power of the federal government. The meager revenues they generate are held “in trust” by the government, which has so grossly mismanaged them that it cannot account for perhaps $140 billion of individual Indian trust monies.156 American Indians and Alaska Natives, like African Americans, are approximately three times more likely to be killed by law enforcement officials than their White counterparts.157 They are subjected to violent assault, rape, and murder at levels that far exceed the general population, and have less police protection than other demographic groups.158 Today American Indians and Alaska Natives are the poorest “racial group” in the United States.159 They have higher rates of unemployment and incarceration than other demographic subgroups, less education, poorer health, and lower life expectancies, are subject to higher levels of violence on a daily basis, and have by far the highest suicide rate.160 These are conditions common to colonized peoples, and directly attributable to the strategies of dispossession and elimination by which the American settler state has appropriated and maintained control of its territorial base. The continued colonization of the lands appropriated by the United States, and the concomitant dispossession of the peoples indigenous to those lands, is foundational to any analysis of, or attempt to address, racial injustice in America for at least two reasons. First, until underlying Indigenous claims are addressed, claims by other peoples to an “equal right” to the fruits of that colonization legitimize the genocidal policies and practices upon which the wealth of America is built. As Singer observes, “If those who benefit from this history of injustice claim a vested right to its benefits, they should be aware that what they claim is a right to the benefits of a system of racial hierarchy.”161

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Second, other manifestations of racial hierarchy cannot be effectively dismantled until colonial occupation and appropriation are addressed. If land is the fundamental prerequisite of the settler colonial state, and the settlers’ claims to that land rest squarely—still—on the racialization of its original owners as savage and subhuman, those in power cannot, and will not, abandon hierarchical racialization within American society, for that would undermine the basis for the state’s claimed prerogative to defend its “territorial integrity.”162 This chapter has focused on the desire for land as the primary driving force of settler colonial societies and, therefore, has emphasized strategies employed to eliminate, or “disappear,” the original owners of the land. Historically, as the colonizers consolidated their territorial control, they enlisted labor to render “their” lands profitable, a process that, from the beginning, included the enslaved labor of both American Indian and African peoples. Enslaved Africans, of course, were also colonized Indigenous peoples, and many people ultimately classified as “Black” were of American Indian as well as African descent. But settler priorities were most effectively realized by eliminating as many American Indians as possible while encouraging the expansion of a subjugated Afrodescendant population. It is in this sense that Patrick Wolfe says “the two societies, Red and Black, were of antithetical but complementary value to White society.”163 “The outcome was a triangular transcontinental relationship in which the labour of enslaved Africans was mixed with the land of dispossessed Americans to produce European property.”164 This process and its contemporary consequences are the subjects of the next two chapters.

5

Enslaved Labor and Strategies of Subjugation The story of New World colonialism is a story where slavery occupies a central place. . . . Without slavery the Europeans might not have built empires in the New World—certainly they would have taken very different forms. —Alan Gallay

As Angloamerican settlers employed strategies of elimination to appropriate Indigenous territory, one foreseeable result was that they would desire a large labor force to consummate their occupation of the depopulated lands.1 The master narrative would have us believe that American territorial and economic expansion was fueled primarily by the settlers’ labor. “Settler colonialism obscures the conditions of its own production,” Veracini observes, as the settler “hides behind his labour and hardship,” “wrestl[ing] with the land to sustain his family.”2 But in reality the early British colonists were unable or unwilling to provide the labor needed for their own survival, much less that required to make the venture profitable. Their prosperity thus depended upon a labor force of involuntary and semi-voluntary workers. The frequently invoked description of the United States as a “land of opportunity” reinforces the myth that migrant Others have come voluntarily to share in the benefits of settler colonization. It also implies that the hardships of the process are compensated for by the benefits of ultimate inclusion in settler society. In fact, however, migration to this continent has covered the entire spectrum of volition, from kidnapped Africans—many of whom preferred death to enslavement—to peoples who sacrificed all they had to migrate, convinced that they would soon be part of the settler class.3 While some groups have succeeded in doing so, most were, and remain, subordinated in ways that perpetuate and maintain settler hegemony. The treatment of migrant Others has changed during the course of American history, but the ways in which peoples today are racialized and excluded often reflect the strategies initially used to exploit them. This is certainly true in African American history. As noted earlier, the colonizers relied upon Locke’s theory of “productive use” to dispossess Indigenous owners and assert their own claims to land.4 79

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The labor of enslaved Africans and American Indians, as well as Chinese, Mexican, and other workers of color, was essential to rendering these lands both productive and profitable. However, the Lockean notion that labor could transform a wilderness into private property did not extend to people of color. To justify this disparity, Angloamerican settlers defined these workers as less than human, or insufficiently “civilized” to own land, with the result that control of the state’s territorial base was and remains racially contingent. The situation of African Americans requires distinct analysis because enslaved Africans cannot appropriately be described as “immigrants,” with the connotations that term carries of at least minimal volition. Of course, not all Afrodescendant people in this country are the descendants of slaves, and many of the strategies of subordination used against other migrant groups are directly applicable to recent African immigrants.5 Nonetheless, the Black identity attributed to such immigrants often blurs distinctions that are otherwise very significant within African American communities.6 Similarly, not all enslaved persons were of African descent, for American Indian enslavement began with the arrival of the first European colonists and persisted, in some locales, until after the Civil War.7 As a result of the enslavement of American Indians and the fact that many Indigenous nations incorporated people of African descent into their polities, many American Indians are also identified as Black.8 The institution of slavery was essential to the Angloamerican colonizers, well protected by the Constitution, and integral to the social, political, and economic institutions of the settler state.9 In order to transform a colonized and entirely involuntary workforce into a source of economic productivity, settlers forcibly included persons of African descent within settler-claimed space, transformed them into sufficiently compliant workers, and simultaneously excluded them, physically and conceptually, from settler society. What evolved was a variant of “inclusive exclusion,” the construct Agamben uses to describe concentration camps as sites where law is indistinguishable from “bare life” and purportedly exceptional circumstances are normalized.10 The imposition of this status on real—and resistant—human beings required the settler class to utilize strategies of subjugation that were not only allencompassing but more overtly violent than those used to exploit nominally free labor.11 The relationship of US colonialism to enslaved Africans and their descendants has yet to be explored in much depth by settler colonial theory. Nonetheless, working off the typology of strategies utilized to “disappear” Indigenous peoples, we can begin to articulate the parallel and divergent means that have been—and continue to be—used to ensure that the presence of Af-

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rodescendant peoples in the United States furthers settler interests or, at a minimum, does not disrupt settler hegemony in any meaningful way. As with American Indians, these strategies are embedded in a paradigm that posits the superiority of Euroamerican settler colonial society, depicts the settlers as “uplifting” and “civilizing” enslaved Africans and their descendants, and is used to justify all manner of brutality and injustice by racializing Black people as less than human. Variations in the strategies used to subordinate American Indians and people of African descent can be traced directly to the functions they are intended to serve. Over the past four centuries, the labor needs of the settler class have changed and its overtly supremacist ideology has come into conflict with the image of American democracy the state relies upon for domestic and international legitimacy. As a result, the strategies employed by Angloamerican settlers to subjugate enslaved Africans and their descendants—or those perceived to be their descendants—have shifted over time, even as racialized subordination has remained constant. During the period of officially sanctioned slavery, when Black people were legally constructed as a form of White property, expansion of the population was a primary goal, and containment and control of the enslaved workforce was the priority. After a brief overview of slavery in North America, these strategies, which continue to characterize social relations in contemporary American society, are considered in this chapter. The next chapter addresses the strategic shifts corresponding to the period after “emancipation,” when the continued exploitation of Black labor was perceived as necessary but required new forms of subjugation and social control, and to the postindustrial era, in which people of African descent are increasingly regarded by those in power as a surplus population to be spatially and socially contained.

Slavery Enslaved labor worked the lands appropriated from Indigenous peoples to produce much of the wealth that subsequently underwrote both European and American industrialization and economic development.12 “The European conquest of the Native Americans and the introduction of plantation slavery were crucial beginning points for the emergence of a worldwide colonial order,” according to sociologist Robert Blauner.13 The Jamestown Colony was envisioned as a precursor to large-scale agricultural plantations. Underwritten by London merchants who established the Virginia Company “along the innovative lines of the broadly capitalized East India Company,” by 1610 it had over 50 corporate and 650 individual shareholders.14

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Company officials initially believed that Jamestown’s governor would be able to convince the Indians under Powhatan’s rule to clear the land, provide labor, and trade with the English in exchange for British “protection” and independence from Powhatan.15 When this vision proved delusional, the company sent more English settlers to the colony, but many quickly returned home.16 One solution to the resulting labor shortage was the importation of indentured servants. It is estimated that one-half to two-thirds of the White immigrants who arrived in the British colonies in North America prior to 1775 came under contracts for labor for a fixed term of years.17 Many came voluntarily, some were kidnapped, and perhaps fifty thousand were convicts. The conditions attending European servitude were harsh, but it was the servants’ labor that had been sold, not their person.18 Indentured servants could anticipate a future in which they owned land, “became small yeomen farmers, settled in the back country, . . . and were the pioneers in westward expansion.”19 In other words, they could envision becoming settlers. But indentured servitude could not provide labor sufficient to realize the settler colonists’ visions for their new society.20 The shortage of European settlers (free or indentured), the limits on the period of their indentures, and the colonists’ rapidly growing desire for workers quickly led to the utilization of enslaved Indigenous labor. By the early eighteenth century, some thirty thousand to fifty thousand Indians were enslaved by the British in North America.21 During the wars instigated by the colonists, Indians were routinely captured and “exported,” often to defray the expenses of the conflicts.22 According to Alan Gallay, between 1670 and 1715, “more Indians were exported through [Charleston, South Carolina] than Africans were imported.”23 The decreasing significance of American Indian slavery and the concomitant rise in African slavery are often attributed to the Indians’ ability to escape or the alleged physical superiority of enslaved Africans.24 More likely, it resulted from a combination of dramatic American Indian population declines and the British need for alliances with Indigenous nations in order to strengthen their position vis-à-vis the Spanish and French. Settlers lacked the resources to conduct large-scale slaving raids, and there were no established slave trade networks within the Americas.25 They turned, therefore, to the African slave trade already well established in European colonies in the Caribbean.26 By 1619, when John Rolfe “purchased” twenty Africans from Dutch slavers in Jamestown, about one million enslaved Africans had been brought to the Western Hemisphere.27 As a result, according to historian Ira Berlin, “although some of the [1619] arrivals hailed directly from Africa, most had already spent some time in the New World, understood the languages of the

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Atlantic, bore Hispanic and occasionally English names, and were familiar with Christianity and other aspects of European culture.”28 In 1638 enslaved Africans arrived in New England on the Desire, an Angloamerican vessel that had departed in 1637 with a cargo of Pequots being sent to Caribbean slave markets.29 Although the number of enslaved Africans in New England remained relatively small,30 the institution was of great significance to the region, as its economy relied upon the triangular trade in enslaved people, the crops they produced, and the manufactured goods made from those crops.31 In other colonies, African workers provided agricultural labor and household service and worked as artisans in urban areas. Between 1732 and 1754, one-third of all persons arriving in New York were Afrodescendant slaves,32 and by 1770 they accounted for about 12 percent of the non-Indigenous population of the region.33 In the southern colonies enslaved Africans initially worked alongside enslaved Indians and Europeans, both free and indentured.34 However, as the plantation economy grew—producing tobacco in the Chesapeake region, cotton in the interior, rice and indigo in the coastal low country, and sugar in the lower Mississippi Valley—enslaved African labor predominated.35 In 1770, 42 percent of non-Indigenous people in Virginia and more than 60 percent in South Carolina were of African descent.36 By the time of American independence, the settlers had constructed a society in which “the master-slave relationship provided the model for all social relations.”37 As framed by historian Vincent Harding, African labor “blazed the trails, cleared the forests, built the dwellings, tilled the land, planted the seed, harvested the crops, dug the ore, kept the livestock, nursed the children, created and maintained the wealth of the New World—without pay.”38 In turn, this fueled the continuous appropriation of Indian lands, for the settlers could, in Thomas Jefferson’s assessment, “‘buy an acre of new land cheaper than we can manure an old one.’”39 As of 1860, some four million enslaved persons of African descent lived in the United States, accounting for almost 40 percent of the population of the South and nearly 13 percent of the total population.40 While it is difficult to calculate how much wealth they created for the settlers, the “market value” of enslaved Black people in 1860 has been estimated at about $4 billion—the equivalent to approximately $100 billion in 2010—indicating the significance of their labor to the American economy.41 Chattel slavery was thus a deeply—structurally—embedded social institution that quite literally embodied colonial relations of domination and subjugation. Indigenous African peoples were twice colonized—subjected to the classic colonial invasions that resulted in their kidnapping and forced relocation, and then to the settler colonial appropriation of their lives and labor.42

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Transforming these peoples and their descendants into a profitable workforce entailed many strategies of disempowerment that, long after the formal abolition of slavery, we still see being utilized to perpetuate the master-slave dynamic foundational to American settler colonial society.43

Contested Identities Africans came to the Americas with rich histories of their own, from hundreds of different Indigenous nations, each with its own culture, language, spiritual beliefs, political organization, and history developed over many millennia.44 Not surprisingly, one of the first strategies employed by Angloamerican colonizers in their attempt to transform African captives into a profitable workforce was to nullify their extant identities. Africans who had survived the horrors of the trek to the coast, the Middle Passage across the Atlantic, and/or enslavement in the Caribbean arrived “physically depleted and psychologically disoriented.”45 Colonizers intentionally compounded this disorientation by dispersing families and randomly assigning names, practices that not only impeded collective resistance but also made it difficult for individuals to retain knowledge about their immediate relatives, their ancestors, or their national origins.46 African languages and practices integral to religious or spiritual expression, including drumming and dance, were frequently banned, much as American Indian cultural and spiritual practices were.47 In material terms this constituted “transfer by coerced lifestyle change,” to use Veracini’s term; ideologically, it was also a form of conceptual displacement that portrayed people of African ancestry as existing without history, simultaneously from “somewhere else” and “nowhere in particular.”48 Settler colonial strategies of subjugation were intended to transform Africans from peoples into atomized units of production. Raphael Lemkin, the jurist who coined the term “genocide,” described slavery as “cultural genocide par excellence. It is the most effective and thorough method of destroying a culture, and of de-socializing human beings.”49 Lemkin was referring to the enslavement of North American Indians, but his observation clearly applies to African chattel slavery as well. The dominant narrative, reinforced by colonial law, informed Afrodescendants, relentlessly, that they had no history or culture, no individual intelligence or virtues, and no future apart from such roles as might be assigned to them in settler society.50 Of course, this did not prevent Black people from resisting, individually and collectively. Slave revolts occurred on one of every eight to ten journeys across the Atlantic, compelling slave ship captains to purchase “insurrection

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insurance.”51 Enslaved peoples engaged in everyday acts of resistance while simultaneously keeping Indigenous African traditions alive through community practices and oral histories, reinvigorated until 1808 by the constant importation of new slaves from West Africa.52 Cultural and spiritual beliefs and ceremonies were maintained and passed down, despite being banned or dismissed by White society as mere “amusements.”53 Enslaved and nominally free Black people also organized armed rebellions, beginning as early as the 1650s and continuing into the 1860s.54 They ran away, forming maroon or “outlier” communities that were often allied with or incorporated into American Indian communities.55 As Harding notes, these were not only acts of resistance to enslavement, but the creation of alternative communities that adapted what Afrodescendant peoples remembered of their own traditions and ways of life to a new environment, “challeng[ing] the existing order of slave society with another, self-determining black way.”56 In turn, the existence of these communities served as a “living message” for all enslaved people that the institutions of slavery were not as powerful or allencompassing as the colonizers would have them believe.57 Eventually, Berlin observes, the presence of enslaved Africans in the Americas “became the occasion for the creation of nationality that had little salience in Africa”; a slow and varied process, “neither automatic nor unreflective, neither uniform nor unilinear,” but definitely not a process of assimilation.58 Plantation economies isolated large groups of enslaved persons, and these communities often constructed cultural formations “from their diverse memories of the Old World and the harsh realities of the New. As the plantations matured, African burial grounds, African churches, and eventually African academies appeared.”59 By the early eighteenth century, Black people in the South Carolina low country were being described as “a Nation within a Nation,”60 a characterization that has persisted for over three hundred years and remains central to the identity of many people in the United States today.

Racialization Simultaneously, American settler society was relentlessly superimposing its own version of Black identity upon people of African descent. The colonizers presumed an entitlement to use the labor of those deemed Other to extract profit from the land and justified the barbarities of their chosen means by constructing Africans—like American Indians—as savage subhumans.61 Thus, the 1696 preamble to South Carolina’s slave code began by acknowledging that “the plantations and estates of this Province cannot be well and sufficiently managed and brought into use, without the labor and service of

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negroes and other slaves.”62 It went on to assert that “forasmuch as the said negroes and other slaves [i.e., enslaved Indians] . . . are of barbarous, wild, savage natures, . . . such as renders them wholly unqualified to be governed by the laws, customs, and practices of this Province,” slave codes regulating their conduct were necessary to protect “the safety and security of the people of this Province and their estates.”63 We see here a theme that still echoes through the American criminal justice system: Black people are too “barbarous, wild, [or] savage” to be governed by ordinary laws and, therefore, special treatment is required if “the people” and their property are to be protected. Equating enslaved Africans to wild beasts in settler consciousness and law was simply the precursor to transforming them into “a highly volatile and unstable form of property,” as law professor Cheryl Harris puts it.64 Among other things, this construction conveniently avoided the need to acknowledge Black people as capable of owning land, regardless of how much labor they contributed to making it productive.65 Roger Taney, chief justice of the US Supreme Court, explained in the 1857 Dred Scott opinion that at the time the Constitution was adopted, people of African descent were “bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it.”66 His next sentence is particularly revealing: “This opinion was at that time fixed and universal in the civilized portion of the white race.”67 In other words, the status of African Americans was determined by the opinions of “civilized” White settlers, and one could not be a “civilized” White person without being willing to view Black people as property. It is difficult to grasp the profound implications of not having legal personhood. African Americans were unable to own property or enter into contracts, denied access to education, limited in their freedom of movement, prohibited from marriage or maintaining family relationships, and subjected to medical experimentation.68 Denied the right to self-defense and unable to testify in court, they had no lawful means of protecting themselves, their families, or their communities from any variant of settler-sanctioned violence or abuse.69 Nonetheless, as historian Winthrop Jordan observes, Angloamerican colonial officials “were trying to stuff a new kind of property into old legal pigeonholes and were frequently unable to achieve a very good fit.”70 One does not make laws governing the behavior of animals, attempt to acculturate them, rely upon their considerable skills as agriculturalists, artisans, and craftsmen, or, for that matter, father children with them.71 These “paradoxical conflations of person and property,” to quote law professor Camille Nelson,72 created a

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narrative gap that would be bridged by the construction of “races” and the attribution of particular characteristics to them. Racialization is “a response to the crisis occasioned when colonizers are threatened with the requirement to share social space with the colonized.”73 “The colonial world is a Manichean world,” Frantz Fanon observed, a world “cut in two” in which “the native . . . represents not only the absence of values, but also the negation of values” and which, taken to “its logical conclusion . . . turns him into an animal.”74 Illustrating this point, economist Gunnar Myrdal reported that in American culture Black people are constructed as “‘the opposite race,’—an inner enemy, ‘antithesis of character and properties of the white man’”; they are “believed to be stupid, immoral, diseased, lazy, incompetent, and dangerous—dangerous to the white man’s virtue and social order.”75 This bifurcation gave us the Black/White binary that has always inadequately characterized multiracial realities, but nonetheless serves as the touchstone for perceptions of race in the United States.76 The polarity of Black and White defines the spectrum along which racialization is imposed and assessed; it structures our conceptions of racial hierarchy; it provides the endpoints against which “progress” in “race relations” is measured.77 Black and White have thus come to signify relationships to privilege and power, to land, labor, and profit in America. Although attempts were made to justify these distinctions in “scientific” terms, “racial” classifications were not descriptive in any objective sense, but purely functional. American Indians were commonly depicted as beasts of prey, and therefore justifiably eliminated; Africans were more often described as apes, capable of mimicking human behavior—and, therefore, of labor—but lacking in true intelligence.78 All those of the “African race,” whether enslaved or not, were defined “as beings of an inferior order . . . so far inferior, that they had no rights which the white man was bound to respect,” to again quote Justice Taney.79 Race defined status and status, in turn, identified race. As a North Carolina congressman bluntly stated in 1852, “A man is assumed to be a slave because he is black.”80 In the Chesapeake colonies “tobacco planters collapsed all black people, free and slave, into one subaltern class, in which color—not nationality, skill, or religion—defined all.”81 In turn, despite the fact that there were significant numbers of enslaved American Indians on southern plantations, as the importation of African slaves increased in the mid-eighteenth century, “planters simply categorized their Indian slaves as Africans” because by this time the “planters had redefined race so that slavery was equated with African ancestry, whether the slaves descended from Africa or not.”82 Thus, the Black/ White binary has also played a significant role in the conceptual disappearance of American Indian identity.83

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The settlers’ attempts to nullify the actual identities of enslaved Africans, as well as the strategies used to dehumanize, commodify, and racialize them, were means of eliminating or “disappearing” Afrodescendants qua persons within the settler paradigm, replacing their personhood with the social construct of “slave.” This does not mean, however, that the colonizers’ goal was to kill them. The trans-Atlantic slave trade decimated many African societies, millions died in transit, and Black people have since been killed with impunity and subjected to a wide range of slow death measures. Notwithstanding these brutal realities, the settlers’ primary objective was not their physical elimination—as it had been with American Indians—but the creation of “wealth.” Some of the most significant strategies employed to fulfill this purpose include the expansion of the enslaved population, its spatial containment, and the use of violence and terror to maintain social control.

Strategies of Subjugation Population Control According to law professor and federal judge A. Leon Higginbotham Jr., during the era of slavery “blacks had only one function . . . and that was to labor perpetually for the benefit of their owners.”84 As the settlers consolidated their occupation of Indigenous lands, ensuring a readily available and relatively easily controlled supply of cheap labor became their next priority. “Importing” persons of African descent was the first and most obvious way of expanding the workforce. However, replenishing labor in this manner was expensive, and after Congress banned the international slave trade in 1808, it was no longer a viable option.85 Two related strategies emerged to expand the enslaved labor force: forced reproduction and a peculiar version of racialization that defined “Black” in an ever-expanding manner.

Forced Reproduction The settlers created a stable and long-term labor force at minimal cost by making enslavement a hereditary status and by requiring enslaved women to have children. The “production” of slaves soon became a profitable endeavor in its own right. Thomas Jefferson, who paid particular attention to “breeding” enslaved persons, calculated that “a child raised every 2. Years is of more profit than the crop of the best laboring man.”86 Cast as nonpersons, enslaved women had no legal or social protection against rape by slave owners,87 and “their infant children could be sold away from them like calves from cows.”88

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Children fathered by slaveholder rape were defined by the status of the mother and became the property of their biological fathers.89 Thus, according to law professor Pamela Bridgewater, “sexual assault of female slaves became a wise investment strategy for cash-strapped slave owners interested in increasing the number of their slaves, even if they had to wait for the infants to become productive.”90 Enslaved Black men, too, were “compelled to ‘breed’ with black female slaves in order to produce offspring, thereby augmenting the property holdings of slave owners.”91 As a result, in the sixty years following the prohibition of the international slave trade there was a fivefold increase in the number of enslaved persons born in the United States.92

The “One Drop” Rule The settlers also expanded the enslaved labor force by defining individuals with any discernible African ancestry as “Black.” While both American Indians and persons of African descent were depicted as savage, barbaric, and uncivilized, the specific markers of racial identity were constructed in different ways to suit different purposes.93 The pseudoscientific notion of “blood quantum” has been used to minimize the number of persons recognized as American Indians, thus limiting the federal government’s obligations to provide allotments of land or other benefits promised by treaties or statutes.94 By contrast, in racializing Afrodescendant people, settler society inverted the process to define people of increasingly small percentages of African descent as “Black,” eventually utilizing the hypodescent or “one drop” rule.95 This dramatically increased the number of persons classified as Black and also perpetuated the notion that “African blood” could somehow convey a taint of inferiority. Other racially subordinated groups might be able to “overcome” their origins with enough White intermixture, but this was not envisioned for those of African descent. The hypodescent rule made “the possession of multiple legal identities impossible, despite the existence of numerous intermixed groups of ‘black Indians’ throughout the United States.”96 Persons of American Indian and African ancestry as well as those of triracial descent were effectively folded into the Black population. Thus, the inclusive definition of Black identity expanded White property in the form of enslaved people while simultaneously furthering the “disappearance” of American Indians.97

Spatial Containment An entirely involuntary labor force can be maintained only by physical containment and control. Thus, those who relied upon slavery to generate wealth

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developed strategies to restrict the movement of enslaved persons. Spatial containment not only made it more difficult for them to escape, but also ensured their availability to work at the whim of their purported owners. It facilitated the highest possible degree of control over the workers’ lives and had the collateral benefit, from the settlers’ perspective, of precluding the occupation of land by persons who were not—and were never intended to become—part of the settler class. For all of these reasons, in the 1883 Civil Rights Cases the Supreme Court identified “restraint of [the slave’s] movements except by the master’s will” as one of the “necessary incidents” of slavery.98 Southern plantations served as sites of mass, arbitrary, and indefinite detention.99 They were similar to nineteenth-century American Indian reservations in that persons confined to these locations could not leave without authorization and the penalty for escape was often violent death. The primary difference, of course, was functional: American Indians were imprisoned to keep them off the land; enslaved Afrodescendant (and Indigenous) people were imprisoned to facilitate the exploitation of their labor. American Indian mobility was prevented by federal military and paramilitary force and also by civilian vigilantes. Similarly, although plantation owners are often portrayed as individually responsible for capturing escaped slaves, hunting “runaways” was widely recognized as a broader social imperative. The US Constitution required “person[s] held to service or labour in one state, under the laws thereof, escaping into another”—fugitive slaves—to “be delivered up on claim of the party to whom such service or labour may be due.”100 Congress passed legislation implementing this mandate in 1793, and strengthened it with the Fugitive Slave Act of 1850.101 State laws required not only state militias or local law enforcement authorities but all citizens to apprehend and return escaped slaves, and governments often incentivized them with bounties.102 While slave owners thus mobilized all available social resources to prevent their “property” from escaping, they also needed their workers to be able to travel on occasion. As a general rule, laws required enslaved persons leaving their purported owner’s property to have written permission, much as American Indians needed to leave their assigned agencies.103 A 1705 Virginia statute provided that slaves not possessing the required passes could be apprehended by “any person,” meaning any White person, and lashed by the local constable. It was “lawful for any [White] person or persons . . . to kill and destroy [runaways] by such ways and means as he, she, or they shall think fit.”104 Reflecting settler society’s perceived collective interest in maintaining slavery as an institution, the owners of slaves so killed were to be reimbursed from the public treasury.105

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As far as the settler class was concerned, free Black people literally had no place in American society.106 Consequently, within many slaveholding jurisdictions, freeing slaves was made illegal or extremely complicated and expensive.107 Some states required emancipated persons to leave the state or be re-enslaved; many prohibited the entry of free Black persons not already resident in the state and several prohibited the return of free Black residents who left the state—a template that would later be utilized in the Chinese exclusion laws of the 1880s.108 Such requirements went beyond maintaining the institution of slavery. The state simply did not intend for Afrodescendant people to live on the lands claimed by White settlers, and exclusionary measures were common in purportedly free states and territories. Thus, for example, in 1844 the territorial government of Oregon prohibited slavery but also required all Black persons to leave the territory within three years, a prohibition that remained in its state constitution until 1926.109 The constitution also provided that no Black person or “Chinaman” was allowed to vote, the latter also specifically being denied the right to hold real estate.110 Similarly, the constitutions of Illinois and Indiana, as well as an Iowa statute, prohibited the migration of free Black people to these states.111 As the US Supreme Court opined in 1852, states had a right to “protect themselves against the influx either of liberated or fugitive slaves, and to repel [them] from their soil [as] a population likely to become burdensome and injurious.”112

Violence and Terror Confining Black people to particular spaces and excluding them from others was a prerequisite to fulfilling the Angloamerican colonists’ goal of utilizing enslaved labor to fuel the economic development of their settler state. Actually obtaining that labor, however, required additional strategies for controlling the actions of persons who had no interest in working for the settlers. It was perfectly clear to those who were enslaved that their work—including the reproductive work expected of women—would yield them no benefits and, in fact, only strengthened the power of the individuals and institutions holding them in bondage.113 Resistance, therefore, was pervasive and took every conceivable form, from insurrection to subversion of the most mundane tasks.114 Settler colonial strategies used to extract labor under these conditions included the deployment of violence and terror intended to ensure immediate physical compliance from specific individuals and to construct a culture of racialized degradation and subjugation. Enslaved workers were increasingly concentrated in what are best described as slave labor camps, and their pro-

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ductivity soared as White “owners” developed increasingly precise means of “measuring work, implementing continuous surveillance of labor, and calibrating time and torture.”115 By 1820, cotton accounted for about half of the country’s exports, and the United States had “a near-monopoly on the world’s most widely traded commodity.”116 According to historian Edward Baptist, as a result of increasingly brutalized means, the average amount of cotton harvested per day per person rose more than fourfold between 1800 and 1860.117 Such results could only be obtained by virtue of “the unlimited violence and oppression that the slave master could legitimately inflict upon his bondsman,” a prerogative that Andrew Fede describes as “the most salient distinction between the master-slave relationship and other human interaction.”118 These regimes of violence and oppression were legitimized, protected, and often required by law. The Georgia Supreme Court reasoned, “If the common law were interpreted to “protect[] the life of the slave, why not his liberty? [A]nd if it protects his liberty, then it breaks down, at once, the status of the slave.”119 “To assure docility and compliance,” Higginbotham summarizes, “the slave had to understand that his master knew best, that resistance was futile, and that any attempt to regain control over his life would be met with severe punishment and possibly death.”120 While such extreme violence may not have been in the slave owners’ immediate economic interest, the constant threat of violent assault, torture, and murder became not only a means of direct control, but also a source of terror for the larger community. Explicitly acknowledging this function, the Virginia slave code of 1705 provided that county officials could punish a fugitive slave by any means, including dismemberment, short of death, for the purpose of “reclaiming any such incorrigible slave, and terrifying others from the like practices.”121 The success of the American settler colonial state was thus contingent upon consolidating its territorial occupation, a process that required the dispossession and elimination of Indigenous peoples, and upon the creation of a predominantly Afrodescendant labor force that would render the appropriated lands and natural resources profitable. As briefly outlined in this chapter, the latter entailed concerted attempts to dehumanize enslaved workers by nullifying their identities and cultures, treating them as property rather than persons, containing and controlling their movements, and utilizing all conceivable means of violence and terror to convince them that abject compliance was the only way to survive. In many respects these strategies failed, for African American resistance remained creative and persistent throughout the era of legally sanctioned

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slavery. Notwithstanding this resistance, however, the institutionalization of these strategies has had long-lasting effects. In the process of constructing an enslaved workforce and violently extracting the labor that rendered its claimed territory profitable, Angloamerican settler society deliberately constructed African Americans as intrinsically Other, controlled their movement and actions, and excluded them, as much as possible, from the benefits attending the settlers’ claimed sovereign prerogative. The result was a racialized hierarchy of domination and subordination deeply embedded within a society dependent upon Black labor. With the purported emancipation of Afrodescendant slaves and their formal incorporation into the settler polity, the legal underpinnings of this system shifted dramatically, but the presumptions of settler society remained intact. The following chapter addresses some of the ongoing results of the strategies described above.

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“Emancipated” African Americans Rights and Redundancy The colored people of America are coming to face the fact quite calmly that most white Americans do not like them, and are planning neither for their survival, nor for their definite future if it involves free, self-assertive modern manhood. —W. E. B. Du Bois

The strategies of racialized subjugation discussed in the previous chapter are often deemed irrelevant to contemporary “race relations” because slavery was abolished more than 150 years ago.1 Legal recognition of people of African descent as persons entitled to citizenship and equal protection had proven to be one of the benefits—or costs, depending on one’s perspective—of preserving settler state unity. In the wake of the Civil War, fought at least in part to end slavery,2 it appeared that the racial hierarchy so closely associated with enslaved labor might crumble.3 In fact, however, the colonists remained intent on ensuring that the state—and all of the profits generated by its existence— remained theirs. Racialization continued to be critical to their project, for it undergirded the settlers’ claims to their land base, their access to a dependable supply of low-cost labor, and their presumed right to control social and political relations. As a result, many of the institutions foundational to American society were reconfigured with the formal abolition of slavery, but the “color line” identified by the scholar activist W. E. B. Du Bois as “the problem of the twentieth century” continues to define relations of power and privilege well into the twenty-first century.4 The dominant social narrative attributes contemporary racial disparities to lingering personal prejudices or historical exclusions, promoting the view that people of color need only be a bit more patient because we have been, collectively, on a slow but steady path to racial equality. However, if the continued disempowerment of African American communities results from policies and practices intended to maintain White settler privilege in the absence of legal license to construct Black people as property, patience and accommodation will only further entrench racial subordination. Exploring this thesis, 94

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this chapter considers how strategies used to create and control an enslaved labor force evolved in response to the recognition of Black people as citizens entitled to the equal protection of the law. It begins with Reconstruction, during which a deeply divided settler class reunited to ensure its hegemony. The strategies utilized to subjugate “emancipated” African Americans paralleled and, in many respects, replicated the dynamics of slavery. By the early twentieth century, industrialization was encouraging Black migration out of the South and generating White workingclass backlash. As the demand for labor expanded and contracted in concert with economic expansions and recessions, disposability rather than permanence became the hallmark of the ideal workforce. After World War II, the United States was deeply invested in its image as a champion of freedom and democracy, and Black Americans—among many others—took to the streets to demand fundamental social change. Settler society again had the opportunity, as it had during Reconstruction, to engage in fundamental social restructuring. Instead, its leaders chose to respond with heightened repression. This chapter considers continuities and shifts in the treatment of African Americans over the past century and a half, and concludes that contemporary realities reflect a continuity of colonial relations rather than a steady, if slow, dismantling of racial hierarchy.

Reconstruction and Retrenchment The legal status of African Americans was dramatically altered by the post– Civil War amendments to the US Constitution. The Thirteenth Amendment, ratified in 1866, forbade slavery and involuntary servitude—except upon conviction of a crime. In 1868 the Fourteenth Amendment conferred national and state citizenship on all persons born in the United States “and subject to the jurisdiction thereof,” a caveat that excluded American Indians.5 It also prohibited states from “depriv[ing] any person of life, liberty, or property, without due process of law” or denying any person equal protection of the law. Under the Fifteenth Amendment, ratified in 1870, voting rights could not be restricted on the basis of “race, color, or previous condition of servitude.” Two years after ratification of the Fifteenth Amendment 700,000 Black men voted in the presidential election. During Reconstruction there were twenty-two African American congressmen and, at one point, Black representatives formed a majority of the South Carolina state legislature.6 By 1880, a third of Black children were attending school, and 20 percent of Black farmers owned their land.7 Reconstruction thus provided significant opportunities to restructure American settler colonial society, but federal officials ultimately

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aligned with White southern interests, despite the fact that Black soldiers had constituted almost 10 percent of the Union Army.8 In 1877 federal troops were withdrawn from the South and White settlers quickly regained power.9 The Supreme Court struck down provisions of the 1875 Civil Rights Act that mandated equal access to public accommodations and transportation.10 The substantive political change promised by the Fifteenth Amendment was eviscerated by poll taxes, literacy tests, and exclusions for certain criminal convictions, all of which systematically disenfranchised Black voters.11 The strategies used to maintain settler hegemony after the Civil War parallel, in many respects, those used to exploit enslaved labor, as African Americans were precluded from owning land, geographically contained, socially and economically excluded, criminalized, and subjected to state-sanctioned violence and terror.

Landownership In early 1865 Black ministers met with General William Tecumseh Sherman and secretary of war Edwin Stanton in Savannah, Georgia, to discuss the thousands of newly emancipated people trailing in the wake of the Union Army. The ministers were clear: “We want to be placed on land until we are able to buy it, and make it our own.”12 African Americans who had been forced to work plantation lands for generations were encouraged by Sherman’s subsequent field order granting “possessory title” to forty-acre lots of confiscated coastal lands and by the power of the Freedmen’s Bureau to distribute abandoned and confiscated property.13 In March 1865, Congress authorized the confiscation of rebel-held property and its redistribution to African Americans, but President Andrew Johnson quickly proclaimed an amnesty under which most former Confederates not only were pardoned but also recovered their lands.14 Thus, barely two months after the close of a devastating war in which perhaps 400,000 Union soldiers had died,15 the federal government was helping southern planters evict formerly enslaved persons from lands they had occupied. “Within a year of the war’s end, the planter class had virtually completed the recovery of its property.”16 It was no longer illegal for Black people to own land, but White landowners were under great pressure not to sell or lease land to them. Those who did might, to quote one Louisiana planter, soon find themselves “dangling from some trees.”17 As historian Leon Litwack observes, the planters “appreciat[ed] the threat black proprietorship posed to a dependent, stable, and content work force, and the feelings of ‘impudence and independence’ it might generate.”18

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Geographic Containment By 1869, because African Americans had gained some degree of mobility and women and children could no longer be compelled to labor in the fields, there were only about half as many Black agricultural workers as there had been in 1860.19 Emerging industrialists as well as large landowners were pressed for labor, as southern railroads were repaired and extended, new cotton mills built, and mining capacity expanded.20 If a readily available, low-wage workforce was to be ensured, significant numbers of Black people could not be permitted to own land or to emigrate. “Vagrancy” laws were passed prohibiting even temporary unemployment, and much like migrants with temporary work visas today, African Americans could not leave one job to look for another.21 In the 1870s and 1880s “emigrant agent laws” imposed exorbitant fees on recruitment to out-of-state locations.22 Compounding the problem, until the First World War, there was massive European immigration into the North, and northern employers simply would not hire Black workers. As journalist Elliot Jaspin explains, there was “an invisible but highly effective economic ‘fence’ that surrounded the former Confederacy,” allowing southern planters to maintain agricultural wages at close to half the rate paid for comparable work in the rest of the country.23

Economic and Social Exclusion Post–Civil War restrictions on landownership and geographic mobility were reinforced by the systematic exclusion of African Americans from trades, professions, housing, and schools—the institutions that could have enabled their political and economic independence. Initially, thousands of Black families made their way to nearby cities, hoping to access churches and civic organizations, freedmen’s schools, jobs and housing, government food rations, and some protection from the violence they confronted on a daily basis on remote plantations. But these migrations triggered harsh new exclusionary measures. Black settlements were routinely destroyed on the pretext that they posed health hazards to the “broader”—that is, White—community.24 Special license fees and taxes targeted occupations for which freedmen might be particularly qualified, much as they were used in the West to exclude Asian immigrants.25 Soon many jobs, skilled and unskilled, that were formerly performed by Black people were available only to White workers.26 Throughout the South, such exclusions were formalized in the Black Codes and then the segregation statutes, or “Jim Crow” laws, adopted between 1875 and 1885.27 This system of apartheid was not a vestige of slavery, as is often

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assumed, but a postwar innovation designed to keep “free” people of color “in their place,” literally and figuratively. They “lent the sanction of law to a racial ostracism” that not only encompassed schools, housing, and employment, but also “extended to virtually all forms of public transportation, to sports and recreations, to hospitals, orphanages, prisons, and asylums, and ultimately to funeral homes, morgues, and cemeteries.”28 Where physical spaces had to be shared, they were minutely regulated to “reinforce[] racial territoriality,” with the burden, of course, falling on Black people to “decode” and comply with “the spatial customs and practices” they encountered.29

Criminalization and Convict Labor This new legal regime also criminalized African Americans, affording White society enhanced social control and a ready supply of involuntary Black labor. Just as American Indians “got in the way just by staying home,” thus becoming fair game for attacks by White settlers,30 Black people did not need to do anything particular to become criminals other than simply exist. State and local laws limited Black people to agricultural and domestic jobs, precluded them from testifying against White people, and made unemployment and indigency, as well as “disrespect” of White people, illegal.31 Speaking for the Supreme Court in 1872, Justice Samuel Miller recognized that these laws “imposed upon the colored race onerous disabilities and burdens, and curtailed their rights . . . to such an extent that their freedom was of little value.”32 Criminalization returned many Black workers to plantation labor, often under “contracts” that replicated the conditions of slavery.33 Rather than building prisons, state and local governments “leased” African Americans to private individuals including, in some cases, their former slave masters, as well as to corporations.34 Those who leased convicts were permitted to chain, whip, and torture the prisoners, and to kill those who attempted to flee. The cost was low enough that employers had little incentive to ensure the workers’ survival; more convicts could easily be obtained.35 As the Virginia Supreme Court bluntly acknowledged, the harsh reality was that they were “slaves of the State.”36 For eight decades after the Civil War, convict labor was essential to the South’s agricultural production as well its industrialization, as convicts—more than 90 percent of whom were Black—were leased to railroads and coal and iron mining companies.37

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Violence and Terror White supremacist organizations are often portrayed as fringe groups, but they have always reflected mainstream settler goals, if not tactics.38 By the mid-nineteenth century, Angloamerican settlers had been relying on racialized violence and terror for well over 250 years to assert dominion over Indigenous lands and enslaved labor. Reconstruction introduced a new era of racial terror during which “more than three thousand freedmen and their white Republican allies were murdered in the campaign of terrorist violence that overthrew the only representatively elected governments the Southern states would know for a hundred years to come.”39 Having regained political control, White southerners unleashed this terror on the Black population more generally, and tens of thousands of Black Americans are believed to have been killed with impunity between 1867 and 1872 alone.40 As Ida B. WellsBarnett observed, this was part of “a new system of intimidation” employed to keep Black people “subservient and submissive.”41 Lynching “was a crime targeted . . . at entire communities” and, in many respects, also a crime engaged in by entire communities, as these murders were “often observed, cheered, and assisted by hundreds or thousands of white participants.”42 In these spectacles, Black men, women, and even children were tortured, whipped, burned alive, and mutilated. As with massacres of American Indians, the victims’ body parts were often distributed as souvenirs and commemorative photographs widely circulated.43 Thus, with the formal end of slavery, the strategies of subjugation employed by the White settler class were adapted to ensure that Black people would be kept “in their place,” literally and figuratively.

American Apartheid The early twentieth century saw renewed optimism and activism in African American communities. In 1910 almost 90 percent of the Black population still lived in the South,44 but this changed dramatically during World War I, as the diminished European immigrant flow and US military conscription left northern industries with massive labor shortages. During the first phase of the “Great Migration,” from 1916 to 1930, some 1.5 million Black Americans moved to urban areas in the North; after the Depression, another 5 million would move north or west, with many going to California.45 African American political, social, and cultural influence expanded in northern cities after World War I, as new generations who had never known slavery came of age and moved into what had been, until that point, White spaces. Not surprisingly, it was also an

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era in which American apartheid was consolidated and White supremacist backlash was common, for control of the state was being contested.

Separate and Unequal The legally mandated segregation of space—apartheid—was the settlers’ solution to a dilemma of their own making: Black people were considered necessary to the maintenance of White society but peaceful coexistence was simply not an option, for that would require relinquishing White supremacy.46 Just as the settlers could not conceive of sharing space—geographic, social, or political—with American Indians, neither could they imagine doing so with Black people. Illustrating this point, in 1902 lawyer and future US senator J. Thomas Heflin argued against funding education for Black people because there was no reason to “arm[] and equip[]” them for the day “when the two separate and distinct races are thrown together” and it will be “the survival of the fittest.”47 Southern states implemented Jim Crow laws; in the North and West, segregation was enforced primarily as a matter of custom rather than law, as African Americans were largely restricted to the least skilled jobs, excluded from unions, and increasingly concentrated in neighborhoods lacking decent schools, stores, or public transportation.48 Laws prohibiting the sale of property to Black purchasers were declared unconstitutional, but racially restrictive covenants in real estate homeowners’ association contracts accomplished the same purpose.49 As a result, residential segregation increased steadily from 1890 to 1970, by which point about 80 percent of African Americans were concentrated in segregated neighborhoods.50 Barbara Welke observes that a uniquely “modern” feature of the Jim Crow regime was its extensive reliance upon governmental power to contain Black communities.51 African Americans were excluded from law enforcement, legal and judicial positions, and most public employment.52 President Woodrow Wilson maintained a segregated military and, in 1913, introduced workplace segregation to the federal government.53 Between the Civil War and World War II, White settlers received some 287 million acres of “public” lands—Indigenous lands appropriated by the federal government—under the Homestead Act of 1862, but government policies and practices largely precluded Black people from its benefits.54 Discriminatory policies of the Department of Agriculture compounded this problem, and the number of Black-owned farms decreased by almost 94 percent between 1920 and 1978.55 The New Deal programs that alleviated poverty and dispossession among White citizens during the Depression of the 1930s “routinely discriminated

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against blacks in employment, housing, and funding” by “provid[ing] special financial assistance to white farmers, businesses, and bankers that were unavailable to blacks.”56 Public housing was explicitly required to preserve the racial composition of the neighborhoods in which it was located, and the Federal Housing Act of 1934 provided mortgage insurance that assessed risk based largely on a neighborhood’s racial composition.57 By 1940, Black homeownership rates were lower than they had been in 1910.58 Through the 1950s, federal programs “purposely and self-consciously concentrated African Americans in urban ghettos, while . . . creat[ing] whites-only suburbs,”59 and the “white flight” of the 1950s to 1970s was largely underwritten by Federal Housing Authority and Veterans Administration loans.60 Black people who managed to purchase homes in White neighborhoods routinely encountered what law professor Jeannine Bell calls “move-in violence” because they represented “a breach of a privileged whites-only neighborhood space.”61 But violence was not limited to instances in which African Americans “intruded” into White space. As James Fox observes, economic success was also “a severe violation of the racial code.”62 Lynchings and other forms of mob violence, some best described as racial pogroms, were utilized to destroy thriving Black neighborhoods or independent settlements.63 Thus, from the 1890s through World War II, White mobs attacked African American communities throughout the United States, killing residents and burning homes, churches, and businesses. Tulsa, Oklahoma, in 1921 is an archetypal example.64 There, law professor Charles Ogletree notes, “a mob of white rioters . . . descended upon Greenwood, the African-American district of Tulsa popularly known as the ‘black Wall Street.’ Within twelve hours, over eight thousand African Americans had been forced to flee their homes.”65 Similar tactics drove African Americans out of entire counties from Pennsylvania to the Great Plains, leaving in their wake thousands of “sundown towns” where Black people were explicitly warned not to spend even one night.66

The Civil Rights Era In the aftermath of World War II, what looked to be a sea change in “race relations” swept the globe and dramatically shifted the discourse within the United States, giving us what some historians call the Second Reconstruction.67 International scrutiny, combined with the specter of social upheaval, spurred the Supreme Court to renounce legalized apartheid, prompted Congress to pass civil rights legislation enforcing the Reconstruction-era constitutional amendments, and pressured President Lyndon Johnson into declaring a “war on poverty” to reduce economic disparities.68

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By the mid-1970s, however, political backlash had set in and economic opportunities diminished. As manufacturing plants moved overseas, industrial workers were replaced by automation, and incarceration rates began their meteoric rise. Corporate “disinvestment”—plant closures, downsizing, or relocation—led to the loss of more than 32 million US jobs in the 1970s, and the trend has continued.69 “Between October 2008 and July 2014 the working age population grew by 13.4 million persons, but the US labor force grew by only 1.1 million.”70 Technology jobs are rapidly being outsourced,71 and most available employment is in the service industry, where temporary or parttime jobs at minimum wage prevail.72 A 2018 Gallup study reported that 36 percent of all US workers are engaged in the “gig” economy “as independent contractors, online platform workers, contract firm workers, on-call workers and temporary workers.”73 The United States has become what Barry Bluestone and Bennett Harrison call a “‘throwaway’ culture” in which “people and communities are carelessly discarded,”74 and nearly half of all adults do not have the cash available to cover a $400 emergency.75 Not surprisingly, African Americans have been disproportionately affected. During the 1980s, Black men lost permanent jobs at a rate nearly 30 percent higher than White men,76 and when the federal government downsized in 1992, Black workers lost their jobs at twice the rate of White workers.77 As of 2015, Black families owned about one-seventh the wealth of White families, and the Black unemployment rate was twice that of White workers.78 The dynamic of difference clearly persists despite the reforms of the civil rights era.

Ongoing Strategies of Subjugation In 1972 James Baldwin presciently observed that “this country does not know what to do with its black population now that the blacks are no longer a source of wealth.”79 Analyzing this problem more than thirty years later, Patrick Wolfe concluded that “the blatant racial zoning of large cities and the penal system suggests that, once a colonized people outlives its utility, settler societies . . . fall back on the repertoire of strategies . . . whereby they have also dealt with the native surplus.”80 In confronting contemporary racial inequities, we thus face not only the “legacies” of enslavement and pervasive racial discrimination, but also an evolving set of settler strategies adapted to a new reality in which Black Americans, once seen as a necessary source of labor, are increasingly perceived and portrayed as a “surplus” population and, therefore, as Wolfe observed, treated more like Indigenous peoples.81

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Racialization The stark racial disparities that persist in every measure of societal wellbeing leave the dominant society with a familiar ideological choice: structural racism can be acknowledged and dismantled, thereby eviscerating White privilege, or the disparities must be attributed to people of color. The former being unacceptable, the latter is accomplished by the continued construction of inassimilable difference. Variants of the “scientific” racism prevalent in the 1920s and 1930s, particularly in the eugenics movement, continue to be invoked.82 Well into the twenty-first century, African Americans are routinely presumed less intelligent and less competent than their White peers. In 2012, for example, Supreme Court justice Antonin Scalia suggested during oral arguments in the Fisher case that perhaps “it does not benefit African-Americans to . . . get them into the University of Texas where they do not do well, as opposed to having them go to . . . a slower track school where they do well.”83 Donald Trump’s candidacy and presidency have been accompanied by a resurgence of explicitly racialized tropes in public discourse, but racist presumptions cut across partisan lines. In a 2016 national survey, more than half of the Trump supporters considered Black people “less evolved” than Whites, and many used terms such as “savage” and “barbaric” to describe them.84 But in the same survey, 38 percent of all White respondents, including one-third of White Democrats, rated Black people as “less evolved.”85 Contemporary racialization also incorporates an economic dimension. President Johnson responded to the urban rebellions of the 1960s by declaring a “war” on poverty. Much as international institutions converted decolonization at the global level into a question of “development,”86 the consequences of centuries of institutionalized racism in the United States thus became a problem of “poverty.”87 However, just as the types of governmental benefits that had been available to many White Americans since the Depression began to be made available to people of color, these programs were gutted and replaced by a combination of “workfare” and the “wars” on crime and drugs.88 The ongoing association of Blackness with poverty facilitated a transition from racism as a form of irrational hatred to what legal scholar Marvin Jones describes as “racism dressed up as common sense,” for it is not necessarily irrational to believe that desperately poor people might have more incentive to engage in criminal activity.89 The maintenance of racial hierarchy in the United States no longer requires the overt denigration of all people of color. Economic, social, and political in-

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stitutions have adapted to incorporate the “exceptions,” and the visible presence of successful Black professionals, artists, corporate managers, and public officials allows structural racism to be masked by a narrative of individual effort and choice.90 This leads to an odd inversion in which individuals who are not presumed to be dangerous, violent, or a burden on society may momentarily slip out of being “Black”—as reflected in the “I don’t think of you as Black” observation encountered by “successful” African Americans in predominantly White spaces. The question this raises, of course, is “Just who do you think of as Black?” The flip side of inclusion on assimilationist terms is the further entrenchment of the racialized presumptions associating “Blackness” with poverty, crime, and violence.91 This, of course, is what we see playing out, day after day, as people of African descent are confronted, challenged, assaulted, and even killed for being on streets, in cars, public parks, school dormitories, coffee shops, or virtually anywhere else they are not “supposed” to be.92

Property Ownership Racialization has always served to reinforce the White settlers’ presumed prerogative of an exclusive right to own land and to control who could, could not, or had to be in any given location. In 1968 the Supreme Court finally held that private discrimination in the purchase, sale, or leasing of property was prohibited by the Civil Rights Act of 1866.93 Quite remarkably, it opined, “Just as the Black Codes . . . were substitutes for the slave system, so the exclusion of Negroes from white communities became a substitute for the Black Codes. And when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.”94 Nonetheless, Black and Latina/o homeownership rates have remained twenty-five to thirty percentage points below that of their White counterparts for decades.95 For those who can afford houses, de facto residential segregation has decreased since 1970, but this simply means that housing was “only” as segregated in 2010 as it had been in 1910.96 Moreover, the quality of residential areas remains racially contingent in ways that cannot be attributed solely to economic status. As Black residents began to cross the—sometimes quite literal—barricades separating their overcrowded and underserved neighborhoods from nearby White communities, most White residents fled. As they did so, the parks, schools, libraries, and public transportation systems that had enriched their communities were quickly defunded and either closed or allowed to fall into disrepair, even though the new residents had often paid inflated prices for their property.97

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According to professor john a. powell, “For years, blacks and other marginalized groups fought to get into public space as full members . . . [but] since the dismantling of Jim Crow . . . rules related to public space have changed and shifted, and white space has become quasi-private.”98 This is one reason why, according to a report published in 2015, “neighborhood economic conditions are the same for the average white household earning $11,800, the average Hispanic household earning $45,000, and the average black household earning $60,000.”99

Spatial Containment and Social Control Integration is often presumed to be the most effective remedy for racial disparities, but this presumption elides the fact that much racial oppression stems not from segregation but from the policies of containment and control imposed upon non-White social spaces. As federal judge Robert Carter observed, segregation is just a symptom of the underlying “evil [that] is white supremacy.”100 The desegregation that has occurred resulted in an out-migration of middle-class African Americans and a shift in their employment “from the direct servicing of the black community to the state.”101 As Black communities lost their professional class, their businesses, their economic heterogeneity, and many of their cultural institutions, their remaining residents became, in effect, a surplus population living in what sociologist Loïc Wacquant termed the “hyperghetto.”102 By the 1980s, legal scholar John Calmore noted, “the inner city was viewed as the site of severe concentrated poverty, social dislocation, and social isolation.”103 Simultaneously, the US government was allowing, and in some cases encouraging, the massive importation of drugs into the poorest and most segregated urban neighborhoods, setting the stage for a highly militarized “war on drugs” and a dramatic expansion of the carceral system.104 Residential segregation continues to be the norm, with the result that people of color often live in “concentrated poverty neighborhoods” with limited access to public transportation, jobs, childcare, or medical services.105 This reinforces educational containment, as public schools have lost funding and become more racially and socioeconomically segregated over the past several decades.106 Increasingly, schools are sites of confinement—complete with armed guards and “zero-tolerance” policies—that serve as points of transition to incarceration.107 To illustrate, by 1992 the “school safety” division of New York City Board of Education constituted “the ninth largest police force in the country, just ahead of that of Miami.”108 Zero-tolerance policies also

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apply to the more than 2.3 million people living in public housing, where the federal government’s “one-strike” rule allows tenants to be evicted when anyone living in or visiting the household engages in drug-related or criminal activity, regardless of whether the tenant has knowledge of or control over the situation.109 “Order-maintenance” policing has become a strategy of containment, as it gives the state intimate control over space and freedom of movement. Police officers can stop, question, and frisk individuals without probable cause, effectively requiring them “to affirmatively justify the legality of their presence on the streets.”110 Thus, over a four-year period in one eight-block Brooklyn neighborhood, New York police conducted fifty-two thousand stops, resulting in “an indiscriminate barrage of degrading detentions” that one legal scholar analogizes to the counterinsurgency strategy known as “cordon and search.”111 The very predictable consequence of such policing practices is that residents of targeted communities live “under siege,” trapped in their apartments because “simply being in the hallways, stairwells, or elevators of their apartment buildings, in front of their buildings, or anywhere outside including: walking on the street, on the subway, in a park, at the corner store, or while driving” renders them vulnerable to humiliation and abuse.112

Population Reduction The conditions thus imposed upon many African American communities are consistent with Wolfe’s observation that, like American Indian nations, they are being targeted for elimination as a part of a “surplus” population.113 It is not surprising, therefore, to learn that governmental programs have been instituted—as they have been with American Indians—to reduce the population through sterilization and coerced birth control. Such programs, of course, whether they target Indigenous peoples or other people of color, are in violation of article II(d) of the Genocide Convention, which explicitly addresses “measures intended to prevent births within the group.”114 According to Dorothy Roberts, “Compulsory sterilization was first imposed as a punishment for black crime rather than as a eugenic measure,” referencing the castration of Black men accused of the rape, attempted rape, or kidnapping of White women.115 In the 1930s, publicly funded birth control clinics were introduced in the South to reduce Black birthrates, and for the next half century Black women were involuntarily sterilized in large numbers.116 One victim of involuntary—indeed, uninformed—sterilization was noted civil rights activist Fannie Lou Hamer, who described this common practice as the “Mississippi Appendectomy.”117

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Well into the 1970s, Black women were forced to undergo sterilization in order to have their babies delivered, to get abortions, or to be able to keep welfare benefits.118 Since then, governmental policies have penalized women on welfare for having more children and provided public funding for sterilization but not other forms of birth control.119 After Norplant, a long-term contraceptive, was approved in 1990, women were offered financial incentives or decreased jail time in exchange for its use.120 Similar programs in the private sector continue to offer cash incentives to drug and alcohol abusers for agreeing to “long term or permanent birth control.”121 As Pamela Bridgewater notes, “It matters not that slave breeding promoted reproduction, while Norplant conditions and incentives attempt to restrict reproduction. Both situations involve the . . . manipulation of reproduction to advance the interests of the powerful via the procreative control of the less powerful.”122

Mass Incarceration As strategies of subjugation have shifted from those that increase the settlers’ ability to extract wealth from Black labor to those of containment and control, criminalization has again come to the fore.123 Since the 1970s, the US prison population has grown more than fivefold, with the result that by 2008 some 2.3 million people were incarcerated and an additional 5.1 million were under some kind of probation or parole.124 Simultaneously, the proportion of imprisoned people of color has risen dramatically and Black people, who constitute about 13 percent of the US population, now account for some 37 percent of its prisoners.125 As of 2014, the incarceration rate for young Black men aged eighteen and nineteen was ten times that of young White men.126 But even these statistics mask the disproportionate impact mass imprisonment has on the poorest communities of color. For example, “in the late 1980s, three of every four inmates serving a sentence in the prisons of the entire state of New York came from only seven black and Latino neighborhoods of New York City, which also happen to be the poorest areas of the metropolis.”127 Similarly, in 2004, “in some of the poorest neighborhoods in Cleveland and Baltimore, almost one out of every five males aged 18–44 was behind bars on any given day.”128 For law professor Michelle Alexander, “The stark and sobering reality is that, for reasons largely unrelated to actual crime trends, the American penal system has emerged as a system of social control unparalleled in world history.”129 These mind-boggling levels of incarceration serve numerous functions in contemporary American settler society. The incarceration of men and women of childbearing age serves to prevent births, and criminalization se-

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verely diminishes the potential for youth-fueled mass movements for structural change. It allows social, economic, and political inequities to be blamed on those who would otherwise be perceived as the victims of these circumstances, and diverts attention from the extent to which the wealth and power enjoyed by the settler elites rest not only on the historic exploitation of Black labor but also on the continued exclusion of people of African descent. Mass incarceration masks unemployment and reduces the social turmoil that would likely otherwise result from untenable levels of joblessness. The “conventional” unemployment rate for young Black men without high school diplomas was 49 percent in 2000; that figure jumps to 65 percent if one includes prison and jail inmates.130 In addition, long-term unemployment is virtually guaranteed for people with criminal records, as they are excluded from so many jobs.131 That said, the labor dimension of incarceration is even more problematic. Just as the leasing of convict labor was highly profitable in the post–Civil War South, mass incarceration has fueled a multibillion-dollar prison industry for corporations that contract with state and federal agencies.132 About 6 percent of state inmates and 16 percent of federal prisoners are held in private prisons, and prisoners themselves have become a profitable commodity, as they are shipped out to facilities around the country.133 Prison (or “leased”) labor is used by both government agencies and private corporations. Unconstrained by minimum wage laws, employers have found imprisoned workers to be a lucrative and flexible source of labor, an attractive alternative to offshore outsourcing because it can “absorb[] fluctuations in demand” and facilitate “maximum profitability in a highly competitive global environment.”134 Prisoners receive little if any benefit as, on average, more than half of their earnings are impounded by the prisons, with about onethird going to cover their “room and board.”135 Criminalization has been constructed as a form of “modern civil death” that exacerbates inequality for both individuals and communities.136 “Once you’re labeled a felon,” Alexander explains, “the old forms of discrimination— employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service—are suddenly legal.”137 Even temporary periods of incarceration can interrupt government benefits, with the result that the families of incarcerated persons often have to move, further disrupting their lives and their ability to maintain stable networks of support.138 Such consequences are compounded by “carceral debt,” which includes fines and court costs, loss of income from employment or government benefits, and “user fees” that may encompass “everything from probation supervision, to jail stays, to the use of a constitutionally-required

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public defender,” and are often compounded by “interest, late fees, payment plan fees, and collection fees.”139 Failure to pay such “fees” can result in reincarceration, much as criminal justice debt collection in the post–Civil War South effectively re-enslaved African Americans.140

Officially Sanctioned Violence and Terror As in prior eras, contemporary strategies of spatial containment and criminalization are sustained by the ever-present threat of violence. Private citizens who attack people of color and their institutions have often had the backing of the local authorities, but today racial violence is increasingly inflicted by agents of the state itself. The Bureau of Justice Statistics reports that between 2003 and 2011 an average of seven hate crime homicides occurred each year.141 Even if grossly underreported, these cases are dwarfed by the violence regularly deployed against African Americans—as well as American Indians, Latina/os, and Asian Americans—by law enforcement personnel. According to the Washington Post, by early December 2015, over nine hundred people, including children, had been shot dead by police during the year, with an unarmed Black man being killed every nine days.142 While thousands of civilians were fatally shot by police officers between 2005 and 2015, only fifty-four officers were charged and a mere eleven convicted. The six officers convicted after trial in state courts received sentences averaging three and a half years.143 The killings that sparked the Black Lives Matter movement are “points on a long arc of violence perpetrated by white police officers, vigilantes, and mobs that stretches from the trans-Atlantic slave trade; through Reconstruction and Jim Crow, institutionalized de jure segregation, the civil rights movement, the rise of neoliberalism, the prison industrial complex and the ‘New Jim Crow’; and into the present, where the contemporary legal system continues to legally permit the taking of black lives.”144 There is no “safe” course of conduct. The victims have been standing still, walking toward the police or walking away, driving away or sitting in their cars, and they may or may not have made sudden movements.145 The dynamics recounted here do not give us the whole story, of course. African American communities have survived attacks from all sides; they have resisted subjugation and assimilation; they have developed creative, empowering, and liberating approaches to overcome the obstacles placed in their path. But the obstacles remain and, in many respects, continue to expand. The point of racialized violence in the United States has always been to terrorize, to intimidate individuals and entire communities into submission, and it con-

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tinues to serve this purpose. Moreover, when violence comes not from vigilante groups but directly from the state, it is traumatizing at a profound level. Contemporary racism is deeply rooted in the history briefly recounted herein and cannot be redressed until these connections are acknowledged. That, however, would require recognizing that the relationship between the United States and people of African descent has been, and in many respects still is, one of colonizer and colonized. Actual remediation of centuries of colonial exploitation would require an honest assessment of the relationship, including the extent of the wealth that has been produced for American settler society by enslaved and otherwise exploited Black labor.146 This is a reality most Americans would rather not confront.

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Others of Color Inclusions and Exclusions The myth of “immigrant America” derives its power in large part from the labor that it performs for American exceptionalism. —Mae Ngai

Whether expressed as an apparently benign determination to preserve the status quo or a strident insistence on making America great again, the settlers’ self-proclaimed prerogative to exercise dominion over “their” land and “their” people, and to profit therefrom, has ensured that a highly racialized dynamic of difference permeates all of our social, economic, and political institutions. In chapters 4 through 6, I have argued that the policies and practices attending the dispossession and intended “disappearance” of American Indians and the exploitation and subordination of African Americans derive not only from racial ideology or personal prejudice, but from a profound commitment to the settler colonial project. This chapter and the next extend this perspective to peoples who are identified as racial or ethnic Others but not primarily as African American or indigenous to lands now incorporated into the United States. This encompasses those who see themselves as Latina/o (or Hispanic), Caribbean, Asian, or Asian Pacific American. While many within these groups are also of Indigenous and/or African heritage, their histories and experiences within the United States are distinct in significant ways. In 1960 they made up about 4 percent of US residents; by 2015, it was well over 20 percent, and this figure is expected to rise to almost 40 percent by 2060.1 These are incredibly diverse peoples, from dozens of countries of origin, with very distinct cultural, linguistic, and religious traditions. It would make little sense to talk about them in terms of overarching racial or ethnic groups but for the fact that they have been racialized, collectively, as immigrant Others and subjected to similar, although certainly not identical, strategies of racialized exclusion and exploitation. This means, I believe, that within the settler colonial order they have been viewed as serving similar functions. 111

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Framing the Inquiry Conceptualizing the relationship between the settler class and people of color who are generally presumed to be voluntary immigrants or their descendants is complicated. Our histories reveal that these groups have migrated to, or been incorporated into, the United States for reasons that encompass the entire spectrum of volition. Given this country’s remarkably successful campaign to depict itself as a “land of opportunity,” many migrants of color undoubtedly came voluntarily, believing— however naively—in their ability to share in the benefits accrued by the largely Eurodescendant settler class.2 Others, however, have migrated out of necessity, and some did not migrate at all, but were incorporated as a result of US territorial expansion. They include—but are certainly not limited to—Mexicans whose lands were annexed by the United States as well as those coming north in search of work;3 Chinese laborers kidnapped and forced to migrate;4 Filipinos, Puerto Ricans, and Pacific Islanders driven from their homelands by US colonial occupation and its economic consequences;5 Central American refugees, themselves Indigenous peoples, forced off their lands by US-backed military governments;6 and refugees generated by US wars, from Southeast Asia to Iraq, Afghanistan, and Syria.7 As historian Mae Ngai notes, global migration is not simply “a unidirectional phenomenon, in which the hapless poor of the world clamor at the gates of . . . wealthier nations” such as the United States.8 Rather, our demographic history is “the product of specific economic, colonial, political, military, and/or ideological ties between the United States and other countries.”9

Theorizing “Others” The Euroamerican settlers’ vision of the society they were creating involved two seemingly disparate elements—one exclusive, the other inclusive. The American state and its claimed land base were to be exclusively theirs, but in order to render the colonial enterprise sufficiently profitable, the settlers needed the labor of peoples they never envisioned as part of their society. As they sought ways to simultaneously include and exclude these groups, restrictions on citizenship and immigration have evolved over time, adapting to material and ideological changes in the environment. The result is a state replete with demographic subgroups that are simultaneously subordinated and manipulated to reinforce settler prerogative. As professor Lisa Lowe suggests, “the ‘coloniality’ of modern world history is not a brute binary division,

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but one that operates through precisely spatialized and temporalized processes of both differentiation and connection.”10 In theorizing settler colonialism, Veracini divides the population of settler states into “the settler coloniser, the indigenous colonised, and a variety of differently categorized exogenous alterities.”11 He envisions the latter, whom he also terms “subaltern exogenous Others,” along a spectrum that ranges—in the settler imaginary—from “‘virtuous’ or potentially so, [to] ‘debased’ and hopelessly so.”12 Focusing on the racialized subordination of such Others is inherently problematic to the extent that it diverts attention from the foundational illegitimacy of the settler state. Narratives highlighting the exploitation and subordination of racialized migrants often depict Indigenous peoples as just one of many “minorities” within settler society, thereby rendering colonization less visible. For this reason, there are strong arguments for identifying all non-Indigenous peoples in the United States as “settlers.” If your homelands are occupied, the “color” of the occupation forces, or their internal stratification, is fundamentally irrelevant.13 There are, however, some important theoretical and practical reasons for exploring the distinct dynamics that affect non-Indigenous Others within American settler society. As discussed in chapter 5, African peoples kidnapped and transported to North America were critical to the colonial occupation. In many respects their descendants may now function as settlers, but they were also Indigenous African peoples whose colonization involved not only the appropriation of their lands and resources but also their interhemispheric relocation. There are meaningful distinctions between the removals of Indigenous North Americans and colonized African peoples, for they served very different purposes, but classifying enslaved Africans and their descendants simply as settlers privileges the state’s construction of race and reinforces colonially imposed state boundaries. We can appreciate and analyze the distinctions between Indigenous peoples, Afrodescendants, and Europeans in North America without losing sight of the fact that all settler colonial institutions and relationships rest on the foundational colonization of the peoples indigenous to this land. Disentangling the relationship between Indigenous peoples, Euroderivative settlers, and peoples of color who reside in the United State as a result of more-and-less voluntary migration is more complicated. Chickasaw professor Jodi A. Byrd cautions that while “racialization and colonization have worked simultaneously to other and abject entire peoples,” their conflation serves to “further reinscribe the original colonial injury.”14 The very presence of migrant peoples of color legitimates the settler state, concretizing and further entrenching underlying colonial dynamics. Immigrants not only enrich and empower

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the settler class but also come to see themselves as having a vested interest in the occupation of Indigenous lands. Simultaneously, however, settler prerogative ensures the continued racialized subordination of all peoples of color. Thus, anti-racist action will not necessarily deconstruct colonialism, but decolonization may well be a prerequisite to eliminating racism in the United States. The dynamics are complex and discussion complicated by the fact that we do not have a vocabulary adequate to the task. Because of the diversity of the peoples at issue, it is difficult to come up with a term encompassing those who are identified as neither White, Black, nor Indigenous to lands occupied by the United States. For lack of a better alternative, I use the term “migrant Others” here despite the fact that “migration” is not an appropriate descriptor for many of the peoples at issue, particularly the descendants of those whose territory has been occupied by the United States. With respect to other groups—descendants of kidnapped Chinese workers, or refugees driven from their homelands by US military actions, for example—it is not intended to imply volition but simply the fact of geographic transfer.15

Colonial Functions and Strategies There are three basic reasons why migrant Others now reside in the United States: (1) the United States invaded and appropriated their lands, either through incorporation or external colonization; (2) powerful interests within the settler class wanted their labor and they came with some degree of volition; or (3) armed conflict, political repression, or social turmoil in their home countries compelled them to seek refuge here. These origins are of critical importance to the narratives through which each ethnic or national origin group understands itself and its history. They have much less impact, however, on how members of these groups are treated by the dominant culture, largely because migrant Others are racialized in ways that tend to blur such distinctions. As with American Indians and African Americans, the racialization of migrant Others is closely tied to the functions they are seen as serving in settler society. They have made settler-occupied lands habitable, arable, and profitable. They have served as a source of labor that can be easily accessed, readily disposed of, and employed to suppress the demands of White workers. Their “diversity” is used to support the myth that this is a “nation of immigrants” with equal opportunity for all, and to defuse criticism of the ongoing subordination of American Indians and Afrodescendants. Refugees from various global conflicts are used for ideological purposes, as well, as their stories are framed in ways that promote American exceptionalism and global hegemony.

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For all of these reasons, migrant Others have played, and continue to play, a significant role in the construction and maintenance of settler prerogative and privilege. Strategies used to subjugate Indigenous peoples and African Americans have also been used to exploit these peoples, but to the extent that they serve different functions, the strategies also differ. It is impossible to do justice to the history and contemporary reality of any particular group, much less their complex interactions, within the scope of this book, but I hope that the functional analysis presented here will inspire others to look more closely at how migrant Others have been incorporated into, used by, and excluded from settler society. Because we are talking about so many different peoples and so many variants of inclusion and exclusion, this chapter summarizes some of the primary ways in which state power has shaped American demographics: the racial restrictions placed upon citizenship, the inclusion of those deemed Other through territorial expansion and the recruitment of imported labor, the evolving immigration policies utilized to control the flow of that labor, and the selective inclusion of refugees.

Citizenship The “founders” envisioned their creation as a White settler state. As early as 1751, Benjamin Franklin predicted—quite accurately—that the US population would double about every two decades.16 Franklin was clear about who these people were to be, noting that “while we are, as I may call it, Scouring our Planet, by clearing America of Woods, . . . why should we . . . darken its People?”17 The vision reflected in Franklin’s rhetorical question was realized with remarkable efficiency. The 1790 census, which did not enumerate American Indians, reported a population that was approximately 80 percent White and 20 percent Black. By 1890, it was 88 percent White and remained so into the 1960s.18 The construction of an overwhelmingly White state was inextricably linked to a presumption of racial supremacy. Legal scholar Daniel Ibsen Morales notes that underlying the settlers’ emphasis on personal liberty was a presumed “jurisdiction over one’s own person which the state cannot abrogate.”19 With their “frontier mentality,” they saw themselves living “under a government and a constitutional order where they were never subjects, but instead demi-sovereigns.”20 Birthright citizenship was not mentioned in the initial Constitution because it was presumptively reserved for those deemed White.21 With citizenship so closely correlated to settler privilege, it effectively embodied their expectations of “demi-sovereignty.” In 1790 Congress fulfilled its constitutional mandate to “establish an uniform Rule of Naturalization” by limiting naturalized citizenship to those who,

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among other qualifications, were “free white persons.”22 This spawned a maze of tortured legal opinions as the courts struggled to determine who qualified as “white,” ultimately limiting the concept to those of exclusively European ancestry.23 As a result, virtually all European migrants could imagine becoming part of the settler class. A major shift occurred in 1868 with ratification of the Fourteenth Amendment, which recognized “all persons born or naturalized in the United States, and subject to the jurisdiction thereof ” as US citizens.24 This provision did not apply to American Indians or the Indigenous peoples of Alaska (most of whom were precluded from both birthright and naturalized citizenship until 1924, when they were unilaterally declared to be US citizens) and it has never been extended to persons born in external colonies, their citizenship status being left to Congress.25 The US-born children of migrant Others, however, did acquire birthright citizenship, as did African Americans. In practical terms this meant that by the late 1860s, White settler hegemony could no longer be framed solely in terms of citizenship. This is when legalized apartheid began to be implemented, with racialized laws and policies that persisted into the 1960s ensuring the subjugation not only of Black people but of other people of color as well. Following passage of the Fourteenth Amendment, the Naturalization Act was amended to include persons of “African nativity and descent,” but its racial restriction continued to apply to “races indigenous to the Western Hemisphere” until 1940, to Chinese immigrants until 1943, to Arabs until 1944, to persons from the Philippines and India until 1946, and to other Asians until 1952.26 Because constitutionally mandated equal protection did not reach the naturalization laws, “ineligibility to citizenship” was used in many states well into the twentieth century to enforce a color bar in employment, licensing, and the ownership or leasing of land, thus ensuring that migrant Others would not, in one senator’s terms, “destroy[] the area for white settlement and the desirable element.”27

Territorial Expansion The earliest Angloamerican settlers acted quickly on their conviction that they had a “natural right” to the entire continent.28 Between 1803 and 1848, as a result of the Louisiana Purchase, the acquisition of Florida, the annexation of the northern half of Mexico, and the occupation of the Oregon Territory, their claims grew to encompass all of what is now known as the “lower fortyeight” states. Moving beyond contiguous territories, in 1867 the United States claimed possession of Alaska by virtue of its “purchase” from Russia.29 By

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1900 it had invaded and annexed Hawai‘i and established colonial occupations in Puerto Rico, the Philippines, and Guam. Following World War II, it held numerous additional Pacific Islands as non-self-governing “trust territories.”30 As a result, many peoples of color now live under US jurisdiction not because they or their ancestors chose to move here, but because the United States occupied their homelands. The status of people in these territories has varied considerably over time. As soon as Mexico gained its independence from Spain in 1821, Angloamerican settlers—illegal immigrants, from the Mexican perspective—began moving into what is now Texas. In 1836 these settlers declared their “independence” and, within a decade, the “Republic of Texas” was incorporated into the United States.31 In 1848, at the conclusion of the so-called Mexican American War, the United States took possession of what we now call California, Nevada, and Utah, most of Arizona, and parts of New Mexico, Colorado, and Wyoming.32 Of the perhaps 100,000 people already living in these territories, many were Indigenous, and others—as a result of Spanish colonization— were of mixed Spanish, Indigenous, and African descent, but all were citizens under Mexican law. Under the 1848 Treaty of Guadalupe Hidalgo, if they did not elect to retain Mexican citizenship they would be deemed US citizens.33 The overwhelming majority became American citizens, but “citizenship in this instance was not consensual, either in terms of traditional liberal ideology or by individual assent. Rather, it indicated Mexicans’ new status as a conquered population.”34 Imperial expansion brought Native Hawaiians (Kanaka Maoli), Filipina/ os, other Pacific Islanders, and Puerto Ricans under US jurisdiction at the end of the nineteenth century.35 Hawai‘i and the Philippines were considered critical to military and commercial expansion into Asia, and Puerto Rico provided an ideal location for a naval base in the Caribbean, strategically located with respect to the long-anticipated Panama Canal.36 In a series of events closely paralleling the acquisition of Texas—and subsequently acknowledged by Congress to have been illegal37—Angloamerican settlers moved into Hawai‘i and arranged for the islands to be annexed by the United States. Although the United States had recognized Hawai‘i as a sovereign and independent kingdom since 1826, US naval forces invaded in 1893 and Congress declared it a “permanent trust territory” in 1898. The territory remained in this explicitly colonial status until 1959, when, faced with a United Nations mandate to decolonize, the United States incorporated Hawai‘i as its fiftieth state.38 In 1898 the United States claimed possession of Puerto Rico, Guam, and the Philippines after a brief war with Spain.39 The peace treaty stipulated that

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“the civil rights and political status of the native inhabitants of the territories hereby ceded . . . shall be determined by the Congress,” an explicit acknowledgment that these were to be external US colonies.40 Cuba was not directly colonized but subjected to direct and then indirect US military rule.41 The United States met little military resistance when it occupied Guam and Puerto Rico, but “pacifying” the Philippines entailed a long and bloody war in which perhaps one million people died.42 As colonial subjects, Filipina/os became “nationals” but not citizens of the United States, a status maintained until 1934 when, as part of their transition to “independence,” Congress declared them to be “aliens” for immigration purposes.43 Other Pacific islands came under US “trusteeship” following World War II. The Northern Marianas, for example, were ceded by Spain to Germany in 1898, occupied by Japan during World War I, and transferred to the United States following World War II. “Commonwealth” status was negotiated in the 1970s, approved by Congress in 1976, and fully implemented in 1986, when US citizenship was conferred on its residents.44 The Federated States of Micronesia, the Marshall Islands, and Palau entered into “compacts of free association” in 1986 and are now, technically, independent republics.45 Puerto Rico was strategically located, had a relatively small population believed to be about two-thirds White, and had not mounted significant military resistance to the American occupation—all factors that encouraged US leaders to consider their occupation permanent.46 The United States installed a military government in 1898 and replaced it with a colonial civil government two years later. In 1917 Congress unilaterally declared Puerto Ricans to be US citizens, notwithstanding the fact that a majority of Puerto Ricans favored independence.47 It was, however, a peculiar variant of citizenship. To this day, Puerto Ricans living on the island pay taxes, may be inducted into the US military, and are subject to US criminal law. However, they cannot vote in presidential elections, do not have voting representation in Congress, and receive less federal benefits than any other US citizens.48 In 1952 Puerto Ricans voted to accept “commonwealth” status rather than continuing in “trust” status, but they have never had a binding referendum on either independence or incorporation and thus remain a US colony.49

Labor As the US economy expanded and contracted in the decades following the 1848 annexation of northern Mexico, large numbers of Mexican and Chinese workers were systematically “imported”—often as contract laborers—and periodically excluded. Chinese, Japanese, Filipina/o, and Korean workers were

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brought to plantations in Hawai‘i in the last half of the nineteenth century and, from there, some migrated to the continental United States.50 The Pacific Islands occupied by the United States since World War II have gained considerable notoriety as a site where goods “made in the USA” are produced in sweatshops exempt from federal minimum wage laws and other worker protections.51 The US occupations of Puerto Rico, Guam, and the Philippines have prompted ongoing migrations of economically destitute peoples from these territories.52 Thus, for example, as of 2017 about 45 percent of Puerto Rico’s residents lived in poverty, evidencing a classic colonial relationship that is pushing more and more Puerto Ricans into “forced exile” on the mainland.53 Since 1965, immigration laws have encouraged other people of color to migrate to the United States either for their low-wage labor or because they have particular skills and training desired by US employers. Thanks to the United States’ history of selective inclusion and exclusion, persons of Mexican and Puerto Rican descent now constitute the largest groups identified as “Hispanic,” and those of Chinese and Filipino descent comprise the largest Asian American subgroups.54 The treatment of Mexican, Chinese, and Filipina/o workers paved the way for the subsequent racialization and subordination of migrant Others in the United States. These groups are discussed below because, although they were incorporated into the American settler colonial project in very different ways and for very different reasons, their experiences provide templates for the subsequent exploitation and exclusion of migrant Others.55

Chinese Labor Initially attracted by the discovery of gold in California in the mid-nineteenth century, by 1870 about 63,000 Chinese lived in the United States, mostly in California, where they made up 9 percent of the population and—because they were almost exclusively adult men—a stunning 25 percent of the workforce.56 For the White settlers who were rapidly “clearing” the land of its Indigenous owners, the Chinese provided the manual labor critical to rendering it profitable.57 According to economics professor David Galenson, the Chinese and Japanese laborers on sugar plantations in Hawai‘i “worked under true indentures, which bound them to work for specified planters for fixed periods of years, with legal provision for compulsion of specific performance or imprisonment.”58 On the continent, Chinese miners and railroad workers generally arrived with “debt contracts” that were functionally indistinguishable from indentures, although the workers were theoretically free to change employers.59 The public coffers were enriched as taxes on “foreign miners” generated between one-quarter and one-half of California’s state revenue between 1852

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and 1870.60 Purporting to be license taxes on those who did not intend (or were unable) to become citizens, these were actually racial surcharges, imposed on US citizens of Mexican descent as well as on Chinese workers who were not miners.61 Thus, California’s 1861 foreign miners tax—successfully challenged by a laundry worker—explicitly stipulated that “all foreigners not eligible to become citizens of the United States, residing in any mining district in this State, shall be considered miners.”62 Those who could not pay the tax were sentenced to building roads or otherwise providing free labor for the state, much as Black convict labor was utilized in the South following the abolition of slavery. As the mines played out, the Chinese moved into factory work, domestic service, and agricultural labor, which included the clearing, draining, and irrigation of fields and ranches, as well as the planting, tending, and harvesting of crops.63 From 1866 to 1869, some twelve thousand Chinese built large sections of the transcontinental railroad, drilling and blasting through the Sierra Nevada mountains, digging tunnels under what were sometimes sixty-foot snowdrifts and laying hundreds of miles of track across the deserts of Nevada and Utah.64 Laid off after completion of the railroad, many Chinese moved to San Francisco, where by 1872, they constituted almost half of the city’s factory workers.65 In other parts of the West, they made up a significant percentage of the agricultural labor force. They were indispensible to the settlers; as reflected in an 1876 commentary, “In mining, farming, in factories and in the labor generally of California . . . much of the labor done by [the Chinese] if performed by white men at higher wages could not be continued nor made possible.”66

Mexican Labor Dramatic immigration restrictions in the late nineteenth and early twentieth centuries prevented further Asian immigration but did not curtail American employers’ desire for cheap migrant labor. The southwest border was porous and Mexican workers not only “provided the human labor power for the region’s agricultural revolution” but also built “the infrastructure for the modern Southwest’s economy: they laid railroad tracks that connected the region to the national market, cleared ranch lands for farming, and dug irrigation canals.”67 Having established the foundation for the transition to large-scale agriculture, both new immigrants and long-term Mexican American residents were swept into a migratory labor market that extended from California to Michigan. During the 1920s, some 460,000 Mexican migrants entered the country, often “smuggled in by American labor contractors” to work not only in agri-

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business, but in manufacturing as well.68 Reduced in settler consciousness to what Ngai terms their “commodity-identity,” they became not only cheap but disposable labor, “a modern solution to an old colonial problem.”69 In the 1930s, as the Great Depression put them out of work, perhaps one million persons of Mexican descent, immigrants and US citizens alike, were summarily rounded up and deported.70 World War II brought new labor shortages (particularly after the removal of Japanese Americans), prompting the United States to enter into contract labor agreements with the Mexican government.71 Under what became known as the bracero (“manual labor”) program, temporary workers—all men—were sent to thirty states. According to Christopher David Ruiz Cameron, an employment law professor, “Braceros were really indentured servants. They were routinely paid as little as twenty cents an hour, subjected to hazardous working conditions, and fired if they dared so much as to speak with labor organizers. They were confined by law to a contract system that conditioned their entry on working a single crop for a single employer, so they were not free to shop around for better wages and working conditions.”72 In one grower’s words, “We used to own our slaves, now we rent them from the government.”73 Anxious to maintain control over Mexican migration, the US government dramatically increased the number of bracero contracts in the early to mid1950s while simultaneously authorizing the apprehension and deportation of some 800,000 undocumented workers in a massive effort known as “Operation Wetback.”74 The bracero program lasted until 1964, bringing some 4.8 million Mexican workers to the United States and establishing patterns of economic interdependence that continue to this day.75 In the meantime, just as convict labor replicated the conditions of slavery in the South, well into the 1960s “debt peonage” kept many rural American Indian and Mexican workers in virtual slavery.76 Although Congress banned peonage in 1867 with an act specifically intended to address the problem of involuntary servitude in the New Mexico Territory,77 a century later it was estimated that 40 to 50 percent of rural workers in New Mexico were still living in “a state of semi-peonage.”78 In one case, a ranch hand named Abernicio Gonzales sued his employer in 1967 for unpaid wages because he had worked for thirty-three years without receiving the fifty cents a day originally promised.79 The Mexican-origin population now includes descendants of persons living in the Southwest since before the US occupation, those who have since become US citizens by birth or naturalization, legal immigrants, contract workers with temporary status, and undocumented migrants.80 The result,

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according to Ngai, is “a racialized, transnational workforce” that has, “as a whole, remained external to conventional definitions of the American working class” as the result of “a kind of ‘imported colonialism’ that was a legacy of the nineteenth-century American conquest of Mexico’s northern territories.”81

Filipina/o Labor Most Asian immigration was prohibited by the early twentieth century, but thanks to US colonization, residents of the Philippines were US nationals and could enter freely until 1934.82 Filipina/o workers—overwhelmingly male—were brought to Hawai‘i as an “alternative” labor source after Japanese workers went on strike in 1909, and by 1929 there were some seventy-two thousand Filipina/os on Hawaiian plantations.83 Immigration to the West Coast was spurred by the labor shortages of World War I, and expanded in the 1920s as young men, particularly, were recruited to farms and salmon canneries, and to perform domestic and service work. Within a decade, the Filipina/o population on the West Coast increased tenfold.84 Antonio Pido notes that this “immigration was seldom fully voluntary,” shaped instead by the deprivations Filipina/os faced at home under US colonial rule. Migration, however, “merely transferred their colonial subordinate position from their native land to that of the colonizer.”85 Even among highly skilled workers, the dynamics of disposability have persisted. Thus, for example, women account for about 60 percent of the post-1965 migration from the Philippines, largely because of labor shortages in the US healthcare industry.86 Like the early male migrants from China, these nurses can rarely bring their families, and, like early indentured servants, they often have contracts requiring them to remain with particular employers, making them especially vulnerable to exploitation. In 2006, ten nurses from the Philippines resigned from a New York healthcare facility, citing deceptive recruitment, inadequate housing, and poor working conditions. In retaliation they were criminally indicted for endangering their patients’ well-being. Ultimately a state court ruled that the corporate employer had violated the Thirteenth Amendment’s prohibition of involuntary servitude, but the case stands as a testament to the continued vulnerability of migrant workers.87

Immigration Restrictions As this history reflects, since the mid-nineteenth century, migrant Others have been perceived as a readily accessible source of low-cost labor. Their

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value to American settler colonial society resides not only in their availability but also in their disposability. By limiting access to citizenship, the settler class has ensured that many of these workers can be physically removed— deported—when they become “surplus” populations. It is often said that the federal government did not regulate immigration until 1875, but this elides the government’s control over the slave trade as well as its militarized exclusion of American Indians from settler-occupied lands. In addition, from the founding of the country, individual states routinely excluded convicted criminals, the impoverished or disabled, those deemed a threat to public health, and not only enslaved but free Black persons.88 There was a significant shift, however, in the wake of the Civil War as the federal government—prompted by pressure for new forms of racial exclusion—began regulating immigration as a matter of national concern.89

Chinese Exclusion Many early European workers arrived as indentured servants under contracts for a fixed number of years, after which they might be able to buy land and become permanent settlers. By contrast, Asian migrants were generally precluded from owning land, and their labor contracts “often provided for their return passage to their country of origin upon completion of the term” of service.90 Such arrangements avoided the “problem” of a permanent population of color but did not alleviate the discontent of White workers who viewed the Chinese as unfair competitors. Following the recession of the early 1870s, Congress responded to mounting pressure for exclusion with legislation purporting to ban criminals and prostitutes but primarily intended to prevent the entry of Chinese women.91 Beginning in 1882, a series of Chinese Exclusion Acts prohibited the entry of both skilled and unskilled Chinese workers, banned the reentry of Chinese residents who left the country, created a presumption of illegal presence, and required certificates of residence (“a kind of internal passport”) attested to by White witnesses.92 These measures were followed by the less formal exclusion of Japanese migrants under a 1907–1908 “Gentlemen’s Agreement,” and, in 1917, legislation prohibiting migration from the “Asiatic Barred Zone,” a region that encompassed all Asian countries.93

National Origin Quotas As Asian immigration was being cut off, European migrants were arriving in large numbers. Between 1880 and 1917 some twenty-five million Europeans

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entered the United States, providing manual “labor for the nation’s industrialization and for building the infrastructure of cities” as they “shoveled pig iron in steel mills, sewed shirtwaists, and dug tunnels for sewer and subway lines.”94 By 1881, 86 percent of all voluntary migrants to the United States had come from northwest Europe, and this region continued to account for twothirds of immigrants until 1893.95 About the time of World War I, however, there was a large influx of southern and eastern Europeans, who were frequently characterized by Angloamericans as swarthy, dirty, or illiterate; socially undesirable as Catholic or Jewish; and politically dangerous as anarchists or Bolsheviks.96 Such xenophobic reactions coincided with, and were likely reinforced by, the fact that the American settler state no longer needed more of the unskilled industrial labor that had fueled its growth and consolidation. “By the 1920s industrial capitalism had matured to the point where economic growth could come more from technological advances in mass production than from a continued expansion of the manufacturing workforce.”97 Responding to pressure to exclude, in 1917 Congress imposed literacy tests on the new arrivals. Wartime passport controls became the norm and visas were required to enter the country. In 1921 an “emergency” act established an overall cap and limited entrants from each European country to 3 percent of the number of persons from that country already living in the United States.98 This was followed in 1924 by the federal government’s first comprehensive restriction of immigration.99 Intended to reinforce Angloamerican dominance while ensuring an adequate labor force, it imposed an overall cap on immigration and divided that total into national origin quotas designed to replicate the existing settler population. The population base used to derive these quotas excluded “‘(1) immigrants from the [Western Hemisphere] or their descendants, (2) aliens ineligible for citizenship or their descendants, (3) the descendants of slave immigrants, [and] (4) the descendants of the American aborigines.’”100 Put simply, there were no quotas for persons of color under this system, which remained in place with minor modifications until 1965.101

Permanent Residents and the 1965 Reforms The racial restriction on naturalized citizenship, the national origin quotas, and the near-complete ban on Asian immigration had a tremendous influence on the composition of the US population and reinforced the dominant narrative’s characterization of non-White peoples as outsiders. In the aftermath of World War II, however, such overtly racist policies became politically untenable. In 1952 Congress removed the racial prerequisite to naturalized

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citizenship imposed in 1790,102 and in 1965 national origin quotas were replaced with a system allocating immigrant visas—“green cards”—based on family relationships and employment categories tailored to meet the needs of the labor market.103 Since then the total number of permanent resident admissions has been limited by annual hemispheric caps and uniform per-country caps.104 Initially, the country caps applied only outside the Western Hemisphere, but in 1976 they were applied globally, resulting in severe cutbacks in migration from Canada, Mexico, Latin America, and the Caribbean.105 There was, concomitantly, a dramatic increase in migration from southern and eastern Europe, Africa, and Asia.106 As a result of these changes, as well as a significant upsurge in refugee admissions after 1980, the racial and ethnic composition of the US population changed considerably. Whereas over 88 percent of the population identified as White in 1960, by 2018, only about 60 percent did so.107 The abolition of national origin quotas explicitly privileging those of northern European origin is generally hailed as bringing racial equality into the realm of immigration law.108 In reality, however, family- and employmentbased preferences continue to favor European migration and the economic interests of the settler class. “Family” admission extends only to spouses and children of citizens and permanent residents and siblings of adult citizens.109 A region’s historic relationship to the United States has no bearing on the quotas, and uniform per-country caps disadvantage migrants from large countries like India and China.110 Employment-based visas privilege persons with advanced degrees or evidence of “extraordinary ability,” executives and managers of multinational corporations, and skilled workers.111 “Diversity” visas encouraged migration from “low admission” countries, and the wealthy, whether skilled or unskilled, may obtain permanent resident status by making significant investments.112

Temporary Workers A large proportion of Latina/o, Caribbean, and Asian—particularly South Asian—migrants come with temporary work visas rather than permanent resident status. Like braceros, these migrant workers are particularly vulnerable to exploitation and exclusion when market needs shift. This is true even for highly skilled workers. Asian Indians are currently the third-largest Asian American subgroup, and many have been recruited for their technical training and skills.113 In 2001 Congress tripled the number of H-1B visas for highly skilled workers, and by 2012 about 70 percent of H-1B residents were from India.114 However, H-1B visas are held by employers, not employees, and are often

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obtained by brokers who provide temporary workers to large corporations such as Verizon or Apple. As with nurses from the Philippines, South Asian technical workers are often consigned to “an underground system of financial bondage” in which they do not receive market-rate wages, may have their pay stolen, frequently confront workplace abuse, and are sued if they try to change jobs.115 The other primary “guestworker” programs provide visas for agricultural workers (H-2A) and workers in forestry, food processing, landscaping, construction, and other industries (H-2B). In 2017, 91 percent of agricultural workers and 77 percent of non-agricultural workers under these programs came from Mexico.116 “Guestworkers” are routinely and systematically paid low wages, and frequently cheated even of those, because labor and antidiscrimination laws are either inapplicable or not enforced.117 Because the visas are issued to the employers, the workers are held hostage by their inability to change jobs and are vulnerable to abuse, including sexual harassment and violence.118 The Southern Poverty Law Center describes the H-2 option “as a modern-day system of indentured servitude. But unlike European indentured servants of old, today’s guestworkers have no prospect of becoming U.S. citizens.”119 It is also a de facto system of peonage, as many workers obtain highinterest loans to pay recruiters’ fees and then do not make enough to pay off their debts.120 Tellingly, temporary construction workers from India recruited in the aftermath of Hurricane Katrina were required to live “in cramped and guarded trailers” referred to by management as “‘the Reservation.’”121

Unauthorized Workers In 2015 an estimated eleven million unauthorized migrants lived in the United States, with some eight million in the workforce.122 Much as the earliest Chinese immigrants contributed significantly to the California state treasury, today’s undocumented workers get very few public benefits but pay a great deal in taxes. In 2005 the Texas Comptroller’s Office estimated that the state “collected $425 million more in state revenues from undocumented immigrants than it spent on education, medical care, incarceration, and other state services utilized by them.”123 Although most will never collect social security benefits, in 2005 undocumented workers contributed about $7 billion a year to the system, an amount significant enough to be factored into the Social Security Administration’s budget projections.124 Unauthorized migrant workers and their families are forced to live on the margins of settler society, in constant fear of arrest, detention, and deportation as well as the traumatic effect any of these will have on their families. Because the state has not granted them permission to be present within its

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claimed borders, they are generally depicted only in terms of exclusion. Yet undocumented migrants constitute 5 percent of the workforce, providing more than half of US farm labor, about a quarter of America’s maids and cleaners, and 15 percent of its construction workers.125 They work for the lowest wages, have no viable means of redressing grievances, utilize fewer public benefits than they pay for, and can be disposed of at will.126 They comprise, in other words, the ideal colonial labor pool.

Refugees Finally, it is important to acknowledge that some people of color find themselves in the United States not because their labor or skills are desired by American settler society but because armed conflict, political repression, or other forms of social turmoil have forced them to flee their home countries. Such refugees may be “voluntary” migrants in the sense that resettlement is the best option available to them, but most would have preferred to stay home. From the settlers’ perspective they are perhaps best seen as a type of “collateral damage”—an unwelcome but necessary concomitant to the state’s military, political, and economic priorities as manifested on the global stage.

Refugee and Asylum Policies The government has little incentive to encourage refugee admissions, except to the extent that individuals possess valuable knowledge or skills—nuclear scientists, for example—or an ideological point is being made. Quite notoriously, during World War II the United States used its national origin quotas as an excuse to refuse entry to thousands of European Jewish refugees who were subsequently exterminated by the Nazis.127 The 1952 Immigration and Nationality Act gave the attorney general discretion to “parole” noncitizens into the United States, a power used almost exclusively to admit those “fleeing communism,” such as anti-Castro Cubans, thus “betray[ing] any claim that humanitarian considerations formed the sole basis for refugee policy.”128 Upon withdrawing from Southeast Asia in the 1970s, US officials only intended to evacuate approximately eighteen thousand American dependents and South Vietnamese government employees. However, thanks to the conflict and chaos it left behind, by 1980 it had been compelled to accept over four hundred thousand refugees from Vietnam, Laos, and Cambodia.129 Refugee rights are internationally recognized in the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. By signing the protocol, the United States agreed to

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be bound by the 1951 convention, although US law only came into compliance with its obligations upon passage of the Refugee Act of 1980. Under this statutory scheme, those seeking sanctuary now apply from abroad and may enter if granted refugee status; asylum may be granted to those already in the country, provided they apply within one year of entry.130 Both refugees and asylees must demonstrate a “well-founded fear of persecution” on the basis of “race, religion, nationality, membership in a particular social group, or political opinion,” and refugee admissions are subject to an annual cap established by the president, after consultation with Congress.131 While there is no obligation to admit any particular refugee, the principle of nonrefoulement prohibits sending a person to a country where he or she is likely to be persecuted.132 Since 1980, about three million refugees have been resettled in the United States, a small number compared to the approximately one million immigrants admitted annually.133 The Refugee Act was expected to curtail the ideologically skewed parole program, but refugee admissions have remained both politicized and racialized, as illustrated by “the vivid contrast in the treatment of Haitians, who were being turned away from the shores of south Florida, and Cubans, who were being greeted with open arms,” to quote law professor Bill Ong Hing.134 In Haiti, as in Guatemala and El Salvador, there is a long history of US intervention and support for regimes “engaged in campaigns of mass terror, killing civilians in order to repress suspected opposition or demonstrate force,” but for the most part the United States has categorized persons from these countries either as “economic” refugees or as fleeing general violence, and refused them asylum.135 Since 1990, refugee admissions have ranged from under 30,000 to over 110,000 per year, depending on each administration’s priorities.136 There is no cap on asylum admissions, but only about 15,000 petitions are approved each year.137 Between 2001 and 2016, most came from Myanmar (Burma), Iraq, Somalia, Bhutan, and Iran, and in 2016, resettlement programs for Iraqis and Syrians were approved.138 It is a system that gives political leaders almost unlimited flexibility, allowing the Trump administration to impose a temporary ban on refugees from eleven countries, nine with predominantly Muslim populations, and to lower total refugee admissions to under 22,500 in FY 2018.139 Thanks to a country-specific “travel ban,” almost none of these refugees were from Iran, Libya, Somalia, Sudan, Syria, or Yemen.140

War Refugees “We are here because you were there,” said Ambalavaner Sivanandan, a Sri Lankan intellectual living in London, to explain the presence of formerly

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colonized people of color in the United Kingdom.141 The phrase is equally applicable to many refugees, or those seeking asylum, in the United States. It certainly applies to Mexican and Central American migrants who have been displaced by the economic and trade policies supported (or imposed upon them) by the United States, threatened by gang violence, or repressed by brutal US-supported military regimes. And it reflects the reality of many refugees from Southeast Asia and the Middle East. As noted above, the United States did not anticipate the influx of so many refugees from Vietnam, Laos, and Cambodia, but the nature of the war it waged made it inevitable. Hing says, “Placing total blame on the United States for drawing Cambodia into the Vietnam War and the Southeast Asian conflict may be simplistic, but the Nixon Administration’s secret bombings along the Vietnam-Cambodian border and the CIA-sponsored overthrow of the Sihanouk government that led to the escalation of military conflict with the Khmer Rouge are uncontroverted.”142 The Khmer Rouge’s subsequent rise to power, and its killing of some two million people, led to the admission of about 145,000 Cambodians to the United States. Traumatized and impoverished, many refugees ended up in neighborhoods where jobs were scarce and gang activity was common. In 2000, more than twenty years after their arrival, over one-third of Cambodian households were subsisting on less than $12,000 a year.143 “Sadly,” Hing observes, “many Cambodian families who survived the killing fields of the Khmer Rouge, have lost the battle to survive in America. The battle was lopsided; they were given no tools to adjust after being uprooted by a genocide with which the United States is all too familiar and all too connected.”144 At this point the American settler state evinces no concern for the lasting damage done by its imperialistic ambitions. Many Southeast Asian refugees were brought to the United States as infants or young children and, because they never became naturalized citizens, they may be deported for minor misdemeanors. Since 2002, the United States has deported over six hundred Cambodian nationals,145 and under current immigration policies, perhaps eight thousand Vietnamese—including some children of US servicemen— are similarly vulnerable.146 From the state’s perspective, these migrant Others are disposable, regardless of their histories, because they no longer serve any perceived “need.” In Iraq, Afghanistan, and other parts of the Middle East where the United States has been militarily engaged, massive numbers of people are being forced from their homes and US leaders are debating how many the United States “needs” to accept to maintain its carefully nurtured image of “humanitarian leadership.” In the first few years after the United States’ 2003 invasion

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of Iraq, turmoil and violence prompted more than 2 million Iraqis to leave the country, and left another 2 million internally displaced,147 but the United States had resettled only about 144,000 Iraqis and 30,000 Afghans by 2016.148 In 2018 the UNHCR reported that as a result of the ongoing conflict in Iraq, “mass executions, systematic rape and horrendous acts of violence are widespread, and human rights and rule of law are under constant attack.”149 More than a hundred thousand Iraqis have applied to a special refugee program for those who worked for the United States, but only some eight thousand were admitted in 2016–2017, and just forty-eight in the first ten months of FY 2018.150 Revealing the tension between the settlers’ need to include and their desire to exclude those deemed Other, Reuters reported that “the Pentagon is concerned that not providing safe haven to more of the Iraqis . . . will harm national security by dissuading locals from cooperating with the United States in Iraq and other conflict zones.”151

Unwanted Peoples In addition to refugee admissions, as of early 2018 some 437,000 otherwise unauthorized migrants had temporary protected status (TPS), giving them the right to live and work in the United States for a limited time because of catastrophic conditions in their home countries. The Trump administration allowed TPS to expire for migrants from Guinea, Liberia, and Sierra Leone, and announced its intent to end TPS for some 300,000 people from El Salvador, Haiti, Nicaragua, and Sudan.152 In January 2018, while discussing a proposal to allocate visas to underrepresented African states and TPS countries including Haiti, Trump is reported to have said, “Why do we want all these people from ‘shithole countries’ coming here?” and “Why do we need more Haitians? Take them out.”153 “Why do we need more?” This is the fundamental question confronting the settler state with respect to any migrants. Sometimes political leaders see the benefit of strengthening their claim to global human rights leadership. Thus, in 2016 Obama characterized Syrian refugees primarily as women and children fleeing war and terrorism, and called the global refugee crisis a “test of our common humanity.”154 But the previous year he had proposed admitting only ten thousand Syrian immigrants, in contrast to Germany’s offer to accept five hundred thousand.155 Under the same Obama administration, “when an estimated 50,000 refugees, most of them women and children fleeing extreme violence in Central America—violence in which the United States bears a responsibility seldom acknowledged—arrived at the southern border [in 2013], the United States did not give them a warm welcome. In-

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stead, they were placed in detention settings so torturously cold, many detainees referred to them as the ‘ice-box.’”156 According to the office of the UN High Commissioner for Refugees (UNHCR), the number of Central American asylum seekers and refugees rose from about 18,000 in 2011 to 294,000 in 2017.157 It blames organized criminal groups and gangs in Guatemala, Honduras, and El Salvador for an “extraordinary epidemic of violence” that involves “disappearances, forced recruitment into gangs, and the sexual exploitation of girls and women,” most of whom are aged ten to nineteen.158 The overwhelming majority of petitioners from these countries were denied asylum.159 The United States’ refusal to recognize Central Americans as political refugees may be due to the fact that it is deeply implicated in the violence now endemic to the region. In the 1980s and early 1990s, Guatemala, Honduras, and El Salvador were engulfed in civil wars between US-sponsored military dictatorships and “leftist guerrillas,” the “guerrillas” often being Indigenous peoples attempting to remain on their traditional lands. “Even after ceasefires were agreed, peace never came to the region as unresolved inequalities and amnesties which let war criminals escape justice fuelled a new wave of violence and corruption.”160 In turn, “this toxic mix of warring gangs and corrupt security forces is driving one of the world’s least visible refugee crises,” according to journalist Nina Lakhani.161 This gang violence has deep roots in the United States. More than half of the refugees who fled El Salvador’s civil war in the 1980s settled in Los Angeles, and many were young men who formed or joined gangs to survive. They were subsequently incarcerated at high rates and then deported to Central America following the Clinton administration’s 1996 immigration “reforms.”162 These deportees “returned to their home countries with no resources, homes, or connection, other than their gang ties,” primarily to Mara Salvatrucha (MS-13) and the 18th Street gang (M-18), which have since become two of Central America’s largest and most powerful criminal enterprises.163 Back in their countries of origin, many “have gone on to engage in extortion, drug trafficking, and forced recruitment of teenagers and young children.”164 Neither the United States’ role in fueling the gang violence nor its support for corrupt and repressive governments is acknowledged in the American narrative about the migrants, including unaccompanied children, now crossing the southern border.165 Most displaced persons arrive without any resources, traumatized by their experiences and in culture shock. While the government initially provides basic support services and subsidies to refugees, they are expected to “adapt” to life in America, to learn English, to get jobs, to become self-supporting. Yet those who most need protection are likely the least equipped to survive in

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this culture. The mainstream social narrative provides very little information about particular refugee groups. Outside of their immediate communities they are often presumed to be voluntary migrants and folded into the highly racialized structures of American settler colonial society. We began this chapter by noting that from its inception until the 1960s, almost 90 percent of the officially recognized US population was White. This was what the original Angloamerican settlers had envisioned for “their” state, and it explains much about the nostalgia expressed by those who would “make America great again.” The formal decoupling of race from citizenship and immigration laws in the mid-twentieth century, combined with the rapidly globalizing “face” of recent migrations, changed these demographics and created wide diversity among migrant Others. Nonetheless, the patterns established by the state’s perceived need for territorial expansion; its perpetual quest for an accessible, affordable, and disposable labor force; and its desire to expand its global influence lend consistency to migrant Others’ histories of racial subordination. The racialization of migrant Others as perpetually foreign and the government’s unconstrained power to regulate immigration render these groups particularly vulnerable to settler control and manipulation.166 As a result, while migrant Others are always relied upon for their labor, the historic—and ongoing—manipulation of their legal status has ensured that they continue to be viewed and treated as excludable outsiders, even when they are acknowledged to be US citizens.

8

Others of Color Subordination and Manipulation Who am I? You know who I am. Or you think you do. . . . I’m the one you call Gook. I’m the one you don’t see at all—we all look alike. I’m the one you see everywhere—we’re taking over the neighborhood. —Julie Otsuka

Migrant Others have played many different roles within the American settler colonial project. Sometimes their lands have been incorporated into the state’s claimed territory or occupied as external colonies. Most have been seen as sources of the labor, manual or skilled, used to make appropriated lands and resources profitable while keeping the demands of White workers in check. Some are here for largely ideological reasons, as the United States justifies its global hegemony by “welcoming” refugees from the armed conflict, social turmoil, or political persecution that forces them to flee their homelands. Noting both parallels and divergences in the histories of peoples of color, this chapter considers how the dynamic of difference that is critical to all colonial enterprises functions with respect to migrant Others in the United States. It begins with the “racing” of others of color,1 noting that while antiBlack and anti-Indigenous tropes and biases are often invoked, these are almost always accompanied by “foreignness,” a racialized attribute that permanently affixes exclusion to “brown” and “yellow” bodies. It then assesses assimilation. Often proffered as the “solution” to racial subordination, assimilation, I suggest, is more accurately understood as an ultimately illusory construct deployed to entrench racial hierarchy. The chapter then turns to strategies we have previously seen employed against American Indians and African Americans: restrictions on property ownership, spatial containment, population control, criminalization, and violence that facilitates social control.

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Racialization In the settler colonial paradigm everything and everyone has an assigned place, and “order” and “progress” depend upon racialized and gendered hierarchies. Balanced coexistence and mutually beneficial networks of relationship are not envisioned; perhaps they are not conceivable within this framing. The result is an either/or mentality that applies not only to Indigenous peoples but also to others of color. Reflecting this view, California senator John Miller declared during the 1882 debates on Chinese exclusion, “The presence of an inferior race either inevitably expels the superior race or reduces it to the ways, modes of life, and all the other conditions of the new-comers.”2 Racialization—the historically contingent social construction of “races” and the attribution to them of particular (although not necessarily fixed) characteristics—provides the basis for settler colonial strategies of elimination, subjugation, exploitation, and manipulation.3 The use of racialization to dispossess American Indians and to extract labor from enslaved Africans provided the settlers with the templates they employed as they occupied lands across the continent and into the Pacific, and recruited people of color into a labor force they hoped would remain easily accessible yet readily disposable. The settlers’ desire to add more land to their empire was always in tension with their determination not to “darken its People.”4 Thus following the 1848 war with Mexico, the decision to annex only its least-populated northern provinces was a compromise between US leaders anxious to acquire more territory and those concerned about “being compelled to receive not merely the white citizens of California and New Mexico, but the peons, negroes and Indians . . . and other half-monkey savages” of the region, to quote Florida senator James D. Westcott.5 At the turn of the century, a costly war was fought to conquer the Philippines, but there was never any serious consideration of incorporating the colonized territory, primarily because of its large population of color. It would be untenable, Congress was informed, because Filipina/ os were “of diverse races, speaking different languages, having different customs, and ranging all the way from absolute barbarism to semicivilization.”6 This section considers several dimensions of the racialization of migrant Others. First, it summarizes some caricatures common to how they have been stereotyped, and then turns to “foreignness” as an aspect of the racialized identity of virtually all migrant Others. The racialized conflation of peoples of various national origins is then considered, and the section ends with how purportedly positive stereotypes such as the “model minority” are relied upon to manipulate people of color and to consolidate settler hegemony.

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Racial Caricatures Otherness must take concrete form in the popular imagination if it is to serve social functions. Racialization justifies the elimination and exploitation of colonized peoples by associating particular phenotypical characteristics, real or imagined, with the state of being “less-than”—less civilized, less intelligent, less capable, less trustworthy, less attractive. By the time settler society considered incorporating migrant Others, the racialization of identity was well entrenched and it comes as no surprise that tropes used to denigrate and dehumanize American Indians and persons of African descent would also be utilized against other peoples of color. In the 1840s and 1850s Mexicans, like American Indians, were portrayed as destined to “‘fade away’ under Nature’s curse”; they were “a race ‘unfit’ to govern their own land,” providing a convenient justification for expropriating it.7 Mexican men were said to be “indolent, slothful, cruel and cowardly”; a “mixed race” that was cursed, like “the mulatto[,] with a constitution less robust than that of either race from which he sprang.”8 However, as legal scholar Ian Haney López points out, by the 1860s, when Mexican lands were under Anglo control and Mexican labor was desired, they were increasingly depicted—like enslaved Africans—as “docile, faithful, good servants” capable of providing the “industrious” if unskilled labor sought by the settlers.9 In the meantime, as Chinese workers migrated to the West Coast in the 1850s, many “racial qualities previously assigned to blacks quickly became ‘Chinese’ characteristics.”10 Historian Ronald Takaki reports, for example, that in one popular cartoon a Chinese worker was portrayed as “a bloodsucking vampire with slanted eyes, a pigtail, dark skin, and thick lips.”11 The Chinese were deemed subhuman in their ability to work long hours and engage in menial labor for less than what White workers considered a subsistence wage. Simultaneously, Chinese men were caricatured in popular venues such as minstrel shows as “effeminate and waif-like, deferentially bowing and scraping but secretly scheming the white race’s downfall.”12 In the 1870s, as pressure mounted for exclusion, “yellow peril” imagery was common. Chinatowns were depicted as sites of lawlessness, loose morals, and disease, epitomized by opium dens and houses of prostitution;13 Chinese immigrants were the first wave of the “immense, teeming, swarming, seething hive of degraded humanity” threatening the United States with “moral pollution.”14 Like the “savage” Indian and the Black “criminal,” Filipinos were labeled a menace to society, “headhunters” and troublemakers who would “slash, cut or stab at the least provocation.”15 Such depictions were so common in the mainstream narrative that the president of a federal Immigration Study Com-

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mission felt comfortable describing them as “jungle folk” whose “primitive moral code accentuates the race problem.”16 The imagery of “savage tribes” invoked during the United States’ six-year war of “pacification” followed Filipinas and Filipinos well into the 1920s and 1930s.17 As agricultural workers they were called “monkeys,” depicted as uniquely qualified for stoop labor, and summarily dismissed by growers as “just the same as the manure that we put on the land.”18 Racialization has always been a gendered phenomenon. While much vitriolic imagery has targeted men, who are often considered the primary economic threat, women have been subjected to their own variants of demeaning, subordinating, and manipulative portrayals. Haney López notes the contrast between the depiction of Mexicanos as cowardly and cruel manual laborers and “their” women as “fair, virtuous and lonely Spanish maidens.”19 Chinese women were largely excluded from immigration because workers with families would require higher wages and be harder to remove if they had US-born children.20 The resulting gender imbalance encouraged the myth that Chinese women were prostitutes as well as “moral and sexual deviants,” while Chinese men were sexual predators who posed a constant threat to White women.21 As law professor Keith Aoki explained, this brought Asian American women to “the troubled intersection of gender and American ‘Orientalism,’” where “silk, bound feet, submission, dominance, eroticism, servitude, and treachery cluster and collide.”22 Blatantly derogatory racialization facilitated the acquisition and exclusion of migrant labor. It also subjected migrant Others to the discriminatory practices and legally enforced apartheid that otherwise permeated American settler society. In the 1854 People v. Hall case, for example, the California Supreme Court overturned a White man’s murder conviction because it was based on the testimony of Chinese witnesses. A state statute prohibiting a “Black, or Mulatto person, or Indian” from testifying against a White person was applied to Asians because “the name of Indian, from the time of Columbus to the present day, has been used to designate . . . the whole of the Mongolian race.”23 Otherwise, the court reasoned, it would be “excluding domestic Negroes and Indians, who not unfrequently have correct notions of their obligations to society, and turning loose upon the community the more degraded tribes of the same species, who have nothing in common with us, in language, country or laws.”24 Well over a century later, Latina/os and Asian Pacific Americans, like African Americans, remained subject to laws that prevented them from purchasing or leasing property, denied them licenses for various occupations or business endeavors, barred them from public facilities, and required their children to attend segregated schools.25

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Perpetual Foreignness As the “nothing in common with us” language of People v. Hall indicates, Asians in America—indeed, all migrant Others—have been racialized as outsiders and excluded as foreigners regardless of their citizenship status or lineage in this country.26 Racially constructed foreignness facilitates disposability by normalizing the idea that immigrants of color may be lawfully disappeared by governmental authorities at any time.27 Those deemed foreign can readily be construed as threats to national interests, economic or military, setting the stage for large-scale ethnic transfers in the form of mass deportations as well as relocations and incarcerations outside the framework of criminal law.28 When Mexican Americans came to be seen as a “surplus” population during the Great Depression, one-third of the entire Mexican American population—some one million persons—were forcibly deported not only from the Southwest but states as far away as Ohio and New York. Rounded up in massive police raids, they were herded onto buses or specially designated trains and taken to the border in a variant of “ethnic cleansing” that destroyed communities, families, and individual lives. Foreignness as a racialized attribute trumped citizenship, as about 60 percent of those being “repatriated” were US citizens.29 Similarly, during the Second World War, the government used its prerogative to detain enemy aliens to incarcerate nearly 120,000 Japanese Americans, two-thirds of them US-born citizens.30 US intelligence agencies had determined that Japanese Americans posed no threat of sabotage or espionage, but President Franklin Roosevelt ordered the internment—and the Supreme Court upheld its constitutionality—on the basis of General John L. DeWitt’s assertion that it was impossible to tell the “loyal” from the “disloyal.”31 In DeWitt’s words, “The Japanese race is an enemy race and while many second and third generation Japanese born on United States soil, possessed of United States citizenship, have become ‘Americanized,’ the racial strains are undiluted.”32 Like the American Indian nations unilaterally declared to be “domestic dependent nations” and external colonies such as Puerto Rico deemed “foreign to the United States in a domestic sense,” Japanese Americans could, by executive fiat, be turned into the colonized Other, subject to the unrestrained exercise of political power.33 As noted previously, until after the Civil War, birthright citizenship extended only to White settlers and their offspring (to the extent those children were of exclusively European ancestry), and naturalized citizenship was explicitly limited to “free white person[s].”34 Until this racial prereq-

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uisite to naturalization was eliminated in 1952, “ineligibility to citizenship” proved a convenient means of restricting the rights and privileges of immigrants of color.35 Many decades later, persons not identified as White, Black, or Indigenous continue to be presumed “foreign,” regardless of their citizenship or how long their families have lived in the United States. As Mae Ngai observes, “The association of these minority groups as unassimilable foreigners has led to the creation of ‘alien citizens’—persons who are American citizens by virtue of their birth in the United States but who are presumed to be foreign by the mainstream of American culture and, at times, by the state.”36 Foreignness is also attributed to some people on the basis of their religion. Muslims, for example, may be of any race, national origin, or nationality, but Islam has been depicted as a “foreign” religion since the founding of the United States, notwithstanding the fact that millions of Africans and Afrodescendants practiced Islam while enslaved.37 According to law professor Khaled Beydoun, in the wake of the attacks of September 11, 2001, “the racial caricature of Muslims was repositioned as the very archetype of foreignness.”38 “In the American imagination, those who appear ‘Middle Eastern, Arab, or Muslim’ . . . [do not] represent the nation,” legal scholar Leti Volpp observes. They are seen, instead, as antithetical to it and, even when they are US citizens, “the consolidation of American identity takes place against them.”39

Racial Conflation Migrant Others in the United States are understood not only as perpetually foreign but also interchangeable, as diverse peoples are collapsed in the social imaginary. This allows characteristics attributed to one group to be applied, at will, to those with whom they have been racially conflated, rendering the groups fungible in popular consciousness. In one version of this phenomenon, stereotypes developed to denigrate American Indians and Afrodescendants have been used to subordinate other peoples of color. Invoking purportedly African characteristics made it easier for the settlers to transfer the justifications for slavery to the Mexican and Asian workforces that were rapidly expanding in the wake of the Civil War. Similarly, the portrayal of Filipina/os as savage and uncivilized made it easier to transfer the genocidal methods used to suppress American Indians to the “pacification” of the Philippines after its “acquisition” in 1898. Thus, in 1900, as resistance grew, “Secretary of War Elihu Root announced that the Army must resort to the ‘methods which have proved successful in our Indian

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campaigns in the West.’”40 The result, of course, was massive dislocation, internment, terror, and death.41 Another variant of racial conflation involves collapsing peoples with distinct cultures and histories into a singular “race.” Just as Indigenous peoples from hundreds of nations in North America or Africa have been categorized as simply “American Indian” or “Black,”42 those of Chinese, Japanese, Korean, Filipina/o, Vietnamese, Indian, and Pakistani ancestry are all “Asians,”43 while those from countries as diverse as Mexico, Puerto Rico, Guatemala, and Argentina are “Hispanic.”44 Groups can be singled out on the basis of national origin when convenient, but attributes assigned to one people are easily transferred to others. For Asian Americans, the 1982 murder of Vincent Chin is an iconic instance of racial conflation. Chin, a twenty-seven-year-old Chinese American, was killed in suburban Detroit by two White autoworkers, Ronald Ebens and his stepson Michael Nitz, who disparaged Chin as a “gook” while beating him with a baseball bat. Their subsequent defense was that they were upset by layoffs at a Japanese-owned auto plant.45 Ebens and Nitz were each given three years’ probation by a judge who explained, “These aren’t the kind of men you send to jail.”46 Since the 1990s we have seen Arab Americans and persons from a wide range of countries in the Middle East, North Africa, and South Asia collapsed into a racialized identity whose predominant feature might be described as “presumed terrorist.”47 In Olathe, Kansas, in February 2017, two individuals of Asian Indian descent were shot, one of them killed, by a man who “reportedly yelled ‘get out of my country’ and thought his victims were ‘Middle Eastern.’”48 This incident has eerie echoes of one that took place shortly after 9/11 when Kimberly Lowe, a young American Indian (Creek) woman, was killed in an Oklahoma “road rage” incident by young White men who were reported to have called Lowe and her companion “Arabs” and yelled at them to “go back to their country.”49 Racial conflation both perpetuates and masks the subordination of those deemed Other by allowing significant differences in the relationship of particular “subgroups” to settler society to be disregarded and, therefore, to remain unaddressed. Asian Americans are presumed to be economically and educationally advantaged, making it difficult to recognize that “eight of eleven Asian American ethnic groups are substantially more likely to live in poverty than the rest of the United States population.”50 Chicana/os who were crossed by the border are treated as “illegal aliens”; Puerto Ricans in New York or Florida are assumed to be voluntary migrants; and recent refugees fleeing violence in Central America are simply more “Hispanics.”

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Racial Manipulation Racialization facilitates the strategies used to create a pool of available labor and to subordinate and control that workforce. These methods have much in common with those used to exploit African Americans, but they also reflect significant differences arising from the settlers’ desire to ensure that migrant Others can be readily dispensed with when their labor is no longer needed. Racialization is also used manipulatively by stereotyping non-Indigenous, non-Afrodescendant peoples of color in purportedly positive ways. Thus, for example, there is a widespread public perception that Latina/os are hardworking, family-oriented, religious, and honest.51 Asians are supposed to be industrious, frugal, and loyal to their families, as well as studious, intelligent, and successful—stereotypes that undergird their status as the “model minority.”52 The phrase itself constructs Asian Americans in the middle tier of a racialized hierarchy. We are the “model”—presumably for other “minorities”—affirming the benefits of assimilationism, yet we remain a “minority,” a term that can only be construed to mean that race will always preclude full incorporation into settler society.53 As Kevin Hsu observes, “The legal, political, and economic policies of the United States have ‘modeled’ the minority community to fit a designed role,” that of “a population imported and racialized to fill niche labor markets while denied the opportunity for complete integration into the nation.”54 Purportedly positive stereotypes allow the failures of individuals or entire groups to be attributed to personal or cultural deficiencies rather than structural barriers. In 1984 President Reagan praised Asian Americans for preserving the American dream by furthering the “bedrock values” of the United States, including “tolerance, hard work, fiscal responsibility, cooperation and love.”55 The subtext of such messages is that “since model minority Asian Americans have succeeded, . . . African Americans [are] themselves responsible for their situation,” as law professor Neil Gotanda points out.56 In fact, the phrase “model minority” was coined by a demographer who critiqued anti-poverty programs by contrasting the “success” of Japanese Americans with the failure of “non-achieving” Black and Mexican Americans.57 As such, it was explicitly intended to draw distinctions among people of color in order to claim that socioeconomic disparities should not be attributed to racism. Attributing “good” qualities to a group negates claims of racial animus and gives the illusion that racialization is a matter of choice. Beydoun points out that contemporary Islamophobia starkly divides communities into “good Muslims,” who are willing to serve as informants, and “bad Muslims,” who take their religion too seriously and, therefore, are likely to sympathize with

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terrorists.58 This construction appears to eschew racism and xenophobia, but entirely disregards its imposition of performative requirements on a specifically targeted, intensely racialized segment of the population. Describing migrant Others in positive ways would appear to counteract demeaning forms of racialization, but, upon closer examination, we see that both types of characterization rely on the same underlying traits. “Hardworking” and “industrious” translate into unfair competition; close-knit and supportive families quickly become “clannish”; and what is attractive as mysterious or exotic readily transforms into the inscrutable or treacherous. Presuming Asian Americans to be particularly competent in math, science, and computer technology makes it easy for them to be perceived as threats to national security, as Chinese American scientist Wen Ho Lee discovered.59 Aoki perceptively noted that the yellow peril/model minority “bifurcation, far from being a polarization, [is] more akin to the paradoxical topology of a mobieus strip,”60 allowing both positive and negative attributes to be manipulated to serve larger social ends. Ultimately, as law professor Robert Chang says, “Race is what race does.”61

Assimilationism In light of the United States’ history of excluding migrant Others, it is somewhat ironic that assimilation has been and continues to be a primary strategy of subordination. Assimilationist measures have been less coercively imposed upon migrant Others than on Indigenous and Afrodescendant peoples. However, because the dominant narrative characterizes migrant Others as voluntary immigrants, conforming to mainstream “values” and practices becomes, in essence, the quid pro quo for their admission. The possibility of assimilation is extended to legitimate settler occupation and colonial expansion, to preclude critical analyses of why particular peoples may want or need to migrate, and to justify the apparently perpetual subjugation of communities of color within the United States. It attempts to erase the identities migrant Others bring with them—thereby nullifying their ability to become self-determining—and, at the same time, it is illusory, for racialization almost always precludes assimilation.

Assimilation as Conceptual Disappearance Assimilationist laws, policies, and presumptions permeate American society. When applied to more-or-less voluntary migrants they need not be justified in explicitly colonial terms, for the underlying assumption is that people are

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coming of their own free will to join an established society. This reinforces the settlers’ claims to have created a superior society and makes it appear reasonable to expect immigrants to embrace the dominant language, cultural expectations, historical narrative, and “values” identified as American. It is an ideology that obscures the realities underlying the choices migrants have made or had forced upon them.62 According to the Census Bureau, as of 2015, at least 350 languages are spoken in the United States.63 Nonetheless, since 1906, the ability to speak English has been a requirement for naturalized citizenship,64 and in 2017 a bill was introduced in Congress to make English proficiency a primary source of “points” in a purportedly merit-based immigration plan.65 As legal scholar Juan Perea observes, “Language, properly understood within historical context, is a symbol of political struggle, status, and domination and subordination,”66 for it shapes the ways we perceive and organize the world around us, and our relationships with others. Illustrating this point, psycholinguist Lera Boroditsky reports that in the Kuuk Thaayorre language spoken in northern Australia, cardinal directions identify all spatial relations, down to whether the fork is east or west of the knife.67 In this language, therefore, one cannot speak about any spatial relationship without being aware of one’s orientation to the broader natural world. Assimilation disappears the languages, cultures, histories, and epistemologies that diverge from those of the settler class. In discussing immigration quotas, Ngai observes that Europeans were classified as peoples with national origins, while migrants of color were simply members of racial groups.68 In other words, European immigrants were from somewhere, generally from identifiable nations sharing some common heritage with Angloamerican settlers. Non-European migrants, by contrast, come from nowhere, into a place where only what is here matters; their pasts are erased. That a refugee may be a physician or a physicist becomes irrelevant, invisible, to those who see only a taxi driver.69 By stripping people of their actual cultures and histories, assimilation renders them “transparent,”70 a variant of the conceptual displacement identified by Veracini as a typical settler colonial transfer strategy.71 The resettlement of Hmong refugees following the US war in Southeast Asia provides a particularly disturbing example of assimilationism at work. Beginning in 1961, Hmong men were recruited by the Central Intelligence Agency to serve as a “secret” army in Laos, where the United States could not legally engage in combat missions.72 By 1975 “more than one-third of the entire Hmong population in Laos had been killed in combat, including half of all the males over the age of fifteen.”73 Abandoned by the US military at the end of the war, many fled to refugee camps in Thailand, and eventually some

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130,000 Hmong were resettled in the United States.74 Hing emphasizes that “the Hmong left China in the nineteenth century to ‘resist assimilation,’ and they fled to the United States for the same reason. They came not only to save their lives, but also to save their Hmong ethnicity.”75 Nonetheless, as Hmong refugees arrived in the 1980s, the US government placed them in fifty-three cities, across twenty-five states, “spread like a thin layer of butter throughout the country so they’d disappear,” as one resettlement official put it.76 Dispersed without regard for the clan structure integral to their culture, the Hmong were told to learn English and find jobs, criticized for their dependence upon welfare, and then thrust into struggles to retain government assistance.77 Almost thirty years later, more than one-quarter of the Hmong population remained in poverty.78 The Hmong were depicted in the media as being “from the Stone Age” and “offensively selective” in adapting to American culture; according to Senator Alan Simpson, they constituted “the most indigestible group in society.”79 Such characterizations reflect some of the primary tenets of assimilationism. One is that the United States represents the apex of civilization, while those who cling to traditional ways of organizing their lives and societies are relics of a primitive past. Another is that migrants, regardless of why they are present on this soil, are not permitted to be selective in cultural adaptation, or to retain aspects of their identity at odds with mainstream practices or presumptions. Instead, they should be fully “digestible”; their purpose is to nourish settler society, not to change it.

Assimilation as Illusion Assimilationist ideology is a key component of the settler narrative, reinforcing the false perception that the colonists achieved their wealth and power on their own and discouraging migrant Others from considering the troubling implications of their role in the ongoing occupation of Indigenous lands. Proponents of assimilation frame it as a matter of choice and effort on the part of those considered outsiders.80 However, as Veracini observes, “absorption and assimilation are not the same: one focuses on the settler entity, the other on the indigenous [or, in this case, exogenous] collective.”81 Successful assimilation requires not only the willingness and ability of the Other to conform to settler expectations but—crucially—a desire on the part of settler society to accept and absorb the Other. Settler states have incorporated certain external constituencies; one could argue, for example, that this—eventually—occurred with respect to Irish immigrants to the United States.82 However, settler privilege cannot be maintained without the dynamic of difference that justifies privilege and is

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inevitably racialized. Assimilation purports to be about language, beliefs, culture, behavior—characteristics that, theoretically, can be altered—but race is conceived as an immutable characteristic.83 This allows barriers to be erected on the basis of assimilation, and enforced on the basis of race. Illustrating this point, there was much debate within Congress about granting statehood to New Mexico because of its predominantly Mexican population. One senator declared in 1903, “We want the whole of [this country] a homogeneous, Anglo-Saxon, English-speaking people; and so long as any portion . . . is in that un-American condition . . . it ought to remain in a state of pupilage.”84 “Pupilage” invokes colonial notions of “uplifting” the less-civilized, and it also implies that the deficiencies at issue can be resolved by education or acculturation. But clearly there was nothing the Mexican residents of the territory could do to become “Anglo-Saxon.” As a result, New Mexico became a state only after Anglo settlers constituted a majority of its population.85 The Supreme Court’s justification for excluding Chinese migrants reflects a similarly racialized construction of assimilability. In the 1893 Fong Yue Ting case, it allowed exclusion on the basis of the government’s determination “that the presence within our territory of large numbers of Chinese laborers, of a distinct race and religion, remaining strangers in the land, residing apart by themselves, tenaciously adhering to the customs and usages of their own country . . . might endanger good order, and be injurious to the public interests.”86 The Chinese had, of course, been socially constructed as “strangers” by segregated schools and housing, restrictions on landownership, anti-miscegenation laws, preclusion from naturalized citizenship, and an environment of racialized hostility.87 But even had this not been the case, had they been willing to abandon their “customs,” there was nothing they could do to avoid being identified as “a distinct race.”88 In 1923 Bhagat Singh Thind argued to the Supreme Court that as a “highcaste Hindu” he was of the “Aryan” or “Caucasian” race and, therefore, should be eligible for naturalized citizenship. The Court quickly clarified that “the original framers of the law . . . intended to include only the type of man whom they knew as white.”89 This, it noted, initially meant those “from the British Isles and Northwestern Europe,” but had been extended to eastern and southern Europeans because they “were received as unquestionably akin to those already here and readily amalgamated with them.”90 Their children would “quickly merge into the mass of our population,” but this could not happen to those of “Asiatic stock” because “it cannot be doubted that the children born in this country of Hindu parents would retain indefinitely the clear evidence of their ancestry.”91 The Court thus declared certain immigrants inassimilable

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on the basis of race and projected this inassimilability onto future generations who would have birthright citizenship.92 Assimilationism is thus a strategy of structural subordination. It is socially and politically required of migrant Others, who are expected to eschew their languages, histories, and cultures in order to become “American.” It is simultaneously precluded by racialization.93 As the Supreme Court made clear in Thind, assimilation is not contingent upon the qualities or actions of those deemed Other but on the willingness of the dominant society to accept them. It is not a question, the Court said, of “racial superiority or inferiority” but “merely racial difference . . . of such character and extent that the great body of our people instinctively recognize it and reject the thought of assimilation.”94

Strategies of Subordination We turn now to some of the specific ways in which settler society has attempted to disempower migrant Others. Sometimes these can be recognized as variants of the strategies utilized to eliminate or subjugate Indigenous and Afrodescendant peoples, while others are quite distinct. Most notably xenophobia—the denigration, mistreatment, or exclusion of peoples based upon their perceived “foreignness”—is incorporated, consistently, into the racial subordination of migrant Others.95 There is tremendous variation in how any given strategy affects a particular community, but patterns emerge to highlight the structural relationships and dynamics intended to keep these communities of color “in their place,” literally and conceptually.

Property Ownership Mexican Land Grants The annexation of northern Mexico dramatically expanded the United States’ land base and imposed an individualized notion of alienable property rights “upon a land-dependent culture in which common land ownership was vitally important to the community’s continued survival.”96 The Treaty of Guadalupe Hidalgo promised that Mexican property rights under both private and communally held grants would be “inviolably respected,” but the grants had to be “confirmed” through an almost insurmountably complicated legal process.97 The result, as noted by a California federal court in 1885, was that “our people [i.e., White settlers] coming from the states east of the Rocky mountains very generally denied the validity of Spanish grants, and . . . determining the rights of the holders for themselves, selected tracts of land wherever it suited their purpose, without regard to the claims and actual occupation of holders under Mexican grants.”98

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Anglo ranchers, speculators, lawyers, banks, and corporate interests drove so many Mexican owners off their lands that “by 1930, Mexican-Americans, through legal defeat, fraud, or financial exhaustion, had been all but wiped out as a landholding class in the Southwestern United States. Their transformation from masters into servants had been completed, and set the stage for a new chapter in US-Mexico relations: the exploitation of low-wage, migratory Mexican and Mexican-American labor.”99

Alien Land Laws “Alien land laws” used the racial restriction on naturalized citizenship to preclude Asian immigrants, particularly the Japanese, from owning or leasing land.100 In 1913 a California statute prohibited the ownership of real property by “aliens ineligible to citizenship,” and restricted agricultural leases to terms of three years.101 In 1920 additional legislation made it almost impossible for such immigrants to buy or lease land in the name of their US-born children.102 As the California attorney general explained, these laws were based on “race undesirability,” and were premised on the belief that the Japanese would not come to or stay in the United States in large numbers if they could not acquire land.103 Similar laws were enacted in Washington, Arizona, Oregon, Idaho, Nebraska, Texas, Kansas, Louisiana, Montana, New Mexico, Minnesota, and Missouri. From 1910 through the 1920s, these statutes survived constitutional challenge in state and federal courts, including the US Supreme Court.104 According to Aoki, alien land laws “set the stage for the internment and dispossession of Japanese and Japanese Americans during World War II,” by creating “a ‘caste’ of less-than-worthy persons occupying land at the pleasure of white ‘owners,’” and “ideologically affirming [their] ‘foreign-ness,’ and hence, ‘disloyalty.’”105 As late as 1943, Arkansas passed legislation providing that “no Japanese or descendant of a Japanese shall ever purchase or hold title to any lands in the State of Arkansas.”106 Although these laws became unenforceable in the early 1950s,107 settler resistance to property ownership by migrants of color is illustrated by the fact that there are still ongoing battles over the removal of such provisions from state constitutions.108

Spatial Containment Like African Americans, who were included to the extent necessary to ensure their labor but otherwise excluded from settler society as much as possible, migrant Others have long been geographically contained. Thus, for example,

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an 1890 San Francisco ordinance delineated portions of the city and county where Chinese people would be allowed to live and conduct business, and required “all Chinese” located elsewhere to move, on pain of criminal conviction and imprisonment for up to six months.109 Asian immigrants, and often Mexicans, were restricted by law, custom, and violence to racially segregated and, consequently, overcrowded housing districts and, later, subjected to covenants restricting the sale or rental of residential property.110 “Strict containment policies were enforced against Chinese immigrants in geographic, labor/employment, educational and social zones through zoning, anti-miscegenation [laws], licensing and establishment of segregated schools,” and these tactics were used against other peoples of color as well.111 As noted earlier, in 1942 all Japanese Americans on the West Coast were forced to abandon their homes, farms, and businesses; store or sell their possessions on a few days’ notice; and report for “relocation” with only what they could carry. They were tagged with numbers and taken under armed guard to “assembly centers” where they were housed in horse stalls or makeshift barracks.112 From there they were shipped through the desert to ten concentration camps in the interior, where most were held for the duration of the war.113 The internment was largely motivated by organizations such as the Native Sons of the Golden West, a group dedicated to preserving California “as it has always been and as God himself intended it shall always be—the White Man’s Paradise.”114 As clearly stated by the California Grower-Shipper Association in January 1942, “It’s a question of whether the white man lives on the Pacific Coast or the brown man. They came [here] to work, and they stayed to take over.”115 These were not fringe groups but very much of the mainstream, as reflected by the fact that Earl Warren—California governor and future chief justice of the Supreme Court—was a member of the Native Sons and worked hard to convince Congress to evacuate everyone of Japanese descent from the West Coast.116

Population Control Throughout US history the settler class has attempted to regulate all populations under its claimed jurisdiction. American Indians were subjected to strategies of elimination ranging from mass murder to involuntary sterilization; African Americans were forced to reproduce for slaveholder profit and, more recently, subjected to sterilization and coerced birth control. Not surprisingly, other peoples of color have been targeted by forced sterilization programs as well. In the 1930s the US government instituted a population

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control program in Puerto Rico; by the mid-1960s about one-third of all Puerto Rican women of childbearing age had been sterilized, and Latinas and Latinos in New York and California were also targeted.117 From 1909 through the 1970s, some twenty thousand people were sterilized in state-run institutions in California alone, accounting for about one-third of the sterilizations officially acknowledged across the country. Mexicans and Mexican Americans, particularly youth between the ages of fifteen and twenty-four, were the primary focus in California.118 Population control was also achieved, of course, by the state’s use of its power to exclude. Expansion or reproduction of the Chinese population was largely precluded by both exclusion and anti-miscegenation laws and, for some eight decades following exclusion, the resident Chinese population was reduced by about one-half.119 Political pressure from “nativists”—that is, White settlers who viewed the United States as their country—resulted in the mass deportations of Mexicans and Mexican Americans during the 1930s.120 In 1954, hundreds of thousands of Mexican migrants and Mexican Americans were again rounded up and deported and, since then, smaller raids have occurred whenever politicians deem it expedient.121 As of 2011, “Latinos comprise[d] 97 percent of all forced removals and deportations from the United States” and, although perhaps half of unauthorized immigrants were from Mexico, “Mexicans alone comprise[d] 75 percent of the total.”122

Criminalization Foreignness signifies a socially illegitimate presence that is easily conflated with unlawful presence and criminality. Moving along a parallel trajectory, foreign equates to not-American, which easily converges with un-American and converts the racial Other into “the enemy.”123 Enemies do not have the same rights as “real” Americans, are not subject to the same laws, and may be legitimately surveilled, rounded up, interned, deported, and even killed. All of these dynamics can be seen in the subordination and exclusion of migrant Others.

Presumptions of Criminality In the late nineteenth century, the popular media—most notably William Randolph Hearst’s newspapers—depicted the Chinese, as well as immigrants more generally, as threats to public health and welfare. Chinatowns were portrayed as “teeming containment zones of unbridled lawlessness, licentiousness, and unchecked evil,” complete with “opium smoking, gambling, prostitution, rats, and honeycombs of secret underground tunnels.”124 Since

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then, the violence inherent to colonial invasion and occupation has been submerged in a narrative that projects Mexican, Central American, Puerto Rican, Filipina/o, and Southeast Asian youth, particularly young men, as gang members and, therefore, inherently criminal.125 The incarceration rate of Asian Americans and Pacific Islanders “quadrupled between 2000 and 2010, and disaggregated data shows that certain Asian subgroups, such as Southeast Asian Americans and Pacific Islanders, are arrested and incarcerated at much higher rates than average.”126 Similarly, in popular culture, Mexican history has been reduced to images of “a violent, barbarous, and ferocious Latino bandido,” and film portrayals of Latinos are “saturated with images of gangs, prisoners, drug dealers, wife abusers and other violent characters.”127 “Legal” immigration has been reduced far below the perceived labor needs of the agricultural and service sectors. When combined with the adverse effects of political turmoil and displacement, as well as economic agreements such as NAFTA, this has resulted in a dramatic increase in the number of undocumented migrants in the United States.128 Legal scholar Daniel Ibsen Morales notes that although the removal of national origin quotas in 1965 “ensured that the future face of the United States would be decidedly multiracial,” its “simultaneous abandonment of the long-standing policy of unlimited Western Hemisphere immigration ensured the hardening of the social and legal association of criminality with the ‘Mexican.’”129 In turn, “the connection between race and criminality negatively marks immigrants of any status who are non-white . . . because the construction of the Mexican conflates the basic concept of racial difference with immigrant criminality.”130 In 2012, for example, over 70 percent of people of Mexican origin in the United States were US citizens. However, almost one-third of “non-Hispanic” Americans believed that a majority were not only immigrants but undocumented.131 This presumption of illegal presence furthers cultural, economic, and political subordination and encourages racial profiling in law enforcement. Thus, in a 1975 opinion that is still “good law,” the Supreme Court stated that although individuals cannot be stopped for immigration checks solely because they appear to be Mexican, “the likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor” in justifying such stops.132

Threats to National Security Because Whiteness is so closely correlated with the settlers’ conception of the United States, racialized Others pose a threat to the state simply by their

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existence. As put by one senator during the 1882 debates on Chinese exclusion, “Free institutions are only possible with the favored races.”133 With American “freedom” thus endangered by the Other, immigration exclusion was a logical extension of the settlers’ justification for appropriating the land in the first place. Discussing Chinese exclusion, a former governor of New York said in 1870, “Today we are dividing the lands of the native Indians into states, counties, and townships. . . . We tell them plainly, they must give up their homes and property, and live upon the corners of their own territories, because they are in the way of our civilization. If we can do this, then we can keep away another form of barbarism which has no right to be here.”134 The construction of foreignness as a racial attribute attached it, irrevocably, to human bodies, and this meant that those bodies would always be suspected of having loyalties to states, religions, or entire civilizations viewed as threatening to the American settler colonial project. Thus, in the 1870s Henry George described the “Mongolians on our Western coast” as the beginnings of an influx that had to be checked to avoid “the doom of Babylon, Nineveh and Rome.”135 In 1944 the Supreme Court justified its support for the Japanese American internment by claiming that Fred Korematsu “was not excluded from the Military Area because of hostility to him or his race [but] because we are at war with the Japanese Empire.”136 Today we see the nexus of race, foreignness, and national security playing out in debates about immigration and law enforcement. In 2015 Trump began his presidential campaign by announcing that Mexicans are “bringing drugs, they’re bringing crime, they’re rapists,” and his solution was to “build a great, great wall on our southern border.”137 In the same vein, over the past several decades we have seen a dramatic surge in the conflation of persons from the Middle East, Arab Americans, and Muslims and their racialization as “terrorists,” that is, foreign, disloyal, and imminently threatening.138 According to Beydoun, under the Countering Violent Extremism (CVE) policing programs initiated by the Obama administration in 2011, the only way for Muslims to avoid being treated as a threat is to disavow and apologize for every violent act committed by any Muslim, anywhere, and to inform on other Muslims. One who refuses to become an informant, or who simply demonstrates a renewed interest in one’s faith, is “vulnerable to identification as a bad Muslim, followed by the surveillance and state violence [that attend] that classification”;139 there need be no evidence of actual criminal conduct.140 Criminalization allows the settler state to maintain its carefully cultivated reputation for racial tolerance and the protection of civil rights, while blaming immigrants for a range of social disorders. “Marking people with crimi-

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nal status allows a state that has professed a commitment to cosmopolitan human rights to limit its obligations to a large group of outsiders,” Morales notes.141 As an added benefit, “the taint of criminality silences this group of immigrants[,] forcing them to hide at the margins of society, rendering them a maximally pliable labor force. During economic booms, their fear of enforcement facilitates third-world labor standards. . . . During economic downturns . . . enforcement can rise without any cognizable legal problem; the immigrants are ‘criminals.’”142

Violence and Intimidation The combination of legal subordination and racially constructed public (mis) conceptions has fostered violent attacks on Latina/os and Asian Americans since the mid-nineteenth century. As with Indigenous and Afrodescendant peoples, such violence is intended to keep them “in their place,” both psychologically and physically. The fact that the settlers may quite literally be in their space has not diminished such attacks and may, in fact, exacerbate the settlers’ need to assert their claims. Much of the early violence in the West targeted Mexican miners, especially in California, while in Texas and New Mexico conflicts over landownership, grazing rights, local political power, and perceived labor competition often motivated the attacks.143 Mexicans were frequently lynched as “the Anglos who poured into Texas and the rest of the Southwest brought their apparatus of racial terror, developed to hold the African-American people in bondage, to the newly conquered territories.”144 According to historians William Carrigan and Clive Webb, between 1848 and 1928, “vigilantes hanged, burned, and shot thousands of persons of Mexican descent” at a rate “comparable, at least on a per capita basis, to the mob violence suffered by African Americans.”145 In 1871 hundreds of White residents descended on the downtown Los Angeles neighborhood where most of the city’s 170 Chinese immigrants lived, setting fire to their homes and businesses. As the residents fled, “members of the mob shot them dead or carried them to makeshift gallows,” ultimately killing at least eighteen people.146 Throughout the 1880s, Chinese workers were lynched and murdered, their houses and personal property destroyed, and the survivors expelled from settlements in Idaho, Wyoming, Colorado, Oregon, Washington, and California.147 Between 1907 and 1909, White mobs drove immigrants from India out of farming and lumber towns in California, Oregon, and Wyoming.148 In Bellingham, Washington, some five hundred men attacked Asian Indians working in the lumber mills, setting fire to their bunkhouses and forcing them to flee to Canada. “Within ten days, a local

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newspaper reported, the community of a few hundred Indians had been successfully purged, ‘wiped off the map.’”149 A few years later, Korean workers were driven out of Hemet, California, by a mob of angry White workers, and there were similar attacks against Filipina/os in the 1920s and 1930s.150 While mob violence on this scale subsided in subsequent decades, violent hate crimes, including murders, persist well into the twenty-first century.151 During the 1980s there was a sharp rise in racially motivated crimes. Thus, for example, in 1981 the Ku Klux Klan launched attacks intended to drive Vietnamese fishermen away from the gulf coast of Texas.152 In 1987 Navroz Mody was beaten to death in Hoboken, New Jersey, by a gang of youth chanting “Hindu, Hindu”; in Jersey City, a local newspaper published a letter from the “Dotbusters,” who promised to attack Asian Indians on the street or at home. “We use the phone book and look up the name Patel,” they said. “Have you seen how many there are?”153 Hate crimes against Latina/os increased in 2007, as the housing bubble burst and the economy went into serious recession,154 and there was another sharp rise in the immediate aftermath of the 2016 election.155 Following the attacks on the Pentagon and World Trade Center in 2001, persons who appeared to be Arab, Middle Eastern, or South Asian were targeted, and there was an even higher level of racial violence against these groups in 2015 and 2016.156 Many immigrants, like people of color more generally, have had negative encounters with law enforcement, and are reluctant to report hate crimes. This, in turn, empowers White residents who are emboldened by the belief that they can act with impunity, much as they could when people of color were not able to testify against them in court. Violence is clearly employed to keep migrant Others “in their place,” but equally it seems to be saying, “Go back, go back to wherever it was you came from, because you do not belong here.” It is an assertion of the settlers’ “right” to a racial state of their own creation, as initially envisioned by its founders. Lisa Lowe reminds us that “the operations that pronounce colonial divisions of humanity—settler seizure and native removal, slavery and racial dispossession, and racialized expropriations of many kinds—are imbricated processes, not sequential events; they are ongoing and continuous in our contemporary moment, not temporally distinct nor as yet concluded. To investigate modern race is to consider how racial differences articulate complex intersections of social difference within specific conditions.”157 With that appreciation of the complexities in mind, this chapter has focused on a “broad brush” analysis of the strategies used to subordinate and manipulate migrant Others in the United States because we have been racialized in ways that lead to our conflation and because there is much to be learned from the broader

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context of racism and xenophobia in which our particular identities and histories have evolved. The Census Bureau predicts that by 2050, 30 percent of the US population will be “Hispanic” and almost 10 percent Asian American or Pacific Islander.158 As more of American society is composed of those racially constructed as neither White, Black, nor Indigenous, we can expect to see shifts in the realities of life across communities of color, in relationships between racial and ethnic groups, and in the strategies deployed to maintain an economic and political status quo privileging those who see themselves as the rightful beneficiaries of settler privilege. This transition will likely be fraught with contradictions. On one hand, the harshly anti-immigrant, anti-Muslim rhetoric used by Donald Trump in his presidential campaign appears to have been accepted, even strongly supported, by a significant portion of the White population in the United States, signaling the likelihood of continued backlash against migrant Others.159 On the other hand, these demographic shifts may enable more people of color to participate in the fruits of American settler colonialism. While I do not consider the Japanese American “success” story in Hawai‘i to be representative of the broader relationship between Asian Americans and White settlers, it illustrates that under certain circumstances, migrants of color can indeed become the functional equivalent of Euroamerican colonizers.160 This does not mean that racism will cease to be a driving force of American settler colonial institutions; that people of color, in general, will ever be fully incorporated into settler society; or that this will cease to be a colonial occupation of Indigenous lands. Altering the face, so to speak, of American settler colonialism will not change the underlying structural dynamics that perpetuate hierarchies of racialized privilege and subjugation. The point of developing analytical tools that explain the dynamics of racial, economic, and political domination is to enable us to envision and implement more effective strategies of resistance and transformation. In this process, law is tremendously influential because it has always facilitated settler strategies of elimination and subordination, yet it is also offered and generally accepted as a path to racial justice. Law will not liberate us, but it may, at times, serve as a tool of decolonization. In the following chapters we turn to the constraints placed on legal remedies for racial justice within US constitutional law, and the potential—as well as limitations—of emerging frameworks of international law.

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Constitutional Protection and the Dynamic of Difference The power to acquire territory  .  .  . implies, not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be in what Chief Justice Marshall termed the “American empire.” —Downes v. Bidwell

In contemporary American culture, it is almost axiomatic that full incorporation of the population under US jurisdiction into the settler state is the intended result of constitutionally recognized civil and political rights, as well as the aspirational goal of people of color. It is presumed that any vestiges of discriminatory treatment are best addressed through legal enforcement of the Constitution’s guarantees of due process and equal protection, and that assimilation will overcome any remaining limitations imposed as a result of perceived difference. This is not incompatible with an understanding of the United States as an ongoing colonial enterprise. Settler colonialism “covers its tracks,” notes Lorenzo Veracini, referring to the settler colony’s drive to “effectively repress, co-opt, and extinguish indigenous alterities, and productively manage ethnic diversity.”1 Thus far, however, American settler colonialism has not succeeded in superseding itself in this manner. The dynamic of difference characterizes not only racial attitudes and social relations, but US law as well. While the legal system is expected to shore up the ideological justifications of settler society—the “American values” of freedom, democracy, and individual rights—it is simultaneously responsible for sustaining the settler class’s territorial claims and the relationships of privilege and subordination that ensure its control of political, economic, and social institutions. Nonetheless, collectively, for a century and a half, we have been invoking the Constitution’s promise of equal protection to remedy the structural racism we encounter on a daily basis. This chapter addresses why struggles to implement formal guarantees of equal protection have failed and will continue to fail to ensure racial justice. First, it notes the wide range of peoples excluded from constitutional protection by virtue of the plenary power doctrine, a legal theory designed to protect explicit assertions of co154

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lonial authority. Second, it argues that even when constitutional protections are available, they have been interpreted and enforced in formalistic ways that both require and preclude assimilation, thereby facilitating the dynamic of difference. The chapter concludes by observing that even if assimilation under conditions of racial equality were possible, it would come at the cost of eliminating Indigenous identity and rights, as well as the right of all other peoples to self-determination. At best, it would ensure the domestic consolidation of settler society, without dismantling its colonial foundations or limiting the global reach of its economic, political, or military ambitions.

Plenary Power The Supreme Court has simply decreed that constitutional protections do not apply to very broad and significant sectors of the population over whom the United States asserts jurisdiction.2 Instead, it has allowed the political branches of government—Congress and the executive branch—to exercise raw colonial power over American Indian nations, immigrants, and residents of unincorporated territories. The theory it invokes in doing so is known as the plenary power doctrine, under which the Court has said the federal government can exercise plenary—full or complete and, therefore, unchallengeable—authority in these realms.3 Early Angloamerican settlers understood that their ability to establish an independent state was dependent upon acknowledging the sovereignty of American Indian nations and negotiating treaties with these nations. The sovereignty of American Indian nations, and their concomitant capacity to enter into international relations with European states, was clearly acknowledged by the British, French, Dutch, and other colonial powers and by the United States in its formative years. Employing the analytical method utilized by the International Court of Justice in its 1975 Western Sahara advisory opinion, international legal scholar Howard Berman has painstakingly documented a consistent pattern of diplomatic relations and treaty making, extending over some two centuries, that demonstrates not only that the Indigenous nations at issue regarded themselves as independent sovereigns, but that they were recognized as such by the European powers and by the United States.4 Thus, the United States initially “enter[ed] into treaties of friendship and alliance on a perfectly level playing field with . . . Indian nations[,] . . . extending to them the same courtesies as to other nations of the then overwhelmingly European international legal order.”5 This changed, however, as the Angloamerican settlers consolidated their occupation and their military strength. They had arrived with a presumed

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entitlement to control not only the lands at issue but also the structures of institutional power, and fully intended to exercise this “right.” By the 1830s the Supreme Court had unilaterally declared all American Indians to be “domestic dependent nations” whose relationship to the United States was that of a “ward” to a “guardian.”6 This assertion was more formally articulated in 1903, with the Court’s clearly counterfactual statement that “plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government.”7 Invoking this rationale, the Supreme Court upheld the 1885 Major Crimes Act, which gave federal courts exclusive jurisdiction over serious criminal offenses committed on reservations. While acknowledging that the Constitution does not delegate authority over American Indians to the federal government, the court in essence decided that such power must be inherent to colonial rule, citing to Justice Marshall’s earlier declaration that “the right to govern may be the inevitable consequence of the right to acquire territory.”8 The Supreme Court also relied on the plenary power to uphold the 1887 Allotment Act, which converted collectively held Indian lands into individual parcels and allowed “surplus” land to be transferred to White settlers, despite the fact that the law violated both the due process clause of the Fifth Amendment and the explicit terms of an 1867 treaty.9 This judicial doctrine has since been used to allow Congress and the executive branch to engage in otherwise unconstitutional actions against American Indian nations with no semblance of judicial restraint.10 It has resulted, for example, in generations of American Indian children being forced into abusive “boarding schools,”11 and the Interior Department’s inability to account for more than $100 billion it confiscated and held “in trust” for individual American Indians.12 As Philip Frickey notes, the “practical effect” of federal Indian law “has been to legitimate the colonization of this continent—the displacement of its native peoples—by the descendants of Europeans.”13 Since its “acquisition” of the Philippines, Puerto Rico, and Guam from Spain in 1898, the United States has also exercised jurisdiction over “unincorporated territories” without extending constitutional protections to their inhabitants. Confronted with the question of whether the “Constitution follows the flag” in the 1901 Downes v. Bidwell case, Justice Brown opined for the Court that it did not, for “the power to acquire territory by treaty implies, not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be.”14 He acknowledged that “many eminent men” feared that allowing Congress such “unrestrained” power could lead to “despotism,” but countered these fears

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with the assurance that “there are certain principles of natural justice inherent in the Anglo-Saxon character, which need no expression in constitutions or statutes to give them effect or to secure dependencies against legislation manifestly hostile to their real interests.”15 Extending the rationale used to claim jurisdiction over American Indian nations to external colonies, Justice White declared in his concurring opinion that the colony of Puerto Rico “was foreign to the United States in a domestic sense.”16 This description is still accurate after a century of US rule, as Puerto Ricans still have no representation in Congress, only qualified citizenship, and no right to determine their own political status.17 Similarly, the Northern Mariana Islands, the US Virgin Islands, and American Samoa are not recognized as independent states or as states of the union, and their residents remain subject to the plenary authority of the US government.18 Since the 1880s, the plenary power doctrine has been relied upon to protect the settlers’ assumption of control over who could enter or reside within their claimed territorial boundaries. In 1889 a Chinese permanent resident challenged a law, passed in his absence, that prevented his reentry into the United States solely because of his national origin. The Supreme Court refused to assess his claims under either the Fifth Amendment’s guarantee of due process or the provisions of the Burlingame Treaty that recognized the “inherent and inalienable right of man to change his home and allegiance, and . . . the mutual advantage of free migration.”19 Instead, the Court held that because “the last expression of the sovereign will must control,” Congress’s “determination is conclusive upon the judiciary.”20 The plenary power doctrine continues to be the foundational principle of US immigration law.21 Since the Cold War it has been invoked to allow the indefinite detention of those whom the government wished to deport, but have nowhere to go.22 It has allowed the interception of Haitians and other asylum seekers on the high seas, as well as their offshore detention,23 because persons not yet “admitted” to the territory “have no constitutional rights with regard to their applications, and must be content to accept whatever statutory rights and privileges they are granted by Congress.”24 This assertion of power permits the indefinite detention of undocumented migrants, as well as the increasingly harsh policies we have seen under the Obama and Trump administrations.25 In combination with the state’s claim to plenary authority over unincorporated territories, it has also been used to justify the United States’ failure to provide detainees at Guantánamo Bay with otherwise applicable legal or constitutional protections.26 Contemporary legal decisions may employ more sanitized language and count on layers of precedent to mask their underlying reasoning, but the ju-

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diciary’s continued reliance on the plenary power doctrine puts us on notice that only the “principles of natural justice inherent in the Anglo-Saxon character” stand between those deemed Other and “manifestly hostile” state action.27 The government may choose to extend certain rights or privileges when politically expedient, but it does so only as an exercise of its own prerogative, not because it recognizes an obligation to do so. This is, in many respects, the settler equivalent to the imposition of dual legal systems in classic colonial societies.28 While constitutional protections may be utilized to alleviate injustice or enhance equal treatment among those who have been fully incorporated, voluntarily or involuntarily, into the settler polity, the judiciary will not interpret the Constitution to limit, to any significant degree, the settlers’ claimed prerogative to occupy lands—including external colonies—and to appropriate their resources, to erase Indigenous sovereignty, or to determine who may enter or remain on those lands. Regardless of how reasonably, equitably, or effectively constitutional principles may be applied to some sectors of the citizenry, the plenary power doctrine ensures that underlying colonial structures remain intact.

Constitutional Equal Protection The triumphalist narrative of American legal history generally moves from the Constitution as originally framed, with its articulation of a broad range of rights for a limited sector of the population and its protection of the institution of slavery, to the Reconstruction Amendments, which abolished slavery, instituted birthright citizenship, guaranteed equal protection under law, and prohibited racial discrimination in voting rights. The subsequent century of legalized apartheid is portrayed as a transitional phase leading to the civil rights era, which ensured the implementation of these rights through judicial decisions and legislation. Viewed through this lens, the law may once have been a tool of racialized subordination, but it has evolved into a tool of emancipation. Any disparities in its enforcement, or in access to social resources more generally, are attributable either to vestigial prejudice or the failure of racial “minorities” to take advantage of the opportunities now available to them. The problem with this narrative—like that of the Angloamerican origin story more generally—is that it fails to account for the persistent patterns of exclusion, elimination, and subordination throughout US history, and the reality that racial disparities in income, wealth, housing, education, employment, access to healthcare, and incarceration rates have not diminished significantly since legalized apartheid was abolished. This tells us that we

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need to scrutinize the common presumption that the Fifth and Fourteenth Amendments’ guarantees of due process and equal protection are viable tools for dismantling racial hierarchy. A brief review of key legal decisions implementing these constitutional provisions, as well as legislation purporting to protect civil rights, illustrates that the legal system—and sometimes anti-discrimination law itself—continues to be used to maintain structural inequality.29 The Civil Rights Act of 1875 prohibited private owners of public accommodations from discriminating on the basis of race, but significant portions of the act were soon declared to be unconstitutional.30 In the Civil Rights Cases of 1883, the Supreme Court refused to extend the protections of the Fourteenth Amendment to private actors, announcing instead that it was time for former slaves to “cease[] to be the special favorite of the laws.”31 “Just eighteen years after the end of slavery . . . the Supreme Court was ready to declare that US society was ostensibly post-racial,” Mario Barnes, Erwin Chemerinsky, and Trina Jones observe.32 Shortly thereafter, in Plessy v. Ferguson, the Court found “separate but equal” accommodations—in other words, legally mandated apartheid—to comport with the constitutional guarantee of equal protection.33 As succinctly summarized by Justice Powell in Regents of the University of California v. Bakke, a landmark challenge to affirmative action in college admissions, for all practical purposes the Equal Protection Clause had been “‘strangled in infancy.’”34 During and immediately after World War II, the Supreme Court confronted a constitutional challenge to the mass internment of US citizens of Japanese descent. In Korematsu v. United States, the Court declared laws restricting civil rights on the basis of race to be “immediately suspect,”35 thus introducing the requirement of “strict scrutiny” of race-based classifications into American jurisprudence. Despite its claim to be rigidly scrutinizing mass incarceration on the basis of race, however, the Court upheld the internment, accepting at face value the government’s assertion that it was necessary for the national security.36 In 2018 the Supreme Court upheld the third iteration of President Trump’s “travel ban” restricting entry into the United States from eight specific countries, finding it to be well within the authority delegated to him by Congress.37 Justices Sotomayor and Ginsburg, dissenting, argued that there were “stark parallels” between the majority’s reasoning and the Korematsu opinion, citing the Court’s willingness to ignore “strong evidence” of “impermissible hostility and animus” in deferring to the government’s invocation of “an ill-defined national-security threat.”38 Rejecting this accusation, Chief Justice Roberts’s majority opinion insisted not only that Korematsu “has nothing to do with

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this case,” but that it “was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—‘has no place in law under the Constitution.’”39 The Trump v. Hawaii opinion does not use the term “plenary power” but relies on the reasoning and precedent of the plenary power cases, citing directly to one of the Haitian interdiction cases in explaining its holding.40 It is notable that the chief justice felt compelled to renounce a decision that has long been criticized for racially discriminating among US citizens, while upholding a racially suspect policy on the basis of a doctrine that expressly relies upon the unchallengeable power of the settler state. In Brown v. Board of Education, decided a decade after Korematsu, the Supreme Court used evidence of the effects of segregation on Black school children to overturn Plessy and to unanimously declare segregated schools to be inherently unequal. But the justices did not address the history of racism in this country, instead characterizing legalized apartheid as aberrational. Noting in a companion case to Brown that “classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect,”41 they perpetuated what federal appellate judge A. Leon Higginbotham Jr. subsequently characterized as an “unspoken pact of convenient myth.”42 Since Brown, the Court has employed strict scrutiny not only to strike down overtly discriminatory laws, such as those prohibiting miscegenation,43 but also, and increasingly, laws or policies intended to remedy historic racial inequities by some variant of what is commonly termed affirmative action.44 The presumption in this line of equal protection cases is that race should not matter.45 As a result, the principle that law should not be used to exclude or disadvantage people on the basis of race or ethnicity has been transformed into an ahistorical proposition that does not allow for the recognition of any privilege that White people, collectively, have accrued over several centuries of institutionalized racism.46 This is reflected in Justice Powell’s assertion in Bakke that “‘societal discrimination’ does not justify . . . impos[ing] disadvantages upon persons . . . who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.”47 Those who have historically benefitted from White privilege are, individually, “innocent.”48 As Cheryl Harris explains, they have accrued a property interest in Whiteness, and any attempt to dispossess them of its advantages becomes a taking.49 The Supreme Court’s erasure of this country’s history of state-enforced racism has been so consistent that in 1989, dissenting in a case involving racially discriminatory hiring in the fish canning industry, Justice Blackmun publicly questioned “whether the majority still believes that race discrimination—or

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more accurately, race discrimination against nonwhites—is a problem in our society, or even remembers that it ever was.”50 The judiciary’s interpretation of the right to equal protection has freed the settler class from any collective legal responsibility for its consequences, and allowed the judiciary to limit redress to cases in which individuals of any “race” can demonstrate that they have been denied equal treatment as the direct result of racial animus.51 Judicial remedies for wrongs resulting from the most ingrained—that is, unconscious—racial biases continue to be constricted, even in the face of overwhelming evidence of racial disparities.52 In 1976, in Washington v. Davis, the Court rejected the claims of Black plaintiffs who demonstrated that four times as many Black applicants as White applicants failed a test used to employ police officers in the District of Columbia, and since then it has insisted that equal protection claims based on disparate impact without proof of discriminatory intent will be subject only to rational basis review, not strict scrutiny. Increasingly, even under Titles VI and VII of the Civil Rights Act of 1964—provisions that allow consideration of disparate impact in federally funded programs and in employment— claimants are being required to offer proof of causation in addition to evidence of racial disparity.53 In 2015 the Supreme Court narrowly upheld disparate impact liability under the Fair Housing Act of 1964, but noted in the process that “disparateimpact liability must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system.”54 It also cautioned that liability is not to be “imposed based solely on a showing of a statistical disparity.”55 Individual attitudes are rarely the cause of the systemic biases that permeate institutional dynamics and cultures. As legal scholar john a. powell observes, “From a structural perspective, causation is understood as cumulative within and across domains.”56 Nonetheless, the decontextualized perspective of American jurisprudence constrains acceptable evidence of causation to a narrow range of discrete, individualized decisions or actions. Thus, for example, only by being willfully blind to historical realities could Justice Lewis Powell assert in Bakke that “there is no principled basis for deciding which groups would merit ‘heightened judicial solicitude’ and which would not” with respect to affirmative action in education.57 It is equally if not more difficult to challenge the glaring racial disparities evident in the criminal justice system. In 1987 the Supreme Court held in McCleskey v. Kemp that statistical evidence of racial disparity in the imposition of death sentences did not violate the Constitution’s guarantee of due

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process. It reasoned, “Our analysis begins with the basic principle that a defendant who alleges an equal protection violation has the burden of proving ‘the existence of purposeful discrimination.’”58 Going further, it required the defendant to “prove that the purposeful discrimination ‘had a discriminatory effect’ on him.”59 Over the next twenty-five years, only one defendant successfully challenged a death sentence on the basis of racial selectivity.60 While the Supreme Court thus insists on interpreting the constitutional protections afforded criminal defendants in a purportedly “colorblind” or “postracial” manner, it continues to allow race to play a significant role in law enforcement. Through the mid-1960s, the Supreme Court consistently interpreted the Fourth Amendment to require that stops and searches by police be justified by probable cause to believe that a crime had been or was about to be committed.61 However, in Terry v. Ohio—a case that arose in the wake of the urban rebellions of that era, most of which had been triggered by abusive police practices62—the Court authorized police to stop and frisk individuals based on “reasonable suspicion” alone.63 While the Terry opinion barely mentions race, the officer’s suspicions of John Terry arose from the fact that he was a Black man who walked back and forth in front of a store window and then stopped to talk to a White man.64 Since then, the Court has found that while race alone is not sufficient to constitute reasonable suspicion, race plus any number of otherwise innocent factors may suffice—factors so varied as to be meaningless. As Justices Marshall and Brennan catalogued in their 1989 dissent in United States v. Sokolow, a case involving the search of an airline passenger based on a DEA profile, courts had upheld stops based on suspects being the first to deplane, the last to deplane, and having deplaned in the middle; because they had purchased one-way tickets—or two-way tickets; because they took nonstop flights or changed planes; because they had no luggage or new suitcases; because they were traveling alone or with a companion; or because they acted either nervously or too calmly.65 Whether a stop is deemed constitutionally acceptable or not is based on the “totality of the circumstances,”66 a test that results in a standard under which “0 + 0 + 0 + 0 = reasonable suspicion.”67 The societal implications have been profound. Thus, for example, according to the Center for Constitutional Rights, the New York Police Department engaged in some 700,000 stops and frisks in 2012, with Black and Latino persons targeted in nearly 85 percent of all stops.68 As noted above, plaintiffs alleging race-based violations of equal protection in civil actions must establish discriminatory intent. In the criminal law context, however, the Court has deemed police officers’ subjective intentions— that is, their discriminatory intent—to be irrelevant.69 As a result, policing

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may be conducted in an entirely racialized manner, as long as some—any— facially race-neutral rationale can be provided, and there are no viable legal remedies for the glaring disparities in the rates of stops, searches, arrests, convictions, and incarceration that result from this license.70 As law professor Paul Butler observes, the Fourth Amendment does not function so much as a guarantee of individual rights, but as “a project by the Burger, Rehnquist, and Roberts Courts to expand the power of the police against people of color,” a project that allows for the “racial policing of space,” “constructs the criminal as colored, and the white as innocent,” and results in “the mass incarceration of people of color.”71 Police officers as well as prosecutors and judges have almost unlimited discretion to use criminal law to keep people of color in “their place,” quite literally.72 In the meantime, the state’s prerogative to maintain structures of racial privilege and subordination by almost any means it deems appropriate is protected by the extension of qualified and/or absolute immunity to an expanding range of actors. The federal government and state governments are immune from legal accountability except to the extent that they consent to being sued.73 Judges, prosecutors, police officers, prison guards—even in private prisons— and a wide range of elected or appointed government officials also have immunity, absolute or qualified, from personal liability.74 The bottom line is that “sovereign immunity allows the government to violate the Constitution or laws of the United States without accountability. Constitutional and statutory rights can be violated, but individuals are left with no remedies.”75

Assimilationism We seem to be locked into pursuing remedies within a legal system whose doctrines and rules preclude racial justice. As the cases discussed above illustrate, contemporary interpretations and enforcement of the law—not merely the discriminatory laws of previous eras—function to perpetuate racialized subordination, regardless of whether they are consciously intended to do so. Why do we keep circling this same rock?76 One significant reason, I believe, is the deeply rooted presumption that assimilation into settler society is and should be the ultimate solution for racialized injustice. As the so-called culture wars illustrate, there are competing visions of what assimilation should mean, ranging from explicit Anglo-Saxon hegemony to “multiculturalism,” but they are all visions of how the existing order should be configured.77 Within this paradigm, it becomes entirely reasonable to recognize legal rights and implement remedial measures only to the extent they further the assimilationist goals proffered by settler society.78

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Assimilationist ideology presumes that the dominant culture is both normative and superior to all other cultures, offering to share the benefits of White privilege with persons of color willing to abandon whatever may be distinctive about their cultures and histories.79 As legal scholar Jerome Culp observed, “What is the ultimate aim of eliminating discrimination? The courts have consistently answered this question by assuming that assimilation and cultural degradation were the only two courses available.”80 Thus, in Brown v. Board of Education the Court justified its intervention on the grounds that education “is the very foundation of good citizenship, . . . a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.”81 On its face, this appears to be a neutral observation, but the cultural values being referenced, and the environment to which children should “adjust normally,” are exposed in the Court’s assertion that “segregation of white and colored children in public schools has a detrimental effect upon the colored children,” “having a tendency to (retard)” their development and depriving them of “benefits they would receive in a racial(ly) integrated school system.”82 Malcolm X observed that “integration” encompasses the notion of that which is “acceptable” and, therefore, is a construct that “implies some inherent superiority or inferiority instead of acknowledging the true source of the inequalities involved.”83 As Neil Gotanda points out, the assimilationist presumption underlying the Supreme Court’s rationale in Brown conflates the “reified systemic subordination” of people of color with their cultures, communities, and consciousness.84 It reflects the perception, fostered by assimilationist ideology, that any non-settler culture, community, or consciousness is devoid of social value. This is a presumption that, of course, entrenches racial hierarchy.85 In addition to thus harming all peoples of color, assimilation into the “mainstream”—that is, settler society—requires acceptance of the legitimacy and superiority of that society. This is problematic for many reasons. Most fundamentally, it entrenches the ongoing occupation of Indigenous lands and concomitant efforts to eliminate Indigenous peoples by rendering Indigenous sovereignty invisible and making racially subordinated people believe that their interests are aligned with those of the colonizer. Assimilationism was at the heart of US policies intended to “disappear” American Indians and it continues to serve that purpose.86 As Jodi Byrd observes, “When the remediation of the colonization of American Indians is framed through discourses of racialization that can be redressed by further inclusion into the nation-state, there is a significant failure to grapple with the fact that such discourses further reinscribe the origi-

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nal colonial injury.”87 One result of this assimilationist framing, she notes, is that other “minorities” within settler society are given the “impossible choice” of “articulat[ing] freedom at the expense of another.”88 But even this construction of freedom is illusory. Those who have been, and continue to be, excluded from settler society cannot simply decide to merge with it. Successful assimilation is contingent upon the desires and actions of those who have excluded them and have benefitted from their exclusion. Moreover, there is no freedom to be articulated. Assimilation offers non-Indigenous Others the possibility of gaining limited access to some of the privileges of the settler class, but only at the cost of our independent identities, cultures, histories, and worldviews. We are not free to define ourselves or maintain our cultures except in the most superficial of ways, and we certainly are not free to restructure the core institutions of settler society in ways that might truly benefit our communities.89 Thus viewed through the lens of racial realism, the limitations of domestic legal remedies for racialized injustice become apparent. There are large sectors of the population—notably the most directly colonized—to which constitutional protections simply do not apply. For those formally entitled to the Fifth and Fourteenth Amendments’ guarantees of due process and equal protection, legal remedies are constrained to measures that promote assimilationism while ensuring that the structures protecting the status quo remain intact. These remedies are not insignificant, for they can provide some degree of relief from egregious wrongs, but they will not allow for the sort of institutional change that substantive justice requires, and the relief provided often comes at the cost of reinforcing underlying relations of domination and subordination.90 This chapter has provided a brief overview of why, as a general rule, domestic law cannot be relied upon to deconstruct the social, economic, or political institutions that perpetuate a racialized dynamic of difference. The following chapter considers whether international law—human rights law, in particular—provides more effective options for realizing racial justice.

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International Law and Human Rights Whenever you are in a civil-rights struggle, whether you know it or not, you are confining yourself to the jurisdiction of Uncle Sam. . . . Civil rights means you’re asking Uncle Sam to treat you right. Human rights are something you were born with. —Malcolm X

Since the founding of the United States, international law has been invoked by peoples within its borders to support their claims to basic human rights and to contest colonial rule. The contemporary international legal system originates in the efforts of European powers to regulate relations between themselves and to facilitate the acquisition and governance of “their” colonies.1 However, it has evolved over the past half century—thanks largely to the movement for decolonization that brought us many new states in Africa and Asia—to acknowledge fundamental rights essential to the deconstruction of racial hierarchy and the dismantling of structures that perpetuate colonial relations. These rights are not likely to be fully implemented by any extant domestic or international institutions. Nonetheless, recognition of these legal principles can help us imagine and implement liberatory options outside the constraints of a dominant narrative that depicts current settler colonial realities as right, natural, and inevitable. As we consider how to dismantle racial hierarchy in the United States, international law can be helpful in at least two significant ways. The first is that, despite being overwhelmingly reflective of state interests, international law articulates both rights and remedies beyond those recognized within our constitutional framework.2 It empowers us to challenge regimes that strip individuals or communities of their human rights, reminding us, as Malcolm X emphasized, that as human beings we have inherent rights—and responsibilities—regardless of what we are told by those in power. Human dignity is recognized as a foundational precept of the law. Discrimination is universally proscribed and remedies that address structural racism are explicitly articulated. Indigenous peoples’ rights not only to survival but also to control over their traditional lands, resources, cultures, and identities are acknowledged. Attempts to eliminate group identity are condemned as 166

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genocide. This body of law allows us to contest US policies and practices in international forums and, perhaps more significantly, encourages us to envision remedies that transcend the strictures of constitutional rights, at least as interpreted and implemented by US courts to date.

States in International Law The substance of international law derives, for the most part, from the practice of states and the agreements made between them.3 States, in turn, are somewhat circularly defined. In addition to having effective control over a defined territory and identifiable population, a state must have an effective government and be able and willing to engage in formal relations with other states.4 A would-be state must be accepted as such by existing states and must commit to abide by extant rules. Statehood under international law thus requires recognition by other states and, until well into the twentieth century, this was contingent upon a determination that the petitioning entity was sufficiently “civilized” by European standards.5 When founded, the United Nations (UN) had only fifty-one member states, and much of the rest of the world remained under colonial domination. The number of recognized states grew rapidly during the ensuing “decolonization era”: by 1975 there were 144 UN member states, and the admission of South Sudan in 2011 brought it to 193.6 States, as political constructs, have little if any incentive to recognize the rights of minority groups or peoples who are colonized, internally or externally. Instead, each state is primarily interested in protecting its own “territorial integrity” and “political unity,” as reflected in article 2(4) of the UN Charter. The charter also recognizes, however, that the organization’s central purpose of maintaining international peace and security cannot be realized without “respect for the principle of equal rights and self-determination of peoples,” as well as the protection of “human rights and fundamental freedoms.”7 In the “classical” European framing of the “law of nations,” as it was known, individuals and sub-state groups had only such rights as were provided by their own governments, either under domestic law or through agreements states might make with each other for the protection of their citizens.8 Following World War II, however, the Nuremberg Tribunals recognized basic human rights that must be respected by every individual and every government.9 This concept was subsequently endorsed by the UN Charter and articulated in the General Assembly’s Universal Declaration of Human Rights (UDHR), adopted in 1948, as well as its 1949 Affirmation of the Principles of International Law Recognized by the Charter of the Nurnberg Tribunal.10

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Since then, human rights have been given increasingly specific substantive content in global and regional treaties.11 Many of these treaties have reporting requirements and monitoring bodies intended to ensure, or at least incentivize, compliance by states parties, and in 2006 the UN Human Rights Council instituted a Universal Periodic Review to assess each UN member state’s human rights record every four years.12 “Special procedures” in the form of independent experts, special rapporteurs, and working groups have been established by the UN and by regional organizations to address particular topics.13 In addition to the International Court of Justice (ICJ), the International Criminal Court, and various ad hoc tribunals established by the United Nations, human rights courts or commissions operate under the auspices of the European Union, the Organization of American States (OAS), the African Union, the Arab League, and the Association of Southeast Asian Nations.14 In other words, there is not only a large and growing corpus of human rights law, but also a complex and multilayered network of monitoring and enforcement mechanisms to supplement the protections available in domestic courts. The international legal order reflects many of the structural problems we encounter in domestic law. Its substantive law and limited enforcement capacity reflect tensions between preserving state power and protecting human rights. States resist what they perceive to be constraints on their sovereign prerogatives. In addition, the rapid expansion of the human rights regime has met with resistance from peoples who see it not as embodying universal values but as imposing Western norms in an extension of the “civilizing mission” of colonialism.15 Despite these very significant concerns, international human rights law provides a vision of rights and remedies broader than that provided by the dominant narrative of American jurisprudence. As a result, it can help us move beyond the constraints discussed in the previous chapter.

Fundamental Human Rights Four substantive areas of international law illustrate this broader conception of rights: the protection of human dignity, the prohibition of racial discrimination, the recognition of Indigenous rights, and the criminalization of genocide.

Human Dignity Dignity is a precept foundational to all of the human rights norms found in international law.16 The preamble to the UN Charter “reaffirm[s] faith . . . in the dignity and worth of the human person,”17 and the UDHR asserts that

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“recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”18 The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), the two overarching human rights treaties of the modern era, emphasize that the rights they articulate “derive from the inherent dignity of the human person.”19 Even when interpreting treaties that do not explicitly reference the concept, international judicial bodies such as the European Court of Human Rights and the Inter-American Court of Human Rights identify human dignity as a touchstone for their analyses.20 The dignity principle provides human rights law with “a strong emphasis on the will and consent of the governed,” according to legal scholar Oscar Schachter.21 In other words, “the coercive rule of one or the few over the many is incompatible with a due respect for the dignity of the person.”22 The concept is rooted in a framework of respect for human life in the dynamic, organic context of community, culture, history, and identity. As Schachter notes, “nothing is so clearly violative of the dignity of persons as treatment that demeans or humiliates them. This includes not only attacks on personal beliefs and ways of life but also attacks on the groups and communities with which individuals are affiliated.”23 Thus, acknowledging the primacy of human dignity gives us the vocabulary with which to articulate the underlying harm caused, for example, by depicting American Indians as the caricatured mascots of sports teams24 or by leaving Michael Brown’s body on a Ferguson, Missouri, street for hours after he was shot by the police.25 Dignity requires respect for the capacity of persons to make and be responsible for their own actions, and this, in turn, implies their right to do so.26 In many cultures human dignity is manifest not by the defensive assertion of rights against the state, but by the fulfilling of one’s responsibilities—not only to one’s immediate family, but also to the broader community, to future generations, to other forms of life, and to the earth itself.27 Because dignity implicates the freedom to act on one’s responsibilities, it can be realized—albeit often at great personal cost—under the most repressive of conditions. We do not need the law to tell us that we have an inherent right to live with dignity. Nonetheless, those who struggle to protect their communities and to create a better world for their children are often informed—by the police, the courts, the education system, or the media—that they have no right to do so. The fact that international law explicitly acknowledges dignity as a foundational principle of all human rights can help empower these human rights defenders by bolstering their legal claims and by affirming the legitimacy of the work in which they are engaged.

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Racial Discrimination and Xenophobia Much human rights law addresses the rights of “minorities,” a term encompassing national minorities as well as racial, ethnic, and religious groups.28 It is largely intended to ensure that all sectors of the population are treated equitably and have equal access to political institutions and social resources. Racial discrimination is broadly construed, and its prohibition is regarded by many to be not only customary international law—and therefore binding on all states—but also a jus cogens legal norm, that is, one from which there can be no derogation.29 It is explicitly prohibited by the UN Charter, the UDHR, and the two overarching human rights treaties, the ICCPR and the ICESCR.30 According to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), a treaty with 179 states parties, racial discrimination encompasses “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”31 The mandate of the special rapporteur on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance, appointed by the UN Human Rights Council, extends to “racism and racial discrimination against Africans and people of African descent, Arabs, Asians and people of Asian descent, migrants, refugees, asylum-seekers, persons belonging to minorities and indigenous peoples,” as well as those targeted because of their religion.32 The international prohibition on racial discrimination goes beyond the United States’ commitment to equal protection in several important ways. First, its recognition of the importance of disparate impact allows it to acknowledge structural racism.33 In 2014 the Committee on the Elimination of Racial Discrimination (CERD), responsible for monitoring compliance with the convention, observed that US law does not adequately address measures “that may not be discriminatory in purpose, but are discriminatory in effect.”34 It recommended that the United States “adopt a National Action Plan to combat structural racial discrimination,” specifically noting concerns about government surveillance and monitoring, the use of excessive force by law enforcement, the “school-to-prison pipeline,” and inadequate access to legal aid in both civil and criminal contexts.35 A second point of note is that the international legal regime acknowledges the necessity of “special measures” (what we often refer to as affirmative action) to enable minorities to achieve political, economic, and social equality while, if they desire, maintaining their cultural and ethnic identities.36 In

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contrast to current US jurisprudence, CERD explicitly states that special measures are not to be considered a form of racism,37 and the United States has been criticized for placing “increasing restrictions on the use of special measures as a tool to eliminate persistent disparities in the enjoyment of human rights and fundamental freedoms based on race or ethnic origin.”38 Third, international law recognizes that ethnic, religious, and linguistic minorities have the right, “in community with the other members of their group,” to maintain their own identities and cultures.39 Assimilation must be truly voluntary, and equal treatment may not be conditioned on assimilation.40 According to a 2010 report of the Office of the UN High Commissioner for Human Rights, “it is extremely important to ensure that integration is not understood to mean, and does not lead to, forced assimilation in the dominant culture.”41 Rather, “non-assimilation requires diversity and plural identities to be not only tolerated but protected and respected.”42 CERD has “affirmed that discrimination against indigenous peoples falls under the scope of the Convention” on racial discrimination, and has explicitly addressed the importance of “the preservation of their culture and their historical identity,” as well as the need to redress harms resulting from the fact “that they have lost their land and resources to colonists, commercial companies and State enterprises.”43 Where Indigenous peoples “have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent,” the committee calls upon states parties “to take steps to return those lands and territories” and, where this is not factually possible, to provide “just, fair and prompt compensation” which “should as far as possible take the form of lands and territories.”44 Finally, international law goes far beyond US law in protecting those who are not citizens, as well as those perceived as “foreign.” “Differential treatment based on citizenship or immigration status will constitute discrimination [under ICERD] if the criteria for such differentiation . . . are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim.”45 The Human Rights Committee has stated unequivocally that the ICCPR applies to all persons, irrespective of nationality or statelessness.46 In 2016 the UN special rapporteur on contemporary forms of racism issued a report focusing on xenophobia, the “attitudes, prejudices and behaviour that reject, exclude and often vilify persons, based on the perception that they are outsiders or foreigners to the community, society or national identity.”47 The report notes that “xenophobia intersects with racism in so far as the (racialized) other is also seen as an outsider or foreign and is feared or is perceived to be a threat,” and that migrants are particularly susceptible to discrimination based on their ethnicity, race, or religion.48 Reflecting a willingness to

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examine the historical roots and structural manifestations of such discrimination, it states, “Vestiges of slavery, systems of apartheid, colonialism, and the displacement or genocide of indigenous peoples in the construction of the nation State are proper intersections to consider in addressing the phenomenon of xenophobia.”49

Rights of Indigenous Peoples Over the past several decades, a major shift has occurred in the recognition of the rights of Indigenous peoples in international law. Until 1990, the only multilateral treaty on the subject focused entirely on their “protection and integration” into the dominant society.50 Indigenous peoples, however, have consistently resisted incorporation into settler societies, recognizing it as yet another strategy intended to “disappear” them, and have insisted on being recognized as sovereign nations rather than “minorities.”51 As Sharon Venne states, it is a struggle to have “our rights to our territories, our lands, our resources, our treaties and our right to self-determination . . . recognised and accepted by the other nations of the world as set out in the UN Charter.”52 Decolonization was an explicit goal of the United Nations at its inception but, according to Venne, “we could not use international mechanisms then in existence to decolonise ourselves, because the United States, Canada and other states refused to allow Indigenous peoples to use the UN Committee on Decolonization.”53 At the urging of Lakota elders, the American Indian Movement was instrumental in bringing representatives from some sixty Indigenous nations throughout the Americas to Geneva in 1977, to air their grievances to the UN.54 “It was,” Irene Watson recounts, “not a journey of the lost and ‘backward native’ seeking recognition, but rather an assertion of First Nations existence across time and the continuing present.”55 This led to the establishment of the UN Working Group on Indigenous Populations in 1982, and the drafting of a declaration of Indigenous rights. In 2007, after three decades of intense negotiation, the UN General Assembly promulgated its Declaration on the Rights of Indigenous Peoples (UNDRIP).56 Indigenous activists made many compromises in order to arrive at language acceptable to the General Assembly, where, of course, only state representatives can vote. The United States, Canada, Australia, and New Zealand wielded their considerable international influence to ensure that early drafts of the declaration were substantially “watered down,”57 leaving it open to criticism for “fail[ing] to enable or open up space for a dialogue on coexisting sovereignties” and allowing settler state “hegemony and Indigenous subjugation” to “remain unchanged.”58 Even then, these settler states refused

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to vote in favor of the declaration, only later endorsing it with considerable reluctance.59 The declaration recognizes the right of Indigenous peoples to maintain their cultures and identities, and prohibits both forced assimilation into the dominant society and the forcible removal of Indigenous peoples from their ancestral lands.60 These provisions have significant implications for ongoing struggles to protect Indigenous lands and resources, the preservation of cultural and religious traditions, and efforts to obtain redress for past takings.61 However, notwithstanding its explicit acknowledgment of injustices resulting from Indigenous peoples’ “colonization and dispossession of their lands, territories and resources,”62 the declaration does not directly acknowledge Indigenous sovereignty. Instead, it requires states to “consult and cooperate in good faith” with Indigenous peoples to obtain their “free, prior and informed consent before adopting legislative or administrative measures that may affect them.”63 Despite the limitations apparent in this emerging body of law, Indigenous peoples have utilized regional as well as UN mechanisms to transform global consciousness. Since 2001 the Inter-American Court of Human Rights has played a vital role in protecting Indigenous rights to property and natural resources in the Americas, recognizing that “for indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.”64 The Inter-American Court’s jurisprudence has evolved to recognize land claims as enforceable even when Indigenous peoples have been dispossessed, upon a showing of their unique relationship with those lands.65 Notably, the Inter-American Court has extended its recognition of Indigenous peoples’ rights to peoples of African descent who have maintained “a strong spiritual relationship” with lands they have long occupied.66 The Court explicitly based its findings on the similarities between Indigenous peoples and the Afrodescendant communities at issue, recognizing, in effect, that the latter have rights that go beyond the prohibition on discrimination.67 Thus, for example, the Court held that Suriname has an obligation to the Afrodescendant Saramaka people to “preserve, protect and guarantee the special relationship [they] have with their territory,” to allow them to “continue living their traditional way of life,” and to ensure “that their distinct cultural identity, social structure, economic system, customs, beliefs and traditions are respected, guaranteed and protected.”68 This jurisprudence is not directly applicable to more dispersed or urbanized Afrodescendant peoples, but it recognizes that the descendants of enslaved Africans in the Americas have a dis-

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tinct place in settler societies. This concept has long been articulated by Black activists in the United States and supports the long-standing efforts of bi- and tri-racial communities, such as the Gullah/Geechee on the southeastern US coast, to maintain an autonomous land base.69 More generally, it opens the door for remedial measures that incorporate the cultural and historical realities of Afrodescendant as well as Indigenous peoples in the Americas.

Genocide The emerging bodies of international law addressing racial discrimination and Indigenous rights have thus come to recognize that incorporation into the dominant society is not sufficient to protect the rights of racially subordinated peoples. Instead, they explicitly prohibit forced assimilation and articulate the right of peoples to maintain their distinct identities, traditions, and cultures, as well as their social, political, and economic structures. If we are to fully grasp the significance of these legal principles, it bears emphasizing that they are rooted in the prohibition on genocide, universally acknowledged to be a jus cogens or preemptory norm of international law.70 The right of a “national, ethnical, racial or religious group” to survive “as such”—that is, as an identifiable group—was the subject of the UN’s first human rights treaty, the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).71 Genocide is not synonymous with “mass murder.” Raphael Lemkin, who originated the term and helped draft the convention, emphasized that genocidal processes can include physical debilitation, the limiting of reproductive capacity, the eradication of self-government, the appropriation of economic resources, the prohibition of a people’s language (especially in education), attacks on intellectuals, suppression of religions, and the undermining of “spiritual resistance.”72 Although Lemkin’s initial framing was substantially diluted, the convention reflects his insistence that the crime at issue is one of eliminating the identities of peoples. Thus, the treaty defines genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.”73 As the histories summarized in previous chapters have illustrated, each of the five acts identified by the convention as genocidal have been committed,

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deliberately and systematically, against both Indigenous and Afrodescendant peoples in this country. Lemkin described the enslavement of North American Indians as “cultural genocide par excellence,” “the most effective and thorough method of destroying a culture, and of de-socializing human beings.”74 This description applies equally to the enslavement of African peoples, and is readily extended to the forced assimilation, impoverishment, and mass incarceration of Afrodescendant peoples in the United States since the abolition of slavery.75 This is why, in 1951, Paul Robeson and William Patterson delivered a petition from the Civil Rights Congress to the United Nations entitled “We Charge Genocide: The Crime of Government against the Negro People.”76 They were not using the term rhetorically, but demonstrating, point by point, how the United States was in violation of the international prohibition on genocide. If the racism we confront is not simply the result of prejudice or discrimination that can be remedied by formal equality but instead the consequence of policies intended to “destroy, in whole or in part,” the group identity of oppressed peoples, remediation entails an immediate halt to genocidal policies, as well as measures that support the reconstitution and continued vitality of the targeted groups. The framing provided by international law reminds us of the dangers of relying on a system that has failed to bring about substantial change and that, with each passing generation, further obscures our histories and identities. As João Costa Vargas puts it, “The urgency that genocide generates . . . creates the imperatives of decolonization.”77

Legal Redress International law differs from US law not only in its recognition of substantive rights, but also in its framing of remedial options. The UDHR, widely acknowledged to embody binding norms of customary international law, says, “Everyone has a right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”78 This principle is also articulated in the ICCPR, the ICERD, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and in international humanitarian law.79 As famously stated by Chief Justice Marshall in Marbury v. Madison, US domestic law also recognizes that “the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury” and that “‘where there is a legal right, there is also a legal remedy.’”80 These two systems of law, however, have very different understandings of what constitutes an effective legal remedy.

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Basic Principles The US legal system starts from the presumption that most legally cognizable injuries can be redressed with money. While there are some exceptions, it is commonly accepted that “monetary remedies . . . place the right holder in the same position she would have been in had her rights not been infringed upon.”81 To obtain equitable relief—an order to take or refrain from specific action—a party must usually demonstrate that remedies at law, generally monetary damages, are inadequate.82 By contrast, under international law, remedies are intended to fully repair the damage done, thereby coming as close as possible to restoring the status quo ante and compensating for its disruption.83 As framed by the Permanent Court of International Justice in its 1928 Chorzow Factory opinion, “Reparation must, as far as possible, wipe out all consequences of the illegal act and re-establish the situation which would . . . have existed if the act had not been committed.”84 The International Law Commission (ILC) notes that “full reparation” for the injury caused by a state’s wrongful action “shall take the form of restitution, compensation and satisfaction, either singly or in combination.”85 Restitution means “the re-establishment as far as possible of the situation which existed prior to the commission of the internationally wrongful act” and is considered the primary form of remedy, to be supplemented, where appropriate, by compensation and other forms of “satisfaction.”86 Compensation is to be provided for actual losses that cannot be remedied by restitution, whereas satisfaction addresses non-material injuries incurred as a result of the violation of an international obligation. Among other possibilities, satisfaction encompasses acknowledgment of the wrong, expressions of regret, and formal apologies.87 The ILC provides separately, in its draft Articles on State Responsibility, that states are responsible for ceasing illegal actions and, when appropriate, for guaranteeing non-repetition.88 In 2005 the UN General Assembly adopted a resolution entitled “Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,” which spells out in considerable detail the obligations of states to provide adequate remedies for those whose most fundamental human rights have been violated. These principles first note that states have a duty to investigate and, where there is sufficient evidence, to prosecute acts that constitute crimes under international law. Statutes of limitation are not to apply to such prosecutions, and when the violations at issue do not constitute international crimes, domestic statutes of limitation “should not be unduly restrictive.”89 Victims are broadly iden-

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tified as “persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights” as a result of acts or omissions that constitute the violations at issue.90 They are to be provided “equal and effective access to justice,” “adequate, effective and prompt reparation for harm suffered,” and “access to relevant information concerning violations and reparation mechanisms.”91 The Basic Principles provide that states are to ensure “full and effective reparation” in the form of “restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.”92 All of these terms are defined broadly to include physical, psychological, material, and “moral” damage. “Satisfaction” encompasses some of the most striking departures from remedies we are familiar with in the United States. It recognizes the significance of narrative, the stories we tell about our histories, and includes, where appropriate, verification of facts and public disclosure of truth; an obligation to search for those who have been disappeared, including abducted children; official declarations or judicial decisions intended to restore dignity and reputation; public apologies; commemorations and tributes to the victims; and “inclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and in educational material at all levels.”93

Two Case Studies Some of the distinctions between the remedial options available in domestic and international law are illustrated by two cases in which international human rights tribunals have considered what would constitute an appropriate remedy. The first concerns the appropriation of Indigenous lands; the second addresses state responsibility for assaults and murders by private actors.

Western Shoshone Land Claims Under US law, Indigenous peoples only have such territorial rights as accorded them by the federal government. Facing considerable international scrutiny in the aftermath of World War II, the United States established the Indian Claims Commission (ICC) to quiet title—that is, to eliminate contesting claims—to lands it had occupied without legal process. The ICC, however, was authorized only to provide monetary compensation, not to return any wrongfully appropriated lands. Moreover, the amount of compensation was to be calculated as of the time of the taking, interest was generally not awarded,

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and “gratuities” received from the federal government were often deducted.94 Needless to say, this process did not afford an effective remedy to Indigenous peoples whose lands had been occupied by the settlers. By contrast, under international law, “full reparation” means that, among other things, illegally occupied lands should be returned to their rightful owners. According to the Inter-American Commission on Human Rights (IACHR), “Indigenous property rights over territory extend in principle over all of those lands and resources that indigenous peoples currently use, and over those lands and resources that they possessed and of which they were deprived, with which they preserve their internationally protected special relationship—i.e. a cultural bond of collective memory and awareness of their rights of access or ownership, in accordance with their own cultural and spiritual rules.”95 With respect to such lands, the state has an obligation to protect these rights through “delimitation, demarcation and titling.”96 The efforts of the Western Shoshones to protect their ancestral lands before both US and international tribunals illustrate the differences in remedial options.97 Under the terms of the 1863 Treaty of Ruby Valley, the United States recognized as Western Shoshone territory over twenty-four million acres of land stretching from what is now Idaho through Nevada to Southern California.98 In 1962 the Indian Claims Commission decided that Western Shoshone title to this land had been “extinguished” by the “gradual encroachment” of settlers as well as the federal government. Ultimately the ICC awarded the Western Shoshones $26 million for these lands, based on its calculation of the value of the land at the time of the taking. The Western Shoshone people refused to accept payment, and the funds were placed in a trust account managed by the Treasury Department.99 In the meantime, many Western Shoshone individuals, including Mary and Carrie Dann, continued to live on their lands as had their families since time immemorial. Ultimately, the US government brought a trespass action against the Dann sisters. The case was litigated up to the Supreme Court, which held in 1985 that the payment of funds to the Treasury discharged the Danns’ claims and estopped their challenge to the ICC rulings.100 In other words, the only domestic legal remedy available to the Western Shoshones was payment for lands they had never ceded nor agreed to sell, in an amount that the “encroaching” party determined and, in essence, paid to itself. Having exhausted their domestic remedies, the Danns brought their case to the Inter-American Commission on Human Rights. Applying the American Declaration on the Rights and Duties of Man, a human rights charter binding on all OAS member states, the IACHR concluded in 2002 that the United States’ actions violated the right to property under conditions of

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equality.101 It noted that in determining property rights, the state needed to take into consideration both the collective and individual nature of the Indigenous land rights at issue and was obliged to ensure the Danns’ full and informed participation in the determination of their claims.102 Lacking the jurisdiction to mandate return of the lands, the IACHR recommended that the United States “provide Mary and Carrie Dann with an effective remedy, which includes adopting the legislative or other measures necessary to ensure respect” for their property rights. Recognizing that this was not an isolated problem, the commission went on to urge the United States to “review its laws, procedures and practices to ensure that the property rights of indigenous persons are determined in accordance with the rights established in the American Declaration.”103 In 2006 the Committee for the Elimination of Racial Discrimination (CERD) addressed the United States’ failure to comply with the IACHR’s recommendations. CERD acknowledged this suppression of Indigenous rights as a form of racial discrimination, and emphasized the importance of Indigenous peoples’ “right to own, develop, control and use their communal lands, territories and resources.”104 Noting the importance of “find[ing] a solution acceptable to [the Western Shoshone], and which complies with their rights,” the committee specifically urged the United States to “freeze any plan to privatize Western Shoshone ancestral lands,” to “desist from all activities planned and/or conducted on the ancestral lands” or affecting their natural resources without consultation and despite protest, and to stop imposing fees and restrictions on the Western Shoshone’s use of their lands and resources.105 As of 2019 the United States has yet to comply with these decisions of the IACHR or CERD, but the Danns’ utilization of these tribunals brought a great deal of international attention to the issue of Indigenous land rights and substantially limited the planned expansion of mining operations on Western Shoshone lands.106

Border Killings The contrast between the domestic and international approaches to remediation may also be seen with respect to assaults on and murders of people of color. In May 2018, a US border patrol agent shot and killed nineteen-yearold Claudia Patricia Gómez González, an Indigenous Guatemalan woman, in a Texas town close to the US-Mexico border. To the extent that there are remedies for such killings under US law, they are generally limited to criminal prosecutions and civil suits for monetary compensation.107 These measures have little impact on the underlying causes of such violence. For remedies to

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be meaningful, where the perpetrators are private citizens, the crimes would need to be effectively investigated and prosecuted; victims’ families should have access to legal representation; and the perpetrators of the crimes would need to have the resources sufficient to make civil suits viable. These conditions are rarely met. When state actors kill without just cause, these remedies are theoretically available, but often require immense political pressure to be realized. There is resistance to prosecuting state officials, and recovery of monetary damages is often curtailed by individual or sovereign immunity.108 By way of contrast, the jurisprudence of the Inter-American Court of Human Rights is notable for its attempts to implement the international legal obligation to provide comprehensive reparations for legal wrongs.109 In 2009, for example, in the Cotton Field case, the Court held the Mexican government responsible for numerous violations of international law in connection with the disappearance and murder of three migrant women near the TexasMexico border.110 Noting that these cases occurred in the context of many years of poorly investigated disappearances, rapes, and murders of young women, the Court emphasized that the state had an obligation to respond with due diligence to violence by non-state actors. Its order for remedial measures included “pecuniary and non-pecuniary reparations of more than $200,000 to each family in the suit, publication of the judgment, the State’s public acknowledgment of international responsibility, construction of a national memorial, and state-financed medical, psychological, and psychiatric care to the victims’ families.”111 Going further, the Court required very specific guarantees of nonrepetition that included renewed investigations, prosecutions, and punishment for perpetrators; investigations of public servants who failed to exercise due diligence . . . and a public announcement of the results of such investigations; the standardization of investigative protocols concerning cases of sexual violence and parameters to be taken into account when implementing rapid investigation responses in the case of disappearances of women and girls; creation and updating of a national website and database with information on all missing women and girls; training of all personnel in Mexico involved, directly or indirectly, in the prevention, investigation, and prosecution of violence against women; and the development of an educational program for the people of the State of Chihuahua, to ameliorate the situation of gender-based violence there.112

It is difficult to imagine such remedial measures ever being envisioned, much less implemented, within the US legal system.

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International law thus begins from the premise that legal remedies should attempt to restore the status quo that prevailed prior to the wrongful act, and to provide redress for any additional harm caused by the violation. Where full restitution is not feasible, attempts are to be made to repair the damage that has been done. Financial compensation may be part of the process but is neither the presumptive nor preferred remedy. This hierarchy is significant because it means that those who violate international obligations cannot simply “buy” their way out. Most significantly, within this framework, remedial measures are assessed from the perspectives of those whose rights have been violated. The perpetrators of the wrong do not get to decide what remedy is most appropriate. While there are many legitimate grounds for criticizing international human rights law,113 its broad framing of rights and remedies can help us conceive of ways in which legal systems can be structured to better protect all members of society. Moreover, the process of bringing claims to international courts, commissions, or tribunals and having them acknowledge racial injustice within the United States can be tremendously empowering for those who struggle for racial justice in our communities.114 Nonetheless, we face significant, often insurmountable, barriers to its enforcement in domestic courts.

International Law in US Courts Early American political leaders relied extensively on international law to establish the United States’ legitimacy as a “civilized” state worthy of recognition by the European powers. As summarized by John Jay, the first chief justice of the Supreme Court, in 1793 “the United States had, by taking a place among the nations of the earth, become amenable to the laws of nations; and it was in their interest as well as their duty to provide, that those laws should be respected and obeyed.”115 In the aftermath of World War II, the United States was extraordinarily influential in the construction of the contemporary international legal system. It played a key role in founding the United Nations and in establishing the legal regimes governing not only human rights but also the use of force and humanitarian law, economic agreements and institutions, and global environmental protections.116 Despite concerns generated by President Trump’s attempts to unilaterally restructure international agreements, there has been consensus, at least among the Western powers, that “America’s willingness to lead in multiple forums—the United Nations, climate change conventions, NATO, trade agreements—sets the tone for global rule of law.”117

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Calls for Enforcement Settler states need, continuously, to prove their legitimacy, and the United States has consistently held itself out as promoting the rule of law to foreclose interrogation of its territorial occupation. In turn, oppressed peoples have used international law and legal venues to contest colonization and racial subordination. Since declaring its independence, the United States has relied upon treaties with Indigenous nations as evidence of its own sovereignty, and these treaties remain essential to its claims to the lands it occupies.118 American Indians have consistently asserted their rights under these treaties, and brought claims based upon the emerging body of international law recognizing the rights of Indigenous peoples, in US courts as well as international tribunals. In 1923 Haudenosaunee leader Levi General Deskaheh traveled to Geneva in an attempt to bring the Six Nations’ claims to the League of Nations.119 Beginning in 1950, Hopi leaders made several visits to the UN General Assembly and various UN conferences, to call attention to threats to their lands and survival—indeed, the survival of the planet.120 As previously discussed, in the 1970s, AIM highlighted the country’s long history of treaty violations and was instrumental in getting the United Nations to recognize Indigenous rights.121 Persons of African descent have consistently invoked international law to challenge slavery, apartheid, and other manifestations of racialized subjugation.122 As early as 1774, enslaved Africans in Massachusetts petitioned for freedom and repatriation, citing a “naturel right to our freedoms without Being depriv’d of them by our fellow men as we are a freeborn Pepel and have never forfeited this Blssing by aney compact or agreement whatever.”123 In the mid-nineteenth century, African Americans attended international antislavery conferences, urging European states to use political pressure as well as economic boycotts to convince the United States to abolish slavery.124 Much as the Civil Rights Congress had petitioned the United Nations in 1951, Malcolm X urged African and Asian states to bring charges of genocide against the United States to the United Nations.125 From the 1960s to the present, civil rights and Black liberation movements in the United States have routinely invoked international human rights law.126 Chicana/os have regularly invoked the 1848 Treaty of Guadalupe Hidalgo, which promised to honor Spanish land grants, to challenge the appropriation of their lands in the Southwest, and these land grants have also been invoked recently to contest the United States’ construction of a southern border wall that is having devastating effects on Indigenous and Latina/o communities.127 California’s alien land laws were challenged as a violation of the UN Charter’s

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requirement that human rights and fundamental freedoms be protected without distinction as to race,128 and from the Chinese Exclusion cases of the 1880s to the present, immigrants have relied upon treaties and customary international law to challenge US immigration law and the manner in which it is enforced.129 And, of course, Native Hawaiians, Alaska Natives, Puerto Ricans, and various Pacific Islanders continue to invoke their right to decolonization under international law.130

Attempts at Containment US officials have been intensely involved in drafting all of the major human rights treaties promulgated by the United Nations, but the United States has been notably reluctant to commit to their enforcement.131 Thus, for example, it took the United States forty years to become a party to the Genocide Convention of 1948, largely because of fears that its domestic policies, including its ongoing colonization of American Indians, would be condemned as genocide.132 In the 1950s, concern that human rights law would require the dismantling of racial segregation prompted numerous attempts to amend the Constitution to, in essence, subordinate treaties to federal law. To preclude this, the administration of President Dwight Eisenhower promised not to send any human rights treaties to the Senate for ratification, initiating a policy that would have long-lasting effects on US foreign policy.133 The Geneva Conventions of 1949, universally acknowledged to govern the conduct of armed conflict, were amended in 1977 by an additional Protocol I, which, among other things, extends the protections applicable in international armed conflict to situations “in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.”134 Although the United States had signed the protocol, in 1987 President Ronald Reagan announced that he would not submit it to the Senate for ratification because, he claimed, it gave “recognition and protection to terrorist groups.”135 The United States did not ratify the International Covenant on Civil and Political Rights (ICCPR) until 1992, more than twenty-five years after its adoption by the General Assembly, and it has yet to become a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR), although it was instrumental in their drafting.136 It has become a party to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention Against Torture, and the 1967 Protocol to the 1951 Refugee Convention, although the effectiveness of these treaties is curtailed by reservations that essentially limit US obligations to those it

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already recognizes under its constitution.137 The United States has signed but not ratified the Convention on the Elimination of Discrimination Against Women, the Convention on the Rights of the Child, and the Convention on the Rights of Persons with Disabilities, and has not even signed the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.138 A primary problem of relying on international law to further racial justice in the United States is not, however, the terms to which it has or has not committed itself, but its history of selectively exempting itself from compliance with this body of law. Congress and the executive branch often refuse to uphold US obligations, and the judiciary consistently defers to those branches of government.139 The Supreme Court’s conscious choice to take this path and the fact that it could have developed a very different jurisprudence are starkly illustrated by its opinions in Cherokee Nation v. Georgia. In this 1831 case, the Cherokee government sought to enjoin Georgia from enforcing state laws on Cherokee lands in violation of Cherokee treaties with the United States. The Cherokee Nation invoked the Court’s jurisdiction based on its status as a “foreign nation” and asked it to uphold the treaties under the Constitution’s supremacy clause. Writing for the majority, Chief Justice Marshall recognized “the character of the Cherokees as a state, . . . capable of managing its own affairs and governing itself,” as well as “maintaining the relations of peace and war.”140 Yet he refused to equate the Cherokees to “foreign nations”; instead, all American Indians were “denominated domestic dependent nations” because “they occupy a territory to which we assert a title independent of their will,” and, “meanwhile, they are in a state of pupilage.”141 But the Court need not have embraced this explicitly colonial rationale. In his dissent, Justice Smith Thompson explained that under the law of nations, the Cherokees were clearly a sovereign state, citing to the eminent Swiss jurist Emmerich de Vattel.142 As such, the Cherokees’ “right of occupancy . . . remain[s] in them, accompanied with the right of self government, according to their own usages and customs; and with the competency to act in a national capacity.”143 This conclusion was reached simply by applying what were, at that time, well-established principles of international law, and it illustrates that, had the settlers comported themselves with their own framework of law, things could have been much different. But the colonial imperative triumphed, giving the United States a legal system built on the shifting sands of racialization and raw power.144 Since then, various judicial doctrines have been created and invoked by the Supreme Court to avoid implementing international legal obligations. In Marbury v. Madison Chief Justice Marshall noted that the United States can-

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not claim to have “a government of laws . . . if the laws furnish no remedy for the violation of a vested legal right.”145 Nonetheless, where compliance with the law threatens to undermine colonial interests, the Court frequently defers to the “political” branches of government, relying not only on the plenary power doctrine, discussed above, but also the political question doctrine, the last-in-time rule, and the post hoc interpretation of certain treaties, or portions of treaties, as non-self-executing.146 International law thus reflects a much broader conception of human rights than is recognized under the US Constitution. It is difficult to have these protections recognized in domestic courts, but they have had a significant if indirect influence on domestic law and policy. In many respects, this is because challenges brought under international law generate awareness and bring political pressure to bear on US leaders. Thus, for example, as legal historian Mary Dudziak documents, the heightened international attention given racial injustices during the Cold War helped convince American political leaders that expanded protection of civil rights was a necessary component of their campaign to depict the United States as the uncontested leader of the “free world.”147 The resulting reforms reflect what Derrick Bell so cogently described as interest convergence, the principle that “the interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites.”148 Framed a bit more broadly, one might say that the interests of subordinated peoples of color will be accommodated only when they converge with the interests of the predominantly White settler class. The problem, of course, is that this kind of pressure will never result in fundamental changes to the status quo, for such change is never in the interest of those who wield state power. This brings us to the question of how to proceed when justice diverges from the interests of the powerful. To the extent that structural racism is a function of colonialism, settler or otherwise, the state will not be able to provide adequate legal or political remedies. This brings us to the question of what decolonization might entail.

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Decolonization and Self-Determination The position that only the state creates law . . . confuses the status of interpretation with the status of political domination. . . . Legal meaning is a challenging enrichment of social life, a potential restraint on arbitrary power and violence. We ought to stop circumscribing the nomos; we ought to invite new worlds. —Robert Cover

International law goes well beyond the United States’ domestic law in its interpretation of the prohibition of racial discrimination, its recognition of the unique status of Indigenous peoples, and its acknowledgment of forced assimilation—among other measures—as inherently genocidal. States are responsible for protecting all of these rights, and for providing effective remedies when they are violated. States resist the application of this body of law to oppressed or colonized peoples within their claimed borders, but generally do so by denying, for example, that genocide has occurred, or that a contemporary state practice is discriminatory. They rarely contest the fact that human rights law prohibits such conduct. As a result, the arbitrary exercise of state power and the subordination of peoples on the basis of race, ethnicity, national origin, religion, gender, or any number of other characteristics are now understood not only as moral wrongs, but also as violations of law. Nonetheless, international law, like domestic law, remains tightly controlled by those who wield state power and, as a result, often serves to perpetuate colonial relations both within and among extant states. The ideological framing and aspirational norms embodied in law are often in tension with the exercise of raw power. By bringing the contradictions between ideals and reality to bear, we can, at times, expand substantive legal protections and facilitate their implementation. A legal framing can also empower those who work for justice at the grassroots level by confirming that law, at some level, acknowledges the legitimacy of their efforts to protect their communities and their insistence that society writ large respect their rights and their humanity. However, both international and domestic legal systems remain some variant of “the Courts of the conqueror,” to return to Justice Marshall’s blunt descriptor.1 186

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This means that, while drawing on the legal resources available to us, we must also conceptualize ways of organizing human society that go beyond the parameters of extant law. As Robert Cover reminded us, rather than conflating law with political domination, we have the capacity to frame it in much broader and more socially constructive ways. In this endeavor, the right of all peoples to self-determination provides a useful starting point. This chapter begins with an overview of the decolonization process of the 1960s and early 1970s, noting in particular the failure of this process to extend the right of self-government to internally colonized peoples in either external colonies or settler states. The chapter then considers the potential applicability of the right to self-determination to Indigenous peoples and people of color in the United States.

The “Decolonization Era” The political changes of the decades following World War II were accompanied by dramatic transformations of international law and legal institutions, many of which purported to facilitate a decolonized world. Three chapters of the UN Charter and one of its principal organs were devoted to ensuring the eventual independence of “non-self-governing territories” and the well-being of their “inhabitants.”2 On December 14, 1960, the General Assembly issued a Declaration on the Granting of Independence to Colonial Countries and Peoples (Resolution 1514), “solemnly proclaim[ing] the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations” and acknowledging that the “subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the charter of the United Nations, and is an impediment to world peace and co-operation.”3 “Immediate steps” were to be taken in all non-self-governing territories “to transfer all powers to the peoples of those territories, without any conditions or reservations.”4 The following day the General Assembly adopted Resolution 1541, which identifies three options for non-self-governing territories: sovereign independence, free association with an independent state, and integration with an independent state.5 Mindful of the reluctance of colonial powers to relinquish “their” territories, the resolution notes that the status of “free association” is to be contingent upon the free and voluntary choice of the peoples of the territory, must “respect[] the individuality and the cultural characteristics of the territory and its peoples,” and may be modified by the people.6 Integration, if chosen, was to be on the basis of full equality, and “should be the result of the freely expressed wishes of the territory’s peoples acting with full knowledge of

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the change in their status.”7 The choice, clearly, was not up to the colonizing powers, but one for colonized peoples to make. To all appearances the colonial world order was crumbling and, initially, the prospect of truly liberatory change on a global scale seemed imminent. On June 30, 1960, celebrating the occasion of the independence of the Democratic Republic of the Congo, prime minister Patrice Lumumba noted that the successful effort “to put an end to the humiliating slavery that had been forced upon us” marked the beginning of another “sublime struggle that will bring our country peace, prosperity, and grandeur.”8 The following year, Ghana’s first prime minister, Kwame Nkrumah, said with respect to Africa’s vast mineral, agricultural, and hydrological resources, “Never before have a people had within their grasp so great an opportunity for developing a continent endowed with so much wealth.”9 Besides political independence, Nkrumah stated, “all we ask of the former colonial powers is their good will and cooperation to remedy past mistakes and injustices.”10 This request, of course, was not met. Lumumba was assassinated in early 1961 at the behest of Belgium and with the support of the United States; Nkrumah was overthrown in a 1966 coup soon after he published NeoColonialism: The Last Stage of Imperialism, a radical critique of Western responses to African nationalism.11 Their fates reflect the broader reality that the anticipated benefits of decolonization have not materialized in any meaningful way for most formerly colonized peoples. Substantive decolonization under international law has been constrained by many factors, including most prominently the presumptions that (1) decolonization meant independent statehood and nothing more; (2) the rules of international law, developed by and for colonial powers, would remain largely unchanged; (3) the boundaries of existing external colonies would become the boundaries of the new states; and (4) only territories “geographically separate” from colonizing powers were eligible for decolonization. Antony Anghie notes that the jurists of the decolonization era were “framing the project as though the colonial encounter was about to occur, as opposed to already having taken place.”12 Rather than “remedy[ing] past mistakes and injustices” as Nkrumah requested, the changes initiated by the most powerful states and their leaders ignored the history of colonialism, thereby precluding substantive analyses of structural inequities.13 The extent to which newly recognized states had been stripped of their wealth was disregarded, as was the extent to which the Western powers had relied upon the exploitation of the resources of these territories for their own development.14 It was as if the historical slate had been wiped clean at the moment the former colonies became independent.15

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This clean slate was subject to one important caveat. The historical record had not been erased with respect to the leases and concession agreements entered into prior to independence, which the colonial powers now insisted were binding on the new states.16 Although colonized peoples—like American Indian nations—had not been recognized as sovereign enough to prevent colonial occupation and expropriation, they were now deemed to have had just enough sovereignty to alienate their natural resources.17 The result, as Nkrumah observed in 1965, was that Africa’s “earth is rich, yet the products that come from and above and below her soil continue to enrich, not Africans predominantly, but groups and individuals who operate to Africa’s impoverishment.”18 The formerly colonized territories were now characterized as simply “backward” or “less developed” states, and the colonial powers that had become rich and powerful at their expense began creating institutions that would “aid” in their development without risking any fundamental change in global economic power.19 In this respect, decolonization has functioned similarly to the “granting” of formal legal equality under US law—a level playing field was declared and remedial measures addressing a long history of exploitation were, for the most part, off the table. For internally colonized peoples in classic and settler colonial territories, the United Nations’ “solemn proclamation” of “bringing to a speedy and unconditional end colonialism in all its forms and manifestations” did little—or nothing—to further their decolonization. The UN Charter prohibits “the threat or use of force against the territorial integrity or political independence of any state,” a principle reiterated in several General Assembly resolutions.20 This principle protects colonial boundaries that were externally imposed with no recognition of Indigenous peoples’ ties to the land or their cultural, political, or economic realities. Known as uti possidetis, “the doctrine that old administrative boundaries will become international boundaries when a political subdivision achieves independence”21 has been consistently employed to require that arbitrarily imposed colonial boundaries be accepted by emerging states in Latin America, Africa, and Asia as a condition of independence, thereby “legitimiz[ing] the denial of sovereignty to pre-colonial, independent African states and communities.”22 The result, law professor Tayyab Mahmud observes, “is often a mockery of the right to self-determination” as “colonial lineage and the process of territorial demarcation of postcolonial states ensured that internal colonialism became the rule rather than the exception.”23 Settler states similarly rely on “territorial integrity” to deny Indigenous land rights, but the mere fact of militarized occupation gives them no superior claim. France quite famously attempted to maintain its colonial power

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over Algeria by declaring Algeria to be part of its metropolitan territory, largely because such a significant French population had taken up what it considered to be permanent residence in the colony.24 The French claim was never accepted as compatible with international law, yet there is nothing that meaningfully distinguishes it from the claims of the United States to, say, Hawai‘i or Alaska, both incorporated into the United States in accordance with the wishes of the settlers and without regard for the preferences of their Indigenous populations.25 As we consider the decolonization of territories occupied by settler states, it becomes clear that the roadblocks created by international law’s emphasis on respect for “territorial integrity” are reinforced by the exemption of settler states from the decolonization mandate. Thus, Resolution 1541 attempts to limit the definition of non-self-governing territories to those that are “geographically separate” as well as “distinct ethnically and/or culturally” from the “administering” state.26 This is sometimes described as a requirement that territories be separated from their colonizing powers by an open expanse of “salt water” (or “blue water”) in order to have a right to decolonization.27 Like the uti possidetis doctrine, its territorial focus undermines the right of peoples to self-determination, and reinforces internal colonial regimes. Settler states wield much power in the international legal system and they have ensured that the right to decolonization will not be interpreted to reach them. Nonetheless, the legal and economic limitations imposed upon the mandate to decolonize were political compromises, not a reflection of what international law actually required at the time, now mandates, or could evolve to be. As Patrick Wolfe observes, “Nothing . . . about settler colonialism requires there to be a spatial hiatus (or ‘blue water’) between metropole and colony. Settler colonization occurs and persists to the extent that a population sets out to replace another one in its habitation regardless of where the colonizing population originated.”28 Conversely, its decolonization will not be imposed from above, but must be effectuated from below. With this in mind, we consider how recognition of the right to self-determination may aid us in this process.

The Right to Self-Determination “Liberation does not come as a gift from anybody,” Adolfo Gilly observed in introducing Fanon’s Studies in a Dying Colonialism.29 Self-determination, likewise, is not granted; rather, we realize it by fulfilling our responsibilities for ourselves, for the well-being of our communities, and for all of our relations. As Robert Williams summarized, it “is understood generally, at its core,

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as encompassing the idea that human beings, individually and as groups, should be in control of their own destiny, and that systems of government should be devised accordingly, and not imposed upon them by alien domination.”30 From this perspective, it comes as no surprise that self-determination is central to the movements of Indigenous peoples, peoples subjected to external colonialism, and those who are colonized within recognized states. According to the International Court of Justice, “The right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character”; in other words, it is binding on all.31 The UN Charter identifies the development of “friendly relations among nations based on respect for the principle of equal rights and selfdetermination of peoples” as one of the United Nations’ primary functions.32 As mentioned above, the General Assembly’s 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples (Resolution 1514) “solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations.”33 It states forthrightly, “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”34 This is repeated almost verbatim in Common Article 1 of the ICCPR and the ICESCR.35 According to the UN Human Rights Committee, the right to self-determination was given such primacy because it is a foundational precept whose “realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights.”36 In other words, individual rights cannot be fully realized absent decolonization. As with any legal principle, the real debates emerge in its application. Legal scholar Richard Falk observes that self-determination “bears directly on many of the bloodiest and persistent struggles that presently beset every region of the planet.”37 Its redemptive potential, he notes, hinges on “whether the criteria relied upon to clarify the right to self-determination are to be determined in a top-down manner through the mechanisms of statism and geopolitics or by a bottom-up approach that exhibits the vitality and potency of emergent trends favoring the extension of democratic practices and the deepening of human rights.”38 Not surprisingly, states do not see it as in their interest for peoples purportedly under their jurisdiction to exercise their right to self-determination and, as a result, have developed strategies for resisting such efforts or minimizing their impact. Because self-determination is articulated as a right of “peoples,” a state’s first line of defense is often to claim that a particular group is not a distinct “people” but simply a minority group within the general popula-

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tion.39 Settler states and other entities with internally colonized peoples also continue to rely on the “salt water” or “blue water” doctrine to limit decolonization to territories that are “geographically separate” as well as “distinct ethnically and/or culturally” from the “administering” state.40 Finally, states claim that their right to “territorial integrity” precludes interference with their “internal affairs.”41 A different picture emerges when self-determination is viewed from the bottom up. From this perspective, five foundational principles are worth noting: 1. Territorial integrity is a legal fiction. 2. Peoplehood is constructed and defined by the people, not the state. 3. Self-determination cannot be constrained by a paradigm of “universal” rights. 4. States are not the only viable forms of political organization. 5. Self-determination is a process and a continuing right.

We turn now to these principles.

Territorial Integrity State resistance to decolonization based upon the right to territorial integrity quickly devolves into claims based on raw power rather than legality. With respect to internally colonized peoples, states rely primarily on the principle of uti possidetis or the “salt water” thesis to deny that the legal obligation to decolonize applies to them. In realpolitik terms, it makes sense for these principles to have been incorporated into a body of law established largely by and for states. Substantively, however, these rules lack legitimacy, even within that framework, prompting international legal scholar Henry J. Richardson III to observe more than a quarter century ago that “the colonialism-derived condition that a ‘people’ may only exist on territory not belonging to the metropolitan state . . . has arguably been dropped.”42 Uti possidetis, ita possideatis was a principle of Roman law meaning “as you possess, so may you possess,” and it was not the rule of decision in a dispute over real property but merely the starting point, establishing that the party not in possession had the burden of proof.43 Contemporary international law’s transformation of this presumption into an inflexible determinant of territorial rights simply gives force the imprimatur of law. As law professor Steven Ratner observes, it is “a complete reversal from the Roman law concept,

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which excluded even provisional possession to a party who accomplished it by violence.”44 The so-called “salt water” thesis is no less transparently based on power rather than law. Why would geographic contiguity render an otherwise colonial occupation into a legally acceptable territorial acquisition? This restrictive interpretation of the mandate to decolonize originates with UN General Assembly Resolution 1541, but that simply reflects the power of the major settler states to conform the law to their practice, as well as the fact that, in this case, their interests were aligned with those of the newly independent states anxious to preempt secessionist movements. The right to decolonization is a function of structural relations, not location. As a result, “self-determination units” may encompass “entities part of a metropolitan State [that] have been governed in such a way as to make them in effect non-self-governing territories,” according to international law scholar James Crawford.45

Defining Peoples The right to self-determination is one that may be exercised by peoples, and peoplehood is established by the history, beliefs, and actions of the people. States do not have an exclusive right to determine which groups under their claimed jurisdiction constitute peoples. Rather, as legal scholar Howard Vogel observes, “the definition of the term ‘peoples’ in a minority rights context must be left to the people themselves.”46 The 1976 Universal Declaration on the Rights of Peoples, also known as the Algiers Declaration, states not only that “every people has an imprescriptible and unalienable right to selfdetermination” but also that this encompasses “the right to break free from any colonial or foreign domination, whether direct or indirect, and from any racist regime.”47 Groups previously relegated to “minority” status are increasingly recognized as having a right to self-determination.48 Richardson observed in the mid-1990s that “a new constitutive feature of the world community comprises the recent global phenomenon of claims to the right of self-determination of peoples, by a wide variety of peoples and groups,” including Chechens and Georgians in Russia, Chiapas “rebels” in Mexico, the Ogoni in Nigeria, and Native peoples in the United States and Canada.49 Other examples abound, including but not limited to the Basques and Catalans in Spain, the Nagas in India, and the Tamils in Sri Lanka.50 In 1998 the Canadian Supreme Court noted with respect to the status of Quebec that “a people” may be a minority within a state,51 and that a “definable group” may have the right to determine

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their own political status when they are consistently excluded from political, social, and cultural participation in government.52 Peoplehood is often conceived in static or essentialist terms, but it can be actively constructed. In 1971, in the Namibia case, the International Court of Justice rejected South Africa’s argument that “tribalism” within Namibia prevented its population from constituting a people.53 Addressing “the Namibians’ status of a people,” vice president Fouad Ammoun’s separate opinion recognized the role of agency in this process by pointing out that “the Namibian people . . . asserted its international personality by taking up the struggle for freedom” and, as a result, had been recognized by UN General Assembly and Security Council resolutions, as well as by the Court.54 Similarly, sustained occupation does not, per se, alter the nature of the relationship. Justice Ammoun also observed that neither Germany’s colonization of Namibia nor South Africa’s administrative “mandate” erased Namibia’s legal personality.55 “Sovereignty, which is inherent in every people, just as liberty is inherent in every human being, therefore did not cease to belong to the people subject to mandate. It had simply, for a time, been rendered inarticulate and deprived of freedom of expression.”56 As the two major human rights treaties unequivocally state, all peoples have “the right to freely determine their political status and to freely pursue their economic, social and cultural development.”57 They also have the right to “freely dispose of their natural wealth and resources,”58 which is why the major settler states fought a protracted battle to have Indigenous peoples referred to as “populations” rather than “peoples” in international legal forums.59 But this does not necessarily imply any particular course of action. As Resolutions 1514 and 1541 affirm, colonized peoples have the right to choose, for themselves, whether they wish to be politically independent or to negotiate other relationships with their (former) colonizers. Legal scholar Maivân Clech Lâm notes that “the overwhelming majority of indigenous peoples represent, even as they pursue the recognition of their full right of self-determination, that they do not plan to exercise the right to effect separation or secession from encompassing states, but only to re-negotiate, albeit in fundamental respects, their relations with them.”60 Nonetheless, the choice is to be made by the people themselves, not by the colonizing power.

Moving beyond “Universality” According to the preamble to the Universal Declaration of Human Rights, human rights comprise a “common standard of achievement for all peoples and nations,” to be promoted and respected by “every individual and every

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organ of society.”61 Universality is often considered the greatest strength of the international human rights system but may also be its Achilles’ heel, as the values and presumptions at issue are so explicitly Euroderivative. Rights are framed primarily in terms of the relationship between the individual and the state, and it is presumed that they are most effectively protected by democratic governance, as that concept has been developed in the West. “The paradox of the corpus is that it seeks to foster diversity and difference but does so only under the rubric of Western political democracy,” Makau Mutua notes, thereby resulting in a system characterized by “inelasticity and cultural parochialism.”62 All human societies have developed norms and expectations of behavior— what we might call the rights and responsibilities of its members. One can envision a global framework of human rights that recognizes and respects the plurality of cultural perspectives and the importance of particularized context, but our contemporary human rights norms emerge from an explicitly colonial setting. Mutua observes that its colonial legacy is perpetuated in a narrative subtext that consistently “depicts an epochal contest pitting savages, on the one hand, against victims and saviors on the other.”63 In this construction, the “saviors” utilize human rights to protect the “victims” from “savage” or “backward” practices. Thus framed, the globalization of human rights tends to impose particularly Western constructs upon non-Western societies as well as on those deemed Other within Western societies, thereby replicating the hierarchies characteristic of colonial relationships.64 In many cultures, human beings are understood not as atomized individuals but in relation to their communities, and human communities do not exist autonomously but in relationship to all other forms of life. “Indigenous identity is formed by the intersection of land, culture, and community,” according to legal scholar Rebecca Tsosie. It is a reciprocal relationship, with the land looking after the people and “orient[ing] the people in understanding how to meet their responsibilities to each other and to the land.”65 From this perspective, one’s rights cannot be coherently understood apart from one’s responsibilities. For those of us raised within the dominant culture of the United States, it is difficult to grasp the meaning of Robert Vachon’s admonition that among many traditional Indigenous cultures, the word “rights” does not exist, and that for many people “it is difficult to understand that rights or entitlements could be homocentrically defined.”66 Continuing, he notes, the notion “that they, furthermore, could be defined by a sovereign state . . . is almost ridiculous.”67 Gustavo Esteva and Madhu Suri Prakash report learning from their “grassroots experiences . . . that we do not live in a universe, but in a pluriv-

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erse; that the universality in the human condition claimed by human rights propagators exists only in their minority worldview.”68 Among other things, this means that true self-determination will inevitably take many different forms.

Thinking beyond States States are not inevitable forms of human social organization. The contemporary international legal order is composed of state actors, and we tend to presume that lands and peoples would, of course, come under the exclusive jurisdiction of a particular state. But history tells us otherwise. The current state-centric system is generally traced to 1648 and the Peace of Westphalia, but it took an additional three centuries before the world was divided up almost exclusively between state actors.69 Human societies were organized in many different ways for millennia before states were imposed upon them, and “sub-state” forms of governance continue to be as influential, in many respects, as state governments. “Possession of sovereignty is the result of force threatened and applied,” and “states are the results of wars fought and won, rather than of some sort of natural truth about the community,” Paul Kahn observes.70 State boundaries have always been, and continue to be, in flux, and the viability of the state system itself is increasingly being called into question.71 It is not clear that states have contributed in any significant way to human well-being. Instead, they have functioned to override alternative forms of social organization, imposing in the process very Western, universalizing, hierarchical, and exclusive presumptions about governance. But we know that nations can be organized in multiple and overlapping ways, that territories may be shared between them, that individuals can identify themselves within networks of relationships rather than as subjects of a particular sovereignty. This means that self-determination can take many forms. As Rosa Ehrenreich Brooks suggests, “If we stop fetishizing the state, perhaps many phenomena that now often appear . . . as problems . . . would instead appear as virtues or opportunities.”72

Self-Determination as a Continuing Process Finally, self-determination is not a static right, but a “continuing” one. As framed by international legal scholar Antonio Cassese, “The issue of whether the government of a sovereign State is in compliance with [common article 1 of the ICCPR and the ICESCR] is a legitimate question, with reference to

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any State, at any point in time.”73 This means that the status of a people subject to the jurisdiction of any state may always be reassessed.74 Perhaps more importantly, self-determination continuously addresses the conditions under which people live and the ways in which they are governed.75 Erica-Irene Daes emphasizes that it is very important to think of self-determination as a process. The process of achieving self-determination is endless. This is true of all peoples—not only indigenous peoples. Social and economic conditions are ever-changing in our complex world, as are the cultures and aspirations of peoples. For different peoples to be able to live together peacefully, without exploitation or domination— whether it is within the same state or in two neighboring states—they must continually renegotiate the terms of their relationships.76

In other words, self-determination is not an endpoint but a way of being.

Nations Within Henry Richardson summarizes the state of the law as follows: “The right of self-determination of peoples remains authoritative as international jus cogens. Not only has there been no limiting of the right under international law, but rather the right has expanded and continues to do so. It is no longer limited to freedom from overseas colonialism and foreign occupation if it ever was.”77 What does this mean for people under US jurisdiction? A key feature of settler colonialism is the colonizers’ presumption that they came with, and still maintain, a sovereign prerogative to assert control over the lands, resources, and peoples found within their claimed territorial boundaries. Asserting this prerogative, the American settler state has defined all peoples “encapsulated” within its borders as “minorities” with only such rights as it chooses to grant or recognize.78 But this does not mean that these groups are not “peoples” with legal rights. The determination of who constitutes “a people” is largely in the hands of the people themselves. As Justice Ammoun of the ICJ noted in the Namibia case, international personality can be asserted “by taking up the struggle for freedom,” and sovereignty does “not cease to belong to the people” simply because it has “been rendered inarticulate” by sustained occupation.79 International law tends to speak of “peoples” in relatively fixed and essentializing ways, but it is much more realistic to see peoples and nations as living beings, organic entities that grow and adapt in response to their environments. Indigenous peoples around the world have long recognized that

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kinship connects them to others in ever-expanding networks of relationship without eviscerating their own identities.80 As a result of our histories and the social relations we have chosen or have had thrust upon us, Indigenous and non-Indigenous peoples within the United States are not easily separated into distinct and exclusive identities, racial or otherwise. This does not, however, preclude their recognition as peoples.

Native Nations The most fundamental principles of international law thus establish that the Native nations of the “lower forty-eight” states, the Indigenous nations in Alaska, and Native Hawaiians constitute peoples with the right to selfdetermination. In light of their long-standing relationships with the territory now occupied by the United States—their rights to and responsibilities for these lands—there is no reason, other than raw colonial power, why they should not be recognized as non-self-governing peoples with a right to decolonization. And that, in turn, means that it is their decision as to whether they wish to be independent, to be incorporated into the settler state, or to negotiate a compact of free association on terms acceptable to all parties. (These rights, of course, also apply to external US colonies of Puerto Rico, Guam, the Northern Marianas, “American” Samoa, and the “US” Virgin Islands.81) This raises the possibility of an entirely different configuration of “American” territorial rights and responsibilities. Indigenous peoples on territories claimed by the United States also have a right to restitution with respect to stolen lands and natural resources, and to both compensation and satisfaction for the egregious harms inflicted upon their peoples. And it is at this point that we encounter the “fear factor.” In my experience it is difficult to have a rational discussion about decolonizing American society with anyone who is not Indigenous because the very idea triggers a defensive reaction that generally manifests as “but then we’d have to leave,” quickly followed by “and I don’t have anywhere to go.”82 As this reaction illustrates, it is useful for settler culture to project sovereignty and identity as all-or-nothing propositions, leaving non-Indigenous peoples to imagine that their disappearance is the only alternative to the status quo. Because this is not a thinkable alternative, it allows them to dismiss the foundational issue of colonial occupation without even addressing it. In fact, however, it was Angloamerican settlers, not American Indian nations, who imposed their presumption of exclusivity, who arrived with a firm conviction that they could live on this land only if Indigenous peoples were eliminated. As Dean Saranillio observes, “Imagined violence on the part of

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Indigenous movements is a common trope that allows Native savagery to stand in for settler self-critique.”83 But it is the settler state that has always imposed itself through violence. What decolonization actually entails is a relinquishment of the settlers’ self-assigned entitlement to encompass everything and everyone within their state; in other words, their insistence that only they have the right to be self-determining.84 Indigenous nations “encapsulated” within the United States have rarely if ever called for the departure of all settlers or other migrants, “but rather accountability for their discourses and practices that ultimately come at Native expense.”85 The presumption that relinquishing exclusive settler sovereignty equates to a wholesale evacuation of the territory by non-Indigenous peoples does not reflect any material reality but simply an inability to conceive of living with, or within, others’ polities.

“Nations Becoming” What are the implications of decolonization and self-determination for nonIndigenous people of color in the United States? This question has been debated, in one way or another, since the arrival of the first enslaved Africans in the British colonies,86 the annexation of Mexico in 1848, and the United States’ acquisition of external colonies from the late nineteenth through mid-twentieth centuries. Ultimately, it will only be answered by the people themselves, for this is what self-determination means. But we can make some preliminary observations. People of African descent in the United States have long been described as a “nation within a nation”87 and, according to Richardson, under international law they are best understood as “encapsulated” within a national state but nonetheless a “people” entitled to rights of self-determination.88 International law does not give internally colonized or “encapsulated” peoples within the United States a right to function as colonizers themselves. The fact that peoples indigenous to one part of the world have been relocated to the territories of other Indigenous peoples does not erase their peoplehood or their inherent sovereignty, but neither does it give them a legitimate claim to someone else’s lands. Relocated peoples are, however, entitled to freely determine their political relationship to the colonizing power, and they are certainly free to negotiate with the Indigenous owners of the lands they now occupy or wish to occupy. The distinct rights of peoples and nations can help communities to think of themselves outside the institutions imposed upon them by the state. This is why there were so many “nationalist” movements among people of color in the United States during the 1960s. One striking example was “El Plan

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Espiritual de Aztlán,” a 1969 Chicano declaration of “the Independence of our Mestizo Nation,” a “Union of free pueblos.”89 The invocation of Aztlán became a bold assertion of Chicano identity, recognizing the Indigenous heritage of Mexicans in the Southwest, emphasizing the occupation of their lands, and rejecting assimilation in favor of cultural independence. Other non-Indigenous people of color have found it more difficult to pinpoint what might make them a “people,” but nonetheless we continue to struggle, as individuals and communities, to develop identities that do not intrinsically reinforce the settler state. Envisioning and realizing identity, like self-determination itself, is a process. Peoplehood may be forged and kept alive through struggle, as Justice Ammoun recognized. While our histories and relationships are essential components of our identities, we need not invoke or rely upon a mythical or essentialized past. Frantz Fanon observed that “a national culture is not a folklore, nor an abstract populism. . . . It is not made up of the inert dregs of . . . actions which are less and less attached to the ever-present reality of the people. A national culture is the whole body of efforts made by a people in the sphere of thought to describe, justify, and praise the action through which that people has created itself and keeps itself in existence.”90 In 1970 the late poet and playwright Amiri Baraka urged Black Americans to live “as if we were liberated people,” and called for the establishment of a political organization that would “be a model for the nation becoming.”91 What is it that we—any of us—are becoming? In the final chapter we consider ways to move beyond the presumption that “only the state creates law” as Cover put it, and to “invite new worlds.”92

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Mapping New Worlds It is not a dead society that we want to revive. We leave that to those who go in for exoticism. Nor is it the present colonial society that we wish to prolong. . . . It is a new society that we must create. —Aimé Césaire

Racial realism forces us to acknowledge that racialized privilege and subjugation are systemic and persistent in contemporary American society. These are not merely abstract constructs, but social forces that produce and reproduce grinding poverty, homelessness, malnutrition, illiteracy, premature death, and the ever-present prospect of arbitrary incarceration. They result in conditions that predictably, if not always intentionally, crush the human spirit. Ngũgĩ wa Thiong’o cautions that the most powerful weapon utilized against oppressed peoples is a “cultural bomb” intended to induce despair by undermining belief in our capacities and “ultimately, [our]selves.”1 In the United States today, one manifestation of this cultural bomb is the pervasive conviction that racial injustice can only be countered by appeals to the very structures of state power that have institutionalized racial hierarchy and exploitation. It is a “solution” whose outcome is quite predictably the undermining of our own power. To the extent that racialized subjugation is rooted in and perpetuates colonialism, its remediation will require us to step outside the triumphal narrative of settler culture and consider what is entailed in the decolonization of the relationships between (1) Indigenous peoples, (2) those who see themselves, at least aspirationally, as part of the settler class, and (3) those who understand that they are neither indigenous to this land nor intended to benefit from settler privilege. This requires new stories, for, “of course, the decolonization of settler colonialism needs to be imagined before it is practiced.”2 Or, as more poetically framed by historian Robin D. G. Kelley, “The map to a new world is in the imagination, in what we see in our third eyes rather than in the desolation that surrounds us.”3 Imagining the decolonization of any settler state is a daunting task, for we have no readily available models to consult. Settler colonial narratives “move forward along a story line that cannot be turned back,” Lorenzo Ve201

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racini explains.4 There is no endpoint to their vision beyond the permanent normalization of settler hegemony; it is a totalizing narrative within which “the discontinuation of a settler colonial circumstance remains unthinkable.”5 To render decolonization thinkable, we will have to reject the constraints intended to keep each of us in his or her assigned place and to prevent us all— even the most privileged—from becoming free people. We are all capable of deciding whether we wish to perpetuate the colonial order or to participate in its transformation. The trick is remembering that we are always doing one or the other; there are no passive bystanders in colonial encounters. As the philosopher Jean-Paul Sartre summarized in his introduction to Albert Memmi’s classic text on colonialism, “There are neither good nor bad colonists: there are colonialists.”6 Decolonization in the classic colonial context has generally meant that the colonizers “go home,” as former colonies become independent states. In settler states we are faced with different circumstances because the territory at issue is considered “home” by the colonizers as well as the colonized. Neither formal equality, nor assimilation, nor multiculturalism can help us; they simply provide “an expanded definition of who can claim belonging to the settler body politic [while leaving] settler colonial structures unchallenged.”7 Similarly, the “reconciliation” promoted by settler states such as Canada and Australia promises little more than “a future in which the nations and peoples being dominated by states will have learned to ‘reconcile’ themselves to living within and under a given ‘state of domination.’”8 There are no formulaic solutions, for decolonization is always contextspecific.9 But two things are clear. First, because it entails the exercise of selfdetermination by colonized peoples, it must be envisioned and implemented from the ground up. Decolonization cannot be legislated or decreed from above, or directed by well-intentioned outsiders. Colonial forces may withdraw or negotiate alternate arrangements with those over whom they have asserted power, but if they presume to dictate the terms of decolonization, the result is simply a variant of colonial rule. Second, we know that decolonization is a dialectical process. A people cannot fully exercise its right to self-determination while remaining colonized, but, then again, it can become liberated only by exercising that right. Patrick Wolfe’s insight that settler colonial “invasion is a structure not an event” tells us that the decolonization of a settler society, likewise, will not be an event but a process of de-construction and re-construction.10

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Identities Moving beyond colonial dynamics of power and privilege requires us to “change the stories we live by,” as Ben Okri puts it.11 Creating liberatory counternarratives means more than expanding the dominant narrative. Rather, it involves both rejecting the false consciousness that mainstream culture and history would impose on us, and ensuring that our understandings of ourselves, our communities, our origins, and our visions for the future are rooted outside the colonial framework.

Reclaiming Histories We begin by refusing to concede to narratives that erase our identities, our lived realities, and often even our humanity. Acknowledging that contemporary American society is neither postracial nor postcolonial brings us face to face with unpleasant realities that we may wish to ignore, or repress. Just as it is illogical to believe that we can rely on the settler state’s law and legal institutions to undo the very hierarchies they were created to protect, it is equally fantastical to expect our realities to be accurately depicted in settler society’s story of itself.12 But it can be exhausting, like playing a game of whack-amole, to constantly confront the insidious misrepresentations that permeate the American story of exceptionalism and perpetual innocence.13 There are many good reasons for forgetting, or repressing, that which seems too painful to bear. It can feel overwhelming to come to terms with the persistence of overt hostility, the apparently insurmountable disparities in well-being, and the human consequences of living in families and communities rendered dysfunctional by the repetitive traumas and stress of day-to-day survival. Collective acknowledgment of the trauma induced by persistent and ongoing dehumanization is essential to transformation and healing, but is a process best engaged in carefully, and in community.14 As Maori scholar Linda Tuhiwai Smith observes, it can be enormously empowering to realize that often “such things as mental illness, alcoholism and suicide, for example, are not about psychological and individualized failure but about colonization or lack of self-determination.”15 At a localized or grassroots level, creating space for such processes can enable not only individuals but also their extended families and communities to assert more control over the ways in which such issues are addressed.16 Moving on to embrace the stories that “give our lives meaning”17 requires honest accounts of who we are, where we have come from, what has been done to us, how we have resisted—or been complicit—and how we have

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survived. As historian and novelist Emma Pérez notes, it is “the interstitial gaps” of history that “interrupt the linear model of time,” and it is here in “the unheard, the un-thought, the unspoken” silences that we can develop the “decolonial imaginary.”18 We can begin by searching out, respecting, and preserving the oral histories that link us to our origins and relations; and we can structure our lives to ensure that the children of our communities understand their genealogies, contextualized within the histories of their peoples. We can refuse to normalize the dehumanization of others in everyday interactions, taking, for example, the small step of calling out the persistent references to American Indians in the past tense in the media, in the classroom, and in everyday discourse.19 In other cases, we may need to insist upon broad social recognition of massive injustices, for these demonstrate the systemic harms that the dominant narrative would minimize or dismiss as anomalous.20 Barbara Alice Mann notes that “these are not easy stories to tell, but, if the twenty-first century is to turn out any better than the twentieth, then Turtle Island must have a massive Truth and Justice Tribunal to clear the air. Open admission of past transgressions must be required.”21 It was in such venues, she points out, that “public awareness of culpability was forced on Germans after World War II” and the groundwork was laid for dismantling apartheid in South Africa.22 Mann carefully avoids the more common terminology of “truth and reconciliation” utilized in South Africa, Chile, and Canada, because a focus on “reconciliation” often masks the fact that harms at issue are ongoing, and admission of historic wrongs can become a substitute for corrective action.23 We do not need anyone’s permission to create venues intended to elicit, compile, and preserve testimonies, as has been done in “people’s tribunals” where, for example, Native Hawaiians told of the invasion and occupation of their lands, or survivors of Hurricanes Katrina and Rita recounted their abandonment and dispossession but, in both cases, also documented their resistance and resilience.24 These are all ways of protecting the “diversities of truth” represented in our experiences25 and ensuring that the stories we tell are part of a process of “coming back to our power,” as Gregory Cajete puts it.26

Reconstructing Identities In Grassroots Post-Modernism, Gustavo Esteva and Madhu Suri Prakash credit Yvonne Dion-Buffalo and John Mohawk with the observation that colonized peoples can “become good subjects, accepting the premises of the modern West without much question; become bad subjects, always revolting against the parameters of the colonizing world; or become non-subjects, acting and

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thinking in ways far removed from those of the modern West.”27 To become non-subjects, we have to find a narrative “center” that is not defined by a linear, triumphalist, or universalizing worldview. This requires, in Irene Watson’s words, “think[ing] about the condition of dispossession outside the ‘logic of possession (as a hallmark of modernity, liberalism, and humanism).’”28 We want neither to concede to colonial constructs nor to remain in perpetual rebellion against them, but to move out of their ambit, to engage with colonial structures and institutions from conceptual ground of our own. Thus, for example, Aboriginal scholar Ambellin Kwaymullina speaks of “narrative sovereignty.”29 In contrast to “traditional Eurocentric notions of dominion over (non-living) territory,” she explains, when Aboriginal peoples speak of where they are from, of Country, they speak of who they are. Moreover, “Country was given, not taken; to assert autonomy in regards to a Country is to assert a relationship to place comprised in equal part of rights . . . and responsibilities,” one that embodies “the fundamental reciprocity that underlies all other [relationships].”30 It is a relationship “founded in story,” one that “began with the narratives of the Dreaming whereby the many Aboriginal Countries were, and are, created” and “continues through the daily participation in, and management of, the sets of relationships between all life.”31 The construct of Aztlán provides a different narrative of Country. For literature professor Rafael Pérez-Torres, “the histories of Mexicans in this country are marked by a series of tensions and ruptures—cultural, linguistic, political, sexual, economic, and racial—that cut across bounded terrains, that cut across ways in which one can and cannot call one’s location ‘home.’”32 Aztlán, he notes, narrates a national identity by evoking “three moments of contestation”: “the Spanish invasion of the Aztec Empire, the appropriation of Mexican lands by the United States . . . , and immigration to (or reconquest of) the US Southwest by Mexicanos and Central Americans in the contemporary era.”33 He sees it evolving from a fairly literal reference to a singular homeland to an identity located in “the borderlands”—a “site that both belongs to and has never belonged to either the United States or Mexico.”34 Marking “the impossible interstices between imagination and history,” it can serve, he says, as “our start and end point of empowerment.”35 Both sovereignty and identity can be, and have been, constructed in layered and overlapping rather than exclusive ways. Sociologist William Roy reminds us that “not all societies divide people into fixed races, assign everyone to only one of two sexes, or accord higher status to those who accumulate wealth. Many societies treat time as a cycle more than a line. . . . Few societies think of space in terms of abstract coordinates that can have meaning apart from the activities that happen in particular places.”36 Stepping outside of the

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all-encompassing paradigm of Western civilization, we can see, perhaps, that we live not in the universe but in a “pluriverse,” as Esteva and Prakash put it.37 We will not be able to significantly alter our relationships to settler society without envisioning identities that are not limited by the parameters of statehood and citizenship so central to the master narrative.38 Throughout US history we have seen the exclusion of people from both birthright and naturalized citizenship on the basis of race and, conversely, their inclusion without consultation or consent.39 And yet we are often told, explicitly or implicitly, that citizenship should constitute our primary, perhaps sole, identity and that it comes with certain behavioral or attitudinal expectations. In Hegelian terms, freedom is realized only in the “substantial unity of the State,” which “has a superior right over individuals, whose first duty it is to be members of the State.”40 The resulting state-imposed behavioral norms are reflected in, for example, the “loyalty” oaths of the McCarthy era,41 the penalties imposed upon boxer Muhammad Ali for refusing to fight in Vietnam,42 or the more recent furor generated by football quarterback Colin Kaepernick taking a knee during the national anthem to protest the killings of Black youth by the police.43 However, as Jeff Corntassel observes, “the legitimacy of the state is only as strong as people’s inability to imagine life without it,”44 and we need not necessarily be classified by fixed and exclusive categories of citizenship intended primarily to facilitate the exercise of the settler state’s claimed jurisdiction over “its” lands and peoples. For those of us who are not indigenous to the lands on which we live, becoming “non-subjects” is a venture that must be approached with caution if we are to avoid becoming colonizers of a different hue. At a minimum, we can be mindful not to assert a colonial prerogative to occupation and we can begin conceiving of ourselves as part of a community, people, or nation—or multiple and overlapping communities, peoples, and nations—whose identity or identities do not depend upon the legitimacy of the settler state. From there, we can consider what it will take to create networks of social, political, economic, and legal relations that will allow us to thrive, collectively, without exploiting others.45

Strategies Decolonization will unfold in many ways, in many different places. History tells us that in this process we will meet with stiff resistance from those intent on protecting the status quo. We need, therefore, to approach the task strategically, by paying close attention to how colonial dispossession and exploitation

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are perpetuated, and to what proves most liberating and empowering to those being dispossessed or exploited. Considering structural racism in terms of settler strategies of elimination, exploitation, and control helps us see how different manifestations of racial subjugation serve to strengthen, enrich, or otherwise legitimize the settler state. This can help us get beyond comparative victimization to understand that differential treatment serves specific purposes—and that it is in the interest of all who oppose racism to contest colonization. The settlers’ strategies, priorities, and reactions tell us what is most critical to the establishment and maintenance of colonial relations and, therefore, what is essential to its deconstruction. Because the foundational requirement of a settler state is the occupation of other peoples’ lands, decolonization always requires the defense of Indigenous peoples’ right to self-determination, including their right to choose how to deal with the occupation of their lands and the appropriation of their natural resources. As Patrick Wolfe stated, “No amount of good intentions or improved racial theorizing” will alter the underlying colonial reality unless “accompanied by territorial (re)-cession.”46 Any end run around this premise leaves us engaged in “an exercise in settler nation building.”47 If we cannot think beyond the settler state’s claims to “territorial integrity,” “even well meaning processes of indigenous and national reconciliation, or the incorporation of indigenous governance structures within the settler polity, ultimately contribute to the erasure of variously defined indigenous sovereignties and therefore to the reproduction of settler colonizing practices,” to quote Veracini.48 This is not an abstract proposition. Indigenous peoples’ struggles for selfdetermination rarely make the headlines, but just a little research reveals how the settlers’ desire for natural resources and the profits derived therefrom is consistently deemed more important than Indigenous rights and relationships. Knowing how critical these issues are to colonial occupation, we can understand the importance of contesting, say, the Keystone or Dakota Access pipelines cutting across the continent, or the conversion of Bear Ears National Monument into uranium mines, or the border wall that cuts through the homelands of Tohono O’odham, Lipan Apache, and other Indigenous nations.49 There are ongoing struggles for land rights in every geographic region of this country.50 Legal and political battles are fought every day to prevent the removal of American Indian children from their homes, to protect the religious freedoms of Indigenous prisoners, or to eliminate the blatantly racist and degrading mascots still flaunted by sports teams.51 In other words, there are always ways to act in solidarity with struggles for Indigenous sovereignty. Settler colonialism does not, however, depend solely on the oppression of Indigenous peoples. Much racial inequity derives from the settlers’ drive to

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create a low-cost, optimally controlled labor force that is readily accessible and disposable. This tells us that wages, working conditions, and security of employment are a priority, and that the exploitation of vulnerable immigrant workers and the use of prison labor as well as offshore enslaved or child labor must be contested—not only because fundamental human rights are at issue but also because these practices fuel the colonialism that keeps us all subordinated. Similarly, it is apparent that the settler class prioritizes the control of all conceivable forms of social interactions. Racialization continues to remove those deemed Other from settler spaces and to contain them physically, socially, economically, politically, and psychologically. Every day people of color are attacked by vigilantes or law enforcement, or have the police called on them simply for being in purportedly public spaces.52 This means that every day we have opportunities to counter these practices, doing whatever it takes to protect those who are being assaulted. More generally, we can see the importance of resisting the appropriation of geographic and social spaces, the ever-expanding reach of criminal law, and the militarized violence of contemporary policing. The intensity of the state’s reaction is a good way to gauge the effectiveness of actions intended to disrupt colonial relations of domination and subordination. We have seen that American Indians defending their homelands and enslaved Africans rising in rebellion have long been the stuff of settler nightmares, providing an excuse for the state’s use of overwhelming military force against those who would assert their independence. During the 1960s and early 1970s, the FBI’s counterintelligence programs (COINTELPROs) prioritized “neutralization” of the American Indian Movement and Puerto Rican Independentistas.53 Pursuing “Black Nationalist-Hate Groups,” law enforcement agencies engaged in particularly vicious attacks on the Black Panther Party but, in addition, targeted virtually all predominantly African American activist organizations, regardless of their tactics, goals, or ideologies.54 This reflects a perceived need to eliminate any viable, independent forms of social organization—and tells us that developing autonomous and self-sufficient communities is an important dimension of decolonization. Since the 1960s, the most intense and devastating domestic deployment of police power has not targeted terrorists—that is, those who would engage in armed attacks on civilian populations for purposes of coercion or intimidation—so much as those who act, or advocate action, independent of state power. Thus, for example, in 1971 local police and the FBI launched an armed attack on the Jackson, Mississippi, headquarters of the Republic of New Afrika (RNA), a group that had purchased land in the hope of establish-

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ing “a self-sufficient nation for black people—and one safe from the violence routinely inflicted on them by whites,” as summarized by a reporter for the Jackson Free Press.55 With even more devastating effect, in 1985 the Philadelphia police bombed a house occupied by members of MOVE, a group committed to “a communal ‘back to nature’ lifestyle, vegetarianism, reverence for all animal life, and scorn for ‘The Establishment.’”56 City officials let the house burn, incinerating eleven MOVE members, including five children, and allowing more than sixty surrounding residences to be destroyed.57 The federal government’s chemical attack on the Branch Davidian compound near Waco, Texas, and the ensuing inferno that killed forty-nine adults and twenty-seven children less than a decade later,58 illustrates that the state is motivated not simply by racism but by a profound need to maintain control over everyone within its claimed boundaries. What we see of settler state priorities today is entirely consistent with this history. The heavily militarized law enforcement units mobilized to crush the entirely peaceful gatherings of water protectors at Standing Rock, North Dakota, in the winter of 2016–2017 were part of a larger effort targeting Indigenous movements (and their allies) determined to prevent extractive industries from causing further environmental damage.59 Canadian police have explicitly labeled such activists “Aboriginal extremists” in order to encompass Indigenous struggles for self-determination within the government’s “war on terror.”60 In the United States, the Department of Homeland Security has labeled them “environmental rights extremists”61 or, in the alternative, the dupes of extremists who “attempt to exploit indigenous causes for their own ideological purposes”62—a framing that conveniently sidesteps questions of American Indian sovereignty and treaty compliance. Since 2015 we have seen an upsurge in the activity of White supremacist organizations, many of which openly advocate the use of armed force against civilians as well as governmental institutions.63 Although such entities accounted for three-quarters of the 372 people killed by “extremists” between 2007 and 2016,64 White supremacist organizations are not being treated as a major threat. It is “inescapably clear,” history professor Kathleen Belew observes, that “white power activism” has been facilitated by “the lack of public understanding, effective prosecution, and state action.”65 Perhaps this is because their primary goals are the elimination or more effective subjugation of people of color in what they deem to be “their” country—in other words, because their narrative is remarkably congruent with the origin story of the American settler state. Black activists, by contrast, do not need to take any action to be treated as a security threat. In August 2017, the FBI’s Counterterrorism Division issued an

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“intelligence assessment” warning that “Black identity extremists (BIEs)” were likely to engage in premeditated attacks on law enforcement officers because of the “perceptions of unjust treatment of African-Americans and the perceived unchallenged illegitimate actions of law enforcement.”66 Questioned by congresswoman Karen Bass, attorney general Jeff Sessions was unable to identify any African American group that had targeted police officers, could not explain why there was no similar report on White extremists, and refused to say whether he considered Black Lives Matter an extremist organization.67 According to the Foreign Policy article that made this report public, the term “black identity extremist” was recently invented, perhaps as “part of a politically motivated effort to find an equivalent threat to white supremacists.”68 The FBI defines BIEs as “individuals who seek, wholly or in part, through unlawful acts of force or violence, in response to perceived racism and injustice in American society and some do so in furtherance of establishing a separate black homeland or autonomous black social institutions, communities, or governing organizations within the United States.”69 Despite the incoherence of this sentence, quoted directly from the Bureau’s “intelligence assessment,” we can glean from it that (1) persons willing to consider violating the law to contest racism and injustice will be targeted, and (2) the Bureau attaches particular significance to those who advocate separatism or support “autonomous” Black communities or institutions. It is important to note the intensity with which Indigenous and environmental activists, as well as people of color who assert a right to social or political autonomy, are being set up for violent attacks and extrajudicial killing, without any credible evidence that they pose a serious threat to public safety.70 This means that the views and actions of these groups are believed to be capable of interfering with the settler state’s ability to proceed with business as usual. As a result, they need to be both studied and defended—not just ideologically, but physically, legally, and financially—by those interested in dismantling colonial structures of racialized privilege and dispossession.

Actions The settler colonial narrative moves only toward ever-enhanced state power. Within the settler class there are disagreements about whether the story is best consummated by the absorption or the exclusion of racialized Others, but it will always be a story in which “civilization” triumphs over “savagery.”71 We have seen what this means, from the first “day of Thanksgiving” proclaimed in 1637 by the governor of the Massachusetts Bay Colony to celebrate the Pequot massacre,72 to the separation of traumatized toddlers from their

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(also traumatized) parents at the southern border almost four centuries later.73 It is not difficult, in this context, to understand why the late Russell Means insisted, “I don’t want to be civilized. I want to be free.”74 What would it mean to be free? There is no blueprint for transforming settler colonial states into social, political, economic, and cultural formations better suited to meet the needs of all peoples, but we might start by acknowledging that states are not the only way of organizing human societies. Over the millennia, humanity has seen many social and political formations, and “the contemporary world exhibits myriad political groupings which do not fit easily into the accepted categories of []states.”75 Not so long ago, both the Soviet Union and the European Union seemed impregnable, and many “experts” predicted that globalization would result in some form of super-state. Now, however, smaller, decentralized units are increasingly believed to be more viable.76 As desperately as some may wish to hold on to that which is familiar, the United States may well undergo substantial change, and that is not necessarily a bad thing. There is no reason why the return of appropriated lands should be any more difficult to imagine than a continued occupation that is conceded to be illegitimate. Jimmie Durham observed almost thirty years ago that the United States “was the first settler colony to establish itself against and through the denial of its original inhabitants.”77 The result, he suggests, may be “that there is no US except its ideological and expansionist state-ism.”78 If there were an underlying “country that is America,” he asks, wouldn’t that mean that he, as a Cherokee, “really [did] not come from any place?” We know that there will be no decolonization on this continent until the rights of Indigenous peoples to their lands and resources, as well as their ability to freely determine their political status, are fully respected. This could entail a choice by these nations to become independent states within the current global order, but it could also mean renegotiation of the terms upon which the current settler state has been established, or a re(en)visioning of the statist model altogether. We cannot predict how any people, exercising its right to self-determination, might decide to organize itself or to relate to other peoples—and we don’t get to decide what anyone else “should” do. To impose our own value judgments on other peoples’ exercise of their right to selfdetermination would simply be a variant of Justice Brown’s uncontrovertibly colonial assertion that the interests of “dependencies” should be protected by the “principles of natural justice inherent in the Anglo-Saxon character.”79 Mindful of the fact that we are on Indigenous lands, those of us who are not Indigenous can work toward our mutual decolonization in many ways. There will always be debate about how best to do this, but we can start from the premise that we cannot be liberated if we don’t survive. Sometimes this

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means engaging with institutions that we know are intent on “[foreclosing] the possibilities for structural transformation.”80 Thus, efforts to expand participation in the management of the state (the movement for voting rights, for example) may reinforce the hegemonic power of the state. But such struggles can be empowering. Stokely Carmichael, chair of the Student Nonviolent Coordinating Committee, went to jail dozens of times in the mid-1960s for defending the right of Black people in the rural South to vote—even though he did not believe that voting would bring about meaningful social change. He did so because “the act of registering to vote . . . gives one a sense of being. The black man who goes to register is saying to the white man, . . . ‘You have said that I cannot vote. You have said that this is my place. This is where I should remain. You have contained me and I am saying “No” to your containment.’”81 Saying “no” to settler containment and control is a necessary but not sufficient condition for meeting our own needs, in community with others. This is why the Black Panther Party, for example, quite visibly said “no” to police violence in Black communities, but also operated free community schools, medical clinics, breakfast programs for children, and escort services for seniors, provided assistance to homeless families, job training for the unemployed, and transportation for those who wanted to visit loved ones in prison—all with locally generated funds.82 Such efforts not only provided much-needed services to the community, they also demonstrated, very concretely, that empowerment is not merely about asking, or demanding, more from the state but instead about building self-sustaining communities. As we begin to think outside the parameters of the state, some of us will see—or come to see—ourselves as part of separate nations or peoples. According to Vine Deloria, “Peoplehood is impossible without cultural independence, which in turn is impossible without a land base.”83 If this is the path we choose, we will need to negotiate access to such a land base with its rightful owners. We have all too often been willing to live within the social, economic, geographic, and political constraints imposed upon us by the settler state; there is no reason to think that we cannot come to terms with different forms of social or political authority. Addressing such relationships in the Australian context, Kwaymullina observes that Indigenous peoples “offer pathways into the future for all those who genuinely wish to engage with us in a way that respects [our] narrative sovereignty. . . . [If the government is unwilling to engage, there is] no reason why the dialogue cannot be explored by anyone with an interest in how Indigenous and non-Indigenous peoples can resolve colonial binaries and walk forward together.”84 If we do not intend to depend on the state, we will have to develop, or rediscover, ways of governing ourselves. Because self-governance is an organic

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process, I suspect that it simply has to grow, and change, from the ground up, and in response to emerging societal and environmental needs. But I can imagine autonomous local communities implementing truly democratic internal decision-making processes that can be extended into networks of relationships and agreements, in a manner reminiscent of the Haudenosaunee confederacy.85 Regardless of how the process develops, we can take hope from examples we see around us of people living as if they were free. Jackson, Mississippi, provides a particularly inspiring example.86 Demands for self-determination grew throughout the 1960s.87 In this context, the Republic of New Afrika issued calls to “free the land,” focusing particularly on Jackson, Mississippi, where there had long been a Black majority. In 1971 Chokwe Lumumba was among those defending the RNA community when White supremacists, local police, and FBI agents attacked a celebration of an imminent land purchase. This inspired him to complete law school and to eventually move to Jackson, where he engaged in grassroots organizing, primarily through the New Afrikan People’s Organization and its activist wing, the Malcolm X Grassroots Movement, for many years.88 In 2005, in the aftermath of Hurricanes Katrina and Rita, these groups organized “survivor assemblies.”89 These, in turn, evolved into “people’s assemblies” that, among other things, developed the platforms of candidates for local political office. Running on one such People’s Platform, Lumumba was elected mayor of Jackson in 2013 with 87 percent of the vote. Not surprisingly, his election was met by White fear and predictions of “racial division” among the population, but ultimately even a former Mississippi governor had to acknowledge that rather than dividing the city, Lumumba’s administration “resulted in a dynamic new spirit that has made all of us confident in our future.”90 As mayor, Lumumba said, “My view on self-determination is the same [as it was in the 1960s]. I’d say that what has changed are the tactics, and somewhat the strategy, for reaching that goal.”91 What did this look like on the ground? One priority of the 2013 People’s Platform was to address the city’s crumbling infrastructure, and the tax increase to fund “clean water, sewer and drainage, sidewalks, and street improvement” was subsequently approved in a municipal referendum by an astonishing 90 percent of the voters.92 Following the mayor’s unexpected death in 2014, the Jackson People’s Assembly continued to function and in 2017 his son Chokwe Antar Lumumba was elected on the slogan “When I become Mayor, you become mayor.”93 After attending the first People’s Assembly of the younger Lumumba’s administration, a twenty-five-year-old White resident and community leader was “excited to have heard so many voices.” “Honestly,” he said, “I think it’s pretty crazy because I grew up with an education that Malcolm X was this

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like terrorist and Martin Luther King Jr. being a savior, right? . . . But then to understand that the people’s movement allows an individual person to have a voice—what could possibly be scary about that?”94 Only those who believe they can or should be able to control the people find it threatening for all the people to have a voice. “Local autonomy has a hundred, a thousand, a million incarnations,” Esteva and Prakash emphasize. “In a pluriverse, there can be no one dominant notion of autonomy. . . . Initiatives for autonomy and independence . . . in an isolated village in the south of Mexico seem to have no relation to the struggles of peoples in downtown Mexico City, and even less with those in Vancouver, Philadelphia, Bangkok, Boston, Paris, Delhi or Chapel Hill.” But in all these places, one encounters “independent initiatives, applying ingenuity and courage, taken by people who are succeeding in relearning to rule themselves” and, thereby, “regaining confidence in being themselves.”95 Colonial relationships are by definition oppressive, for they exist to facilitate the exploitation of land, labor, and resources. This means that many of us are oppressed, but it does not mean that we are powerless. Speaking at the Black Hills International Survival Gathering in 1980, John Trudell, the last national chair of the American Indian Movement, shared an important insight. “When I go around America,” he said, “and I see the bulk of the white people, they do not feel oppressed. They feel powerless. When I go amongst my own people, we do not feel powerless. We feel oppressed. We do not want to make the trade.”96 Individually, and in community with others, we can use our power to map new worlds, thereby rendering decolonization “thinkable.” We can act strategically to protect our communities and to ensure the survival of future generations—and the planet itself. In this process, as Stokely Carmichael explained, we can “search for allies and coalitions . . . based on whether those people are fighting . . . the same fight that we who have been colonized are fighting. In other words, people who are fighting for their humanity.”97 We can always support those who are exercising self-determination in an effort to defend and empower their communities, including those who, as a result of such struggles, have become political prisoners.98 Knowing that those who challenge the status quo will be attacked—and that the state will try to turn us against each other—we can publicly acknowledge their right to struggle and to decolonize, even when their tactics are not the ones we would have chosen, or we doubt that their efforts will succeed. If we understand racism or other forms of oppression as a function of structural forces essential to the maintenance of colonialism, the litmus test for liberatory action becomes whether any given action or reaction reinforces the power or perceived legitimacy of the settler state or, instead, empowers people at the grassroots level.

Conclusion We Won When We Started

This exploration of the potential that settler colonial theory holds for addressing issues of racial justice was motivated by my concern that young people of color in the United States today continue to face the deeply entrenched racial disparities and injustices that many of us confronted in the 1960s and early 1970s, without the collective energy and vision that inspired activists of that era. Remembering the impact that the global struggles for decolonization had on movements for social change within the United States, I began by considering whether the analysis of people of color within the United States as internally colonized, frequently proffered a half century ago, was theoretically unsound. Concluding that this perspective was not so much unsound as incomplete, I have suggested that applying settler colonial theory to the racial realism Derrick Bell urged us to embrace can provide a historically accurate basis for understanding how and why racialized privilege and subordination have become so deeply institutionalized in American society. My hope is that developing this theoretical framework from a multiplicity of perspectives will help us implement liberatory alternatives to the status quo. Our stories, the narratives of our past and present, allow us to envision and build our futures. A realistic narrative about contemporary manifestations of racism must begin by acknowledging that in the United States today we are defined by colonial relations. Unlike their brethren who colonized much of Africa and Asia, the Angloamerican “founding fathers” did not come to extract profit from the land, labor, and natural resources of their colonies and then return home. Instead, they came to stay. This meant occupying the land and doing their best to disappear the peoples indigenous to that land. It meant making the land profitable by importing labor—voluntary and involuntary— and establishing structures for controlling that labor. These colonizers came with a presumption of their own sovereign prerogative, not to join someone else’s society but to establish a state over which they exercised complete control. They assert, to this day, the right to determine who will be permitted to enter or remain within their claimed boundaries, who will be accorded particular civil or political rights, and the extent to which settler privilege will be 215

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promoted and protected by the state. These prerogatives are manifest through a racial hierarchy that pervades all aspects of life in the United States, one that is enshrined in its legal system and is intended to ensure that each person remains in his or her “place,” literally and figuratively. Racialized injustice continues to shape the lives and limit the potential of each generation of children in this country. The United States is neither postracial nor postcolonial, and a revised narrative will not change these realities. However, by understanding the functions served by the policies and practices of the settler colonial state, we can more creatively envision remedial measures and assess their ability to empower our communities. Rather than engaging in what amount to moral appeals to a legal system that has facilitated genocide, slavery, and racialized subjugation, we can expose its lack of moral authority and consider ways in which law can further decolonization. We can actively and collectively engage in the construction of the law and, by extension, in the creation of social, political, economic, educational, and cultural institutions that meet the needs of our communities. As Robert Cover urged, we can “stop circumscribing the nomos” and “invite new worlds.”1 We are supported in this effort by fundamental principles of international law. International law does not provide us with any quick fixes, but its emphasis on human dignity affirms that we cannot be free within social structures that crush the human spirit. International law clearly mandates decolonization, and we cannot pretend that this does not apply to settler colonial states. Our first and foundational responsibility is to support Indigenous struggles for self-determination because as long as Indigenous peoples are colonized in the United States, the rest of us are complicit in the occupation. To the extent we refuse to function as colonizers, we will be able to promote the right of all peoples to self-determination. It is a right that can be exercised in an infinite variety of ways, from gatherings where members of a community identify their needs and proprieties; to the assertion of local control of policing, education, or healthcare services; to the reorganizing of economically selfsufficient and politically independent nations. The crux, as I see it, is whether any given action empowers communities and promotes decolonization, or further entrenches extant relationships of domination and subordination. We take inspiration from those who came before us, whose struggles for survival allowed us to be here today. When we challenge the status quo, we can never be certain of victory. But we know that as we implement our collective understandings of what human societies can be, we are engaging in processes of decolonization. We do not require anyone’s permission to live with dignity or to exercise our right to self-determination. Those who build community-controlled institutions create space for future generations to

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thrive. Those who take to the streets or otherwise physically challenge the prevailing order demonstrate the futility of the laws intended to keep colonized peoples perpetually subordinated. The late Derrick Bell reminded us that by refusing to allow the guns and dogs of the state to intimidate them into inaction, those who step out to defend the people allow us to see our own potential. He encouraged us to “stand in the place where persons of courage have always stood, uncertain of victory but unafraid of defeat,” remembering what “the old black farmer who had left his fields to march from Selma to Montgomery said when asked whether they would win: ‘We won when we started.’”2

Acknowledgments

Projects such as this book are always collective efforts. I am particularly appreciative of the encouragement of Ediberto Román and Deborah Gershenowitz, and the support, assistance, and patience of my editor Clara Platter. Many thanks also to Mirror Shield Project concept artist Cannupa Hanska Luger for permission to use the cover photograph taken by drone operator Rory Wakemup at the Oceti Sakowin camp in Standing Rock, North Dakota. In many respects this work is the culmination of years—decades, actually—of discussions about colonialism with Kathleen Cleaver and Ward Churchill. My analysis is built on a foundation provided by far too many scholars to name, but I owe particular thanks to the late Derrick A. Bell Jr., the late Haywood Burns, Eric Cheyfitz, Richard Delgado, Ruth Gordon, Neil Gotanda, Cheryl I. Harris, the late Chris Iijima, Eiko Kosasa, Charles R. Lawrence III, Tayyab Mahmud, Barbara Alice Mann, Mari Matsuda, Henry A. Richardson III, David Stannard, Jean Stefancic, George “Tink” Tinker, Haunani Kay Trask, Akinyele Umoja, Sharon H. Venne, Irene Watson, Robert A. Williams Jr., Eric Yamamoto, and Michael Yellow Bird for sharing their insights over the years. I am grateful, also, to Makungu Akinyela, Zahyr Lauren Brown, Keith Camacho, Harlon Dalton, Moana Jackson, and Sky Roosevelt Morris for their input as this project matured. I am, of course, solely responsible for my perspectives and my mistakes. My “Tales of Color and Colonialism: Racial Realism and Settler Colonial Theory,” Florida A&M University Law Review 10 (2014): 1–108, provides an early iteration of the framework developed here. Georgia State University’s College of Law, under deans Steven Kaminshine and Wendy Hensel, has provided generous research support. I have received much help from our librarians, particularly Pamela Brannon, administrative support from Karen Butler, and research assistance from Vonciel Bryant, Charles Cullen, Kristina Thuy Davis, Peter Faile, Stephen Fusco, Lizeth Gomez, Steven Hendryx, Brandi Iryshe, and Alexis Jung Suh. Finally, special thanks to Akilah Jenga Kinnison and Jed Kinnison for the inspiration they provide, both personally and through their work, and to Mariama and Aya Ruth, who make fulfilling our responsibilities to future generations a joyful process. This book is dedicated to my husband, Ward Churchill, who is always there, usually making us laugh, even in the craziest of times. 219

Notes

Introduction

1 See generally Bell, “Racial Realism.” 2 “Postracial” generally means that “racial discrimination is rare and aberrant behavior as evidenced by America’s and Americans’ pronounced racial progress.” Barnes, Chemerinsky, and Jones, “Post Race,” 968; see also john a. powell, “Post-Racialism,” 788–89; see generally Cho, “Post-Racialism.” 3 Zoppo et al., “Here’s the Full List”; Ruiz, “Attorney General Orders Tougher Sentences.” 4 See Edsall, “Trump Legions.” 5 See generally Foucault, “Nietzsche, Genealogy, History.” 6 Quoted in Churchill, “Reflections,” 16. 7 See Juszczyk, Disobliging Reality, 2 (“if consensus reality is not as flat and predictable as it is incessantly shown to be, then unknown wonders may unfold beyond the tenuous limit of its prescribed yet arbitrary margins”). 8 See Churchill and Morris, “Clinton’s Initiative” (discussing the exclusion of American Indians from a Denver, Colorado, forum advisory board for President Bill Clinton’s 1998 Initiative on Race because their inclusion would “dilute” its focus and “divert” attention from “more central” issues). 9 My thanks to Charles Cullen for pointing out how often this particular “elephant”—Indigenous rights—does not even make it into the room to be ignored. 10 Paradigmatic examples of settler states include Australia, New Zealand, Canada, the United States, Israel, Rhodesia, and South Africa. See Hixson, American Settler Colonialism, 4. Some scholars include Latin American states such as Argentina and Brazil. Besides Hixson, see also Gott, “Latin America.” Others exclude Latin America due to its “hybridity.” See Veracini, Settler Colonialism (citing Saldaña-Portillo, “How Many Mexicans,” 812). 11 See generally Hixson, American Settler Colonialism; Veracini, Settler Colonial Present; Wolfe, Settler Colonialism; and Cavanagh and Veracini, Routledge Handbook of the History of Settler Colonialism. Notable exceptions include Sakai, Settlers; and Lytle Hernández, City of Inmates. 12 See Agamben, Homo Sacer, 18 (defining the “relation of exception” as that “by which something is included solely through its exclusion”), 21 (characterizing “the exception [as] an inclusive exclusion”).

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13 This dimension of my family’s history is documented in De Nevers, The Colonel and the Pacifist. 14 See Anghie, Imperialism, Sovereignty, 4.

Chapter 1. Racial Realities

1 Bell, “Racial Realism,” 374 (“All too many of the black people we sought to lift through law from a subordinate status to equal opportunity, are more deeply mired in poverty and despair than they were during the ‘Separate but Equal’ era”). 2 Ibid., 373. 3 Ibid., 374. 4 Tharoor, “Man Who Declared the ‘End of History.’” 5 See Omi and Winant, Racial Formation, 50 (noting the need for a theory accounting for “the extent to which US society is racially structured from top to bottom”). 6 See Personal Responsibility and Work Opportunity Reconciliation Act; Tanner and DeHaven, “TANF.” 7 Martin, “Ranked” (noting that the United States was ranked twelfth richest by the International Monetary Fund, based on per capita gross domestic product). 8 UN OHCHR, “Statement on Visit.” See also Shaefer and Edin, “Rising Extreme Poverty.” 9 See Kochhar and Fry, “Wealth Inequality.” 10 DeNavas-Walt, Proctor, and Smith, “Income, Poverty,” 17. In 2010 the federal poverty threshold for a household of four, including two children, was $22,113. Ibid., 61. For 2012 figures, see Parlapiano, “50 Years of Poverty.” In these comparisons, “White” refers to persons identified as White but not Hispanic by the US Census Bureau. 11 DeNavas-Walt, Proctor, and Smith, “Income, Poverty,” 6, 9. See also Barnes, Chemerinsky, and Jones, “Post-Race,” 983. At the rate that Black per capita income rose between 1967 and 2005, it will take over five hundred years to reach parity. Muhammad, “Forty Years Later,” 9. 12 Haskins, Isaacs, and Sawhill, “Getting Ahead,” 5. See also Barnes, Chemerinsky, and Jones, “Post-Race,” 986; and Tibbs, “From Black Power,” 54–55. 13 Kochhar and Fry, “Wealth Inequality.” 14 See generally Centers for Disease Control (CDC), “Fact Sheet.” As of 2010, some 30 percent of Latina/os and American Indians, and 20 percent of Black and Asian Americans were without health insurance, as compared to about 12 percent of Whites. DeNavas-Walt, Proctor, and Smith, “Income, Poverty,” 24–25. 15 In 2004 about three-quarters of White families owned homes, compared to just under half of African American and Latina/o families. Homeowners of color were disproportionately affected by the subsequent mortgage crisis. Marsico and Yoo, “Racial Disparities,” 1013. See also Cummings, “Families of Color,” 303–12. 16 In 2013 over 35 percent of the White population had a bachelor’s degree or higher, as compared to 22 percent of the Black population and about 15 percent of Latina/

Notes

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18 19 20

21 22 23 24 25 26

27 28

29 30 31 32 33 34 35 36 37 38

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os and American Indians. National Center for Education Statistics, “Digest of Education.” In 2016 the official Black unemployment rate was 8.4 percent, almost twice the White rate of 4.3 percent. See US Department of Labor, “TED.” American Indian unemployment rates are dramatically higher. See Austin, “High Unemployment.” See Alexander, New Jim Crow, 8; and Sentencing Project, “Facts about Prisons.” See generally Lytle Hernández, City of Inmates. Nicole D. Porter, “State of Sentencing,” 1. See Sentencing Project, “Racial Disparity”; and Sentencing Project, “Facts about Prisons” (also noting that 32 percent of Black men, compared to 6 percent of White men, serve time in prison). See also Ingraham, “Charting.” See Levy-Pounds, “Par for the Course?,” 29; and Ehrenfreund, “Poor White Kids.” Neal and Rich, “Prison Boom.” Champagne, “Breaking the Cycle”; Krogstad, “One-in-Four Native Americans.” Capriccioso, “State of Indian Economic Development.” US Census Bureau, “Shannon County.” Schilling, “Getting Jobbed.” By comparison, at the height of the Great Depression the national unemployment rate was about 25 percent. Rodgers, “Native American Poverty.” US Census Bureau, “American Indian and Alaska Native Poverty Rate.” See Gordon and Oddo, “Addressing Child Hunger,” vi (noting that American Indian and Alaska Native children have twice the levels of food insecurity, obesity, and Type II diabetes as other children in the United States). On housing, see National Congress of American Indians, “Housing and Infrastructure” (noting that 40 percent of reservation housing is substandard, compared to 6 percent “outside of Indian Country”; about one-third of homes are overcrowded and 16 percent do not have indoor plumbing). On life expectancy, see Tracie White, “Finding Hope” (noting male life expectancy of forty-seven years on the Rosebud Reservation in South Dakota, compared to the national average of seventy-seven). See generally Riley, “Crime and Governance”; Churchill, Kill the Indian; and Anaya, “Report of the Special Rapporteur.” US Department of Justice, Attorney General’s Advisory Committee, “Ending Violence.” Woodard, “Suicide.” See Leonhardt and Philbrick, “Donald Trump’s Racism.” LeTourneau, “Trump’s Direct Assault.” Harrington, “Trump Signed 90 Executive Actions.” Dwyer, “Sessions Tells Prosecutors”; Shortell, “Sessions Reiterates Support.” Palmer, “Crossroads.” See Beydoun, American Islamophobia; Aziz, “Losing the ‘War of Ideas’”; and Winter and Weinberger, “FBI’s New US Terrorist Threat.” Levitz, “Trump Administration Calls on Colleges” (also noting that the policies extend to elementary and secondary schools).

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39 See, e.g., Salinas, “Arizona’s Desire,” 304–13; and O’Donnell, “Trump Rolling Back Obama Efforts.” 40 See Tharoor, “Man Who Declared the ‘End of History.’” 41 “Cities Jammed.” 42 Ferre et al., “Thousands March”; Watanabe and Becerra, “500,000 Pack Streets.” 43 Saba, “Wall Street Protesters.” 44 See Greene, “Before and After,” 3–4; and Healy, “Ferguson, Still Tense.” 45 Greene, “Before and After,” 9–12. See also Healy, “Ferguson, Still Tense”; and Dohrn and Ayers, “Young, Gifted, and Black,” 89–90. 46 Frosch and Calvert, “Year after Ferguson.” The phrase “Black Lives Matter” emerged in 2013 following the acquittal of a vigilante, George Zimmerman, who shot and killed Trayvon Martin in Sanford, Florida, as the unarmed seventeenyear-old walked home from a convenience store. El-Haj, “Defining Peaceably,” 962 n.7. 47 See “When Will the Killing Stop?”; and Tharoor, “Black Lives Matter.” 48 Dunn, “Numbers That Tell the Story.” 49 See Gunderson, “At Standing Rock”; and Herzog, “NODAPL Photos.” 50 ACLU, “Lawsuit Challenges Excessive Force”; Krieg, “Police Injured, More Than 200 Arrested.” 51 Rossman, “For Almost 200 Inauguration Day Protesters.” 52 Frandino and McGurty, “Tens of Thousands in US Cities”; on the underlying policies, see Hing, “Entering the Trump ICE Age.” 53 Raice, Barrett, and Duehren, “Thousands Gather.” 54 See Smith-Spark and Hanna, “March for Science”; and Greenwood, “Trump on Removing Confederate Statues.” 55 See Horley, “Rethinking the Heckler’s Veto”; and Andone, Simon, and Sidner, “White Nationalists Dwarfed.” 56 Shebaya, “Current Developments”; Mary Kelly, “California DREAMing”; Wagner, Miroff, and DeBonis, “Trump Reverses Course”; Rendall, “Portland Sides with ‘Occupy’ Protesters.” 57 US Department of Justice, “Report Regarding the Criminal Investigation into the Shooting Death of Michael Brown.” 58 US Department of Justice, Civil Rights Division, “Investigation of the Ferguson Police Department,” 1–2, 62. 59 US Department of Justice, Civil Rights Division, “Investigation of the Baltimore City Police.” 60 Wolff, “Obama Administration Blocks Dakota Pipeline.” 61 US Department of Justice, Office of Public Affairs, “Joint Statement.” See also Blistein, “Trump Reverses Obama Orders.” 62 Nataanii Means, Facebook post, September 12, 2016, on file with author. See also Adams, “Five Young Activists.” 63 Regina Brave, message posted on Sacred Stone Camp Facebook page, September 19, 2016, on file with author.

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64 Dohrn and Ayers, “Young, Gifted, and Black,” 83. 65 Lawrence, “Fire This Time,” 403–4. 66 Kelley, “What Does Black Lives Matter Want?”; and Movement for Black Lives, “Platform.” 67 Quoted in Omi and Winant, Racial Formation, 101. 68 Bell, “Racial Realism,” 374. 69 Ibid. 70 See generally Connery, Urban Riots; and Boesel and Rossi, Cities under Siege. 71 National Advisory Commission on Civil Disorders, Report, 10–11. 72 Ibid., 1. 73 Boger, “Race and the American City,” 1305–9. 74 See Shaw, “Race Convention,” 23–26; see generally Christiansen and Scarlett, Third World; and Albert and Albert, Sixties Papers. 75 See Meriwether, Proudly, 150; and United Nations, “United Nations and Decolonization.” 76 See generally Taylor, Nuremberg and Vietnam. 77 See generally Katsiaficas, Imagination of the New Left. 78 Gilly, “Introduction,” 1–2. 79 See, e.g., Carmichael and Hamilton, Black Power, 5 (“black people in this country form a colony, and it is not in the interest of the colonial power to liberate them”); Cruse, Rebellion or Revolution, 74 (“The Negro has a relationship to the dominant culture of the United States similar to that of colonies and semi-dependents to their particular foreign overseers”); and Robert J. Allen, Black Awakening, 2 (“The fact of . . . domestic colonialism . . . [is] the most profound conclusion to be drawn from a survey of the black experience in America”); see also Deloria, Custer Died, 179–83 (discussing American Indian perspectives on the colonization of Black as well as Indigenous peoples); see generally Blauner, “Internal Colonialism.” Acuña described Chicana/os as internally colonized, most explicitly in the first edition of Occupied America; see also Almaguer, “Toward the Study of Chicano Colonialism,” 7; and Barrera, Muñoz, and Ornelas, “Barrio,” 465. 80 See generally Meriwether, Proudly; and Deloria, Custer Died, 179–80. 81 See Woodard, Nation within a Nation, 17 (quoting Martin R. Delaney and Frederick Douglass); see generally Ogbar, Black Power; and Van Deburg, Modern Black Nationalism. 82 Carmichael and Hamilton, Black Power, 55. 83 Movement for Black Lives, “Platform.” 84 Black Panther Party, “What We Want.” See also Pulido, Black, Brown, 168. 85 See generally Deloria, Behind the Trail of Broken Treaties. 86 See Churchill, “American Indian Movement,” 640–42. 87 Quoted in Ogbar, “Yellow Power,” 31. 88 See Pulido, Black, Brown, 282–83. 89 The October 1969 and May 1970 versions of the Young Lords Program and Platform are available in Enck-Wanzer, Young Lords, 9–13.

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90 See Pulido, Black, Brown, 283–84. 91 See Abron, “‘Serving the People,’” 178–79; “Young Chicano Revolutionaries”; and Morales and Oliver-Velez, “Foreword: Why Read,” x. 92 Morales and Oliver-Velez, “Foreword: Why Read,” xii. 93 See, e.g., Horowitz, Corasaniti, and Southall, “Nine Killed”; and Robles, Horowitz, and Dewan, “Dylann Roof.” 94 See Gebreyes, “Virginia KKK Leader.” 95 Wiecek and Hamilton, “Beyond the Civil Rights Act.” 96 Angelou, “I Dare to Hope,” quoted in Bell, “Racial Realism,” 375. 97 Deloria, “Circling the Same Old Rock.” 98 See Tibbs, “From Black Power,” 48. 99 See Saito, “Whose Liberty?,” 1078–104; see generally Churchill and Vander Wall, COINTELPRO Papers. 100 See Churchill, “To Disrupt,” 78, 82–106. 101 Ibid., 106–8; see generally Hampton v. Hanrahan; and Jeffrey Haas, Assassination. 102 See Churchill and Vander Wall, Agents of Repression, 140–70; and Churchill, “Bloody Wake,” 242–84. 103 On their illegality, see Senate Select Committee, Final Report, 8. On political prisoners today, see National Jericho Movement, “Prisoners.” 104 See Allen-Bell, “Prescription,” 4, 8; and Michael K. Smith, “Black Panthers.” 105 See Saito, “Whose Liberty?,” 1104–28. 106 See US Department of Justice, Federal Bureau of Investigation, “Black Identity Extremists”; and de Bourmont, “Court Case in Texas.” The Church Committee identified five overarching categories of organizations targeted by intelligence agencies: the Communist Party USA, the Socialist Workers Party, “white hate groups,” “black nationalist hate groups,” and the “new left.” Senate Select Committee, Final Report, 4. The Southern Poverty Law Center, dedicated to “seeking justice for the most vulnerable members of our society,” lists “black separatists” along with the Ku Klux Klan and neo-Nazis as “extremist” hate groups. Southern Poverty Law Center, “Seeking Justice”; Southern Poverty Law Center, “Extremist Files.” 107 See Lowrey, “50 Years Later.” 108 See Edelman, So Rich, So Poor, 18 (noting that poverty in the United States was “cut in half between 1959 and 1973,” at least in part because of Johnson’s “war on poverty”); and Jerome G. Miller, Search and Destroy, 26–30 (noting the relative stability of crime rates); see also Cipes, Crime War, 3, 8. 109 Parenti, Lockdown America, 7. 110 See Glasser, “American Drug Laws,” 719; Michelle Alexander, New Jim Crow, 95–137; and powell and Hershenov, “Hostage,” 557–60. On government involvement in the influx of drugs into Black communities, see generally McCoy, Politics of Heroin. 111 Nunn, “Race, Crime,” 404. This framing is not new, of course. See Cleaver, Target Zero, 127 (noting that the Black Panther Party intended to “drive the occupying army of the police out of the black community”).

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112 See Saito, “For ‘Our’ Security,” 40–45. 113 See Beydoun, American Islamophobia, 121–22; Winter and Weinberger, “FBI’s New US Terrorist Threat”; and Beydoun and Hansford, “FBI’s Dangerous Crackdown.” 114 “Jeff Sessions, Trump’s New Attorney General.” 115 Reilly, “Sessions Signals a Rollback.” 116 Goldman, “Trump Reverses Restrictions.” 117 See Tibbs, “From Black Power,” 55 (noting that as a result of deindustrialization “between 1965 and 1990, Black family income fell fifty percent, and Black youth unemployment quadrupled”). 118 Edelman, So Rich, So Poor, xviii. 119 Edelman, “Welfare,” 397. 120 Business Insider Blog Ticker, “Trump’s Executive Orders”; “What Trump Proposed Cutting.” 121 UN OHCHR, “Statement on Visit.” 122 Tibbs, “From Black Power,” 53. 123 See Cottrol, Diamond, and Ware, Brown v. Board of Education, 49. 124 On the resulting psychological damage, see Churchill, Kill the Indian, 71; and Churchill, “Preface: Kizhiibaabinesik,” 24–27. 125 Patrick Strickland, “US Anti-Trump Protesters.” 126 Keith L. Alexander, “Federal Prosecutors Abruptly Dismiss.” 127 Woodman, “Republican Lawmakers”; see also Pollack, “Criminalizing the Tradition.” 128 See “Minnesota Lawmakers”; and Craven, “32 Blue Lives Matter Bills.” 129 See Macurdy, “Rights Respiration,” 738. See generally Burkett, “Reconciliation”; and Delgado, “Centennial Reflections.” 130 See Lukács, History and Class Consciousness, 50–55. 131 Roberts, “Constructing,” 265.

Chapter 2. Unsettling Narratives

1 See Delgado, “Storytelling,” 2435–41; and Lawrence, “Listening for Stories.” 2 Okri, Way of Being, quoted in King, Truth, 153. 3 See Huber, “‘Make America Great Again!’”; Blow, “Trump: Making America White Again”; and Taibbi, “Donald Trump Claims Authorship.” 4 See Loewen, Lies My Teacher Told Me, 31–134; and Kubal, Cultural Movements. 5 See Bhabha, “Other Question,” 119. 6 See Robert A. Williams, Like a Loaded Weapon, xviii–xxv. 7 Le Miere, “Donald Trump Says.” 8 Van Alstyne, Rising American Empire, 8; see generally Wood, Empire of Liberty. 9 See Churchill, “Perversions of Justice,” 8–9. On the attitudes of the early settlers, see generally Rana, Two Faces; and Simon, “Review Essay.” 10 See, e.g., Foley v. Connelie, 435 U.S. at 294; and Sales Lee, “We Are a Nation of Immigrants” (message from the president of the Federal Bar Association). 11 Genesis 1:27–28 (King James Version).

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12 See Saito, Meeting the Enemy, 18–31. 13 Wolf, Europe and the People without History, 5. On this lineage, and its fallacies, see generally Mohawk, Utopian Legacies. 14 Wolf, Europe and the People without History, 5. See also Obama, Inaugural Address; Reagan, Farewell Address; and Bush, Address to the Nation. 15 See generally Churchill, “To Judge Them.” 16 See Shavit, “Survival of the Fittest?” 17 See Nietschmann, “Fourth World,” 225; and Crawford, Creation of States, 4. 18 Nietschmann, “Fourth World,” 227. 19 Ibid., 226; see also Seton-Watson, Nations and States, 1. The term “nation-state” conflates the two concepts and is often used by state power to superimpose an artificial “national” identity upon internally colonized peoples. See Nietschmann, “Fourth World,” 229. 20 See generally Mann, Iroquoian Women; and Paula Gunn Allen, Sacred Hoop. On the fluidity of gendered identities, see Gerulaityte, “Guna Yala.” 21 See Mann, Spirits of Blood, 47; and Mann, Iroquoian Women, 98, 241, 254. 22 See generally Mann, Spirits of Blood. 23 See Stam and Shohat, Race in Translation, 3; Baldwin, Evidence of Things Not Seen, 29–30; Baldwin, “On Being White”; and Bennett, Before the Mayflower, 46. 24 See Omi and Winant, Racial Formation; see generally Appiah, “Uncompleted Argument”; and Haney López, “Social Construction of Race.” 25 Desautels-Stein, “Race as a Legal Concept,” 29–30. 26 See Wacquant, “Deadly Symbiosis,” 212n4 (noting that the hypodescent rule not only constructs “a rigid black/white division between two mutually exclusive communities” but also renders African Americans “the only US ethnic group that cannot merge into white society through intermarriage”); see generally Theodore W. Allen, Invention of the White Race, vols. 1 and 2; and Haney López, White by Law. 27 Haney López, “Social Construction of Race,” 3. 28 Torres, “American Blood,” 1019. 29 See generally Bonilla-Silva, White Supremacy. 30 See Jackson, “Neo-Colonialism,” 165; see generally Mahmud, “Colonialism and Modern Constructions of Race.” 31 Marbury v. Madison, 5 U.S. at 163. 32 See Johnson v. McIntosh, 21 U.S. at 590–91. 33 See Dred Scott v. Sandford, 60 U.S. at 407. 34 The gendered dimensions of property in the settler colonial state are beyond the scope of my analysis, but see generally Padilla, “Gendered Shades of Property”; and Cheryl I. Harris, “Finding Sojourner’s Truth.” 35 Robert A. Williams, American Indian, 246–48; see generally Kristin A. Carpenter, “Real Property.” 36 Robert A. Williams, American Indian, 248 (quoting Locke, Two Treatises, 336). 37 See, e.g., Stannard, American Holocaust, 106 (describing a raid by early Virginia colonists that “destroyed corn sufficient to feed four thousand people for a year”).

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38 See Finkelman, “Affirmative Action for the Master Class,” 444 (referencing Pierce Butler’s argument to the Constitutional Convention that “the labour of a slave in South Carolina was as productive and valuable as that of a freeman in Massachusetts”). 39 See Chase, “Race, Culture,” 22. 40 Cheryl I. Harris, “Whiteness as Property,” 1720. See also Crusto, “Blackness as Property,” 68–69. 41 Dred Scott v. Sandford, 60 U.S. at 407. 42 See Cheryl I. Harris, “Whiteness as Property,” 1724–25. 43 Dred Scott v. Sandford, 60 U.S. at 407. In some cases, enslaved persons were legally construed as real property—like land—rather than personal property. See Chase, “Race, Culture,” 16. 44 See Cheryl I. Harris, “Whiteness as Property,” 1716–21; see also Lipsitz, Possessive Investment. For a case study, see generally Ignatiev, How the Irish Became White. On the philosophical constructs, see generally Radin, “Property and Personhood.” 45 See Robert A. Williams, American Indian, 246–51; and Lowe, Intimacies of Four Continents, 9–10. 46 Johnson v. McIntosh, 21 U.S. at 543; see also Deloria, “Beyond the Pale,” 251–52. On the Court’s continued reliance on these early cases and their racialized presumptions, see generally Robert A. Williams, Like a Loaded Weapon. 47 Johnson v. McIntosh, 21 U.S. at 573–74. On the inconsistencies underlying the doctrine of discovery, see Churchill, “Law Stood Squarely,” 673–80. On the doctrine as utilized by various settler states, see generally Robert J. Miller, “International Law of Colonialism.” 48 Johnson v. McIntosh, 21 U.S. at 588. 49 Ibid. 50 Ibid., 589. 51 Cherokee Nation v. Georgia, 30 U.S. at 27. 52 See Robert A. Williams, Like a Loaded Weapon, 51–58. 53 See Robert A. Williams, American Indian, 208–12; see generally Churchill, “‘Nits Make Lice.’” 54 See generally Saito, “Race and Decolonization.” 55 Le Miere, “Donald Trump Says.” 56 Some argue that Trump feels no need to assert that the United States is exceptional. See, e.g., Engelhardt, “What Trump Really Means.” But see Le Miere, “Donald Trump Says.” On the history of American exceptionalism, see generally Saito, Meeting the Enemy. 57 As summarized by Gunnar Myrdal, movements toward social inclusion are the logical result of “the gradual realization of the American Creed.” Quoted in Singh, Black Is a Country, 39. 58 See Ignatiev, How the Irish Became White, 3; see generally Roediger, Working toward Whiteness.

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59 See generally Roediger, Wages of Whiteness; Wray, Not Quite White; and Lewis, Johnson, and Askins, Colonialism. 60 Cheyfitz, Poetics of Imperialism, xx. 61 Ibid. 62 Berman, “Perspectives,” 126. 63 See Veracini, Settler Colonialism, 79–81. 64 See Loewen, Lies My Teacher Told Me, 204–18, 280–300. 65 On the purported innocence of the beneficiaries of White privilege, see, e.g., Wygant v. Jackson Board of Education, 476 U.S. at 276 (eschewing “discriminatory legal remedies that work against innocent people”); and Regents of the University of California v. Bakke, 438 U.S. at 310 (Powell, J.) (“‘societal discrimination’ does not justify . . . impos[ing] disadvantages upon persons . . . who bear no responsibility for whatever harm” may have been suffered by others in the past). 66 See Raghunathan, “Trump’s Xenophobic Vision” (noting that “attacks against Muslim, South Asian, Sikh, Hindu, Arab, and Middle Eastern communities in the US were up a staggering 45 percent in 2017”); see also Lowery, “Police Are Still Killing Black People”; Gonzales, “Dozens of Hate-Fueled Attacks”; and Creede Newton, “Police Violence.” 67 See generally Merk, Manifest Destiny; Horsman, Race and Manifest Destiny; and Segal and Stineback, Puritans, Indians, and Manifest Destiny; on the relationship between violence and this perceived destiny, see generally Slotkin, Regeneration. 68 LaFeber, “Foreign Policies,” 10–11; see generally Churchill, On the Justice of Roosting Chickens. 69 See Ball, “Stories of Origin,” 2296–97; see generally Robert A. Williams, Savage Anxieties. 70 Pritzker, “Pre-Contact,” 2. 71 See Sale, Conquest of Paradise, 316; and Stiffarm and Lane, “Demography,” 26–28. 72 See Ewen, “Death of the Bering Strait Theory”; Deloria, Red Earth, 81–107; and Churchill, “About That Bering Strait,” 267–69, 280. See also Cruz, “Am T Ñe’Ok,” 98 (noting that O’odham origins on the Sonora Desert contradict the Bering Strait theory). 73 See, e.g., Mann, Iroquoian Women, 32–35 (describing Sky Woman and the first epoch of time); see also Pritzker, “Pre-Contact,” 3; and Ma’iingan, “Aki, Anishinaabek,” 132–39. 74 See Means and Wolf, Where White Men Fear, 405; and Cheyenne River Sioux Tribe, “Lakota Sioux Creation.” 75 Deloria, “Coming of the People,” 236. 76 Zuni Cruz, “Lines of Tribe,” 89. 77 Venne, “Creator Knows,” xviii. 78 See Mohawk, Utopian Legacies, 15–28; and Robert J. Miller, “Economic Development,” 786–98. See generally Rennard Strickland, “Implementing the National Policy”; and Weatherford, Indian Givers. 79 Mohawk and Lyons, “Introduction,” 3.

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80 See Mann, Iroquoian Women, 16–17 (noting that “Iroquois” is “a made up term supplied by the first French explorers”). 81 Johansen, Forgotten Founders, 27–29. 82 See Grinde and Johansen, Exemplar of Liberty, 195–250; see generally Johansen, Forgotten Founders; and Grinde, Iroquois and the Founding. 83 See Mohawk and Lyons, “Introduction,” 3; Rennard Strickland, “Wolf Warriors,” 103; and Robert A. Williams, “Linking Arms Together,” 981, 990; see generally Berman, “Perspectives.” 84 Salisbury, Manitou and Providence, 98 (quoting John Smith, Travels and Works). 85 See, e.g., Stannard, American Holocaust, 106, 112–15. 86 Strickland, Tonto’s Revenge, 40–41. 87 See Du Bois, Souls of Black Folk, 2–3 (discussing double consciousness); see generally Gilroy, Black Atlantic. 88 King, Green Grass, 40–41. 89 Genesis 3:1–24 (King James Version). 90 Mann, Spirits of Blood, 39. 91 Deloria, God Is Red, 81. 92 Tsosie, “Land, Culture,” 1302. 93 Mann, Iroquoian Women, 90. 94 Ibid., 97. 95 Ibid., 117. See also Mann, George Washington’s War, 12–13 (describing women’s leadership roles in the Iroquois League); and Robert A. Williams, “Linking Arms Together,” 1010–11 (describing this as a “system of gendered checks and balances”). 96 See Mann, Iroquoian Women, 36 (noting that the Great Law of Peace was given to the people around 800 to 1000 C.E.); and Mann, George Washington’s War, 13 (explaining that the League “remains a living institution to this day”). 97 Robert A. Williams, “Linking Arms Together,” 1010. 98 Ibid., 1013 (quoting Fenton, “Structure, Continuity”). In using the Haudenosaunee Confederation to illustrate these points, I am mindful of Williams’s caution that “as the most studied and yet misunderstood of all North American Indian tribes, Iroquois culture has been cast as a carefully reconstructed prop for virtually every crackpot, racialist theory ever produced by the West’s social sciences.” Robert A. Williams, “Gendered Checks,” 1937. 99 Esteva and Prakash, Grassroots Post-Modernism, 41, 125–26.

Chapter 3. Settler Colonialism

1 See, e.g. Byrd, Transit of Empire; Porter, Sovereignty, Colonialism; Churchill, “Indigenous Peoples”; Trask, From a Native Daughter; Frickey, “Marshalling Past and Present”; and Robert A. Williams, “Algebra of Federal Indian Law.” 2 For rare analyses that systematically apply the settler colonial framework to non-Indigenous peoples of color in the United States and distinguish these groups from White working-class settlers, see Lytle Hernández, City of Inmates; and

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7 8 9

10 11 12 13 14

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Sakai, Settlers. See also Benjamin and Hall, Eternal Colonialism, 3–74 (discussing internal colonialism in the United States); Delgado, “Rodrigo’s Corrido,” 1691 (assessing Latina/os as an internal colony); Farley, “Black Body as Fetish,” 518–19 (describing the “black inner-city” as “the Neocolony”); Jackson, “NeoColonialism,” 159 (arguing that “to the extent racism exists in the United States, colonialism is also present”); Pinderhughes, “Toward a New Theory” (considering contemporary African American realities in terms of internal or domestic colonialism); and Staples, Urban Plantation, 9–28 (arguing that internal colonialism best explains race and class in America). See also Delgado, “Law of the Noose,” 306 (describing Latina/os but not Blacks as internally colonized). See, e.g., Carmichael and Hamilton, Black Power (“Black people in this country form a colony, and it is not in the interest of the colonial power to liberate them”); Cruse, Rebellion or Revolution (“The Negro has a relationship to the dominant culture of the United States similar to that of colonies and semi-dependents to their particular foreign overseers”); Robert J. Allen, Black Awakening (“The fact of black America as a semicolony, or what has been termed ‘domestic colonialism,’ . . . [is] the most profound conclusion to be drawn from a survey of the black experience in America”); and Blauner, “Internal Colonialism.” Rodolfo Acuña described Chicana/os as internally colonized, most explicitly in his first edition of Occupied America; see also Almaguer, “Toward the Study of Chicano Colonialism”; and Barrera, Muñoz, and Ornelas, “Barrio.” See, e.g., Allen, “Reply to Harold Baron,” 121 (describing the “colonial analogy” as not having “take[n] us very far toward a theoretical and programmatic understanding of our situation as black Americans”). See Michael B. Katz, Undeserving Poor, 81–84. See Hixson, American Settler Colonialism, 1–2 (characterizing the United States as the “most significant example of settler colonialism in world history”). On external US colonies, see Saito, Meeting the Enemy, 139–60. Compact Oxford English Dictionary, 469. Loomba, Colonialism/Postcolonialism, 1–2. Ibid., 2. “‘Colony’ implies the localized ascendancy of an external element,” whether it is “a political body that is dominated by an exogenous agency” or “an exogenous entity that reproduces itself in a given environment.” Veracini, Settler Colonialism, 2–3. Osterhammel, Colonialism, 4 (emphasis in original). Ibid., 15 (emphasis in original). See also Moses, “Empire, Colony,” 22. Carmichael, “Pan-Africanism,” 205. Genocide Convention, art. II (emphasis added). See Anghie, Imperialism, Sovereignty 64 (describing colonialism as an encounter “not between two sovereign states, but between a sovereign European state and an amorphous uncivilized entity”). See Crawford, Creation of States, 12–28. Nietschmann, “Fourth World,” 227. See also Seton-Watson, Nations and States, 1.

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17 Nietschmann, “Fourth World,” 226. See also Touré, “Reflections on Paradigms,” 439–40 (discussing Imari Obadele’s explanation of the distinction between nations and states and noting that “most nations are contained within states dominated by a single nation”). 18 See Anghie, Imperialism, Sovereignty, 35–36. See also Duguit, “Hegel’s Political Philosophy,” 81 (explaining Hegel’s attribution of a state’s legitimacy to its existence). 19 See Anghie, Imperialism, Sovereignty, 52–65; see generally Robert A. Williams, Savage Anxieties. 20 Anghie, Imperialism, Sovereignty, 3. 21 Osterhammel, Colonialism, 15. 22 Ibid. 23 Ibid., 16–17. 24 Anghie, Imperialism, Sovereignty, 4. 25 See Osterhammel, Colonialism, 108 (describing the “construction of ‘inferior otherness’”). 26 Veracini, Settler Colonialism, 22; see generally Memmi, Colonizer and the Colonized. 27 For a more nuanced discussion of race and colonial ideology, see Loomba, Colonialism/Postcolonialism, 104–83. On the “science” underlying theories of racial difference, see Gould, Mismeasure of Man, 30–72. 28 See Fitzpatrick, “Terminal Legality,” 20. 29 “Europeanization” took several centuries and is generally traced back to Charlemagne’s coronation as Roman emperor in 800 C.E. See Bartlett, Making of Europe, 269–91; and Herrin, Formation of Christendom, 390–444. On the consolidation of states within Europe, see Wolf, Europe and the People without History, 101–25. 30 See, e.g., Cunningham, Apples on the Flood, 18–37; see generally Hechter, Internal Colonialism; and Teich and Porter, National Question. 31 See Davidson, African Civilization Revisited, 3; see generally Sanders, Lost Tribes. 32 Osterhammel, Colonialism, 16. 33 See ibid., 11, 15. 34 See Veracini, Settler Colonialism, 20, 104; and Hixson, American Settler Colonialism, 5. 35 See generally Rodney, How Europe Underdeveloped Africa. 36 Anghie, Imperialism, Sovereignty, 11 (quoting Doyle, Empires, 45). 37 Osterhammel, Colonialism, 11. 38 Ibid. 39 Anghie, Imperialism, Sovereignty, 52–87; Olmsted, “Are Things Falling Apart?,” 439–44. 40 See Anghie, Imperialism, Sovereignty, 52–65; and Churchill, “Law Stood Squarely,” 673–80; see also Island of Palmas Case, 829 (holding that “discovery” gives inchoate title to territory but that claims to sovereignty also require “effective

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49 50 51 52 53 54 55 56 57 58 59 60

61 62 63 64 65 66 67 68

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occupation”). On the doctrine’s application in British settler states, see generally Miller et al., Discovering Indigenous Lands. See Mutua, “Putting Humpty Dumpty Back Together,” 518–20; and Anghie, Imperialism, Sovereignty, 90–96. See Mutua, “Why Redraw the Map,” 1134–37; and Mahmud, “Colonial Cartographies,” 19–40. See Anghie, Imperialism, Sovereignty, 141. See Osterhammel, Colonialism, 59–60; Benton, Law and Colonial Cultures, 127–66; and Rahman Ford, “Law, History,” 226–27. See Anghie, Imperialism, Sovereignty, 141–78; for a detailed account of the League of Nations’ Mandate System that embodied these goals, see generally Quincy Wright, Mandates under the League. Veracini, Settler Colonialism, 96 (referencing Homer’s Odyssey). See Memmi, Colonizer and the Colonized, 54–55. See Mutua, “Putting Humpty Dumpty Back Together,” 521–22; Gordon, “Growing Constitutions,” 546–47; Osterhammel, Colonialism, 61–67; and Fanon, Wretched of the Earth, 97–144. See Osterhammel, Colonialism, 57–58; and Mikell, “Ethnic Particularism,” 104. Mikell, “Ethnic Particularism,” 103. Ibid., 103–4. Memmi, Colonizer and the Colonized, 91. Thiong’o, Decolonising the Mind, 3; see generally Fanon, Black Skin, White Masks. Lumumba, “Speech at Proclamation of Independence,” 793–97. See UN, “United Nations and Decolonization.” Veracini, Settler Colonialism, 105. Mutua, “Putting Humpty Dumpty Back Together,” 520; see generally Ratner, “Drawing a Better Line.” Anghie, Imperialism, Sovereignty, 211–23. Nkrumah, Neo-Colonialism, ix; see also Gassama, “Africa and the Politics of Destruction.” Hechter, Internal Colonialism, 9; see also Gramsci, “Southern Question.” The term has also been used to explain economic disparities and ethnic tensions within states that purport to “absorb” nations as they expand and consolidate. See, e.g., Lenin, Development of Capitalism. Hechter, Internal Colonialism, 9. Ibid. Ibid., 10. Finzsch, “Aborigines,” 254–55. See Durham, Certain Lack of Coherence, 175. See Wolfe, “Settler Colonialism,” 394. For a seminal study, see generally A. Grenfell Price, White Settlers. See, e.g., Rodney, How Europe Underdeveloped Africa; and Galeano, Open Veins. See Wolfe, “Structure and Event,” 104.

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69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88

89 90 91

92 93 94 95 96 97 98

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Wolfe, “Settler Colonialism,” 395. Belich, Replenishing the Earth, 23. See Wolfe, “Settler Colonialism,” 388. See Wolfe, “Structure and Event,” 103. On Angloamerican colonists’ imaginings, see Wood, Empire of Liberty, 6–14. Veracini terms such migrants “exogenous Others.” Settler Colonialism, 26–27. Jodi Byrd employs “arrivants.” Transit of Empire, xix. Mamdani, “When Does a Settler Become a Native?” Belich, “Rise of the Anglo World,” 53; see also Veracini, Settler Colonialism, 3. Wolfe, Settler Colonialism, 163. Rose, Hidden Histories, 46. See Robert A. Williams, American Indian, 246–51. See Byrd, Transit of Empire, xxiv–xxv (cautioning that a focus on labor needs can subsume Indigenous issues). See Veracini, Settler Colonialism, 67. On control of the settler population, see Saito, Meeting the Enemy, 66–68. On the relationship between law and social control, see generally Black, Behavior of Law. On spatial “assignment,” see generally Rahman Ford, “Law, History.” Irene Watson, Aboriginal Peoples, 5. See also Veracini, Settler Colonialism, 32, 53–55, 67. See Anghie, Imperialism, Sovereignty, 96–97; see generally Pagden, Lords of All. Veracini, Settler Colonialism, 23. Ibid., 20–22. Ibid., 26. See Anghie, Imperialism, Sovereignty, 4. These relationships (settler-indigenous, settler-slave, and settler-migrant) also have peculiarly gendered dimensions. See generally Mann, Spirits of Blood. In the Australian context, see Wolfe, “Settler Colonialism,” 164–65. Wolfe, “Settler Colonialism,” 388. See Wood, Empire of Liberty, 122; and Hixson, American Settler Colonialism, 4; see generally Belich, Replenishing the Earth; and Rodinson, Israel. As Aboriginal activist Bobbi Sykes said about postcolonialism in Australia: “What? Post-colonialism? Have they left?” Quoted in Linda Tuhiwai Smith, Decolonizing Methodologies, 25. See generally King, “Godzilla”; and Shohat, “Notes on the ‘Post-Colonial.’” Sartre, “On Genocide,” 615. See Moses, Empire, 12 (quoting memorandum from Lemkin to R. Kempner, June 5, 1946). Genocide Convention, art. II (emphasis added). Lemkin, Axis Rule, 79. See also Moses, Empire, 9. Lemkin, Axis Rule, 79. Sartre, “On Genocide,” 615. See Wolfe, “Structure and Event,” 121 (describing the “concrete empirical relationships between spatial removal, mass killings, and biocultural assimilation”

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in settler colonial regimes as “structural genocide”). See generally Glauner, “Need for Accountability”; and Churchill, Little Matter of Genocide. See generally Saito, Meeting the Enemy. See Wolfe, “Structure and Event,” 103. See generally Wolfe, “Recuperating Binarism.” Haunani-Kay Trask, “Settlers of Color,” 46–47. On Native Hawaiian conditions of life, see also Sonoda, “Nation Incarcerated”; and Stannard, “Hawaiians.” Fujikane, “Introduction: Asian Settler Colonialism,” 12. See also Saranillio, “Why Asian Settler Colonialism Matters”; and Kosasa, “Ideological Images,” 226 (“As Japanese settlers, we have ascended from being collaborators in a colonial system to being enforcers and keepers of that system” and have an obligation to support—but not presume to direct—Native Hawaiian self-determination). Carmichael, “Pan-Africanism,” 200 (emphasis in original). Veracini, Settler Colonialism, 33–34 (noting that “exogenous Others, unlike their indigenous counterparts, do not challenge with their very presence the legitimacy of the settler entity” and that “the sustained presence of exogenous Others confirms the indigenisation of the settler collective”). Ibid., 108. See Memmi, Colonizer and the Colonized, 19 (“The facts of colonial life are not simply ideas, but the general effect of actual conditions. To refuse means either withdrawing physically from those conditions or remaining to fight and change them”).

Chapter 4. Land and Indigenous Peoples

1 Wolfe, “Structure and Event,” 103; see also Schmitt, Nomos of the Earth, 48 (“Land-appropriation . . . constitutes the original special order, the source of all further concrete order and all further law”). 2 Durham, Certain Lack of Coherence, 176. 3 Wolfe, “Settler Colonialism,” 402. 4 Bell, “Racial Realism,” 373. 5 Dana Stevens, “Laughing Out Loud.” 6 See Veracini, Settler Colonialism, 35–50. 7 Robert A. Williams, Like a Loaded Weapon, 48. See generally Robert A. Williams, Savage Anxieties. 8 Veracini, Settler Colonialism, 36. 9 Quoted in Drinnon, Facing West, 65. In fact, Washington engaged in a prolonged and brutal war to wrest territorial control from the well-organized Iroquois League. See generally Mann, George Washington’s War. 10 Cherokee Nation v. Georgia, 30 U.S. at 27 (Johnson, J., concurring); Johnson v. McIntosh, 21 U.S. at 590. On the Court’s continued reliance on this premise, see Robert A. Williams, Like a Loaded Weapon, 48–51. 11 Veracini, Settler Colonialism, 36. 12 Ibid., 37.

Notes

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See Ray, “Native American Identity”; and Connelly, “Bones of ‘Kennewick Man.’” Diep, “Passing of the Indians.” See Moya-Smith, “Ugly Truth.” See, e.g., Klopman, “Thousands Protest”; Pro-Football v. Blackhorse; and Churchill, “Let’s Spread the ‘Fun’ Around.” See Dan Diamond, “Trump Challenges.” See Salisbury, Manitou and Providence, 98 (quoting John Smith, Travels and Works). See generally Dobyns, Their Number Become Thinned. See Robert A. Williams, American Indian, 212–13. Stannard, American Holocaust, 105–6. Robert A. Williams, American Indian, 216–17. Ibid., 217. Ibid. Stannard, American Holocaust, 104–6; see generally Grenier, First Way of War. Stannard, American Holocaust, 107. Quoted in ibid., 114. Ibid., 115. See also Jennings, Invasion of America, 206–27; and Drinnon, Facing West, 35–57. See Stannard, American Holocaust, 118; see generally Churchill, “‘Nits Make Lice.’” See Robert A. Williams, American Indian, 229–30. Mann, George Washington’s War, 2. Quoted in ibid., 103. See Churchill, “‘Nits Make Lice,’” 216. Ibid., 228–34. Ibid., 244 (quoting Aberdeen Saturday Pioneer, December 20, 1890). Ibid. Medals of Honor awarded for the slaughter of civilians at Wounded Knee, however, have yet to be rescinded. Moya-Smith, “‘Indian Wars Period.’” Churchill, “‘Nits Make Lice,’” 180–82. Mann, George Washington’s War, 115–16. See Churchill, “‘Nits Make Lice,’” 219–21. Ibid., 187. See generally Lindsay, Murder State. See Dobyns, Their Number Become Thinned, 13–26; on Hawai‘i, see generally Stannard, Before the Horror. See Stannard, American Holocaust, 53–54, 57, 128–29, 135–36. That American authorities had vaccines and were, as a general rule, denying them to Indigenous peoples is illustrated by their willingness to provide them when doing so would hasten Indian removals. See Rollings, Osage, 281 (noting that the military sent a doctor to vaccinate the Osage in the winter of 1838–1839 to expedite their forced relocation). See Dobyns, Their Number Become Thinned, 8 (noting that the North American continent is better described as “widowed” rather than “virgin” land).

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47 Stearn and Stearn, Effects of Smallpox, 49. Earlier that year, British military leaders used smallpox-infected blankets to trigger an epidemic that killed some 100,000 Indians in Ohio. See Mann, Tainted Gift, 1–18; and Stearn and Stearn, Effects of Smallpox, 44–45. 48 Mann, George Washington’s War, 11; Mann, Tainted Gift, 43–82; Stearn and Stearn, Effects of Smallpox, 89–94. 49 Churchill, “‘Nits Make Lice,’” 156. 50 On the boarding schools, see generally Churchill, Kill the Indian. 51 Genocide Convention, art. II). On current interpretations of “slow death measures,” see Cassese et al., Cassese’s International Criminal Law, 116. 52 CDC, “American Indian and Alaska Native Death Rates.” 53 HHS, Office of Minority Health, “Profile: American Indian/Alaska Native.” 54 Ibid. 55 Genocide Convention, art. II(d). 56 See Krase, “History of Forced Sterilization”; and Ralstin-Lewis, “Continuing Struggle,” 76. On the United States’ use of sterilization as a means of social engineering, see generally Lombardo, Three Generations. 57 Ralstin-Lewis, “Continuing Struggle,” 76–78. See also Andrea Smith, Conquest, 80–88; and Churchill, “United States and the Genocide Convention,” 377n. For an analysis of similar practices in Canada, see generally Stote, Act of Genocide. 58 Ralstin-Lewis, “Continuing Struggle,” 78; see also Jaimes and Halsey, “American Indian Women,” 326. 59 Ralstin-Lewis, “Continuing Struggle,” 77 (noting a drop from 3.79 to 1.80 children per woman). 60 Ibid., 81. 61 Long after the sterilization program was officially discontinued, Native women continue to be subject to coercive and often involuntary forms of long-term contraception such as Norplant, which lasts for five years and can be removed only by medical personnel. Ibid., 86–87. 62 Timothy Williams, “Higher Crime.” See also Gilg, “Domestic Violence”; and Amnesty International, “Maze of Injustice.” 63 Amnesty International. “Maze of Injustice.” 64 Timothy Williams, “Higher Crime.” 65 Buckley, “‘This Is Genocide’”; see also Golden, “‘Sister, Where Did You Go?’” 66 See Matthiessen, Spirit of Crazy Horse, 59–60; and Churchill and Vander Wall, Agents of Repression, 122. 67 Churchill, “Bloody Wake,” 267. 68 Ibid., 271. 69 Ibid., 269–70, 275–76; see also Johansen and Maestas, Wasi’chu, 84–85 (on the election); and Churchill and Vander Wall, Agents of Repression, 129–34 (on the energy-related resources on Pine Ridge). 70 See Johansen and Maestas, Wasi’chu, 84; and Churchill and Vander Wall, Agents of Repression, 164–97.

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71 See Churchill, “Bloody Wake,” 251; see generally Churchill and Vander Wall, COINTELPRO Papers. 72 See Churchill, “Bloody Wake,” 271–72; and United States v. Sioux Nation of Indians. On the Lakotas’ insistence on the return of the Black Hills, see generally Lenane, “‘It Doesn’t Seem Very Fair’”; and Lazarus, Black Hills. 73 Barsh, “Indian Land Claims,” 7–8. 74 Churchill, “Charades, Anyone?,” 140. 75 See Brown, Parrish, and Speri, “Leaked Documents.” 76 Quoted in Robert A. Williams, Like a Loaded Weapon, 192. 77 Henderson, Letter to Archambault. 78 Merk, Manifest Destiny, 9 (quoting an 1801 letter from Jefferson to James Monroe, explaining why Black people should be resettled outside the hemisphere). 79 Johansen, “Indian Immigrants,” 30–31; see also Sale, Conquest of Paradise, 316 (on pre-contact population estimates); and Churchill, Since Predator Came, 112 (on land loss). 80 See Thornton, Snipe, and Breen, Cherokees, 75–77; and Thornton, “Cherokee Population Losses,” 293. 81 See Robert J. Miller, “Doctrine of Discovery,” 55–57. 82 See Strickland, Fire and Sprits, 40–41. 83 Wolfe, “Structure and Event,” 113. 84 Ibid., 113–14. 85 Anaya, International Human Rights, 1. 86 See generally Waziyatawin Angela Wilson, “Decolonizing the 1862 Death Marches.” Veracini notes that such “ethnic transfers” transform the survivors into refugees on lands to which they are not truly indigenous. Settler Colonialism, 35–37. 87 Wolfe, “Structure and Event,” 117. See also La Vere, Contrary Neighbors, 67, 70 (noting the Plains Indians’ perceptions of the removed peoples as “invaders”). 88 Quoted in Perry, Apache Reservation, 119. 89 See, e.g., Brown, Bury My Heart, 60, 63–64 (on Cheyenne internments); and Schultz, Over the Earth, 281–83 (on Santee Sioux at Fort Snelling and Crow Creek); see generally Bailey, Bosque Redondo (on Navajo internment). 90 This became the model for the notorious “pass system” imposed under apartheid in South Africa. See Frederickson, White Supremacy, 242–43. 91 Berthrong, Cheyenne and Arapaho Ordeal, 27–47 (rations at 30, 34–35; diseases at 30–31). 92 Quoted in ibid., 34. 93 See Andrist, Long Death, 321–29. Similar circumstances preceded the 1890 Wounded Knee massacre except that in that case the Minneconjou Lakotas had remained within what the United States conceded was their territory. See ibid., 350–52; and Sutton, Irredeemable America, 122–23 (map entitled “Sioux Cessions and Land Claims”). 94 It was 1909 before an American court held that Indians could not be classified—or treated—as “prisoners of war” merely because they were Indian. See United States v. By-a-lil-le; and Harring, Crow Dog’s Case, 198–203.

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95 See Lieder and Page, Wild Justice, 28–38. 96 See Churchill, “Charades Anyone?,” 125–52. On the Indian Claims Commission, see generally Rosenthal, Their Day in Court. 97 See Fort Sill Apache Tribe v. United States (1971). 98 Fort Sill Apache Tribe v. United States (1973), 201 Ct. Cl. at 639; see also Lieder and Page, Wild Justice, 222. 99 Fort Sill Apache Tribe v. United States (1974). 100 See Barsh, “Indian Land Claims,” 9–73. 101 See, e.g., Schilling, “History Professor.” 102 Limerick, Legacy of Conquest, 338; Veracini, Settler Colonialism, 39. See also Garroutte, Real Indians, 44–45 (blood quantum chart); see generally Spruhan, “Legal History of Blood Quantum.” 103 See Snowden et al., “American Indian Sovereignty,” 216–18; and Churchill, “Crucible,” 39, 50. 104 General Allotment (Dawes) Act. See also Lone Wolf v. Hitchcock; and Wolfe, “Race and the Trace of History,” 278–79. 105 Blue Clark, Lone Wolf, 2 (noting the loss of ninety million acres of Indian-held land). 106 See Rennard Strickland, “Genocidal Premise,” 330–31. 107 See generally James D. Diamond, “Who Controls Tribal Membership?”; and Brownell, “Who Is an Indian?” 108 See Veracini, Settler Colonialism, 43 (describing “multicultural transfer” as the collapse of indigenous autonomy into “exogenous alterity”), 48 (characterizing Indigenous incorporation into a racial binary as “transfer by racialization”). On the relationship between racialization and the subversion of sovereignty in the United States, see generally Torres, “American Blood.” 109 Veracini, Settler Colonialism, 50. 110 See Lacy, “United States and American Indians.” 111 Barsh, “Indian Land Claims,” 77. 112 Blue Clark, Lone Wolf, 12. 113 See Indian Citizenship Act; see generally Robert B. Porter, “Demise of the Ongwehoweh.” 114 Churchill, “‘Nits Make Lice,’” 246. See generally Tinker, Missionary Conquest. 115 See Kristin A. Carpenter, “Limiting Principles,” 402–11. On the often violent suppression of ceremonial dances, see Dussias, “Ghost Dance,” 787–805. 116 See American Indian Religious Freedom Act; and Lyng v. Northwest Indian Cemetery. See generally Kristin A. Carpenter, “Limiting Principles.” On parallels between restrictions imposed upon reservation-based Indians in the nineteenth century and American Indian prisoners today, see Dussias, “Ghost Dance,” 834–50. 117 The first and prototypical Indian boarding school was established by Richard Henry Pratt, the US army captain responsible for “rehabilitating” the Chiricahua Apaches held in military prisons. See Churchill, Kill the Indian, 13–14; see generally Adams, Education for Extinction.

Notes

118 119 120 121 122

123 124 125 126 127 128 129 130 131 132 133 134

135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150

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See generally Churchill, Kill the Indian. See ibid., 29–51. See ibid., 51–76. See Mississippi Band of Choctaw Indians v. Holyfield, 290 U.S. at 32–33; Carriere, “Representing the Native American,” 601–2; and Cooper, “Racial Bias,” 238. Churchill, Kill the Indian, 14. See also Wolfe, “Recuperating Binarism,” 263 (“Native assimilation is not primarily a recruitment into Whiteness” but “an elimination of Indigeneity”). Genocide Convention, artII(e). Atwood, “Flashpoints,” 601. See also Indian Child Welfare Act of 1978. Oglala Sioux Tribe v. Van Hunnik. Laura Sullivan, “Federal Judge.” Veracini, Settler Colonialism, 38. Ibid. See Braunstein and Feimer, “South Dakota Criminal Justice,” 172; see generally Droske, “Correcting Native American Sentencing Disparity.” Veracini, Settler Colonialism, 45. Wolfe, Settler Colonialism, 204; see also Veracini, Settler Colonialism, 40. See, e.g., Hilden, When Nickels Were Indians. Mike Taylor, “Why Do You Indians.” Ibid. Discussing the persistent “archetype of the old [Indian] chief ” who recognizes the futility of resisting settler incursions, Vine Deloria concluded that “one fundamental truth emerges—the white man knows that he is an alien and he knows that North America is Indian—and he will never let go of [this misleading] Indian image because he thinks that by some clever manipulation he can achieve an authenticity that cannot ever be his.” Deloria, “Foreword/American Fantasy,” xvi. Veracini, Settler Colonialism, 41. Eid, “Beyond Dakota Access,” 594. Dalrymple, “Pipeline Route Plan”; Mead, “How You Can Stand.” Thorbecke, “Why a Previously Proposed Route.” 1868 Fort Laramie Treaty. LaDonna Allard, “Why the Founder.” Ibid. Freshet Collective, “600+ Water Protectors.” Ibid.; see also Lennard, “Still Fighting.” Healy, “View.” See Bearak, “UN Officials Denounce.” See Dresslar, “How Many Law Enforcement Agencies”; and UN News Centre, “UN Experts Back Call.” Liptak and Jones, “Obama on Police Shootings”; Levin, “Standing Rock.” Wolfe, Settler Colonialism, 164. See Levin, “‘He’s a Political Prisoner.’” Brown, Parrish, and Speri, “Leaked Documents.”

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151 152 153 154 155 156

National Conference of State Legislatures, “Federal and State Recognized Tribes.” US Census Bureau, “FFF: American Indian and Alaska Native Heritage Month.” National Congress of American Indians, “Demographics.” Singer, “Sovereignty and Property,” 44. National Congress of American Indians, “Introduction to Indian Nations,” 13. See Cobell v. Salazar; Talhelm, “Inside Washington”; and Marrero, “Tribal Members.” According to the CDC, between 1999 and 2011, American Indians were overall more likely to be killed by law enforcement than any other racial group. Males, “Who Are Police Killing?” See also Cheney-Rice, “Police Are Killing.” Timothy Williams, “Higher Crime.” See also Gilg, “Domestic Violence”; and Amnesty International, “Maze of Injustice.” US Census Bureau, “FFF: American Indian and Alaska Native Heritage Month.” See US Department of Justice, Attorney General’s Advisory Committee, “Ending Violence”; Moss, “American Indian Health,” 68; and Baksh, “Native Youth Suicides.” Singer, “Sovereignty and Property,” 45. See UN Charter, art. 2(4). Wolfe, “Race and the Trace of History,” 275. Ibid., 273.

157

158 159 160

161 162 163 164

Chapter 5. Enslaved Labor and Strategies of Subjugation

1 See Wolfe, Settler Colonialism, 1–2. 2 Veracini, Settler Colonialism, 14 (internal citation omitted). 3 See Zahra, “America,” 4 (noting that 30 to 40 percent of pre–World War I European immigrants returned to their home countries). 4 See Robert A. Williams, American Indian, 246–51; and Lowe, Intimacies of Four Continents, 10. 5 See generally Shaw-Taylor and Tuch, Other African Americans. 6 See generally Dyson, “Racial Free-Riding.” 7 See generally Gallay, Indian Slave Trade; and Gallay, Indian Slavery in Colonial America. The enslavement of American Indians in Utah and Colorado persisted until the Civil War, and continued into the 1870s in California. Gallay, “Introduction: Indian Slavery,” 26. 8 See generally Forbes, Africans and Native Americans; and William Loren Katz, Black Indians. Gallay notes that during the seventeenth and early eighteenth centuries, “most Indian slaves were women and children, whereas the majority of African slaves were adult males.” Indian Slave Trade, 312. As a result, succeeding generations of enslaved “Black” persons were likely to be of American Indian descent. 9 Without using the words “slave” or “slavery,” the Constitution provided that slaves would be counted as three-fifths of a person for purposes of taxation and representation; that the slave trade could not be banned before 1808; and that

Notes

10 11 12

13 14 15 16 17 18 19 20 21

22 23 24

25 26 27

28 29 30 31 32 33

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fugitive slaves had to be returned to their masters. See US Const. art. I, § 2; art. II, § 9; art. IV, § 2. See also Higginbotham, Shades of Freedom, 68–73; and Finkelman, “Covenant with Death,” 21. Agamben, Homo Sacer, 168–69. See generally Baptist, Half Has Never Been Told. See generally Eric Williams, Capitalism and Slavery; and Rodney, How Europe Underdeveloped Africa. The African slave trade may be history’s largest example of involuntary ethnic transfer, as Indigenous Africans were forcibly removed from their traditional lands and relocated on alien terrain. See Veracini, Settler Colonialism, 35. Blauner, Still the Big News, 50. Robert A. Williams, American Indian, 201, 208. Ibid., 209. Ibid., 212–13. Galenson, “Rise and Fall of Indentured Servitude,” 1. See also Eric Williams, Capitalism and Slavery, 9–19. See Eric Williams, Capitalism and Slavery, 16–18. Ibid., 18; see also Jordan, White over Black, 48. See Zinn, People’s History, 24 (describing early settlers in Virginia as “desperate for labor” simply “to grow enough food to stay alive”). Ablavsky, “Making Indians ‘White,’” 1466; Gallay, Indian Slave Trade, 299; Mann, Iroquoian Women, 41 (noting that “between 1690 and 1730, [settlers] enslaved, and occasionally ‘disappeared,’ whole nations”); see generally Lauber, Indian Slavery. Everett, “‘They Shalbe Slaves,’” 70–71. Gallay, Indian Slave Trade, 7–8; see also 299–302. Gallay, “Introduction: Indian Slavery,” 18–19. See also Knack and Littlefield, “Native American Labor,” 8 (noting that in 1708 almost one-quarter of enslaved people in South Carolina were identified as Indian). Gallay, “Introduction: Indian Slavery,” 20–22. See Davidson, African Slave Trade, 67–76; and Curtin, Atlantic Slave Trade, 54. Zinn, People’s History, 25–26; see also Franklin and Moss, From Slavery to Freedom, 53. On African trade and influence predating European contact, see Forbes, Africans and Native Americans, 14–25; see generally Van Sertima, African Presence; and Van Sertima, They Came before Columbus. On possible preColumbian trans-Atlantic travel by American Indians, see Forbes, Africans and Native Americans, 6–14. Berlin, Many Thousands Gone, 29; see also Guasco, “Misguided Focus.” Jordan, White over Black, 68. The settlers also considered trading enslaved American Indians for enslaved Africans. Ibid., 69. See Berlin, Many Thousands Gone, 369. Eric Williams, Capitalism and Slavery, 51–52, 80. Berlin, Many Thousands Gone, 182. Ibid., 369.

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34 Ibid., 66. 35 Ibid., 105. 36 See ibid., 369–70; Franklin and Moss, From Slavery to Freedom, 54; and Jordan, White over Black, 84–85. 37 Berlin, Many Thousands Gone, 8. 38 Harding, There Is a River, 8. See generally Baptist, Half Has Never Been Told; and Gavin Wright, Slavery. 39 Quoted in Eric Williams, Capitalism and Slavery, 7 (also noting that this incentive to exhaust fertile soil rendered “expansion [] a necessity of slave societies”). 40 Sublette and Sublette, American Slave Coast, 11. 41 See ibid., 66–67; see also Gavin Wright, Slavery, 71. 42 See Wolfe, “Structure and Event,” 103 (characterizing “chattel slavery on the US model” as a form of colonialism). 43 See Berlin, Many Thousands Gone, 8. 44 See generally Jackson, Introduction to African Civilizations; and Diop, African Origin. 45 Berlin, Many Thousands Gone, 104. 46 Ibid., 172–74. 47 See Harding, There Is a River, 27. 48 Veracini, Settler Colonialism, 44, 35–36. See also Thomas, “John Henrik Clarke” (noting that African history scholar Clarke, the son of an Alabama sharecropper, “had been led to study African history after being told that black Africans had no history before European colonization”). 49 Quoted in Docker, “Settler-Colonies,” 94. 50 See Harding, There Is a River, 27. 51 Ibid., 9–23; Websdale, Policing the Poor, 16. 52 Berlin, Many Thousands Gone, 171; see also Blassingame, Slave Community, 25–35, 332–35. 53 See Stuckey, Slave Culture, 3–97. 54 Ibid., 30–37. See generally Shirley and Stafford, Dixie Be Damned. 55 Harding, There Is a River, 37–42. See also Berlin, Many Thousands Gone, 170; see generally Giddings, Exiles of Florida. 56 Harding, There Is a River, 40. 57 Ibid. 58 Berlin, Many Thousands Gone, 105. 59 Ibid., 107. 60 Ibid., 108 (quoting Alexander Garden). 61 See Veracini, Settler Colonialism, 37 (describing this as a form of “perception transfer”). 62 Quoted in Jordan, White over Black, 109–10. 63 Ibid. See generally Finkelman, Slavery and the Law. 64 Cheryl I. Harris, “Whiteness as Property,” 1720; see also Crusto, “Blackness as Property,” 68–69; and Bridgewater, “Ain’t I a Slave,” 115–18.

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65 See Chase, “Race, Culture,” 22. In some jurisdictions, slaves were classified as real property—like land—rather than as personal property. See ibid., 16; see also Lancaster, “Alchemy and Legacy,” 178. 66 Dred Scott v. Sandford, 60 U.S. at 407. 67 Ibid. See also Higginbotham, “Ten Precepts,” 1701–4. 68 See Nelson, “American Husbandry,” 26–37 (describing medical experimentation on unanaesthetized enslaved women by a doctor who became president of the American Medical Association); see generally Crusto, “Blackness as Property.” 69 See Harding, There Is a River, 27; see generally Pope, “Section 1 of the Thirteenth Amendment.” 70 Jordan, White over Black, 104. 71 See Schafer, “Long Arm of the Law,” 1247. 72 Nelson, “American Husbandry,” 10. 73 Wolfe, “Race and the Trace of History,” 275. 74 Fanon, Wretched of the Earth, 32–34. 75 Myrdal, American Dilemma, 100. 76 See, e.g., Perea, “Black/White Binary,” 156–66; and Wu, “Neither Black nor White,” 225–84; see generally Caldwell, “Content of Our Characterizations.” 77 See Espinoza and Harris, “Afterword,” 1596; and Iijima, “Era of We-Construction,” 71; see generally Myrdal, American Dilemma. 78 See Jordan, White over Black, 29–32, 491–97. See generally Gould, Mismeasure of Man. 79 Dred Scott v. Sandford, 60 U.S. at 407. See also Jordan, White over Black. 80 Quoted in Saito, “From Slavery,” 1165; see generally Higginbotham and Higginbotham, “‘Yearning to Breathe Free.’” 81 Berlin, Many Thousands Gone, 123. 82 Ibid., 145. 83 See Ablavsky, “Making Indians ‘White,’” 1526–28. 84 Higginbotham, Matter of Color, 48. 85 Bridgewater, “Ain’t I a Slave,” 120; Davis, Women, Race, 6–7. 86 Quoted in Wiencek, Master of the Mountain, 259. 87 See Roberts, Killing the Black Body, 22–27; Bridgewater, “Un/Re/Dis Covering,” 32; and Nelson, “American Husbandry,” 23–26. 88 Davis, Women, Race, 7. 89 Bridgewater, “Ain’t I a Slave,” 118–19. 90 Ibid., 119; see also Roberts, Killing the Black Body, 27–45. 91 Hutchinson, “Ignoring the Sexualization,” 81–82 (also noting these practices as significant to “the construction of black male heterosexuality as promiscuous and potent”). See also Bridgewater, “Ain’t I a Slave,” 120–21; see generally Evelyn L. Wilson, “People as Crops,” 697–709. 92 Bridgewater, “Ain’t I a Slave,” 120n149. 93 See Anghie, Imperialism, Sovereignty, 52–65; and Wolfe, “Race and the Trace of History,” 274–76.

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94 See Veracini, Settler Colonialism, 39; Wolfe, “Race and the Trace of History,” 278–79; and Blue Clark, Lone Wolf, 2. See generally Spruhan, “Legal History of Blood Quantum.” 95 See, e.g., Plessy v. Ferguson; and Doe v. Louisiana; see generally Woodward, Strange Career. 96 Ablavsky, “Making Indians ‘White,’” 1520–21. On the long history of such communities, see generally Forbes, Africans and Native Americans; and William Loren Katz, Black Indians. 97 Williamson, “Plight of the ‘Nappy-Headed,’” 245–46. 98 Civil Rights Cases, 109 U.S. at 22. 99 See Saito, “Indefinite Detention.” 100 US Const. art. IV, § 2, cl. 3. In Prigg v. Pennsylvania, the Supreme Court held that Pennsylvania could not protect fugitive slaves under state law. 101 See Fugitive Slave Act of 1793; and Fugitive Slave Act of 1850. 102 See Websdale, Policing the Poor, 20. 103 See Conroy, “‘Show Me Your Papers,’” 151–57. See generally Hadden, Slave Patrols. 104 Quoted in Higginbotham, Matter of Color, 56. 105 Ibid., 57. 106 Jordan, White over Black, 134. See generally Higginbotham and Bosworth, “‘Rather Than the Free.’” 107 See Berlin, Many Thousands Gone, 124. 108 See Neuman, “Lost Century,” 93. See also Quigley and Zaki, “Significance of Race,” 155, 205. On the Chinese exclusion laws, see chapter 7. 109 See Rutherford, “Laws of Exclusion,” 29. 110 Ibid., 32. 111 See Neuman, “Lost Century,” 93. 112 Moore v. Illinois, 55 U.S. at 17–18. 113 On resistance to sexual exploitation and forced reproduction, see Roberts, Killing the Black Body, 45–47. 114 Because my purpose here is to identify settler strategies for appropriating labor, I focus largely on the relationship between resistance and control. However, it is important not to presume that the actions of the enslaved were motivated exclusively by the slaveholders’ reactions but to recognize instead “an ethical world among the enslaved with principles and practices orthogonal to slaveholding and European justice.” Walter Johnson, “Comment,” 1090. 115 Baptist, Half Has Never Been Told, 113. 116 Ibid. 117 Ibid., 127. 118 Fede, “Legitimized Violent Slave Abuse,” 94. 119 Neal v. Farmer, 9 Ga. 579 (emphasis in original). 120 Higginbotham, Shades of Freedom, 50. For analysis of the law governing slavery in Louisiana, see Quigley and Zaki, “Significance of Race.” 121 Quoted in Higginbotham, Matter of Color, 56 (emphasis added).

Notes

Chapter 6. “Emancipated” African Americans

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1 See Inniss, “Critical Legal Rhetoric,” 673. 2 See Lincoln, Selected Speeches and Writings, 343 (letter of August 22, 1862, stating, “My paramount object in this struggle is to save the Union, and is not either to save or destroy Slavery”). 3 See generally Du Bois, Black Reconstruction. 4 Du Bois, Souls of Black Folk, 3 (emphasis added). 5 See Elk v. Wilkins (holding that American Indians were not US citizens by birth in the territory). 6 See Selwyn Carter, “African-American Voting Rights,” 864; and Foner, Reconstruction. 7 Derrick Bell, Race, Racism, 51–52; see also Ifill, “Creating a Truth and Reconciliation Commission,” 273. 8 Litwack, Been in the Storm, 97–98, 318, 382–86. See generally Nieman, To Set the Law in Motion; and Bickers, “Power.” 9 See Du Bois, Black Reconstruction, 670–708. 10 See Civil Rights Act of 1875; and Civil Rights Cases. 11 McDonald, “Whatever Happened,” 207 (noting that there were fewer than a hundred Black elected officials in the South when the Voting Rights Act of 1965 was passed). See also Fox, “Intimations of Citizenship,” 133–35; and Selwyn Carter, “African-American Voting Rights,” 866. 12 Quoted in Litwack, Been in the Storm, 400. 13 Ibid., 400–401. 14 See US Commission on Civil Rights, “Decline of Black Farming,” 15. 15 See Gugliotta, “New Estimate.” 16 Litwack, Been in the Storm, 404–5; quote at 405. See also Shanks, “Asset-Building Policy,” 5 (noting that an 1866 Southern Homestead Act intended to benefit freedmen was repealed in 1876, precluding any significant transfer of land). 17 Litwack, Been in the Storm, 407. 18 Ibid. 19 Bernstein, “Law and Economics,” 786n20. 20 See Du Bois, Black Reconstruction, 589; and Jaspin, Buried in the Bitter Waters, 35–36, 88–89 (discussing failed attempts to use European immigrant labor during this period). 21 See generally Holmes, “Whitecapping.” 22 See generally Bernstein, “Law and Economics.” The Supreme Court upheld such laws in Williams v. Fears. 23 Jaspin, Buried in the Bitter Waters, 56, 89; quote at 56. 24 See Litwack, Been in the Storm, 319–22; see generally Jaspin, Buried in the Bitter Waters; Ash, Massacre in Memphis; and Keith, Colfax Massacre. 25 See Takaki, Strangers, 80–82. 26 See Litwack, Been in the Storm, 319.

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27 See Franklin and Moss, From Slavery to Freedom, 238. 28 Woodward, Strange Career, 7. See generally Litwack, Trouble in Mind. On the gendered implications of apartheid laws, see Welke, “When All the Women Were White.” 29 Boddie, “Racial Territoriality,” 431–32. See generally Minter, “Failure of Freedom”; and Thompson-Miller, Feagin, and Picca, Jim Crow’s Legacy. On Black resistance to these restrictions, see Fox, “Intimations of Citizenship,” 161–88. 30 See Rose, Hidden Histories, 46 (explaining settler attitudes toward Aboriginal people). 31 Boddie, “Racial Territoriality,” 367–70. 32 Slaughter-House Cases, 83 U.S. at 70; see also Higginbotham, Shades of Freedom, 75; and Levy-Pounds, “Par for the Course?,” 51–53. 33 Boddie, “Racial Territoriality,” 408–25; see generally Blackmon, Slavery. 34 See Bennett, Before the Mayflower, 273; see generally Lichtenstein, Twice the Work; Mancini, One Dies; and Oshinsky, “Worse Than Slavery.” 35 Blackmon, Slavery, 54–57. On the “peonage” system that emerged subsequently, see ibid., 155–232. 36 Ruffin v. Commonwealth, 62 Va. at 796. 37 See Jaspin, Buried in the Bitter Waters, 62–63. 38 See, e.g., Goldstein, “Klan’s Constitution,” 289. 39 Budiansky, Bloody Shirt, 7. 40 See Goldstein, “Klan’s Constitution,” 297 (noting a 1901 report estimating fifty thousand “lynchings and burnings”). 41 Wells-Barnett, On Lynchings, 55–56. See also Brundage, Lynching, 8. On sexualized violence during Reconstruction, see generally Cardyn, “Sexualized Racism.” 42 Ifill, “Creating a Truth and Reconciliation Commission,” 267. See generally Equal Justice Initiative, Lynching in America. 43 See Holden-Smith, “Lynching, Federalism,” 36–37; for a stunning photographic history, see generally James Allen, Without Sanctuary. 44 Jaspin, Buried in the Bitter Waters, 56. 45 See Woodson, Century of Negro Migration, 167–92; Wilkerson, Warmth of Other Suns, 8–15; and Gregory, Southern Diaspora, 11–41. 46 See Massey and Denton, American Apartheid, 17–18. 47 Quoted in Litwack, Trouble in Mind, 93; see also Fox, “Intimations of Citizenship,” 152. 48 See generally Litwack, North of Slavery. 49 See Buchanan v. Warley; and Orfield, “Milliken,” 377. 50 Stephanopoulos, “Civil Rights,” 1344. 51 Welke, “Beyond Plessy,” 296. 52 See Waterhouse, “Avoiding Another Step,” 244–45. 53 Ibid., 245–46. 54 See Homestead Act of 1862; and Shanks, “Asset-Building Policy,” 4 (noting that as of 2000 about one-quarter of the adult population had ancestors who were homesteaders).

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55 US Commission on Civil Rights, “Decline of Black Farming,” 3. See also Marable, “Politics of Black Land Tenure,” 142; Stephen Carpenter, “USDA Discrimination Cases”; and Douglas, “African Americans Have Lost Untold Acres”; see generally Daniel, Dispossession. 56 Waterhouse, “Avoiding Another Step,” 246. 57 See Gilmore, “Home Is Where,” 262–65. 58 Collins and Margo, “Race and Home Ownership,” 3. 59 Rothstein, “What Have We,” 8; see also Olatunde C. A. Johnson, “Stimulus and Civil Rights,” 163–64. 60 Orfield, “Milliken,” 377. See generally Rothstein, Color of Law. 61 Jeannine Bell, Hate Thy Neighbor, 52. See generally Kruse, White Flight. 62 Fox, “Intimations of Citizenship,” 144. 63 See Loewen, Sundown Towns, 92–96; see generally James Allen, Without Sanctuary. 64 See Malveaux, “Statutes of Limitations,” 70n13 (listing similar attacks in Wilmington, North Carolina (1898), Atlanta, Georgia (1906), Springfield, Missouri (1906), Chicago and Washington, DC (1919), Rosewood, Florida (1923), and Sherman, Texas (1930)); see also Marable, Great Wells of Democracy, 238–40; and Brophy, “Reparations Talk,” 94–96; see generally Collins, All Hell Broke Loose. 65 Ogletree, “Tulsa Reparations,” 17 (citations omitted). 66 See generally Loewen, Sundown Towns; and Jaspin, Buried in the Bitter Waters. 67 See generally Marable, Race, Reform, and Rebellion. 68 See Brown v. Board of Education; Civil Rights Act of 1964; Voting Rights Act of 1965; and Lyndon B. Johnson, State of the Union Address (announcing the war on poverty); see generally Quadagno, Color of Welfare. 69 Bluestone and Harrison, Deindustrialization, 9. 70 Roberts, Kranzler, and Titus, “De-industrialization.” 71 See Schumer and Roberts, “Second Thoughts.” 72 See Rothstein and Scott, “NAFTA’s Casualties”; Lusane, Race in the Global Era, 10; and Reid Wilson, “Watch the US Transition.” 73 McFeely and Pendell, “What Workplace Leaders Can Learn”; see also McCue, “57 Million.” 74 Bluestone and Harrison, Deindustrialization, 12. 75 Don Lee, “Nearly Half.” 76 Fairlie and Kletzer, “Jobs Lost,” 461. 77 Lusane, “Persisting Disparities,” 439. 78 See Gillian B. White, “Education Gaps”; and Steven Brown, “Stalled.” 79 Baldwin, “No Name in the Street,” 432. 80 Wolfe, “Structure and Event,” 123. 81 See generally Sellers-Diamond, “Disposable Children.” 82 See Lombardo, “‘American Breed,’” 745. 83 Fisher v. University of Texas, Transcript of Oral Argument, 67. 84 Jardina, McElwee, and Piston, “How Do Trump Supporters.”

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85 Ibid. 86 See generally Saito, “Decolonization, Development, and Denial.” 87 See Aiyetoro and Davis, “Historic and Modern,” 704–8; see generally Sidhu, “Unconstitutionality.” 88 See Wacquant, “Deadly Symbiosis,” 117; see generally Edelman, So Rich, So Poor. 89 D. Marvin Jones, “‘He’s a Black Male,’” 1029–30. 90 See ibid., 1037. 91 See Wacquant, “Deadly Symbiosis,” 117. 92 See, e.g., Wootson, “Black Yale Student”; and Matt Stevens, “Starbucks CEO Apologizes”; see generally Lemieux, “Rice Rule”; and Russell, “‘Driving While Black.’” 93 Jones v. Alfred H. Mayer Co. 94 Ibid., 392 U.S. at 441–43. 95 Myers and Pendall, “Demographic Opportunities,” 19. 96 Stephanopoulos, “Civil Rights,” 1344. 97 See generally Rothstein, Color of Law. For a case study focused on Atlanta, Georgia, see generally Kruse, White Flight. 98 john a. powell, “Dreaming of a Self,” 31. See also David Love, “Why Are Wealthy.” 99 Firebaugh et al., “Residential Inequality,” 361. 100 Quoted in john a. powell, “Dreaming of a Self,” 32n58. 101 Wacquant, “Deadly Symbiosis,” 104. 102 Ibid., 98, 105. See also Wacquant, “From Slavery,” 51 (defining a ghetto as “an ethnoracial prison” that “encages a dishonoured category and severely curtails the life chances of its members in support of the ‘monopolization of ideal and material goods or opportunities’ by the dominant status group dwelling on its outskirts” (internal citation omitted)). 103 Calmore, “Racialized Space,” 1243. 104 Nunn, “Race, Crime,” 425–27. In 2013 over 50 percent of federal prisoners were incarcerated for drug-related offenses. See Carson and US Department of Justice, “Prisoners in 2014.” On US involvement in the drug trade, see generally Webb, Dark Alliance; and McCoy, Politics of Heroin. 105 john a. powell, “Reflections on the Past,” 609. 106 Rothstein, “What Have We,” 8; US Department of Education, “More Than 40%”; see also Parents Involved in Community Schools v. Seattle School District No. 1. 107 See Tracie R. Porter, “School-to-Prison Pipeline,” 59; and Curtis, “Tracing the School-to-Prison Pipeline,” 1258–61. 108 Wacquant, “Deadly Symbiosis,” 124n20. 109 Jaime Alison Lee, “Rights at Risk,” 764; Hornstein, “Litigating Around,” 1. 110 Conroy, “‘Show Me Your Papers,’” 163; see also Terry v. Ohio; and Hiibel v. Sixth Judicial District. 111 Fabricant, “War Crimes,” 384 (also describing these practices as collective punishment, a violation of international law). 112 Center for Constitutional Rights, Stop and Frisk.

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113 Wolfe, “Structure and Event,” 123. 114 Genocide Convention, art. II(d). 115 Roberts, “Crime, Race,” 1972. White men accused of the same crimes were not similarly subject to castration. 116 Ibid., 1970; see also Rousseau, Black Woman’s Burden, 110. 117 Ross, “Ben Carson’s Focus.” 118 Roberts, “Crime, Race,” 1971; see also Relf v. Weinberger, 372 F. Supp. at 1199 (noting that 100,000 to 150,000 low-income persons were being sterilized each year under federally funded programs, often under coercion). 119 Roberts, “Crime, Race,” 1972. 120 See Nelson, “American Husbandry,” 44–45; and Bridgewater, “Reproductive Freedom,” 416. 121 Project Prevention, “Our Mission”; see also Nelson, “American Husbandry,” 45–46. 122 Bridgewater, “Reproductive Freedom,” 422–23. 123 See Parenti, Lockdown America, 238; see generally Weatherspoon, “Mass Incarceration.” On social containment, see generally Center for Constitutional Rights, Stop and Frisk; and Tibbs and Woods, “Jena Six.” 124 See Michelle Alexander, New Jim Crow, 94; Sentencing Project, “Incarceration”; and Levy-Pounds, “Par for the Course?,” 29–30. 125 See Carson and US Department of Justice, “Prisoners in 2014”; and Mauer and Sentencing Project, Race to Incarcerate, 120–21. 126 See Carson and US Department of Justice, “Prisoners in 2014”; Michelle Alexander, New Jim Crow, 6; and American Civil Liberties Union, “Racial Disparities in Sentencing.” 127 Wacquant, “Deadly Symbiosis,” 114–15. 128 Clear, “Effects of High Imprisonment Rates,” 103. 129 Michelle Alexander, New Jim Crow, 8. See also Sampsell-Jones, “Culture and Contempt,” 190; and Thomas and Torrone, “Incarceration as Forced Migration.” 130 Western, Punishment and Inequality, 91. 131 See Western and Beckett, “How Unregulated,” 1045. 132 Fulcher, “Emancipate the FLSA,” 696; see also Weatherspoon, “Mass Incarceration,” 611–12. 133 See American Civil Liberties Union, “Private Prisons.” 134 See Aman and Greenhouse, “Prison Privatization,” 391; and Websdale, Policing the Poor, 210. See generally Fulcher, “Emancipate the FLSA.” 135 Aman and Greenhouse, “Prison Privatization,” 390. 136 Margaret Colgate Love, “When the Punishment Doesn’t Fit” (describing the impact of some thirty-eight thousand laws and regulations imposing collateral penalties on persons convicted of crimes); see also Western and Beckett, “How Unregulated,” 1031. 137 Michelle Alexander, New Jim Crow, 2. 138 Matthew P. Main, “Promoting Self-Sufficiency?,” 108–9.

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139 Cammett, “Shadow Citizens,” 379–80; see generally “Chapter One Policing.” 140 Cammett, “Shadow Citizens,” 381–82. 141 US Department of Justice, “Hate Crime Victimization.” See also PBS NewsHour, “FBI: Blacks Most Often Targeted.” 142 See “913 People Shot”; and Somashekhar et al., “Black and Unarmed.” These figures do not include persons killed by the police by other means, by off-duty officers, or while in custody. During this period, thirty-six officers were killed by gunfire. See Officer Down Memorial Page, www.odmp.org. For a running total of civilian deaths, see “Counted.” 143 Kindy and Kelly, “Thousands Dead.” 144 Newman, “‘Hands Up,’” 118. 145 See Quigley, “Fifteen Most Outrageous Responses.” 146 See generally In re African-American Slave Descendants Litigation; Bittker, Case for Black Reparations; and Robinson, Debt.

Chapter 7. Others of Color: Inclusions and Exclusions

1 See US Census Bureau, “Overview of Race and Hispanic Origin”; and Colby and Ortman, “Projections of the Size and Composition.” 2 See, e.g., Lockwood, “Land of Opportunity”; see also Fujikane and Okamura, Asian Settler Colonialism (explaining why Asian Americans in Hawai‘i are settlers). 3 See Belanger, “Immigration, Race,” 2–3, 13–16. 4 See Redman, “From Importation of Slaves,” 2–5. 5 See Andres, “Raiding of the Pearl,” 530–31 (Philippines); Torruella, “Ruling America’s Colonies,” 82–87 (Puerto Rico); and Román and Simmons, “Membership Denied,” 488–519 (Pacific Islands). 6 See, e.g., Romig, “Salvadoran Illegal Aliens,” 317–18. 7 See, e.g., Hedges, “US Breaks Promises” (Iraqis); and Chow, “Exiled Once Again,” 106–11 (Vietnamese, Cambodian, Laotian, and Hmong refugees). 8 Ngai, Impossible Subjects, 11. 9 Ibid., 10. 10 Lowe, Intimacies of Four Continents, 8. 11 Veracini, Settler Colonialism, 16. 12 Ibid., 16, 26. 13 See Saranillio, “Colonial Amnesia,” 258 (observing that “minorities who are racially oppressed” are quite capable of “simultaneously participating in the colonial oppression of Native Hawaiians”); Fujikane, “Introduction: Asian Settler Colonialism,” 12 (“The status of Asians as settlers is not defined by their political power but by their relationship to indigenous peoples”). 14 Byrd, Transit of Empire, xxiii. 15 I find Veracini’s “subaltern exogenous Others” unduly cumbersome. Byrd uses Kamau Brathwaite’s term “arrivants” for “those people forced into the Americas through the violence of European and Anglo-American colonialism and

Notes

16 17 18 19 20 21 22 23

24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43

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imperialism around the globe.” Byrd, Transit of Empire, xix. While more appropriate in many respects, “arrivants” is overinclusive in this context because it encompasses the descendants of Africans enslaved in North America. LaFeber, “Foreign Policies,” 11–12; see also Wood, Empire of Liberty, 2; and Risjord, Jefferson’s America, 241. Quoted in LaFeber, “Foreign Policies,” 13. See US Census Bureau, “Table 8: Race and Hispanic Origin.” Morales, “In Democracy’s Shadow,” 34. Ibid. See Dred Scott v. Sandford, 60 U.S. at 406–7. See US Const. art. I, § 8; and Naturalization Act of 1790 (replaced by the Act of January 19, 1795, which re-enacted its racial restrictions). See Haney López, White by Law, 163–67 (noting that Armenians were consistently deemed White; Syrians, “Arabians,” and Asian Indians sometimes but not ultimately considered White; and American Indians and East Asians consistently found not-White). See also Roediger, Wages of Whiteness, 21. US Const. amend. XIV. On American Indian citizenship, see generally Porter-Odawi, “Two Kinds of Indians.” See Act of July 14, 1870; Chin, “Segregation’s Last Stronghold,” 13–14; Beydoun, “Between Muslim and White,” 34; and Immigration and Nationality Act of 1952. Ngai, Impossible Subjects, 39 (quoting Senator James Phelan); see also Oyama v. California, 332 U.S. at 650–63; see generally Aoki, “No Right to Own?” See Van Alstyne, “American Empire,” 61–62; Van Alstyne, “Empire in Midpassage,” 88; and Wood, Empire of Liberty, 2. See Nugent, Habits of Empire, 237–51; see generally Haycox, Alaska. See Saito, Meeting the Enemy, 142–60. See Acuña, Occupied America, 10–20. See Klein, “Treaties of Conquest,” 201. Griswold del Castillo, “Manifest Destiny,” 36. Ngai, Impossible Subjects, 51; see also McWilliams, North from Mexico, 87–102. Crapol and Schonberger, “Shift to Global Expansion,” 136–37. Ibid., 197–98; Román, “Empire Forgotten,” 1149. Congressional Apology. See Churchill and Venne, Islands in Captivity, xxxv–xliv; see also Admission Act of March 18, 1959. See Zinn, People’s History, 302; see generally Lazos Vargas, “History, Legal Scholarship.” Treaty of Peace between the United States and the Kingdom of Spain. Alomar, “Cuba’s Constitutional Moment,” 10–13. See Schirmer and Shalom, Philippines Reader, 15–19; and Stuart Creighton Miller, “Benevolent Assimilation,” 163–64. Ngai, Impossible Subjects, 100, 117–20.

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44 See Covenant to Establish a Commonwealth of the Northern Mariana Islands. 45 See Leibowitz, Defining Status, 313–400 (Guam), 401–480 (American Samoa), 519–93 (Northern Marianas), 595–637 (Micronesia, Marshall Islands, and Palau); see generally Hills, “Free Association.” 46 Cabranes, “Citizenship,” 422, 446, 474. 47 See Jones Act (Puerto Rico); see also Cabranes, “Citizenship,” 474–80. 48 See Malavet, “Puerto Rico,” 43. 49 Román, “Empire Forgotten,” 1153–54; Torruella, “Ruling America’s Colonies,” 81–92. 50 See Daniels, Guarding the Golden Door, 38, 67. 51 See Erin Geiger Smith, “Case Study: Does I v. The Gap,” 739–41. 52 See, e.g., Untalan, “Chamorro Migration to the United States.” 53 See Bishaw, Fontenot, and US Census Bureau, “Poverty”; Meléndez and VargasRamos, “Puerto Ricans at the Dawn”; and Polley, “‘Forced Exile.’” 54 Currently, about two-thirds of the Latina/o population is of Mexican descent, and almost 10 percent is Puerto Rican. Those of Cuban, Salvadoran, Dominican, and Guatemalan origin each comprise less than 4 percent. US Census Bureau, “Facts for Features: Hispanic Heritage Month.” The largest Asian American subgroups are of Chinese, Filipino, and Asian Indian descent, followed by those of Vietnamese, Korean, and Japanese origin. US Census Bureau, “Facts for Features: Asian/Pacific American Heritage Month.” 55 On Asian Americans—primarily East Asians—as the embodiment of abstract, alien, and inhuman labor within the settler colonial paradigm, see generally Day, Alien Capital. 56 Takaki, Strangers, 79. 57 Ibid., 80–81. On the settlers’ “clearing” of California lands, see generally Madley, American Genocide. 58 Galenson, “Rise and Fall of Indentured Servitude,” 15. See also Takaki, Strangers, 24–27 (noting that Korean and Filipino workers were subsequently brought in to make the labor force easier to control). 59 Galenson, “Rise and Fall of Indentured Servitude,” 15, 23. See generally Emmer, Colonialism and Migration. 60 Takaki, Strangers, 82. 61 See “Hutchings California Magazine,” 82. 62 Ex parte Ah Pong, 19 Cal. at 107. 63 See generally Saxton, Indispensable Enemy. 64 See Takaki, Strangers, 84–86. 65 Ibid., 87. 66 Ibid., 88 (quoting R. G. McClellan, writing in The Golden State). 67 Ngai, Impossible Subjects, 129. 68 Rodríguez, “Social Construction,” 235. 69 Ngai, Impossible Subjects, 132. 70 Kevin R. Johnson, “Forgotten ‘Repatriation,’” 9. 71 See Mize, “Reparations,” 281.

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72 Cameron, “Borderline Decisions,” 2–3 (citations omitted); see generally Alvarado, “Lesson from My Grandfather.” 73 Quoted in Rodríguez, “Social Construction,” 236 (also noting that during the bracero era the annual value of marketed crops rose from about $3.5 billion to $17.2 billion). 74 Ngai, Impossible Subjects, 154–57. 75 See Rodríguez, “Social Construction,” 236; see also Mize, “Reparations,” 281. 76 See Reséndez, Other Slavery, 295–314. 77 See Peonage Act; and Pope, “Contract, Race,” 1507. 78 Reséndez, Other Slavery, 314. 79 Ibid. 80 See Gonzalez-Barrera and Lopez, “Demographic Portrait.” 81 Ngai, Impossible Subjects, 128–29. See also Gonzalez-Barrera and Lopez, “Demographic Portrait” (noting that as of 2013, more than a quarter of Mexican Americans lived in poverty, a third lacked health insurance, and only 10 percent had completed college). 82 See Takaki, Strangers, 30; and Ngai, Impossible Subjects, 116–20. 83 Ngai, Impossible Subjects, 101. 84 Ibid., 102–3. This was not the first Filipina/o presence in North America, for Filipinos accompanied Spanish colonizers to the Americas in the sixteenth and seventeenth centuries. See Pido, “Micro/Macro Dimensions,” 21. 85 Pido, “Micro/Macro Dimensions,” 31. 86 See Immigration Nursing Relief Act of 1989; Espiritu, Asian American, 76; Sassen, “Strategic Gendering,” 198; and Tsitouras and López, “Flatlining,” 247. 87 See Vinluan v. Doyle. 88 See Neuman, “Lost Century,” 1865–80. 89 Ibid., 1897. 90 Galenson, “Rise and Fall of Indentured Servitude,” 15. 91 Page Act. 92 See Chinese Exclusion Act; Daniels, Guarding the Golden Door, 17–22. Over the next four decades, the Chinese population in the United States dropped from about 125,000 to 60,000. Daniels, 23. 93 See Asiatic Barred Zone Act; Ngai, Impossible Subjects, 18; Chin, “Segregation’s Last Stronghold,” 13–14; and Munshi, “Immigration, Imperialism,” 55–57, 70–78. 94 Ngai, Impossible Subjects, 18. 95 Belich, Replenishing the Earth, 66–67. 96 Feagin, “Old Poison in New Bottles,” 20–23. 97 Ngai, Impossible Subjects, 19. 98 Ibid., 19–20. 99 Immigration Act of 1924. 100 Ngai, Impossible Subjects, 26, quoting Immigration Act of 1924. 101 See Ngai, Impossible Subjects, 26–27. 102 See Naturalization Act of 1790; and Immigration and Nationality Act of 1952.

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103 See Immigration and Nationality Act of 1965; and Cianciarulo, “Can’t Live with ’Em,” 15–16. 104 See Ngai, Impossible Subjects, 258, 261, 267; and Chin, “Civil Rights Revolution,” 297–98. 105 Ngai, Impossible Subjects, 261. 106 Chin, “Civil Rights Revolution,” 298. See also Ngai, Impossible Subjects, 261–62. 107 US Census Bureau, “Quick Facts: United States”; see also Hobbs and Stoops, “Demographic Trends,” 75–82. 108 See, e.g., Johnson, “President Lyndon B. Johnson’s Remarks.” 109 See Patricia J. Sullivan, “Family Based Immigration Petitions.” 110 See US Department of State, “Visa Bulletin for September 2018.” 111 Ibid., see also Cloninger, “Employment and Diversity-Based Visas,” 427–29. 112 US Department of State, “Visa Bulletin for September 2018”; see also Cloninger, “Employment and Diversity-Based Visas,” 430–34. 113 See Mary Dorinda Allard, “Asians,” 12. 114 Mihalopoulos and Yates, “Indian Immigrants”; Zong and Batalova, “Indian Immigrants.” 115 Smith, Gollan, and Sambamurthy, “Job Brokers.” See generally Rudrappa, “Cyber-Coolies and Techno-Braceros.” 116 US Department of State, “Non-Immigrant Visa Statistics, FY2017.” 117 Elmore, “Egalitarianism and Exclusion,” 543–54. 118 Ibid., 566. 119 Southern Poverty Law Center, “Close to Slavery.” See generally Hill, “Guest Worker Programs.” 120 Southern Poverty Law Center, “Close to Slavery.” 121 Ibid. 122 Rivero, “American Workers Must Settle for Less,” 56. 123 Aoki et al., “(In)visible Cities,” 480. 124 Eduardo Porter, “Illegal Immigrants.” 125 Dudley, “These US Industries Can’t Work”; see also “Hidden in the Home”; and Pew Research Center, “About One-in-Four US Immigrants.” 126 See Cameron, “Borderline Decisions,” 2 (discussing the impact of Hoffman Plastic Compounds v. NLRB). 127 See Hing, “Detention to Deportation,” 925–26. 128 Ibid., 928. 129 Ibid., 928–29. 130 See generally Xiao, “Refuge from Time.” 131 Refugee Act of 1980, sec. 201(a). 132 Convention Relating to the Status of Refugees, art. 33(1); Protocol Relating to the Status of Refugees, art. 1. See Lowenstein International Human Rights Clinic, “Aliens and the Duty of Nonrefoulement,” 13–15. 133 Krogstad and Radford, “Key Facts about Refugees.” 134 Hing, “Detention to Deportation,” 931–32.

Notes

135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165

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Elizabeth Kay Harris, “Economic Refugees,” 277. Alpert and Hussein, “By the Numbers.” Hing, “Detention to Deportation,” 933. Alpert and Hussein, “By the Numbers”; Zong and Batalova, “Syrian Refugees.” Miroff, “US Lifts Ban”; Hansler, “US Admits Lowest Number of Refugees.” The FY 2019 cap is thirty thousand. Macchi, “US Sets Refugee Admissions.” Alpert and Hussein, “By the Numbers.” Younge, “Ambalavaner Sivanandan.” Hing, “Detention to Deportation,” 952. Ibid., 944. Ibid., 970. See also Michael Haas, Cambodia, 4–23; see generally Shawcross, Sideshow. Promchertchoo, “Up to 200 Cambodian American Deportees.” Denyer, “Thousands of Vietnamese”; see also Hing, “Detention to Deportation,” 900. Walsh, “Victims of a Growing Crisis,” 424–26. Micinski, “Refugee Policy as Foreign Policy.” UNHCR, “Iraq Emergency.” Torbati, “Exclusive: Pentagon Raises Alarm.” Ibid. Jill H. Wilson, “Temporary Protected Status.” Watkins and Phillip, “Trump Decries Immigrants.” Rhodan, “President Obama: US Will Accept 110,000 Refugees.” Munshi, “Immigration, Imperialism,” 101. Ibid., 101–2 (internal citations omitted). Tom Phillips, “Central Americans Flee Homes.” UNHCR, Regional Response, 6; see also Seelke, “Gangs in Central America.” Grillo, “‘There Is No Way We Can Turn Back.’” Lakhani, “Central America’s Rampant Violence.” Ibid. Kniffin, “Balancing National Security,” 316–18. Ibid., 318; see also Arana, “How the Street Gangs.” Alexander Main, “Central American Child Refugee Crisis.” Main also describes the role of remilitarized security forces in “attack[ing] and intimidat[ing] small farmers or indigenous and Afro-indigenous communities that refuse to be displaced by agribusiness corporations or resource-hungry multinationals.” Ibid. See López, “Don’t We Like Them Illegal?,” 1718. See generally Motomura, “Immigration Law.”

Chapter 8. Others of Color: Subordination and Manipulation 1 See john a. powell, “‘Racing’ of American Society,” 104 (“race operates as a verb before it assumes significance as a noun”).

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2 Chin, “Segregation’s Last Stronghold,” 32 (citing 13 Cong. Rec. 1744 (1882)). 3 See Haney López, “Social Construction of Race,” 27–28 (describing “racial fabrication”). 4 LaFeber, “Foreign Policies,” 13 (quoting Benjamin Franklin). 5 Horsman, Race and Manifest Destiny, 276 (citing 30 Cong. Rec. appendix, 48–49 (1848)). 6 Cabranes, “Citizenship,” 420 (citing 30 Cong. Rec. 1943 (1900)). See also Ngai, Impossible Subjects, 98 (noting that incorporation would have added fifty Filipino representatives in Congress). 7 Haney López, “Social Construction of Race,” 30. 8 Ibid., 31, 29 (quoting T. J. Farnham). 9 Ibid., 32–33. 10 Takaki, Strangers, 101. 11 Ibid. See also Haney López, “Social Construction of Race,” 44–45. 12 Aoki, “‘Foreign-ness,’” 21. 13 Ibid., 29–30. 14 Ibid., 32 (quoting Oregon senator George Williams). 15 Takaki, Strangers, 325. 16 Ibid. 17 See Stuart Creighton Miller, “Benevolent Assimilation,” 40; and Ngai, Impossible Subjects, 110. 18 Takaki, Strangers, 324–25. 19 Haney López, “Social Construction of Race,” 31. 20 See Aoki, “‘Foreign-ness,’” 26. 21 Stewart Chang, “Feminism in Yellowface,” 240–42; see also Takaki, Strangers, 101, 328; and Ngai, Impossible Subjects, 110–15. 22 Aoki, “‘Foreign-ness,’” 45. 23 People v. Hall, 4 Cal. at 400. 24 Ibid., 403. 25 See Martinez, “Legal Indeterminacy,” 560–70; Perea, “Buscando América,” 1439–46; and Sant, “Asian Americans,” 169–70. 26 See Saito, “Alien and Non-Alien,” 295–325; Aoki, “‘Foreign-ness,’” 3; and Gotanda, “Comparative Racialization,” 1698–1702. 27 Ngai, Impossible Subjects, 2. 28 See Veracini, Settler Colonialism, 35 (on ethnic transfer as a settler strategy of elimination). 29 Kevin R. Johnson, “Forgotten ‘Repatriation,’” 4–5, 9. 30 See Weglyn, Years of Infamy, 27–28; and Daniels, Concentration Camps USA, 74–104. 31 See Personal Justice Denied, 54–55; see generally Rostow, “Japanese American Cases”; and Irons, Justice at War. 32 Personal Justice Denied, 66. 33 Cherokee Nation v. Georgia, 30 U.S. at 17; Downes v. Bidwell, 182 U.S. at 341. See generally Saito, “Asserting Plenary Power.”

Notes

34 35 36 37 38 39 40 41 42 43 44

45 46 47 48 49 50

51 52 53 54 55 56 57 58 59 60 61 62 63

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See generally Dred Scott v. Sandford; and Naturalization Act of 1790. See Haney López, White by Law, 90–91. Ngai, Impossible Subjects, 2. Beydoun, “Acting Muslim,” 20–21. Ibid., 21. See generally Volpp, “Citizen and the Terrorist.” Volpp, “Citizen and the Terrorist,” 1594. Linn, US Army, 23. See Saito, Meeting the Enemy, 152–53. See Kevin Brown, “Should Black Immigrants,” 256. See Robert S. Chang, “Invention of Asian Americans,” 952–55; and Harpalani, “Desi Crit,” 104–9. See Valdes, “Race, Ethnicity,” 313–17. See also Bowman, “New Face of School Desegregation,” 1752–54 (discussing the merging of all children of color into a “non-White” category for purposes of school desegregation). Official classifications are becoming more complex but not necessarily more accurate. See Walker, “Choosing to Be Multiracial,” 64–67. See Chan, Asian Americans, 176–78; and Takaki, Strangers, 481–83. Zia, Asian American Dreams, 60. See Saito, “Symbolism under Siege,” 11–15; see generally Ming H. Chen, “Alienated.” “Asian Americans Advancing Justice Condemns Apparent Hate Attack.” “Police Arrest Tulsa Man in Road Rage” (noting that the “police concluded that the incident was not racially motivated”). Hsu, “Empowerment, Discrimination,” 96–97. See also AAPI Data and Asian Americans Advancing Justice, “Poverty by Detailed Group”; Mary Dorinda Allard, “Asians”; Ramakrishnan and Ahmad, “State of Asian Americans,” 3–5; and Xiong, “Missing the Hmong,” 123–24. See Barreto, Manzano, and Segura, “Impact of Media Stereotypes,” 3. See generally Saito, “Model Minority.” See ibid., 71–73. Hsu, “Empowerment, Discrimination,” 90–91. Takaki, Strangers, 474–75 (quoting speech of February 23, 1984). Gotanda, “Asian Americans,” 1089–90; see also Saito, “Model Minority,” 90, 92–94. See Robert S. Chang, “Invention of Asian Americans,” 961; and Harpalani, “Desi Crit,” 139–40. Beydoun, American Islamophobia, 119–20. Joo, “Presumed Disloyal,” 5–6. Aoki, “‘Foreign-ness,’” 35; see also Okihiro, Margins and Mainstreams. Robert S. Chang, “Invention of Asian Americans,” 950. See Trucios-Gaynes, “Legacy of Racially Restrictive Immigration Laws,” 378–89; see generally Vargas, “Deconstructing Homo[geneous] Americanus.” US Census Bureau, “Census Bureau Reports at Least 350 Languages”; see also US Census Bureau, “Detailed Languages Spoken at Home,” Table 1.

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64 Naturalization Act of June 29, 1906; see also McCaffrey, “Hmong Veterans,” 517–21. 65 Kopan, “How to Earn ‘Points’ to Come to the US.” 66 Perea, “Buscando América,” 1425. 67 Boroditsky, “How Language Shapes Thought,” 64. 68 Ngai, Impossible Subjects, 27. 69 See, e.g., McDaniel, “Licensing Barriers.” 70 Martinez, “Immigration and the Meaning,” 341. 71 Veracini, Settler Colonialism, 35–36. 72 Hing, “Refugee Policy,” 134–35. 73 Hwang, “Hmong Campaign,” 91–92. 74 Ly, “Conflict between Law and Culture,” 477–78. 75 Hing, “Refugee Policy,” 137 (emphasis in original; internal citations omitted). 76 Ibid., 138. 77 Ibid. See also Hwang, “Hmong Campaign.” 78 Ramakrishnan and Ahmad, “Income and Poverty,” 7. 79 Hing, “Refugee Policy,” 138–39 (internal citations omitted). 80 See, e.g., Lewis, “Culture of Poverty” (discussing Mexican and Puerto Rican communities). 81 Veracini, Settler Colonialism, 38. 82 See generally Ignatiev, How the Irish Became White. 83 Although race is a social and political construct related only tenuously to immutable characteristics, it is often depicted as a fixed attribute. See generally Omi and Winant, Racial Formation. 84 Quoted in Perea, “Buscando América,” 1429n54. The “Anglo-Saxon” framing is particularly revealing as, thanks to the Treaty of Guadalupe Hidalgo, Mexicans had been deemed “white” for naturalization purposes. See Martinez, “Immigration and the Meaning,” 342. 85 See Perea, “Brief History,” 297–301. 86 Fong Yue Ting v. United States, 149 U.S. at 717. See also Chae Chan Ping v. United States, 130 U.S. at 595 (“It seemed impossible for them to assimilate with our people, or to make any change in their habits or modes of living”). 87 See Lee, Making of Asian America, 59–108. 88 See People v. Hall, 4 Cal. at 404–5 (holding that Chinese, like American Indians and African Americans, could not testify against Whites because they were “a race of people whom nature has marked as inferior, . . . differing in language, opinions, color, and physical conformation; between whom and ourselves nature has placed an impassable difference”). 89 United States v. Bhagat Singh Thind, 261 U.S. at 213. 90 Ibid. 91 Ibid., 215. 92 See, e.g., Gong Lum v. Rice. On subsequent cases, see generally Tehranian, “Performing Whiteness.”

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93 See Hsu, “Empowerment, Discrimination,” 105. 94 United States v. Bhagat Singh Thind, 261 U.S. at 215. 95 On xenophobia, see generally UN Human Rights Council, “Report of the Special Rapporteur on Contemporary Forms of Racism”; and Achiume, “Governing Xenophobia.” 96 Klein, “Treaties of Conquest,” 210; see also Luna, “Chicana/Chicano Land Tenure,” 55–61. 97 Treaty of Guadalupe Hidalgo, art. VIII; see also Griswold del Castillo, “Manifest Destiny,” 40 (noting that in New Mexico only 6 percent of the area claimed under such grants was confirmed); see generally Benavides and Golten, “Righting the Record.” 98 United States v. San Jacinto Tin, 23 F. at 295; see also Acuña, Occupied America, 28–30; and Luna, “Chicana/Chicano Land Tenure,” 40–41. 99 Cameron, “One Hundred Fifty Years,” 97–98. 100 See generally Aoki, “No Right to Own?” 101 Alien Land Law of 1913. 102 Aoki, “No Right to Own?,” 57–59. 103 Takaki, Strangers, 204. 104 See Terrace v. Thompson; and Takaki, Strangers, 206–7; see generally Chin, “Citizenship”; and Thomas Reed Powell, “Alien Land Cases.” 105 Aoki, “No Right to Own?,” 66–67. 106 McGovney, “Anti-Japanese Land Laws,” 8. 107 See, e.g., Sei Fujii v. State of California; and Oyama v. California. Also, the 1952 Immigration and Nationality Act removed the racial prerequisite to naturalization. 108 See, e.g., Shanklin, “Florida’s ‘Last Vestige of Discrimination.’” 109 See In re Lee Sing. 110 See Sant, “Asian Americans,” 169 (quoting a covenant prohibiting “persons of Asiatic, African or Negro blood, lineage or extraction” from occupying the property, subject to an exception for domestic servants “in good faith employed by white occupants”); and Martinez, “Legal Indeterminacy,” 569–70 (discussing covenants prohibiting the sale or lease of property to “persons of the Mexican race”). 111 Aoki, “‘Foreign-ness,’” 30n127; see also Bender, “Knocked Down Again,” 113–15. See generally Szto, “From Exclusion to Exclusivity.” 112 See generally Tateishi, And Justice for All (providing internees’ oral histories). 113 On the official acknowledgment of these as concentration camps—not to be confused with extermination camps—see Drinnon, Keeper of Concentration Camps, 62 (quoting Dillon S. Myer, director of the War Relocation Authority); and Weglyn, Years of Infamy, 214, 217 (quoting Tom Clark, DOJ liaison and future Supreme Court justice, and President Franklin Roosevelt). 114 Personal Justice Denied, 364n41. 115 Quoted in Frank Taylor, “People Nobody Wants,” 66.

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116 See Cho, “Redeeming Whiteness,” 86–119; and Grodzins, Americans Betrayed, 44–47. 117 Krase, “History of Forced Sterilization.” 118 Molina, Fit to Be Citizens?, 146–49. A 2016 film, No Más Bebés, documents the story of an ultimately unsuccessful lawsuit brought by Latinas involuntarily sterilized in Los Angeles in the early 1970s. See Ogolla, “First Do No Harm,” 898. 119 See Daniels, Guarding the Golden Door, 23. 120 See Kevin R. Johnson, “Forgotten ‘Repatriation,’” 4–9. 121 Ibid., 10–12. 122 Lytle Hernández, City of Inmates, 91; Pew Research Center, “Chapter 1.” 123 See Saito, “Alien and Non-Alien,” 264. 124 Aoki, “‘Foreign-ness,’” 29. 125 See generally Romero, “State Violence”; and Jason H. Lee, “Dislocated and Deprived.” 126 Southeast Asia Resource Action Center, “AAPI Leaders.” 127 Romero, “State Violence,” 1090. 128 See Chomsky, Undocumented, 63. 129 Morales, “In Democracy’s Shadow,” 63–64. 130 Ibid., 65. On parallels between the fugitive slave acts and immigration enforcement, see McKanders, “Immigration Enforcement”; and Sinha, “Slavery.” 131 See Gonzalez-Barrera and Lopez, “Demographic Portrait”; and Lilley, “Poll.” See generally Kevin R. Johnson, “‘Aliens.’” 132 United States v. Brignoni-Ponce, 885–86. 133 Quoted in Chin, “Segregation’s Last Stronghold,” 30. 134 Quoted in Takaki, Strangers, 102. 135 Quoted in Daniels, Guarding the Golden Door, 13. 136 Korematsu v. United States, 323 U.S. at 223. 137 Anderson, “How Mexico Deals with Trump.” 138 See Saito, “Symbolism under Siege,” 11–15; see generally Beydoun, American Islamophobia. 139 Beydoun, American Islamophobia, 121–22. 140 See generally Aziz, “Losing the ‘War of Ideas.’” 141 Morales, “In Democracy’s Shadow,” 60 (internal citations omitted). 142 Ibid. 143 Carrigan and Webb, Forgotten Dead, 34–51. 144 Toro, “A People Distinct,” 1247. 145 Carrigan and Webb, Forgotten Dead, 1. 146 Lytle Hernández, City of Inmates, 66–67. 147 See Chan, Asian Americans, 51. 148 See Ngai, Impossible Subjects, 105; and Chan, Asian Americans, 52. 149 Munshi, “Immigration, Imperialism,” 62. 150 See Chan, Asian Americans, 52; Ngai, Impossible Subjects, 105, 108; and Takaki, Strangers, 326–27.

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151 See National Asian Pacific American Legal Consortium, “Backlash”; and Terri Yuh-Lin Chen, “Hate Violence,” 69–71; see generally Kang, “Racial Violence”; and Hall and Hwang, Anti-Asian Violence. 152 See Vietnamese Fishermen’s Association v. Knights of Ku Klux Klan. 153 Takaki, Strangers, 481. See also Kang, “Racial Violence,” 1927–29. 154 See Iturralde, “Rhetoric and Violence,” 418. 155 Levin, Nolan, and Reitzel, “New Data Shows” (noting that overall hate crimes rose by 92 percent following the 2016 election, but those targeting “Hispanics/Latinos” rose by 176 percent). 156 South Asian Americans Leading Together, “Power, Pain, Potential”; Kishi, “Assaults against Muslims.” 157 Lowe, Intimacies of Four Continents, 7. 158 See Colby and Ortman, “Projections of the Size and Composition.” 159 See, e.g., Krieg, “Trump’s History of Anti-Muslim Rhetoric.” 160 See generally Fujikane and Okamura, Asian Settler Colonialism.

Chapter 9. Constitutional Protection and the Dynamic of Difference

1 Veracini, “Introducing,” 3. 2 See generally Saito, Chinese Exclusion; Aleinikoff, Semblances of Sovereignty; and Cleveland, “Powers Inherent in Sovereignty.” 3 See Saito, Chinese Exclusion, 13–49. 4 See generally Berman, “Perspectives”; and Western Sahara. 5 Wiessner, “American Indian Treaties,” 591. 6 Cherokee Nation v. Georgia, 30 U.S. at 17; see generally Winston, “‘Anomaly Unknown.’” 7 Lone Wolf v. Hitchcock, 187 U.S. at 565; see generally Blue Clark, Lone Wolf. 8 United States v. Kagama, 118 U.S. at 380 (quoting American Insurance Co. v. Canter, 26 U.S. at 542). 9 See Saito, “Asserting Plenary Power,” 441; see generally Lone Wolf v. Hitchcock. 10 See generally Nell Jessup Newton, “Federal Power over Indians.” 11 See generally Churchill, Kill the Indian. 12 See Cobell v. Salazar; Talhelm, “Inside Washington” (noting claims that the Interior Department mishandled more than $100 billion in royalties); and Marrero, “Tribal Members,” 1 (noting charges of governmental “squandering” of $137 billion). 13 Frickey, “Adjudication and Its Discontents,” 1754. 14 Downes v. Bidwell, 182 U.S. at 279. 15 Ibid., 280. 16 Ibid., 341–42 (White, J., concurring). 17 See Burnett and Marshall, “Between the Foreign,” 12; see generally Rivera Ramos, Legal Construction. 18 See Burnett and Marshall, “Between the Foreign,” 1–2; and Saito, “Asserting Plenary Power,” 443–47, 455–58.

264 | Notes

19 Chae Chan Ping v. United States, 130 U.S. at 600 (noting that “the last expression of the sovereign will must control”); see also Burlingame Treaty. 20 Chae Chan Ping v. United States, 130 U.S. at 600, 606. See also Fong Yue Ting v. United States, 149 U.S. at 730–34 (extending plenary authority from exclusion to deportation and refusing to characterize deportation as punishment requiring constitutional scrutiny). 21 See generally Legomsky, “Immigration Law”; Motomura, “Immigration Law”; and Aleinikoff, Semblances of Sovereignty. 22 See Shaughnessy v. United States ex rel. Mezei, 345 U.S. at 208 (allowing a returning permanent resident to be held indefinitely on Ellis Island, without a hearing, on the attorney general’s assertion that his entry would be “prejudicial to the public interest”). 23 See Sale v. Haitian Centers Council (holding that neither the Refugee Convention nor US immigration statutes would be applied to actions on the high seas); see generally Frelick, “Haitian Boat Interdiction.” 24 Jean v. Nelson, 727 F.2d at 968. The Supreme Court ruled that the Eleventh Circuit should not have reached the constitutional question and declined to revisit the Cold War plenary power cases. Jean v. Nelson, 472 U.S. at 854–55. The following year the Court refused to grant certiorari in Garcia-Mir v. Meese, in which the Eleventh Circuit had stated that international human rights law was inapplicable to the indefinitely detained Mariel Cubans. 788 F.2d at 1453–55; 479 U.S. 889. 25 In Zadvydas v. Davis, the Court found detained migrants to have some due process rights, but did not prohibit indefinite detention or limit the plenary power doctrine. See generally Carey, “‘You Don’t Know’”; and Aleinikoff, “Detaining Plenary Power.” For more recent developments, see generally Hing, “Entering the Trump ICE Age.” 26 See generally Hernández-López, “Kiyemba, Guantánamo”; and Neuman, “Closing the Guantanamo Loophole.” 27 Downes v. Bidwell, 182 U.S. at 280. 28 See Dudas, “Law at the American Frontier,” 869 (discussing dual legal systems in colonial contexts). 29 For an overview, see generally Haney López, “Intentional Blindness” (explaining how equal protection jurisprudence has come to protect the racial status quo); and Lawrence, “Unconscious Racism Revisited” (addressing the shortcomings of equal protection theory). 30 See Civil Rights Cases, 109 U.S. at 11–15 (noting that the Fourteenth Amendment extends only to state action and finding the contested provisions of law to violate the Tenth Amendment’s protection of states’ rights). 31 Ibid., 25. 32 Barnes, Chemerinsky, and Jones, “Post-Race,” 973. 33 Plessy v. Ferguson, 163 U.S. at 550–51. 34 Regents of the University of California v. Bakke, 438 U.S. at 291 (quoting Tussman and tenBroek, “Equal Protection,” 381). Justice Powell also noted that, by contrast,

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42 43 44 45

46 47

48 49 50 51

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“the Due Process Clause flourished as a cornerstone in the Court’s defense of property and liberty of contract.” Ibid. Korematsu v. United States, 323 U.S. at 216. Ibid., 217–19. See generally Rostow, “Japanese American Cases” (debunking the government’s claim of military necessity). Trump v. Hawaii, 138 S.Ct. at 2408. Ibid., 2447. Ibid., 2423 (quoting Justice Jackson’s dissent in Korematsu). Ibid., 2408 (citing Sale v. Haitian Centers Council, 509 U.S. at 187). Bolling v. Sharpe, 347 U.S. at 499 (finding racial segregation in District of Columbia schools to be unconstitutional under the due process clause of the Fifth Amendment) (emphasis added). Higginbotham, “Ten Precepts,” 1706. See Loving v. Virginia. See Haney López, “Intentional Blindness,” 1826–28; see also Hutchinson, “‘Unexplainable on Grounds,’” 637. See, e.g., City of Richmond v. J. A. Croson Company; Wygant v. Jackson Board of Education; Fullilove v. Klutznick; and Regents of the University of California v. Bakke. However, the Court may be slowly shifting back toward incorporating context into strict scrutiny analyses. See, e.g., Grutter v. Bollinger, 539 U.S. at 327 (“context matters when reviewing race-based governmental action”); see also Yamamoto, Minner, and Winter, “Contextual Strict Scrutiny,” 248–56. See generally john a. powell, “Structural Racism”; and Calmore, “Race/ism.” Regents of the University of California v. Bakke, 438 U.S. at 310. See Haney López, “‘Nation of Minorities,’” 1035–37 (noting Justice Powell’s transformation of Whites from the majority to a collection of ethnic “minorities”). See also Angela P. Harris, “Equality Trouble,” 1993–97; and Schuck, “Affirmative Action,” 46–49; see generally Lawrence, “Two Views of the River.” See, e.g., Wygant v. Jackson Board of Education, 476 U.S. at 276 (eschewing “discriminatory legal remedies that work against innocent people”). See generally Cheryl I. Harris, “Whiteness as Property.” Wards Cove Packing Co. v. Atonio, 490 U.S. at 662. See, e.g., Lenhardt, “Localities as Equality Innovators,” 266 (discussing the Court’s refusal to afford deference to municipal policies and programs intended to redress racial disparities). Barnes, Chemerinsky, and Jones, “Post-Race,” 993–97 (noting that the increasingly “post-racial” or “colorblind” approach of the Supreme Court harkens back to its pre-Brown jurisprudence). See also Cummings, “Associated Dangers,” 1277–91. See, e.g., Alexander v. Sandoval (precluding a disparate impact challenge to regulations permitting driver’s license examinations to be offered only in English); and Olatunde C. A. Johnson, “Disparity Rules,” 390–401. See also Ricci v. DeStefano (finding a city’s refusal to certify the results of firefighters’ promotional

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56 57 58 59 60 61 62 63 64 65

66 67 68 69 70 71 72

73 74 75 76 77 78 79

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examinations on the basis of racial disparity to violate Title VII’s prohibition of disparate treatment); and Spann, “Postracial Discrimination,” 34. Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, 135 S.Ct. at 2518. Ibid., 2523. Justice Kennedy wrote the majority’s opinion in this 5–4 decision. With his retirement, the Court may turn away from any recognition of disparate impact in future civil rights cases. See Chemerinsky, “Chemerinsky: What’s at Stake.” john a. powell, “Structural Racism,” 796. Regents of the University of California v. Bakke, 438 U.S. at 296. McCleskey v. Kemp, 481 U.S. at 292 (internal citations omitted). Ibid. (internal citations omitted). See Blume and Johnson, “Unholy Parallels,” 56–57. See Hutchins, “Stop Terry,” 884 (2013). See ibid., 887–88. See Terry v. Ohio, 392 U.S. at 20–22, 37. See Butler, “White Fourth Amendment,” 248. United States v. Sokolow, 490 U.S. at 13–14 (Marshall, J., dissenting). See also United States v. Arvizu, 534 U.S. at 269–72 (finding “suspicious” both the driver’s failure to wave at a border patrol agent and his children’s waving at the agent). See Illinois v. Gates, 462 U.S. at 230–31. See Tibbs, “From Black Power,” 65. Center for Constitutional Rights, Stop and Frisk, 3. See Whren v. United States, 517 U.S. at 813 (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis”). See generally Sentencing Project, “Report of the Sentencing Project.” Butler, “White Fourth Amendment,” 246–47. See generally Davis, “Racial Fairness.” On judicial discretion see, e.g., Paige Williams, “Double Jeopardy” (explaining how, “in Alabama, a judge can override a jury that spares a murderer from the death penalty”). See generally Gilman, “Calling the United States’ Bluff ”; and Chemerinsky, “Against Sovereign Immunity.” On the injustices resulting from such immunities, see generally Stengel, “Absolute Judicial Immunity”; and Johns, “Reconsidering Absolute Prosecutorial Immunity.” Chemerinsky, “Against Sovereign Immunity,” 1213. See Deloria, “Circling the Same Old Rock.” See generally Bradley C. S. Watson, Courts and the Culture Wars. See Delgado, “Centennial Reflections,” 436–37. See Malcolm X, By Any Means, 16–17 (noting that the real message of those advocating integrated schools “is that the whites are so much superior that just their presence in a black classroom balances it out”); see also Flagg, “‘And Grace Will Lead,’” 107–8. This process also affects European immigrants, of course. See generally Myslinska, “Contemporary First-Generation.” See Culp, “Black People,” 678.

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81 Brown v. Board of Education, 347 U.S. at 493. 82 Ibid., 494. 83 Malcolm X, “‘Basic Unity Program,’” 114. He also noted that “careful evaluation of recent experiences shows that ‘integration’ actually describes the process by which a white society is (remains) set in a position to use, whenever it chooses to use and however it chooses to use, the best talents of non-white people.” Ibid. 84 See Gotanda, “Critique,” 56. See also Calmore, “Spatial Equality,” 1498 (discussing the difference between integration and “nonsegregation”); and Alex M. Johnson, “Bid Whist,” 1469 (criticizing the Court’s failure to allow public funding of historically Black colleges and universities on the basis of “‘neutral’ assimilationist principles”). 85 See Touré, “Reflections on Paradigms,” 441 (describing assimilationist measures directed toward Afrodescendants in the United States as “a strategic device of colonialism” that has always “maintained the character and purposes of imperial conquest”); see generally Peller, “Race Consciousness”; and Török, “Race Consciousness.” 86 See generally Wolfe, “After the Frontier.” 87 Byrd, Transit of Empire, xxiii. 88 Ibid., xxiv. 89 See Martinez, “Latinos, Assimilation,” 6 (noting that the Brown opinion captures three key requirements of assimilationist ideology: compliance with dominant norms, rejection of race consciousness, and “repudiat[ion of] the equal value of cultures”). 90 See Raymond, “Problem with Innocence,” 451 (noting, for example, the tendency to interpret the overturning of wrongful convictions as evidence that “the system works”).

Chapter 10. International Law and Human Rights

1 See generally Anghie, Imperialism, Sovereignty. 2 See generally Paust, “Human Rights.” 3 See Anghie, Imperialism, Sovereignty, 65–66. On roles played by other entities, see generally Paust, “Nonstate Actor Participation.” 4 See American Law Institute Publishers, Restatement of the Law Third, 201 (“Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities”). 5 See Anghie, Imperialism, Sovereignty, 98–100; and Bederman, International Law, 52–57. 6 See United Nations, “Growth in United Nations.” See generally Schlesinger, Act of Creation. 7 UN Charter, arts. 1, 55. See generally Burke, Decolonization. 8 See generally Sohn, “New International Law.” 9 Ibid., 10; Nurnberg Trial 1946, 6 F.R.D. 69, 77–78 (1946, 1947).

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10 UN Charter, art. 55; UN General Assembly, Universal Declaration of Human Rights; UNGA, Affirmation of the Principles of International Law. See also Sohn, “New International Law,” 17. 11 See generally Shelton, Advanced Introduction. 12 See ibid., 51–56 (on treaty bodies); and UN HRC, “Basic Facts” (on Universal Periodic Review). 13 See Shelton, Advanced Introduction, 224–27. 14 See ibid., 61–71. 15 See generally Esteva and Prakash, Grassroots Post-Modernism; and Mutua, “Savages, Victims.” 16 See Schachter, “Human Dignity,” 849. 17 UN Charter, Preamble. 18 UDHR, Preamble. 19 ICCPR, Preamble; ICESCR, Preamble. 20 See Barroso, “Here, There, and Everywhere,” 341–43. 21 Schachter, “Human Dignity,” 850. 22 Ibid. 23 Ibid. 24 See generally Churchill, “Let’s Spread the ‘Fun’ Around.” 25 See Bosman and Goldstein, “Timeline for a Body” 26 See Schachter, “Human Dignity,” 850. 27 See Deloria, God Is Red, 78–97; see generally Esteva and Prakash, Grass-Roots Postmodernism. 28 See, e.g., UNGA Res. 47/135, Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities. 29 See McDougall, “Toward a Meaningful International Regime,” 577–78. 30 See UN Charter, art. 1(3); Universal Declaration of Human Rights (UDHR), arts. 2, 7; ICCPR, arts. 2(1), 26; and ICESCR, art. 2(2). 31 ICERD, art. 1(1) (emphasis added); for status of parties, see United Nations Treaty Collection. 32 See UN OHCHR, “Special Rapporteur on Contemporary Forms of Racism.” 33 See generally Daniel, “Intent Doctrine.” 34 CERD, Concluding Observations, para. 5; see generally Loper, “Substantive Equality.” 35 CERD, Concluding Observations, paras. 8, 17, 21, 23, and 25. 36 See ICERD, art. 2(2); and McDougall, “Toward a Meaningful International Regime,” 585. 37 See ICERD, arts. 1(4), (2). See Loper, “Substantive Equality,” 16–17; see generally Kly, International Law. 38 CERD, Concluding Observations, para.7. 39 See ICCPR, art. 27; see also Convention on the Rights of the Child, art. 30. 40 See, e.g., CERD, Concluding Observations, para. 12 (“Policies of forced assimilation amount to racial discrimination and constitute grave violations of the Convention”).

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51 52

53 54 55 56 57 58 59

60 61 62 63 64

65 66 67 68 69 70

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UN OHCHR, Minority Rights, 10. Ibid., 8. CERD, General Recommendation No. 23, paras. 1, 3. Ibid., para. 5. CERD, General Recommendation No. 30, para. 4. UN Human Rights Committee, General Comment No. 15, para. 1. UN Human Rights Council, “Report of the Special Rapporteur on Contemporary Forms of Racism,” para. 27. Ibid., para. 28. Ibid., para. 29. See International Labour Organization (ILO) Convention 107. This was replaced in 1991 by ILO Convention No. 169, which abandoned Convention 107’s assimilationist framework. See Anaya, “Indigenous Rights,” 6–15. The UN has yet to adopt a treaty explicitly addressing Indigenous rights. See Jabareen, “Redefining Minority Rights,” 121–31. Venne, “Road to the United Nations,” 564. See also Martinez Cobo, “Study of the Problem,” paras. 376–77. See generally Clinebell and Thomson, “Sovereignty”; and Robert A. Williams, “Encounters.” Venne, “Road to the United Nations,” 564. See EagleWoman and WasteWin, “Eagle,” 560. Watson, “First Nations, Indigenous Peoples,” 100. United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Watson, “2007 Declaration,” 507; see generally Churchill, “Travesty.” Watson, “2007 Declaration,” 508. The declaration was affirmed by 144 UN member states. Eleven abstained, and Australia, Canada, New Zealand, and the United States voted “no.” Since 2007, each of these four states has accepted the declaration while maintaining that it is not legally binding. See Friederichs, “Reason to Revisit,” 499. UNDRIP, arts. 5, 8–15. See generally Wiessner, “Indigenous Sovereignty.” UNDRIP, Preamble. UNDRIP, art. 19. See generally Kinnison, “Indigenous Consent.” Inter-American Commission on Human Rights, “Indigenous and Tribal Peoples,” 266 (citing Mayagna (Sumo) Awas Tingni Community v. Nicaragua; Yakye Axa Indigenous Community v. Paraguay; and Plan de Sanchez Massacre v. Guatemala). Ibid. (citing Sawhoyamaxa Indigenous Community v. Paraguay). Ibid. (citing Saramaka People v. Suriname). See also Moiwana Community v. Suriname (recognizing the land rights of a Maroon Afrodescendant community). See generally Dulitzky, “When Afro-Descendants.” Saramaka People v. Suriname, para. 37. See generally Goodwine, “Yeddi Wi”; see also Rivers, “Public Trust Debate”; and Aptheker, “Maroons.” See van der Vyver, “Prosecution and Punishment,” 287.

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71 Genocide Convention, art. II. 72 Lemkin, Axis Rule, 82–90; see Moses, Empire, 13–14. Neither “ethnocide” nor “ethnic cleansing” can be distinguished from genocide. See Lemkin, Axis Rule, 79; and Shaw, What Is Genocide?, 48–54 (also noting that “ethnic cleansing” is the perpetrators’ term). 73 Genocide Convention, art. II. Article II criminalizes actual and attempted genocide, as well as “direct and public incitement” of and complicity in genocide. 74 Quoted in Docker, “Settler-Colonies,” 81, 94. 75 See Green, “Genocide, Victimization.” On US concerns that ratification would result in condemnation of its treatment of Black Americans, see generally Mathews, “Inoculation of the Eternal Spirit.” 76 Civil Rights Congress, We Charge Genocide; for background, see Dagbovie, African American History, 158–72; see generally Anderson, Eyes Off the Prize. 77 Costa Vargas, Never Meant, xxvii. 78 UDHR, art. 8. 79 See UNGA Res. 60/147, “Basic Principles,” Preamble. 80 Marbury v. Madison, 5 U.S. at 163 (internal citation omitted). 81 Shelton, Remedies, 103; see also Antkowiak, “Remedial Approaches,” 361; and Lewinsohn-Zamir, “Can’t Buy Me Love,” 154. 82 See Fiss, “Dombrowski,” 1103; and Bray, “Supreme Court,” 1024. 83 See Shelton, Remedies, 272. 84 Chorzow Factory (Indemnity), 47. This principle has been reiterated by the International Court of Justice, the Inter-American Court of Human Rights, and the European Court of Human Rights. See Antkowiak, “Remedial Approaches,” 361. 85 UN International Law Commission, Draft Articles, art. 34. 86 Ibid., arts. 31, 35–37. 87 See ibid., art. 36, commentary (4); art. 37(2). 88 Ibid., art. 30. See also Bettinger-Lopez, “Challenge of Domestic Implementation,” 323. 89 UNGA Res. 60/147, “Basic Principles,” paras. 4–7. 90 Ibid., para. 8. 91 Ibid., para. 11. 92 Ibid., para. 18. 93 Ibid., para. 22. 94 See Churchill, “Charades, Anyone?,” 137–38. 95 Inter-American Commission on Human Rights, “Indigenous and Tribal Peoples,” 315–16. 96 Ibid. 97 See generally Tittemore, “Dann Litigation”; and Fishel, “United States Called to Task.” 98 See Churchill, “Struggle for Newe Segobia,” 173. 99 See Mary and Carrie Dann v. United States, para. 116.

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120 121 122 123 124 125 126 127 128 129 130

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United States v. Dann. Mary and Carrie Dann v. United States, para. 172. Ibid., para. 171. Ibid., para. 173. CERD, Decision 1(68), para. 7. Ibid., paras. 8–9. See Te-Moak Tribe of Western Shoshone Indians of Nevada v. US Department of the Interior. Silva, “Border Patrol Changes Account.” See generally Corinthia A. Carter, “Police Brutality.” See generally Antkowiak, “Remedial Approaches.” González and Others v. México (Cotton Field). Quoted in Bettinger-Lopez, “Challenge of Domestic Implementation,” 325 (internal citations omitted). Ibid. See, e.g., Romany and Chu, “Affirmative Action,” 837; see generally Mutua, “Savages, Victims”; and Esteva and Prakash, Grassroots Post-Modernism. See, e.g., Malcolm X Center, “US Called to Account.” Chisholm v. Georgia, 2 U.S. at 474; see also Saito, Meeting the Enemy, 83–85. See Saito, Meeting the Enemy, 182–205. Hutton, “America’s Interest in a Global Rule of Law”; see also Amirfar and Singh, “Trump Administration.” See Churchill, “Perversions of Justice,” 5–6; see generally Kickingbird, “What’s Past Is Prologue.” See Venne, “Road to the United Nations,” 558; and Niezen, Origins of Indigenism, 31–36. Deskaheh’s complaints targeted the Canadian government, but the United States was implicated because Haudenosaunee lands extend across the border. Ibid., 35. See Wyler, Blood of the Land, 144, 160–62. See Churchill, “Bloody Wake,” 266–68. See McDougall, “Toward a Meaningful International Regime,” 75, see generally Richardson, Origins of African-American Interests. Quoted in Touré, “Reflections on Paradigms,” 435. See ibid., 458–59; and Gonzalez, “Environmental Racism,” 290–92. Touré, “Reflections on Paradigms,” 460. See generally Clemons and Jones, “Global Solidarity.” See Luna, “Complexities of Race,” 697–708; see also University of Texas School of Law, “Texas-Mexico Border Wall.” Sei Fujii v. State of California, 242 P.2d at 619; UN Charter, arts. 1, 55, 56. See generally Fitzpatrick and Bennett, “Lion in the Path?” See, e.g., Mililani B. Trask, “Historical and Contemporary,” 91–94; Font-Guzmán and Alemán, “Human Rights Violations,” 149; and Rios-Martinez, “Congressional Colonialism,” 48–52.

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131 See generally van der Vyver, “American Exceptionalism.” 132 See generally Churchill, “United States and the Genocide Convention”; and Lippman, “Convention on the Prevention.” 133 See Henkin, “US Ratification,” 348–49; see generally Richards, “Bricker Amendment.” 134 Protocol (I) Additional to the Geneva Conventions of 12 August 1949; see generally Aldrich, “Prospects.” 135 Aldrich, “Prospects,” 4 (quoting Reagan’s letter to the Senate). 136 See generally Copelon, “Indivisible Framework.” 137 See generally Chung, “Judicial Enforceability.” 138 See UN, OHCHR, Status of Ratification Interactive Dashboard, http://indicators. ohchr.org/. 139 See generally Saito, Meeting the Enemy. 140 Cherokee Nation v. Georgia, 30 U.S. at 16. 141 Ibid., 17. 142 Ibid., 52–53 (Thompson, J., dissenting). 143 Ibid., 55. 144 See generally Robert A. Williams, Like a Loaded Weapon. 145 Marbury v. Madison, 5 U.S. at 163. 146 See generally Bederman, “Deference or Deception” (on the political question doctrine); Tolley, “Domestic Applicability” (on the last-in-time rule); and Vázquez, “Treaties as Law” (on the doctrine of non-self-executing treaties). 147 See generally Dudziak, Cold War. 148 Bell, “Brown v. Board of Education,” 523. See generally Chang and Kwan, “When Interests Diverge.”

Chapter 11. Decolonization and Self- Determination

1 Johnson v. McIntosh, 21 U.S. at 588. 2 See UN Charter, arts. 73–91 (addressing non-self-governing territories) and arts.7–8 (describing principal organs); see also United Nations, Trusteeship Council. 3 UNGA Res. 1514 (XV). For background, see Ofuatey-Kodjoe, Principle of Self-Determination, 115–22. 4 UNGA Res. 1514, para. 5. 5 UNGA Res. 1541, Principle VI. 6 Ibid., Principle VII. 7 Ibid., Principles VIII, IX. 8 Lumumba, “Speech at Proclamation of Independence,” 793–97. See also Renton, Seddon, and Zeilig, Congo, 80–81. 9 Nkrumah, I Speak of Freedom, xii–xiii. 10 Ibid., xi. 11 See Gassama, “Africa and the Politics of Destruction,” 328–35. 12 Anghie, Imperialism, Sovereignty, 65–66.

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13 Nkrumah, I Speak of Freedom, xi. See also Anghie, Imperialism, Sovereignty, 196; see generally Gassama, “Africa and the Politics of Destruction.” 14 See generally Rodney, How Europe Underdeveloped Africa; Amin, Maldevelopment; and Galeano, Open Veins. 15 See Anghie, Imperialism, Sovereignty, 242. 16 See ibid., 211–12. See also Michael J. Kelly, “Pulling at the Threads of Westphalia,” 391. 17 Anghie, Imperialism, Sovereignty, 220; Churchill, “Perversions of Justice,” 5–14. 18 Gassama, “Africa and the Politics of Destruction,” 336 (quoting Nkrumah, Neo-Colonialism). 19 See generally Saito, “Decolonization, Development, and Denial.” 20 UN Charter, art. 2(4); UNGA Res. 1514, para. 7; UNGA Res. 2625 (XXV). 21 Black’s Law Dictionary, 1686. 22 Mutua, “Putting Humpty Dumpty Back Together,” 523n84; see also Mutua, “Why Redraw the Map,” 1142. 23 Mahmud, “Geography,” 545. 24 See Raič, Statehood and the Law, 96–97. 25 See generally Trask, From a Native Daughter; and Haycox, Alaska. 26 UNGA Res. 1541, Principle IV. 27 See ibid.; see also Wiessner, “Rights and Status,” 102. 28 Wolfe, “Structure and Event,” 122. 29 Gilly, “Introduction,” 1–2. 30 Robert A. Williams, “Columbus’s Legacy,” 51 (paraphrasing S. James Anaya). 31 Case Concerning East Timor, 102 (citing Legal Consequences for States [Namibia Opinion], 276, as well as Western Sahara, 31–33). See also Laing, “Norm of Self-Determination” (identifying the right to self-determination as customary law binding on all states); and Seshagiri, “Democratic Disobedience,” 567 (“The classical right of colonial self-determination has acquired jus cogens status”). 32 UN Charter, art. 1(2); see also Ofuatey-Kodjoe, Principle of Self-Determination, 104–13. 33 UNGA Res. 1514 (XV), Preamble; see also Ofuatey-Kodjoe, Principle of SelfDetermination, 115–22. 34 UNGA Res. 1514, para. 2. 35 ICCPR, art. 1; ICESCR, art. 1. On the evolving concept of self-determination, see Vogel, “Reframing Rights,” 448–78. For a more orthodox summary, see generally Hannum, “Rethinking Self-Determination.” 36 OHCHR, Human Rights Committee, General Comment No. 12, “Right to Self-Determination,” para. 1. 37 Falk, “Preface,” 6; see generally Nietschmann, “Third World War.” 38 Falk, “Preface,” 6. 39 See Daes, “Overview,” 12–13. Attempts by the United States and other settler states to substitute the term “populations” for “peoples” delayed the UN Declaration on the Rights of Indigenous Peoples for many years. See Daes, “UN Declaration,” 18.

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40 See UNGA Res. 1541, principle IV; see also Irene Watson, Aboriginal Peoples, 88. 41 See UN Charter, art. 2(4) (prohibiting “the threat or use of force against the territorial integrity or political independence of any state”); and UNGA Res. 1514, para. 7. 42 Richardson, “Gulf Crisis,” 49n27. 43 See Ratner, “Drawing a Better Line,” 593. 44 Ibid. 45 Crawford, Creation of States, 100. 46 Vogel, “Reframing Rights,” 447. 47 See Falk, Human Rights, 185–94. 48 See Vogel, “Reframing Rights,” 448. See also Kly, International Law, 124 (noting that “the term ‘peoples’ . . . is becoming generally accepted to include minorities or nationalities”). 49 Richardson, “‘Failed States,’” 44. 50 See Churchill, “Law Stood Squarely,” 703–4 (providing a much longer list of locations and attendant sources). 51 Reference re Secession of Quebec, 70. 52 Ibid., 76. The ICJ has concluded that groups in the Western Sahara, East Timor, and Palestine constitute peoples with a right to self-determination. See Kornacki, “When Minority Groups Become ‘People,’” 79 (citing Western Sahara, 68; Case Concerning East Timor, 106; and Legal Consequences of the Construction of a Wall, 183). 53 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (Khan, J.), 63. 54 Ibid. (Ammoun, J.), 69. 55 Ibid., 68. 56 Ibid. See also Anaya, Indigenous Peoples (“Decolonization demonstrates that self-determination’s remedial aspect may trump or alter otherwise applicable legal doctrine,” including claims to territorial sovereignty). 57 ICCPR and ICESCR, common art. 1(1). 58 Ibid., common art. 1(2). 59 See generally Venne, “Road to the United Nations.” 60 Lâm, At the Edge, xxi. 61 UDHR, Preamble. 62 Mutua, Human Rights, 5–6. 63 Ibid., 10. 64 See Esteva and Prakash, Grassroots Post-Modernism, 110–51 (describing human rights as “the trojan horse of recolonization”). 65 Tsosie, “Land, Culture,” 1302. See also Mutua, Human Rights, 82–84 (discussing the dialectical relationship of rights and duties found among many African peoples). 66 Esteva and Prakash, Grassroots Post-Modernism, 110 (quoting Vachon, “L’étude du pluralism juridique,” 165). 67 Ibid.

Notes

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72 73 74 75

76 77 78 79 80 81 82

83 84

85 86 87 88 89 90 91 92

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Ibid., 125. See El-Gendi, “Illusory Borders,” 493–505. Kahn, “Question of Sovereignty,” 263; see also Brooks, “Failed States,” 1170. See Falk, Declining World Order, 11 (noting that “the state system . . . [is] both a guiding and incoherent myth that does not now and never did correspond with patterns of behavior in international politics”). Brooks, “Failed States,” 1181–82. Cassese et al., Self-Determination, 55. Cassese, however, does not believe that this right applies to “internal minorities.” Ibid., 62. Ibid., 54. Vogel, “Reframing Rights,” 478 (“The right to self-determination serves the well-being of groups who define themselves as a people by addressing the conditions under which they live and are governed through an on-going process of negotiation of the terms on which they live with their neighbors”). Daes, “Striving for Self-Determination,” 57–58 (emphasis in original). Richardson, “‘Failed States,’” 41. Richardson, “Gulf Crisis,” 48. Namibia Opinion (Ammoun, J.), 69. Kwaymullina, “Aboriginal Nations,” 13–15 (discussing “relationship based citizenship”). See generally Román, Other American Colonies. See Matsuda, “Are We Dead Yet?,” 1041–42 (discussing fears engendered by assertions of Native Hawaiian sovereignty); see also Durham, Certain Lack of Coherence, 173–75. Saranillio, “Why Asian Settler Colonialism Matters,” 285. “The western subject knows that it is self-determining because it compares itself to ‘others’ who are not. In other words, I know who I am because I am not you. These ‘others’ of course are racialized.” Andrea Smith, “Problem with ‘Privilege’” (summarizing Denise DaSilva’s critique of the western subject). Saranillio, “Why Asian Settler Colonialism Matters,” 284. See generally Richardson, Origins of African-American Interests. See generally Woodard, Nation within a Nation; and Franklin, Black Self-Determination. Richardson, “Gulf States,” 48. Pérez-Torres, “Refiguring Aztlán,” 200. Fanon, Wretched of the Earth, 188–89; see also Pérez-Torres, “Refiguring Aztlán,” 203. Baraka, “Speech to the Congress of African Peoples,” 146. Cover, “Nomos,” 68.

Chapter 12. Mapping New Worlds 1 Thiong’o, Decolonising the Mind, 3. 2 Veracini, “Telling the End,” 211.

276

| Notes

3 Kelley, Freedom Dreams, 2–3. 4 Veracini, Settler Colonialism, 98. 5 Ibid., 104. Veracini also notes that this “narrative gap contributes crucially to the invisibility of anti-colonial struggles in settler colonial contexts.” Ibid., 105. 6 See Sartre, “Introduction,” xxv. 7 Veracini, “Settler Colonialism and Decolonisation,” para. 26. 8 Newcomb, “Domination in Relation,” 30. 9 For work by Indigenous scholars and activists furthering the theoretical and practical work of decolonization in settler colonial states, see, e.g., Waziyatawin and Yellow Bird, For Indigenous Minds Only; Wilson and Yellow Bird, For Indigenous Eyes Only; Porter, Sovereignty, Colonialism; and Churchill, “Indigenous Peoples,” 15, 25. For an analysis from a “critical settler” perspective, see generally Huygens, “Developing a Decolonisation Practice.” 10 Wolfe, “Settler Colonialism,” 388. For an example of this process in action, see generally International Human Rights Association of American Minorities and Kly, From Civil Rights to Human Rights. 11 King, Truth, 153 (quoting Okri, Way of Being). 12 See Andrea Smith, “Moral Limits of the Law,” 70. 13 See Durham, Certain Lack of Coherence, 175 (“Because of its atrocities [the United States] must be the most innocent and the most just, and it must expand”). 14 Linda Tuhiwai Smith, Decolonizing Methodologies, 147. 15 Ibid., 154. 16 Ibid. 17 King, Truth, 153 (quoting Okri, Way of Being). 18 Pérez, Decolonial Imaginary, 5. 19 See Landry, “‘All Indians Are Dead?’” 20 See generally Churchill, “To Judge Them” (criticizing the “anomaly theory of history”). 21 Mann, George Washington’s War, 2. Turtle Island is known to settler society as “North America.” 22 Ibid. See also Saito, “At the Heart,” 285–92. 23 See, e.g., Andrews, “A Grand Exercise” (reviewing Dyzenhaus, Judging the Judges); Gregory L. Smith, “Immune to Truth?” (on Latin American truth commissions’ failure to address the role of the United States in “birthing and nurturing” the regimes at issue); and Stanley, “Truth Commissions,” 582, 583, 589–94 (arguing that truth commissions “tend to inhibit the recognition of state crime”). 24 See generally Churchill and Venne, Islands in Captivity (record of the Hawai‘i Tribunal); and Goodman and Goodman, Standing Up, 29 (on the Hurricanes Katrina and Rita People’s Tribunal); see generally Edwards, “International Human Rights” (on the potential of international law in this context). 25 See Linda Tuhiwai Smith, Decolonizing Methodologies, 144–46. 26 Cajete, “Decolonizing Indigenous Education,” 147.

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27 Esteva and Prakash, Grassroots Post-Modernism, 145 (describing the Zapatistas as having chosen to become non-subjects). 28 Irene Watson, Aboriginal Peoples, 149 (citation omitted). 29 Kwaymullina, “Aboriginal Nations,” 9. 30 Ibid. 31 Ibid., 9–10. For a related framing from within the United States, see generally Singh, Black Is a Country. 32 Pérez-Torres, “Refiguring Aztlán,” 213. 33 Ibid., 198. 34 Ibid., 211. 35 Ibid., 211, 217. 36 Roy, Making Societies, xv. 37 Esteva and Prakash, Grassroots Post-Modernism, 115–16. See, e.g., Conway, “Indigenizing” (arguing for a legal pluralism incorporating Indigenous paradigms of knowledge and property). 38 See Del Castillo, “Illegal Status,” 561. 39 On mandated inclusion, see, e.g., US Const. amend. XIV; and Indian Citizenship Act of 1924. 40 Duguit, “Hegel’s Political Philosophy,” 80 (quoting Hegel’s Philosophy of Right, 313). 41 See generally Blauner, Resisting McCarthyism. 42 See generally Montville, Sting Like a Bee. 43 See Mindock, “Taking a Knee.” 44 Corntassel, “Living in a Longer Now,” 97. 45 See, e.g., Jeffries, Huey P. Newton, 78–80 (describing Newton’s vision of “intercommunalism” as a world composed of communities rather than states); see generally Matsuda, “We Will Not Be Used.” 46 Wolfe, “Structure and Event,” 103. 47 Veracini, “Telling the End,” 211–12. 48 Ibid. 49 See generally Lauren P. Phillips, “Killing the Black Snake” (on pipelines); Keeler, “Trump’s Message” (on Bears Ears and uranium mining); Santos, “Border Wall”; and Aguilar, “Indigenous Texans.” 50 For examples, see generally Den Ouden and O’Brien, Recognition; and Brown and Parrish, “US and Canada Are Preparing.” 51 See generally Anaya, “Report of the Special Rapporteur”; and Riley and Carpenter, “Owning Red.” 52 See generally Griggs, “Living While Black.” 53 See Churchill and Vander Wall, COINTELPRO Papers, 242–302 (American Indian Movement), 68–90 (Puerto Rican Independence Movement). 54 See ibid., 91–164; and Senate Select Committee, Final Report, 22. 55 Ladd, “Jackson Tragedy”; see also Umoja, We Will Shoot Back, 194–210. 56 Eric Ledell Smith, “MOVE Bombing,” 230.

278

| Notes

57 Ibid., 231–32; see also In re City of Philadelphia Litigation. See generally Harry, “Attention, MOVE!”; and Boyette and Boyette, Let It Burn. 58 See generally Kopel and Blackman, No More Wacos. 59 See Dresslar, “How Many Law Enforcement Agencies”; and Brown, Parrish, and Speri, “Leaked Documents.” 60 Crosby and Monaghan, Policing Indigenous Movements, 15–16. 61 “Environmental rights extremists” are defined by the Department of Homeland Security as “groups or individuals who facilitate or engage in acts of unlawful violence against people, businesses, or governmental entities perceived to be destroying, degrading, or exploiting the natural environment.” Department of Homeland Security, Field Analysis Report, 1. The report claims that they pose a threat to life, even when only engaging in property damage. Ibid., 2. 62 Ibid., 2, 4. See generally Parrish, “Activist Stands Accused” (noting that she was charged with carrying a weapon provided by an FBI operative posing as her lover). 63 Belew, Bring the War Home, 238. 64 Southers, “President Trump Wants ‘the Facts.’” 65 Belew, Bring the War Home, 239. 66 US Department of Justice, Federal Bureau of Investigation, “Black Identity Extremists,” 7; see also Beydoun and Hansford, “FBI’s Dangerous Crackdown.” 67 PBS NewsHour, “Lawmaker Asks Sessions” (providing video of House Judiciary Committee hearing). 68 Winter and Weinberger, “FBI’s New US Terrorist Threat.” 69 US Department of Justice, Federal Bureau of Investigation, “Black Identity Extremists,” 2. 70 See, e.g., Department of Homeland Security, Field Analysis Report, 1–2; and PBS NewsHour, “Lawmaker Asks Sessions.” 71 On the relationship between paradigms and social power, see Delgado, “Centennial Reflections,” 458–59. 72 Breedlove, “Happy National Genocide”; see also Durham, Certain Lack of Coherence, 174. 73 See Escobar, “Family Separation”; for details of this history from 1776 to 2003, see generally Churchill, On the Justice of Roosting Chickens. 74 Conversations with the author. For background, see generally Means and Wolf, Where White Men Fear. 75 Chabal, Feinman, and Skalnik, “Beyond States,” 23. 76 See generally ibid.; see also Hall, American Empire, 209–92 (discussing globalization, decolonization, and the fourth world); and Nietschmann, “Fourth World.” 77 Durham, Certain Lack of Coherence, 173. 78 Ibid., 174. 79 Downes v. Bidwell, 182 U.S. at 280. 80 Taibi, “Racial Justice,” 942. See also Crenshaw, “Race, Reform, and Retrenchment,” 1384–85 (noting that while legal rights “may have legitimated racial inequality . . .

Notes

81 82 83 84 85

86 87 88 89 90 91 92 93 94 95 96 97 98

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279

they have also been the means by which oppressed groups have secured both entry as formal equals into the dominant order and the survival of their movements in the face of private and state repression”). Carmichael and Hamilton, Black Power, 104. See generally Richard Thompson Ford, “Boundaries of Race.” Allen-Bell, “Prescription,” 10–12 (citations omitted). See also Heynen, “Bending the Bars”; and Tyner, “‘Defend the Ghetto.’” Deloria, Custer Died, 180. Kwaymullina, “Aboriginal Nations,” 17. On the expanding phenomenon of “micro-local” entities of governance, especially in education and land use, see generally Shoked, “New Local.” On food sovereignty, see generally Guarino, “Tribal Food Sovereignty.” On the importance of the cultural identity of communities and the potential for “place-based lawmaking,” see generally Fowler, “Building Social Capital”; and Lisa T. Alexander, “Hip-Hop and Housing.” See generally Akuno and Nangwaya, Jackson Rising. See generally Kadalie, Internationalism. Umoja, “People Must Decide,” 9. Ibid., 10. Ibid., 13 (quoting former governor William Winter). Ibid., 7. Ibid., 13. Bragg, “Hot and Collective.” Quoted in ibid. Esteva and Prakash, Grassroots Post-Modernism, 41. Trudell, “Statement of John Trudell,” iii. Carmichael, “Pan-Africanism,” 205. See generally Whitehorn, “Black Power Incarcerated”; and Elijah, “Reality of Political Prisoners.”

Conclusion

1 Cover, “Nomos,” 68. 2 Email from Derrick A. Bell Jr. to Natsu Taylor Saito, January 6, 2007 (on file with author).

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List of Cases

Alexander v. Sandoval, 532 U.S. 275 (2001), 161, 266n53. American Insurance Co. v. Canter, 26 U.S. 511 (1828), 263n8. Bolling v. Sharpe, 347 U.S. 497 (1954), 160, 265n41. Brown v. Board of Education, 347 U.S. 483 (1954), 16, 160, 164. Buchanan v. Warley, 245 U.S. 60 (1917), 100, 248n49. Case Concerning East Timor (Portugal v. Australia), 1995 I.C.J. 90. 106 (June 30), 191, 273n31, 274n52. Chae Chan Ping v. United States, 130 U.S. 581 (1889), 157, 183, 260n86. Cherokee Nation v. Georgia, 30 U.S. 1 (1831), 32, 59, 156, 184, 236n10. Chisholm v. Georgia, 2 U.S. 419 (1793), 181, 271n115. Chorzow Factory (Indemnity), 1928 P.C.I.J. (ser. A.) No. 17, 176, 270n84. City of Richmond v. J.A. Croson Company, 488 U.S. 469 (1989), 160, 265n45. Civil Rights Cases, 109 U.S. 3 (1883), 90, 159. Cobell v. Salazar, 573 F.3d 808 (2009), cert. dismissed, 561 U.S. 1020 (2010), 77, 156, 263n12. Doe v. Louisiana, 479 So.2d 369 (1985), 89, 246n95. Downes v. Bidwell, 182 U.S. 244 (1901), 154, 156-58, 211, 278n79. Dred Scott v. Sandford, 60 U.S. 393 (1857), 30, 31, 86, 87, 228n33, 245n79, 253n21, 259n34. Elk v. Wilkins, 112 U.S. 94 (1884), 95, 247n5. Ex parte Ah Pong, 19 Cal. 106 (1861), 120, 254n62. Fisher v. University of Texas, __ U.S. __, 136 S.Ct. 2198 (2016). Transcript of Oral Argument, December 9, 2015, at www.supremecourt.gov, 103. Foley v. Connelie, 435 U.S. 291 (1978), 227n10. Fong Yue Ting v. United States, 149 U.S. 698 (1893), 144, 183, 264n20. Fort Sill Apache Tribe of State of Oklahoma v. United States, 26 Ind. Cl. Comm. 281 (1971); 477 F.2d 1360 (Ct. Cl. 1973); cert. denied 416 U.S. 993 (1974), 70, 240n97, 240n98, 240n99. Fullilove v. Klutznick, 448 U.S. 448 (1980), 160, 265n45. Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir. 1986); cert. denied 479 U.S. 889 (1986), 264n24. Gong Lum v. Rice, 275 U.S. 78 (1927), 260n92. González and Others v. México (Cotton Field), Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (Ser. C) No. 205 (November 16, 2009), 179-180.

347

348

| List of Cases

Grutter v. Bollinger, 539 U.S. 306 (2003), 265n45. Hampton v. Hanrahan, 600 F.2d 600 (1979); 226 U.S. 754 (1980); 499 F. Supp. 640 (1980) (on remand), 20, 226n101. Hiibel v. Sixth Judicial District Court of Nevada, Humbolt County, 542 U.S. 177 (2004), 250n110. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), 256n126. Illinois v. Gates, 462 U.S. 213 (1983), 162, 266n66. In re African-American Slave Descendants Litigation, 375 F. Supp. 2d 721 (N.D. Ill., 2005), 471 F.3d 754 (7th Cir. 2007), 252n146. In re City of Philadelphia Litigation, 938 F. Supp. 1278 (E.D. Pa. 1996), 278n57. In re Lee Sing, 43 F. 359 (N.D. Cal. 1890), 146-47, 261n109. Island of Palmas Case (United States v. Netherlands), 2 UN Rep. International Arb. Awards 829 (1928), 233n40. Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984); 472 U.S. 846 (1985), 157, 264n24. Johnson v. McIntosh, 21 U.S. 543 (1823), 32, 186, 229n46. Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), 104, 250n93. Korematsu v. United States, 323 U.S. 214 (1944), 150, 159-60. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) [Namibia Opinion]. Advisory Opinion. 1971 I.C.J. Reports 16, 191, 194, 197, 273n31, 274n52. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. Advisory Opinion. 2004 I.C.J. 136. 183 (July 9), 274n52. Lone Wolf v. Hitchcock, 187 U.S. 533 (1903), 156, 263n9. Loving v. Virginia, 388 U.S. 1 (1967), 160, 265n43. Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988), 72, 240n116. Marbury v. Madison, 5 U.S. 137 (1803), 30, 175, 184-85, 228n31. Mary and Carrie Dann v. United States, Case 11. 140, Inter-Am. C.H.R., Report No. 75/02/PEA/Ser. L./V./II. 1 17, doc. 1 rev. 1 (2002), 178-179. Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 79 (January 31, 2001), 269n64. McCleskey v. Kemp, 481 U.S. 279 (1987), 161-62. Mississippi Band of Choctaw Indians v. Holyfield, 290 U.S. 30 (1989), 241n121. Moiwana Community v. Suriname, Inter-Am. Ct. H.R. (ser. C) No. 124 (2005), 269n66. Moore v. Illinois, 55 U.S. 13 (1852), 91. Neal v. Farmer, 9 Ga. 555 (1851), 92. Oglala Sioux Tribe v. Van Hunnik, 100 F. Supp. 3d. 749 (D. S.D. 2015); order vacated by Oglala Sioux Tribe v. Fleming, 904 F.3d 603 (8th Cir. 2018), 73, 241n125. Oyama v. California, 332 U.S. 633 (1948), 146, 261n107. Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), 250n106. People v. Hall, 4 Cal. 399 (1854), 136-37, 260n88.

List of Cases

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349

Plan de Sanchez Massacre v. Guatemala, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 116 (November 19, 2004), 269n64. Plessy v. Ferguson, 163 U.S. 537 (1896), 159, 160. Prigg v. Pennsylvania, 41 U.S. 539 (1842), 246n100. Pro-Football v. Blackhorse, 112 F. Supp. 3d 439 (E.D. Va. 2015); vacated, 709 Fed. App’x. 182 (2018) (unpublished opinion), 237n16. Reference re Secession of Quebec, 2 S.C.R. 217 (1998), 193-94, 274n51. Regents of the University of California v. Bakke, 438 U.S. 265 (1978), 159-161, 230n65, 264n34, 265n45. Relf v. Weinberger, 372 F. Supp. 1196 (D.D.C. 1974), 251n118. Ricci v. DeStefano, 129 S. Ct. 2658 (2009), 265n53. Ruffin v. Commonwealth, 62 Va. 790 (1871), 98, 248n36. Sale v. Haitian Centers Council, 509 U.S. 155 (1993), 157, 264n23. Saramaka People v. Suriname, Inter-Am. Ct. H.R. (ser. C) No. 174. (November 28, 2007), 269n66. Sawhoyamaxa Indigenous Community v. Paraguay, Inter-Am. Ct. H.R. (ser. C) No. 146 (March 29, 2006), 269n64. Sei Fujii v. State of California, 242 P.2d 617 (Cal. 1952), 146, 182-83, 261n107, 271n128. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), 157, 264n22. Slaughter-House Cases, 83 U.S. 36 (1872), 98, 248n32. Te-Moak Tribe of Western Shoshone Indians of Nevada v. US Department of the Interior, 565 F. App’x 665 (9th Cir., 2014) (unpublished opinion), 179, 271n106. Terrace v. Thompson, 263 U.S. 197 (1923), 146, 261n104. Terry v. Ohio, 392 U.S. 1 (1968), 162. Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. __, 135 S.Ct. 2507 (2015), 161, 266n54. Trump v. Hawaii, 585 U.S. __, 138 S.Ct. 2392 (2018), 159-60. United States v. Arvizu, 534 U.S. 266 (2002), 162, 266n65. United States v. Bhagat Singh Thind, 261 U.S. 204, 213 (1923), 144-145. United States v. Brignoni-Ponce, 422 U.S. 873, 885–86 (1975), 149, 262n132. United States v. By-a-lil-le, 12 Ariz. 150 (1909), 69, 239n94. United States v. Dann, 470 U.S. 39 (1985), 177-178. United States v. Kagama, 118 U.S. 375 (1886), 156. United States v. San Jacinto Tin Co., 23 F. 279 (D. Cal. 1885); affirmed, 125 U.S. 273 (1888), 145, 261n98. United States v. Sioux Nation of Indians, 488 U.S. 371 (1980), 239n72. United States v. Sokolow, 490 U.S. 1 (1989), 162, 266n65. Vietnamese Fishermen’s Association v. Knights of Ku Klux Klan, 518 F. Supp. 993 (S.D. Tex. 1981), 152, 263n152. Vinluan v. Doyle, 873 N.Y.S.2d 72 (2009), 122, 255n87. Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), 160-61, 265n50. Washington v. Davis, 426 U.S. 229 (1976), 161. Western Sahara, Advisory Opinion, 1975 I.C.J. 12 (October 16) 155, 191, 274n52.

350

| List of Cases

Whren v. United States, 517 U.S. 806 (1996), 162, 266n69. Williams v. Fears, 179 U.S. 270 (1900), 247n22. Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), 265n45. Yakye Axa Indigenous Community v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 125 (June 17, 2005), 269n64. Zadvydas v. Davis, 533 U.S. 678 (2001), 157, 264n25.

Index

Figures followed by n* indicate a footnote on the page. Affirmation of the Principles of International Law Recognized by the Charter of the Nurnberg Tribunal, 167 affirmative action, 34; in education, 159, 161; in international law, 170–71; as remedy, 160, 170 Afghanistan/Afghans: PTSD in veterans, 11; refugees from, 130; US war in, 112, 129 Africa/Africans: African Union, 168; Ashanti, 29; colonialism, 41, 113; culture in US, 84–85; decolonization, 9, 17, 188–89; Hausa, 29; Ibo, 29; immigrants to US, 80; Indigenous peoples, 113; Mandingo, 29; Yoruba, 29. See also slaves/slavery African Americans, 5; and assimilation, 164; Black Codes, 97, 104; and carceral debt, 108–9; in Congress, 95; and convict labor, 98, 108; criminalization of, 98, 108, 135; disenfranchisement, 96; education, 10, 15, 16, 18, 86, 100, 115, 164, 222n16; employment, 10, 11, 16, 18, 102, 108, 223n17; exclusion from professions, 97; forced reproduction, 88–89, 147; as Indigenous peoples, 83–84; income, 10, 222n11; health, 10, 222n14; homeownership, 100, 104–5, 222n15; housing, 10, 16, 18; as internally colonized, 17, 110; and international law, 172–73, 175, 181; land ownership, 96–97; legal personhood, 86, 94; liberation movements, 17, 41; lynchings of, 99, 101; mass incarceration of,

107–8; migration from South, 95, 99; mob violence against, 97, 101, 249n64; population in 1860, 83; poverty, 10; as property, 86–87, 94; racialization of, 85–88, 94, 1034; as “savage,” 85, 86; as “surplus” population, 81, 102; and war on drugs, 21, 226n106; and wealth creation, 83; as White property, 81. See also Black (identity); slaves/slavery Agamben, Georgio, 4, 80 Alabama: imprisonment of Chiricahua Apache, 69; Senator Sessions, 21 Alaska, 66; Alaska Natives, 5n*; and citizenship, 116; and decolonization, 183, 198; demographics, 76; health, 64; and police killings, 77; and poverty, 10, 11, 77; and PTSD, 11; “purchase” of, 35, 116; and suicide, 64; and US colonization, 66, 190 Alexander, Michelle, 107–8 Algeria, and French colonization, 189–90 Algonquins, 60–61 Ali, Muhammad, 206 alien land laws, 146 Allard, LaDonna Bravebull, 75 Allende, Salvador, 66 Allotment Act of 1887, 156 American exceptionalism, 111, 114, 203 American Indian Movement (AIM), 20, 65–66, 172, 182, 208, 214; formation, 18, Trail of Broken Treaties, 18. See also Wounded Knee: 1973 siege American Indian Religious Freedom Act (AIRFA), 72 351

352

| Index

American Indians, 5n*, 98; and allotment of land, 71, 156; as anachronism/“disappeared,” 74, 78 204; and assimilation, 71–74, 164–65; “blood quantum,” 70–71; boarding schools, 11, 64, 72, 156; contemporary violence against, 65–66, 77; demographics, 67, 76–77; defending lands, 208; and disease, 63–64; debt peonage, 121; education, 12, 72, 77, 222n16; enslavement of, 80–83, 87, 242n7, 242n8; gaming, 12; health, 11, 222n14; incarceration 67,77; income, 11; intended elimination of, 28; internments of, 64, 68–70; liberation movements, 17, 41; federal recognition of, 70–71; mascots, 169, 207; massacres of, 60–62, 99; mortality rates, 64, 223n28; out-adoptions, 73; plenary power over, 155–58; precolonial history, 36–38; and PTSD, 11; poverty, 10, 11, 77; as prisoners of war, 239n94; as a “race,” 3; racialized as African, 87; Red Power activism, 18; removals (forced), 37, 38, 54, 64, 67–68, 113, 237n45; as “savage,” 32, 58–59, 78, 85, 135; and scalp bounties, 62–63; and sexual violence, 65; spiritual practices, 72; sterilization of, 64–65, 77; sovereignty, 12, 77, 155, 158, 189; and suicide, 12, 64, 77; treaties with US, 35, 38, 61, 68, 75, 89, 155, 182, 184; unemployment, 77; and US citizenship, 72, 95; wars against, 76, 138–39. See also specific nations American Samoa, 157 Amherst, Jeffrey, 63 Ammoun, Fouad, 194, 197, 200 anarchists, and immigration restrictions, 124 Anaya, James, 68 Angelou, Maya, 20 Anghie, Antony, 43, 44, 188 Aoki, Keith, 136, 141, 146

Apaches: Chiricahua imprisonment, 69– 70, 240n117; Lipan, 207 apartheid: American, 1, 9, 15, 16, 22, 34, 35, 97–101, 116, 136, 158–60, 172; de facto, 23; in education, 15; and gender, 248n28; in housing, 100, 261n110; resistance to, 248n29; in South Africa, 204, 239n90; and international law, 182. See also Jim Crow; segregation Arab: discrimination, 170; League, 168; Spring, 13 Arab Americans, 116, 138, 139; racialized as “terrorists,” 150, 152 Arapaho, 62 Argentina, 139; as settler colonial state, 221n10 Arizona: alien land laws, 146; US acquisition of, 117 Arkansas, alien land laws, 146 “arrivants,” 252n15 Articles of Confederation (US), 37 Asia/Asian: colonialism in, 41–42, 45, 50, 117, 215; decolonization, 9, 17, 166, 189; and genocide, 55, 182; migrants to US, 5, 29, 55, 97, 116, 120, 122–25, 136, 146– 47; and racial discrimination, 170. See also Southeast Asia/Asians Asian American Political Alliance (University of California-Berkeley), 18 Asian American Red Guards, 18–19 Asian Americans/Asian Pacific Americans: and alien land laws, 123, 146; and assimilation, 141–45; conflation of, 138–39; criminalization of, 19, 148–49; demographics, 111, 119, 153; 254n54; education, 18–19, 139; employment, 18– 19; gendered stereotypes, 136; health, 18–19, 222n14; immigration, 5, 120, 122–26, 149–50; incarceration rates of, 149; and international law, 182–83; liberation movements, 17, 41; as migrant Others, 111; and mob violence, 151–52; as “model minority,” 140–41; as per-

Index

petually foreign, 137–38; racialization of, 134–36, 144–45; refugees, 127–29; and segregation, 146–47; stereotypes of, 136, 140; and US citizenship, 116, 144–45. See also national origin groups Asiatic Barred Zone, 123 assimilation: and African Americans, 85, 104, 109, 266n79; and American Indians, 71–74; and Asian Americans, 141–45; and Chicana/os, 200; as colonial strategy, 45, 52; as conceptual disappearance, 141–43; as destructive of culture and identity, 17, 44, 54, 156; and European immigrants, 143, 266n79; as genocidal, 186; as illusory, 7, 52, 73–74, 143–45, 165; in international law, 171, 173–75; in master narrative, 27; and Mexican Americans, 144; and migrant Others, 133, 141–45; and “model minority,” 140; and pluralism, 27, 49; as remedy, 154, 163–65, 202 Association of Southeast Asian Nations (ASEAN), 168 asylum/asylees. See refugees Atwood, Barbara, 73 Australia: and Indigenous rights, 172, 202, 212, 269n69; Kuuk Thaayorre people, 142; and postcolonialism, 235n91; as settler colonial state, 53, 221n10 Ayers, Bill, 15 Aztec Empire, 205 Baldwin, James, 102 Baltimore (MD): police practices, 13, 14; and incarceration, 107 Baptist, Edward, 92 Baraka, Amiri, 200 Barnes, Mario, 159 Barsh, Russel, 66, 72 Bass, Karen, 210 Baton Rouge (LA), police practices, 13 Baum, Frank, 62 Bears Ears National Monument, 207

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Belew, Kathleen, 209 Belgium, assassination of Lumumba, 188 Belich, James, 50–51 Bell, Derrick A., Jr., 16, 57, 217; and interest convergence, 185; and racial realism, 1, 9, 215 Bell, Jeannine, 101 Bellingham (WA), racial violence in, 151 Bering Strait theory, 36 Berlin, Ira, 82, 85 Berman, Howard, 25, 155 Beydoun, Khaled, 138, 140, 150 Bhutan, refugees from, 128 birth control: coerced, 106–7; Norplant, 107 Black (identity), 1n*; “Black Identity Extremists” (BIE), 209–10; Black/White binary, 87; “hate groups,” 226n106; immigrants, 12; nationalism, 17. See also African Americans Black Hills, 37; International Survival Gathering, 214 Black Lives Matter, 15, 109; origin of term, 224n46; protests, 13, 109; at Standing Rock, 13; as “extremist,” 210. See also Movement for Black Lives Black Panther Party for Self Defense (BPP), 18; ten-point platform, 18; and COINTELPRO, 20, 208; programs of, 212 Blackmun, Harry, 160–61 Blauner, Robert (Bob), 41, 81 “Blue Lives Matter,” legislation, 24 Bluestone, Barry, 102 Bolsheviks, and immigration restrictions, 124 Bonilla-Silva, Eduardo, 30 Boroditsky, Lera, 142 Bradford, William, 61 Braithwaite, Kamau, 252n15 Brave, Regina, 15 Brazil, as settler colonial state, 221n10 Brennan, William J., Jr., 163

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Bridgewater, Pamela, 107 Britain/British: colonizers, 29, 30, 47, 62, 79, 155, 199; military, 238n47 Brooks, Rosa Ehrenreich, 196 Brown, Henry Billings, 156–57, 211 Brown, Michael, 13, 14, 169 Brown Berets, 19 Bureau of Indian Affairs (BIA), 64, 65, 73; police, 66 Burlingame Treaty, 157 Butler, Paul, 163 Byrd, Jodi A., 113, 164–65, 252n15

Cayugas, 37 Centers for Disease Control (CDC), 64 Central America/Americans: 18th Street Gang (M-18); criminalization of, 149; and gang violence, 130–31; Mara Salvatrucha (MS-13), 131; migrants/refugees from, 12, 112, 129–31, 139, 205, 257n165 Central Intelligence Agency (CIA), 129, 142 Césaire, Aimé, 201 Charleston (SC), and slave trade, 82 Charlottesville (VA), “Unite the Right” rally, 14 Chemerinsky, Erwin, 159 Cajete, Gregory, 204 Cherokees, 38, 57, 211; as “civilized,” 68, California: African American migration 74; institutions, 38, 184; legal cases, 32, to, 99; alien land laws, 182–83; Chinese 184; sovereignty, 184; Trail of Tears, 68; labor, 119–20; enslavement of Ameritreaties with US, 68, 184 can Indians, 242n7; Grower-Shipper Chesapeake colonies, and tobacco, 83, 87 Association, 147; Mexican labor, 120; Cheyennes, 62; Cheyenne River Reservaracial violence in, 151–52; scalp bountion, 75; Northern, 69 ties, 62–63; sterilization, 148; taxation Chicana/os, 139; and Aztlán, 199–200, of migrant Others, 119–20; University 205; Brown Berets, 19; education, 19; of (Berkeley), 18; US acquisition of, 117 health, 19; housing, 19; and interCalmore, John, 105 national law, 182; land rights, 19; Cambodia/Cambodians: Khmer Rouge, 129; liberation movements, 17, 41. See also refugees from, 127, 129; US war in, 129 Mexicans/Mexican Americans Cameron, Christopher David Ruiz, 121 Chickasaws, 68, 113 Canada/Canadian, 36, 151; immigration Child Welfare League of America, 73 to US, 125; as settler colonial state, 53, Chile: coup, 66; “truth and reconciliation,” 202, 221n10; and Indigenous rights, 204 172, 193, 204, 269n59, 271n119; missing Chin, Vincent, 139 and murdered Indigenous women, 65; Chinese/Chinese Americans: and assimisecession of Quebec, 193–94; “truth lationism, 144; conflated with other and reconciliation,” 204 Asians, 139; criminalized, 148–150; deCaribbean, 117; migrants to US, 111, 125; mographics, 254n54, 255n92; exclusion slavery in, 82–84 laws, 91, 123, 126, 144, 150, 157, 183; imCarmichael, Stokely (Kwame Ture), 17, 43, migration, 116; population reduction, 55, 57, 212, 214 148; racialization of, 134–36, 138, 140, Carrigan, William, 151 260n88; and segregation, 144, 146–47; Carter, Robert, 105 and transcontinental railroad, 120; and Cassese, Antonio, 196–97, 275n73 US labor needs, 80, 112, 114, 118–20; Catawbas, 72 Vincent Chin, 139; violence against, Catholics, and immigration restrictions, 124 139, 150–151; Wen Ho Lee, 141

Index

Cho, Margaret, 58 Choctaws, 68 Christian/Christianity: European, 28; settlers as, 32; and slavery, 83 Church Committee, 226n106 citizenship (US), 7, 35, 112, 115–16, 123, 171, 206; African American, 31, 94–95; American Indian, 72, 95; birthright, 137, 145, 158; as colonial construct, 28; and English proficiency, 142; Filipina/o, 122; and Fourteenth Amendment, 95, 116, 158; Mexican American, 117, 121, 149; Pacific Islander, 118; Puerto Rican, 118, 157; racial restrictions on naturalized, 115–16, 123–25, 132, 137–38, 144, 146, 261n107. See also Constitution (US); Naturalization Act of 1790 civil rights, 17, 150, 159, 185; activists, 106; cases, 90; of colonized peoples, 118; discourse, 8; era, 10, 20, 34, 101–2, 158; movements, 9, 16, 109, 166, 182 Civil Rights Act: of 1866, 104; of 1875, 96, 159; of 1964, 11, 16, 23, 161 Civil Rights Congress, 175, 182 Civil War (US) 6, 20, 80, 242n7; post-war changes, 94–98, 100, 108–9, 123, 137–38 “civilizing mission,” 26, 28; and American Indians, 72; and human rights law, 168; as justification for colonialism, 43, 44, 46, 168; and master narrative, 36 Clark, Blue, 72 Clark, Kenneth, 16 Clark, Mark, 20 Cleveland (OH), 13; incarceration in, 107 Clinton, Bill, 21; administration of, 131 Clinton, Hillary, 59 Cold War, 157, 185, 264n24 COINTELPRO, 20–21, 208 colonialism, 6, 202, 208, 214; American, 5, 41, 55, 79, 80; Belgian, 47, 188; British, 17, 42, 47, 62, 155; “civilizing mission” of, 26, 28, 168; as conceptual framework, 16, 40; as “cultural bomb,”

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47–48, 201; defined, 42–43, 232n9, 232n14; Dutch, 62, 155; as economic enterprise, 5; external (“classic”), 41, 42, 45–48, 51, 114, 158; French, 17, 47, 62, 82, 155, 189–90; as genocidal, 43, 53–54, 57; as illegal, 17; and imported labor, 122; internal, 42, 48, 49–50, 189, 197–200, 225n79, 232n3, 234n60; and international law, 172, 187–92, 197; on-going, 2n*, 6, 154; overview of, 42–45; and racism, 3, 17, 30, 31–32, 40, 44–45, 113–14, 185, 201; redress for, 18; resistance to, 17, 190; and “salt water” thesis, 190, 192–93; Spanish, 82, 205; and territorial boundaries, 46. See also decolonization; neocolonialism; selfdetermination; settler colonialism Colorado: enslavement of American Indians, 242n7; racial violence in, 151; US acquisition of, 117 Columbus, Christopher, 26, 37, 136 Committee on the Elimination of Racial Discrimination (CERD), 170–71, 179 Communist Party USA, surveillance of, 226n106 Confederacy/Confederates: 97; amnesty, 96; monuments, 13 Congo (Democratic Republic of), 48, 188 Constitution (US), 1, 3, 23, 24, 101, 158; and alien land laws, 146; Fifth Amendment, 156, 157, 159, 165; Fifteenth Amendment, 95, 96; Fourteenth Amendment, 95, 116, 159, 165; Fourth Amendment, 162, 163; and human rights, 185; influenced by Haudenosaunee, 37; and international law, 166, 175, 183–85; and internment, 146–47; remedies under, 153, 167; right to counsel, 108–9; and slavery, 31, 80, 86, 90, 242n9; supremacy clause, 184; Thirteenth Amendment, 95, 122; and treaties, 183–85; violations of, 14, 20–21, 22, 100, 163. See also citizenship; due process; equal protection; plenary power

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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 175, 183 Convention on the Elimination of Discrimination Against Women, 184 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), 53, 64, 73, 106, 174, 183; US ratification of, 270n73. See also genocide Convention on the Rights of the Child, 175, 184 Convention on the Rights of Persons with Disabilities, 184 Corntassel, Jeff, 206 Costa Vargas, João, 175 Countering Violent Extremism (CVE) programs, 21, 150 counterterrorism, 21, 76; FBI’s Counterterrorism Division, 209–10 Cover, Robert, 186, 187, 200, 216 Crawford, James, 193 Creeks, 68 Crenshaw, Kimberlé, 1n* Cuba/Cuban Americans: demographics, 254n54; Guantánamo Bay, 157; Mariel, 264n24; refugees from, 127–28; US military rule, 118 Culp, Jerome, 164 Daes, Erica-Irene, 197 Dakota Access pipeline 14, 75, 207. See also Standing Rock Dann, Carrie and Mary, 178–79 decolonization, 5, 48, 201, 214; in Africa and Asia, 9, 17, 166; era of, 41, 167, 187–90; and gender balance, 29; global, 17, 41, 45, 166, 215; and human rights, 191; and international law, 103, 183, 185, 216; in Latin America, 17; through law, 153, 216; and migrant Others, 114; and neocolonialism, 48; preventing genocide, 175; and racial justice, 29, 40, 114;

as remedy, 4, 7, 8, 29, 58, 153; resistance to, 191–94; of settler states, 54, 192, 201–2, 276n9; strategies of, 206–10; and United Nations, 117, 172; of United States, 22, 50, 56, 198–200, 211 Deferred Action for Childhood Arrivals (DACA), 14 De la Warr, Thomas West, 60 Deloria, Vine, Jr., 20, 39, 212, 241n134 Depression, Great, 99, 100, 121 Desire (slave ship), 83 Deskaheh (Levi General), 182, 271n119 DeWitt, John L., 137 dignity, as a human right, 166, 168–69, 177, 216 Dion-Buffalo, Yvonne, 204 discovery, doctrine of, 32, 184, 229n47, 233n40 Dohrn, Bernadine, 15 Dominicans, demographics, 254n54 Doyle, Michael, 45–46 Du Bois, W. E. B., 94 Dudziak, Mary, 185 due process: in Bakke, 265n34; constitutional guarantees of, 7, 24, 95, 154, 156, 157; as remedy, 159, 165; rights of detained migrants, 264n25 Durham, Jimmie, 57, 211 Dutch: immigrants, 29; colonization, 155 dynamic of difference, 11, 165; and African Americans, 102; defined, 44; as necessary to colonialism, 7, 52, 56, 133, 143; in US law, 154–55 East India Company, 81 East Timor, right to self-determination, 274n52 Ebens, Ronald, 139 Edelman, Peter, 22 El Salvador/Salvadorans: demographics, 254n54; and gang violence, 131; refugees from, 131; TPS, 130; US intervention, 128

Index

emigrant agent laws, 97 England/English. See Britain/British Enlightenment, 28 equal protection: and assimilationism, 165; constitutional guarantees of, 1, 3, 7, 16, 23, 24, 94, 95, 116, 154, 158–63, 170 Esteva, Gustavo, 40, 195–96, 204, 206, 214 “ethnic cleansing,” 137; as genocide, 270n72 ethnicity, 19, 34, 35, 47, 52, 160; African, 47; Hmong, 143; and non-discrimination, 171, 186 Europe/European: Christian, 28; Court of Human Rights, 169, 270n84; Europeanization, 233n29; European Union, 211; migration, 97, 99; political democracy, 28; industrial revolution, 28; states, 29 “extremism,” 12; Aboriginal, 209; Black identity, 21, 210; CVE programs, 21; environmental, 209, 278n61; identity, 12, 209; White, 209–10

| 357

Fort Laramie treaties, 75 Foucault, Michel, 2 Fox, James, 101 France/French: colonization, 82, 155; immigrants, 29 Franklin, Benjamin, 115 Freedmen’s Bureau, 96 French and Indian War, 62 Frickey, Philip, 156 Fugitive Slave Act of 1850, 90

Gallay, Alan, 79, 82 Geechees, 174 gender: and apartheid, 248n28; as colonial construct, 26, 28–29, 40, 134; and colonialism, 5–6, 235n88; discrimination based on, 23, 33; fluidity, 228n20; in Indigenous worldviews, 39; and international law, 186; in master narrative, 26; matrilineal societies, 29; missing and murdered Indigenous women, 65, 179–180; patriarchy, 2, 5, 29, 34, 57; and property, 30, 228n34; and racialization, Fair Housing Act of 1964, 161 136; and stereotypes, 136; violence, 180 Falk, Richard, 191 Geneva Conventions of 1949, 183 Fanon, Frantz, 17, 87, 190, 200 genocide, 18, 42, 216; and African AmeriFede, Andrew, 92 cans, 175; and American Indians, 70, Federal Bureau of Investigation (FBI): 73, 75, 77, 138, 183; and colonialism, 3, COINTELPROs, 20, 208; Counterter42–43, 53–55, 57, 65, 77, 175; as criminal, rorism Division, 209; and “extremism,” 270n73; cultural, 84, 175; defined, 21, 209–10; and RNA, 208, 213; and 53–54, 174; and “ethnocide,” 270n72; Yellow Thunder case, 65 forced assimilation as, 186; and IndigFederal Housing Authority, 101 enous women, 65; in international law, Ferguson (MO), and police killings, 13, 14, 166–68, 172, 174–75, 182, 186; by Khmer 22, 169 Rouge, 129; Lemkin’s phases of, 53–54; Filipina/os. See Philippines/Filipina/os in Philippines, 138; prohibition as a jus Florida, 134, 224n46; Apache imprisoncogens norm, 174; removal/relocation ment, 69; and migrant Others, 126, 139; as, 68; slavery as, 84, 175; slow death US acquisition of, 116 measures, 64, 77, 88 238n51; sterilizaforeignness: and criminalization, 148; and tion as, 64; and US foreign policy, 55. racialization, 7, 133, 134, 137–38, 150; as See also Convention on the Prevenstrategy of subordination, 145. See also tion and Punishment of the Crime of xenophobia Genocide

358

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George, Henry, 150 Georgia: and Cherokee Nation, 32, 68, 184; in Civil War, 96; and slave law, 92 Germany/Germans: colonization in Africa, 194; immigrants to US, 29; and Northern Marianas, 118; Nazis, 127; Nuremberg, 118, 204; and Syrian refugees, 130; territorial expansion, 70 Geronimo, 69 Ghana: independence, 17; Nkrumah, 17, 48, 188 Gilly, Adolfo, 17, 190 Ginsburg, Ruth Bader, 159 Gómez González, Claudia Patricia, 179 Gonzales, Alberico, 121 Gordon (NE), racial violence in, 65 Gotanda, Neil, 140, 164 Gramsci, Antonio, on internal colonialism, 49 Gray, Freddie, 14 Great Migration, 99 Great Sioux Nation, 75. See also Lakotas Guam: decolonization, 198; US colonization of, 35, 117–19, 156 Guantánamo Bay (Cuba), US detainees at, 157 Guatemala/Guatemalans: conflated with other Latina/os; demographics, 254n54; and gang violence, 131; refugees from, 131; US intervention, 128; and US border killings, 179 Guinea, TPS, 130 Gullahs, 174 Haiti/Haitians: interdiction on high seas, 157, 160; refugees from, 126; TPS, 130; US intervention, 128 Hampton, Fred, 20 Hamer, Fannie Lou, 106 Haney López, Ian, 135–36 Harding, Vincent, 83, 85 Harris, Cheryl, 31, 86, 160 Harrison, Bennett, 102

Haudenosaunee (Iroquois), 182, 213, 231n98, 236n9, Clan Mothers, 39; Confederation (League), 37–39, 61; Covenant Chain, 38; governing councils, 39; Great Law of Peace, 37–38; international law of, 37–38; lands of, 271n119; political influence on US, 37–38 Hawai‘i: and Angloamerican settlers, 117; and Asian immigrants/settlers, 55, 153; decolonization, 183, 190; and disease, 63; Native Hawaiians, 5, 55, 63, 117, 183; overthrow of Kingdom, 35; people’s tribunals, 204; and plantation labor, 118–20, 122; statehood, 117; Trump v. Hawaii, 159–60; US annexation, 117. See also Kanaka Maoli Hearst, William Randolph, 148 Hechter, Michael, 49 Heflin, J. Thomas, 100 Hemet (CA), racial violence in, 152 Higginbotham, A. Leon, 88, 92, 160 Hing, Bill Ong, 128, 129, 143 Hispanic. See Latina/os Hmong: and poverty, 143; refugees, 142– 43; secret CIA army, 142 Hoboken (NJ), racial violence in, 152 Homestead Act of 1862, 100 Honduras/Hondurans: and gang violence, 131; refugees from, 131 Hopi: history, 36–37; leaders, 182 human rights, 8, 130, 165–68, 186, 208; and criminalization, 151–52; and dignity, 168–69; and disappearances, 6; and genocide, 174–75; of Indigenous peoples, 172–74; as inherent, 166; leadership, 130; and poverty, 10; and racial discrimination, 170–72; as responsibilities, 195–96; treaties, 168–72, 183–84, 194; as universal, 192, 194–196; and xenophobia, 172–74. See also specific treaties hurricanes: Katrina, 126, 204, 213; Rita, 204, 213

Index

Idaho: alien land laws, 146; racial violence in, 151 Illinois, prohibiting Black migration, 91 immigration (to US): 1965 reforms, 119, 124–25; 1996 reforms, 131; Asiatic Barred Zone, 120, 123; border wall, 182, 207; Central American, 205; Chinese, 123, 136, 150; and colonialism, 112, 132; country caps, 125; DACA, 14; detention, 12; deportation, 12; discrimination, 23, 171; employment based, 125; and English proficiency, 142; European/white, 29, 82, 97, 99, 123–25; and exploited labor, 4; family based, 125; family separation, 13, 14, 210–11; Filipina/o, 118, 122, 135; “guestworker” programs, 126; immigrants distinguished from settlers, 51; and international law, 171, 183; literacy tests, 124; Mexican, 120–21, 149, 150, 205; national origin quotas, 124–25, 142; “parole” power, 127; plenary power over, 155, 157–58; policies, 7, 12, 14, 115; protests, 13; and race, 132; refugee and asylum, 127–130; travel ban, 2, 13, 159; temporary protected status (TPS), 130–31; US as “nation of immigrants,” 1, 27, 56, 114; unauthorized/undocumented, 126–27, 157; from Western Hemisphere, 125, 149. See also xenophobia Immigration and Nationality Act of 1952, 127, 261n107 immunity, absolute, qualified, and sovereign, 163, 180 imperialism, 45–46, 188, 252n15 incarceration, 33, 137; of Apaches, 69–70; arbitrary, 201; as “civil death,” 108–9; internment, 159; and federal prosecutions, 21–22; mass, 2, 21, 68, 102, 107–9, 163, 175; plantations as, 90; racial disparities in, 11–12, 23, 73, 77, 149, 158; reservations as, 68–69; as settler colonial strategy, 67; and undocumented

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359

migrants, 126; US prison population, 11; and “zero-tolerance” policies, 105–6 indentured servants, 6, 33, 123; European, 82–83, 122–23, 126; Chinese, 119; Filipina/o, 122; and H-2 visas, 126; Mexican, 121 India/Indian Americans: demographics, 125, 254n54; immigrants from, 125–26; and Nagas, 193 Indian Adoption Program, 73 Indian Child Welfare Act (ICWA), 73 Indian Claims Commission (ICC), 70, 177–78 Indian Health Service (IHS): and sterilization, 64 Indiana: prohibiting Black migration, 91 Indigenous peoples: 1, 5n*, 102; African, 31, 47; agriculture, 37; Central American, 131; and colonial violence, 34–35, 198–99; and decolonization, 3, 190, 199, 201, 207, 211, 216; defined, 68; enslaved, 6; and environmental defense, 2, 13–15, 209; European, 45; identity, 1n*, 39, 155; and external colonialism, 46–47; and genocide, 174–75; indigeneity, 28, 40, 71, 74; and international law, 166, 170–72, 173–74, 177–79, 182, 186–87, 198; lands and resources, 3, 6, 7, 18, 31, 35–36, 57, 164, 177, 189, 195, 211; law of, 37; matrilineal societies, 29; and non-Indigenous people of color, 54–56, 153, 211–12; origin stories of, 37; in pre-Columbian North America, 36–37; political and legal structures, 37–38; racialization of, 44, 139; rights of, 3, 23, 172–74, 221n9; as “savage,” 28, 30, 32, 198–99; and self-determination, 18; and settler colonialism, 2–4, 6, 11, 29, 41, 45, 51–53, 58, 194, 199, 215; sovereignty, 3, 12, 28, 39, 155, 158, 164, 172–73; and trade, 37; worldviews, 36–39, 195–96, 197–98, 212. See also American Indians

360

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Inter-American Commission on Human Rights (IACHR), 178–79 Inter-American Court of Human Rights, 169, 173, 180, 270n84 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 170–71, 175; US ratification of, 183 International Convention on the Protection of the Rights of All Migrant Workers, 184 International Court of Justice (ICJ), 155, 168, 191, 194, 197, 270n84, 274n52 International Covenant on Civil and Political Rights (ICCPR), 169–71, 175; and self-determination, 191, 196–97; US ratification of, 183 International Covenant on Economic, Social and Cultural Rights (ICESCR), 169, 170; and self-determination, 191, 196–97; US failure to ratify, 183 International Criminal Court, 168 International Indian Treaty Council, origins of, 18 International Labour Organization (ILO): Conventions, 172, 269n50 international law, 8, 165, 166–67, 186; and assimilation, 171; and genocide, 174–75; and human dignity, 168–69, 216; Haudenosaunee Covenant Chain as, 37–38; humanitarian law, 175–77, 181; and Indigenous peoples, 172–74; invoked by African Americans, 17, 18; invoked by American Indians, 18; invoked by US liberation movements, 19; jus cogens norms, 170, 174, 197; peoples in, 191–94, 216; and racial discrimination, 170–72; remedies under, 153, 170–72, 175–77; and “salt water” thesis, 190, 192–93; and “special measures,” 170–71; and states, 167–68; in US courts, 181–85; and xenophobia, 170–72. See also decolonization; hu-

man rights; self-determination; United Nations; specific treaties International Law Commission (ILC): Articles on State Responsibility, 176; on reparation, 176 Iowa, prohibiting Black migration, 91 Iran, refugees from, 128 Iraq: PTSD among veterans, 11; refugees from, 128, 130; US war in, 13, 112, 129–30 Iroquois, see Haudenosaunee Islam/Islamophobia, 12, 138, 140. See also Muslims/Islam Israel, 28; as settler colonial state, 53, 221n10 “J20” protests, 13 Jackson (MS), 208–9, 213–14 Jamestown Colony, 60–61, 81–82 Japan: auto industry, 139; colonial expansion, 43, 118; “Gentlemen’s Agreement,” 123; war with US, 150 Japanese Americans: and alien land laws, 146; conflation with other Asians, 139; demographics, 254n54; exclusion, 123; in Hawai‘i, 118–19, 122, 153; internment during WWII, 5, 121, 137, 146, 147, 150, 159, 261n113; as “model minority,” 140; racialization of, 137 Jaspin, Elliot, 97 Jay, John, 181 Jefferson, Thomas, 67, 83, 88 Jersey City (NJ), racial violence in, 152 Jews/Judaism, and immigration restrictions, 124 Jim Crow: laws, 97, 100, 105, 109; “New Jim Crow,” 109 Jackson, Moana, 2n* Johnson, Andrew, 96 Johnson, Lyndon, 17; and War on Poverty, 17, 101, 103 Johnson, William, 32 Jones, Marvin, 103 Jones, Trina, 159

Index

Kaepernick, Colin, 206 Kahn, Paul, 196 Kanaka Maoli, 55, 117. See also Hawai‘i Kansas: alien land laws, 146; racial violence in, 139 Kelley, Robin D. G., 15, 201 Kennedy, Anthony, 266n55 Kennewick Man (Ancient One), 59 Kerner Commission, 16–17 King, Martin Luther, Jr., 214 King, Mathew, 2, 16 King, Thomas, 38 Korea/Korean Americans, 58; conflated with other Asians, 139; demographics, 254n54; plantation labor in Hawai‘i, 118–19; violence against, 152 Korematsu, Fred, 150 Ku Klux Klan (KKK), 152, 226n106; endorsement of Donald Trump, 20 Kuuk Thaayorre (language), 142 Kwaymullina, Ambellin, 205, 212 Lakhani, Nina, 131 Lakotas: and Black Hills, 239n72; elders and leaders, 2, 15, 18, 172; Minneconjou at Wounded Knee, 62, 239n93; origins, 37; Raymond Yellow Thunder (Oglala), 65. See also Pine Ridge Reservation Lâm, Maivân Clech, 194 Laos: refugees from, 127, 129; US war in, 142–43 Latina/os: and assimilationism, 141–45; conflation of, 138–39; criminalization of, 148–49; demographics, 111, 119, 153, 254n54; deportations of, 148; education, 10, 144, 222n16; forced removals of, 148; hate crimes against, 152; health, 10, 222n14; homeownership, 104, 222n15; housing, 10; and immigration, 124–27, 130–31; as migrant Others, 111; and mob violence, 151–52; as perpetually foreign, 137–38; racialization of, 134–36, 140; refugees, 127–29; and

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segregation, 136, 146–47; stereotypes of, 140; and sterilization, 147–48; and US citizenship, 116; wealth, 10. See also national origin groups Lawrence, Charles R., III, 15 Lee, Wen Ho, 141 Lemkin, Raphael, 53–54, 84, 174–75, 270n72 Lenape, 29 Liberia: TPS, 130 Libya, refugees from, 128 Litwack, Leon, 96 Locke, John, 31; Lockean “productive use,” 6, 32, 79–84 Loomba, Ania, 42–43 Los Angeles (CA): and gangs, 131; racial violence in, 151; and sterilization, 262n118 Louisiana, alien land laws, 146 Louisiana Purchase, 17, 116 Lowe, Kimberly, 139 Lowe, Lisa, 112, 152 Lumumba, Chokwe, 213 Lumumba, Chokwe Antar, 213–214 Lumumba, Patrice, 48, 188 Lyons, Oren, 37 Mahmud, Tayyab, 189 Major Crimes Act of 1885, 156 Malcolm X, 213–14; on integration, 164, 266n79, 267n83 Malcolm X Grassroots Movement, 213 Mamdani, Mahmood, 51 Mandans, 63 Mann, Barbara Alice, 38–39, 61, 204 Marshall, John, 32, 154, 156, 175, 184–85, 186 Marshall, Thurgood, 162 Marshall Islands, US colonization of, 118 Martin, Trayvon, 224n46 Maryland, and Haudenosaunee, 38 Massachusetts Colony, 61, 62, 210 McCarthy era, 206

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Means, Nataanii, 15 Means, Russell, 18, 66, 211 Memmi, Albert, 47, 202 Mexicans/Mexican Americans: 144, 205; bracero program, 121; citizenship (US), 121, 149; criminalized, 149–50; demographics, 254n54; debt peonage, 121; education, 255n81; healthcare, 255n81; land grants, 145–146; lynchings of, 151; mass deportations, 137, 148; migration to US, 125–126, 129, 149; “Operation Wetback,” 121; as perpetually foreign, 137; and poverty, 255n81; racialization of, 134–36, 138–39, 140, 260n84; segregation, 147; and sterilization, 148; as a “surplus” population, 137; and US labor needs, 80, 112, 118–19, 120–22, 126, 146, 149. See also Chicana/os; Latina/os Mexico: annexation of territory by US, 27, 35, 112, 116–18, 145–46, 199; border with US, 179, 180, 182, 207; Chiapas, 193; Chihuahua, 180; Cotton Field case, 180; independence from Spain, 117; Mexican-American War, 117, 134; Mexico City, 214; and scalp bounties, 62 Michigan, and Mexican labor, 120 Micronesia, Federated States of, US colonization, 118 Middle East/Middle Easterners: migrants from, 29; racialization of, 138–39, 150, 152; refugees from, 129; US wars in, 129 migrant Others, 7, 111–15; and assimilationism, 141–45; and citizenship, 116; conflation of, 138–39; and criminalization, 148–51; diversity of, 132; exploitation of, 79, 119, 122–23; and immigration restrictions, 122–35; labor of, 119–22, 125–26; and property ownership, 145–46; racialization of, 111, 134–41; as refugees, 127–30; roles in settler society, 133; as security threat,

149–51; and settler colonialism, 114– 15; stereotyping of, 141; as “surplus” populations, 123, 129; as voluntary migrants, 79 Mikell, Gwendolyn, 47 Miller, John, 134 Miller, Samuel, 98 Minneapolis (MN), American Indians in, 11 Minnesota, alien land laws, 146 Mississippi River, 68 Missouri, alien land laws, 146 Missouri River (Inyan Makangapi Wakpa), 75 Mody, Navroz, 152 Mohawk, John, 37, 204 Mohawks, 37 “Mongolian race,” 136, 150 Montana: alien land laws, 146; Northern Cheyennes in, 69 Montgomery (AL), civil rights march, 217 Morales, Daniel Ibsen, 115, 149–51 Morales, Iris, 19 Morris, Benny, 28 MOVE, 209 Movement for Black Lives (M4BL), 15–16; platform, 18 Muslims/Islam: and enslaved Africans, 138; immigrants, 12; refugees, 128; as “terrorists,” 138; travel ban, 2, 13, 14, 128 Mutua, Makau, 195 Myanmar (Burma), refugees from, 128 Myrdal, Gunnar, 229n57 Nakotas, 20 Narragansetts, 61 National Advisory Commission on Civil Disorders (Kerner Commission), 16–17 National Bureau of Economic Research, 11 National Housing Act of 1934, 101 National Jury Project, Standing Rock trials, 75

Index

nations/nationalism: Black people as “nation within a nation,” 85, 199; conflated with states, 228n19; defined, 43; internally colonized, 29, 197–200, 228n19, 233n17; in international law, 28, 196– 200. See also self-determination Native Alaskans: and health, 11; mortality rates, 64; post-traumatic stress disorder (PTSD), 11; poverty rates, 11 Native American. See American Indians; Indigenous peoples; specific nations Native American Graves Protection and Repatriation Act (NAGPRA), 59 Native Sons of the Golden West, 147 Naturalization Act of 1790, 115–16 Naval Academy, 26 Nebraska: alien land laws, 146; Camp Robinson, 69; violence against American Indians, 65 neocolonialism, 48; Nkrumah on, 188 neoliberalism, 109 neo-Nazis, 226n106 Nevada: transcontinental railroad, 120; US acquisition of, 117; and Western Shoshone, 178 New Afrikan People’s Organization, 213 New Deal: discrimination in programs, 100–101 New Jersey: racial violence in, 152 New Left: surveillance of, 226n106 New Mexico: alien land laws, 146; statehood delayed, 144; US acquisition of, 117 New York: and Chinese exclusion, 150; colony, 38, 61, 83; policing, 105–7, 162; incarceration rates, 107; and Filipina/ os, 122; and Mexicans, 137; New York City police killings, 13; and Puerto Ricans, 139; and sterilization of Latina/ os, 148 New Zealand: and Indigenous rights, 172, 269n59; as settler colonial state, 53, 221n10

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Ngai, Mae, 111, 112, 121–22, 138, 142 Nietschmann, Bernard, 43 Nigeria, and Ogoni people, 193 Nitz, Michael, 139 Nixon, Richard, 21, 129 Nkrumah, Kwame, 17, 48, 188–89 No Más Bebés (film), 262n118 North American Free Trade Agreement (NAFTA), 149 North Atlantic Treaty Organization (NATO), 181 North Carolina, slavery in, 87 North Dakota, 63; militarized response to water protectors, 76 Northern Marianas, 118; US colonization of, 198 Nunn, Kenneth, 21 Nuremberg trials, 70, 167 Obama, Barack, 1, 13, 21, 76, 130; administration of, 20, 22, 130, 150, 157 Occupy Movement, 13 Odyssey, 47 Ogletree, Charles, 101 Ohio: Mexican deportations, 137; smallpox epidemic, 238n47 oil pipelines: Dakota Access, 13–15, 67, 75–76, 207; Keystone, 207; protests of, 2, 24. See also Standing Rock Oklahoma: and American Indian imprisonment, 69–70; and Indian removals, 68; racial violence in, 101, 139 Okri, Ben, 25, 203 Olathe (KS): racial violence in, 139 Oliver-Velez, Denise, 19 Oneidas, 37 Onondagas, 37 Opechancanough, 61 Oregon: Territory, 62, 116; alien land laws, 146; prohibiting Black migration, 91; racial violence in, 151; and slavery, 91; voting restrictions, 91

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Organization of American States (OAS), 168, 178 Osages, 237n45 Osterhammel, Jürgen, 43–46 Otsuka, Julie, 133 Pacific Islands/Islanders, 112, 117; and decolonization, 183; demographics, 153; incarceration rates, 149; sweatshops, 119; US colonization of, 119; US “trusteeship,” 118 Palau: US colonization of, 118 Palestine, and self-determination, 274n52 Panama Canal, 117 Parenti, Christian, 21 Patterson, William, 175 Peace of Westphalia, 196 Pennsylvania: colony, 38, 61; and fugitive slaves, 246n100; scalp bounties, 62; sundown towns, 101 Penobscots, 29 Pequots, 61, 83, 210 Pérez, Emma, 204 Permanent Court of International Justice, on reparations, 176 Philadelphia (PA), 214; and MOVE, 209 Philippines/Filipina/os: citizenship, 122; conflation with other Asians, 139; criminalization of, 148–49; demographics in US, 119, 254n54; early presence in North America, 255n84; migration to US, 116, 119; nurses, 122, 126; racialization of, 135–36, 138; US colonization of, 35, 116–19, 134, 138, 156; and US labor needs, 118–19, 122; US war of “pacification,” 118, 134, 136, 138; violence against, 152 Pido, Antonio, 122 Pilgrims, 26 Pine Ridge Reservation (SD): anti-AIM violence, 66; election of Russell Means, 66; Wounded Knee siege, 18, 20; Yellow Thunder case, 65

plenary power, 77, 185; doctrine, 154–58, 264n24, 264n25 Plymouth Colony, 61 pluriverse, 40, 206, 214 police/policing: abuse of power, 12, 14, 23, 76, 162–63; attacks on, 210; BIA, 66; Canadian, 209; employment tests, 161; immunity of, 163; killings by, 13, 24, 77, 109, 169, 206, 242n157, 252n142; militarization of, 21–22, 76; as occupying army, 226n111; “order maintenance,” 105; protection by, 77; and racial discrimination, 14, 208; raids by, 137, 208–9, 213; resistance to brutality by, 18–19; in schools, 105; and state power, 69, 208; violence by, 16, 109, 212; “zerotolerance” policies, 105–6 postcolonial: Australia as (not), 235n91; societies, 53, 55; states, 48, 50, 189; United States as (not), 203, 216 postracial, 1, 13, 162, 203, 216; defined, 221n2 powell, john a., 105, 161 Powell, Lewis F., Jr., 159 Powhatan, 60 Prakash, Madhu Suri, 40, 195–96, 204, 206, 214 Pratt, Richard Henry, and boarding schools, 240n117 prisons/prisoners, 15, 108; American Indians as prisoners of war, 62, 69–70, 90, 239n94; convict leasing, 98; and drug charges, 21, 250n104; enslaved persons as, 90; immunity of guards, 163; and indentured servants, 119; juvenile, 72; labor of, 6, 208; prison-industrial complex, 109; political, 214; population, 11, 107; private, 108, 163; and religious freedom, 207; “school-to-prison pipeline,” 170; segregated, 98; visiting, 19, 212. See also incarceration progress: in American master narrative, 24, 26–28, 33, 36, 40; in civil rights,

Index

9, 34, 87, 221n1; in colonial narrative, 52, 134; as inevitable, 32; as requiring assimilation, 72; as Western construct, 50, 57 property: as colonial construct, 30; defined, 31; of American Indians, 77; land as 32; people as 31, 81, 86–87, 229n43. See also Whiteness Protocol Relating to the Status of Refugees (1967), 127–28 Puerto Rico/Puerto Ricans: conflation with other Latina/os, 139; criminalization of, 149; decolonization, 183, 198; demographics, 254n54; independence/ liberation movements, 17, 19, 41, 208; migration from, 119, 139; plenary power over, 156–57; and sterilization, 64, 147–48; US colonization of, 28, 35, 112, 117–19, 137, 156–57; Young Lords, 19 Puritans, 26 race/races: classifications of, 159, 160, 259n44; and colorblindness, 160, 162; and colonialism, 3, 28–29, 30, 44–45, 233n27; discourse on, 10, 23, 24, 40, 58; functions of, 30; as immutable, 144; in master narrative, 9, 26, 30, 33; and privilege, 6, 24; as “problem,” 71, 136; as proxy for power, 3, 30; as social construct, 4, 26, 28–29, 32, 44–45, 87, 113, 134, 152, 205, 260n83; as verb, 30, 133, 141. See also postracial; racialization; racism racial realism, 1, 9, 165, 201, 215 racialization, 1, 6, 7; of African Americans, 81, 85–88; 103–4, 114; of American Indians, 6, 30, 32, 36, 58–60, 71, 78, 114; of Asian Americans, 134–36, 138, 140, 144–45, 260n88; and assimilation, 71–72, 143–45; and colonialism, 2, 3, 5, 7, 30, 40, 44, 54, 87, 94, 113, 164, 184; defined, 26; functions of, 6, 9, 24, 70, 79, 134–41, 208; and gender, 136; of La-

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tina/os, 134–36, 138–39, 140, 260n84; of migrant Others, 7, 114, 119, 132–41; “one drop rule,” 29, 89; of property, 30–32, 104; as security threat, 149–50; and self-determination, 275n84; structural dynamics of, 53, 132 racism, 3–4, 10, 153, 209; as aberrational, 16; adaptability of, 9; analyses of, 55; anti-Indigenous, 76; and colonialism, 40, 45, 185, 214, 215; as “common sense,” 103; and desegregation, 160; environmental, 75; functions of, 7, 58, 140–41; and genocide, 175; as individualized, 14; institutional or structural, 1, 6, 8, 12, 20, 41, 54, 55, 103, 104, 110, 154, 160, 166, 170, 185, 207, 214; and international law, 170–71, 175; persistence of, 13, 53; racial inequalities, 10, 11, 15, 23, 158, 222n14; resistance to, 9, 17, 210; restrictive covenants, 261n107; “scientific,” 87, 103, 233n27; and settler colonial strategies, 207; state-enforced, 160. See also race/races; racialization Rapid City (SD), and American Indian poverty, 11 Ratner, Steven, 192–93 Reagan, Ronald: and Geneva Conventions, 183; “make America great again,” 26; and model minority myth, 140 Reconstruction, 20, 95–99, 109; Amendments, 158; “Second,” 101 Refugee Act of 1980, 128 Refugee Convention of 1951, 183; 1967 Protocol to, 183 refugees, 7, 127–30, 133; Central American, 112, 130–31, 139; Cuban, 127; and “ethnic transfers,” 239n86; European Jewish in WWII, 127; Hmong, 142–43; and immigration policy, 115, 127–28; and international law, 127–28, 170; nonrefoulement, 128; Southeast Asian, 127; Syrian, 130; US admissions of, 128; from wars, 112, 114, 128–30

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Republic of New Afrika (RNA), 208–9, 213–14 Rhodesia: as settler colonial state, 221n10 Richardson, Henry J., III, 192, 193, 197, 199 Roberts, Dorothy, 1, 24, 106 Roberts, John, 159, 163 Robeson, Paul, 175 Rolfe, John, 82 Rome, 28, 37, 150; emperor Charlemagne, 233n29; Roman law, 192–93 Roosevelt, Franklin, 137 Root, Elihu, 138 Rose, Deborah Bird, 51 Roy, William, 205 Royal Proclamation of 1763, 61 Russia: Chechens and Georgians, 193; “sale” of Alaska, 116 Sacred Stone camp, 75. See also Standing Rock Salish, 29 San Carlos Reservation, 69 San Francisco (CA): and Chinese immigrants, 120, 147 Sand Creek: massacre at, 62 Saramaka, 173 Saranillio, Dean, 198–99 Sartre, Jean-Paul, 53–54, 202 Savannah (GA): and Civil War, 96 Scalia, Antonin, 103 scalp bounties, 62–63 Schachter, Oscar, 169 science, marches for, 13 segregation. See apartheid; Jim Crow self-determination: and African Americans, 85; and decolonization, 17, 50, 183, 202; Indigenous peoples, 56, 60, 77, 172, 207, 216; in international law, 71, 167, 189, 190–94, 196–200, 211, 273n35; local initiatives, 4, 195–96, 208–9, 212–14, 279n85; and “peoples,” 71, 274n52; as a process, 196–97; and racialization, 275n84; right to, 8, 34, 54,

60, 155, 187; US movements for, 4, 9, 18–21, 56 Selma (AL), civil rights march, 217 Seminole, 68 Senecas, 37, 38, 61 Sessions, Jeff, 21–22, 210 settler colonial strategies, 2–8, 102, 115, 133–34; of conceptual disappearance, 70–74, 80–81, 88; of control, 58, 91–93, 95, 99, 105–6, 109–10, 207; of displacement and containment, 67–70, 97, 107– 9; of dispossession, 77; of elimination, 51, 54, 60–67, 77–78, 79, 106–7, 134, 153, 207; of manipulation, 134, 140, 152; of replacement, 51–52; of subjugation, 79, 80–81, 84, 88–93, 94, 99, 102–10, 115, 134; of subordination, 80–81, 111, 145– 153. See also Veracini, Lorenzo settler colonialism, 3, 6, 50–53; assumed sovereign prerogative, 54, 93, 111, 112, 114, 115, 137, 158, 163, 197, 206, 215–16; decolonization of, 54, 201–2; 211, 216, 276n9; distinguished from other forms of colonialism, 41–42, 45, 50–53; and international law, 189–90, 192–93, 197–200; and non-Indigenous people of color, 54–56, 58, 231n2; narratives of, 26, 30, 55, 201–2, 210; priorities of, 53, 78, 207; and self-supersession, 55, 71, 154; settler states, 42, 52, 58, 221n10; as structure, not event, 52; theory, 3, 6, 40, 42, 80, 215. See also colonialism; settler colonial strategies Shannon County (SD): American Indian poverty, 11 Sheridan, Philip, 69 Sherman, William Tecumseh, 96 Shoshones, Western, land claims, 177–79 Sierra Leone, TPS, 130 Simpson, Alan, 143 Singer, Joseph, 77 slaves (enslaved persons)/slavery, 30, 53, 81–84, 98; abolition of, 95, 99, 120;

Index

African/African American, 4, 79–84, 94, 95, 151, 199, 208, 243n29, 252n15; African slave trade, 82–84, 88, 113, 123, 243n12; American Indian, 80, 242n7, 242n8, 243n29; and Constitution, 80, 242n9; and cotton production, 92; and emancipation, 81, 91, 93, 95; and forced reproduction, 88–89; fugitive slave laws, 90, 247n100, 262n130; and international law, 182; Middle Passage, 84; in New England, 83; in New York, 83; and population control, 88–89; population in US, 89; as property, 86, 92, 245n65; and spatial containment, 89–91; in southern colonies, 83; as real property, 254n65; resistance, 84–85, 91–93, 246n114; vestiges of, 97, 102, 104; violence and terror as means of control, 91–92. See also Constitution (US) smallpox: vaccines, 237n45; decimation of Indigenous peoples, 63; infected blankets, 238n47 Smith, John, 38 Smith, Linda Tuhiwai, 203 Social Security Administration, 126 Socialist Workers Party: surveillance of, 226n106 Somalia, refugees from, 128 Sotomayor, Sonia, 159 South Africa: apartheid, 204, 239n90; as settler colonial state, 221n10; “truth and reconciliation,” 204 South Asians, 125–26, 152. See also Southeast Asian/Asians South Carolina: Black elected officials, 95; Catawba lands, 72; population in 1770, 83; slave code, 85–86 South Dakota, removals of American Indian children, 73 Southeast Asia/Asians: criminalization of, 149; demographics, 149; refugees from, 129; US wars in, 17, 112, 127, 129, 142

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Southern Poverty Law Center, 126; 226n106 sovereignty: citizenship as “demisovereignty,” 115; Indigenous, 3, 12, 15, 28, 39, 61, 77, 155, 158, 164, 173, 189, 199, 207, 209; “narrative sovereignty,” 205, 212; of newly independent states, 48, 189; non-exclusive, 205; as presumed settler prerogative, 6, 7, 27, 52, 54, 60, 63, 197–99; of states in international law, 43, 46, 182, 194, 196 Soviet Union, 211 Spain/Spanish: Basques and Catalans, 193; colonization, 82, 117, 205, 255n84; land grants, 145, 182; and Mexico, 117; and Northern Marianas, 118; and racialization, 136; Spanish-American War, 117–18, 156 Sri Lanka, and Tamils, 193 Standing Rock: environmental racism, 75; militarized response to pipeline resistance, 67, 76, 209; and Obama, 76; Sioux Reservation, 13; Sioux Tribe 14; water protectors, 13, 15–16, 18, 66, 75–76, 209 Stannard, David, 60 Stanton, Edwin, 96 states/statehood: conflated with nations, 228n19; defined, 43, 167; imposed on Indigenous peoples, 29; in international law, 28, 167–68; “nation-state,” 228n19; recognition of, 43; sovereignty, 168, 196; and territorial integrity, 167, 189–90, 192–93, 207; UN members, 167 sterilization: of African Americans, 64, 106–7, 147; of American Indians, 64– 65, 77, 106, 147, 238n61; as genocidal, 106; of Latina/os, 148, 262n118; of Mexicans and Mexican Americans, 148; as “Mississippi Appendectomy,” 106; of Puerto Ricans, 64, 147–48 St. Paul (MN), police killings, 13

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Student Nonviolent Coordinating Committee (SNCC), 17, 212 Sudan, refugees from, 128; TPS, 130 “sundown towns,” 101 Suriname, 173 Sykes, Bobbi, 235n91 Syria/Syrians: refugees from, 128, 130; and “travel ban,” 128; US war in, 112 Takaki, Ronald, 135 Taney, Roger, 31, 86–87 Taylor, Mike, 74 temporary protected status (TPS), 130–31 territorial integrity: as legal fiction, 192– 93; as a right of states, 43, 167; and settler states, 189, 190, 192; US claims to, 78 Texas: alien land laws, 146; racial violence in, 151, 152, 179–80; Republic of, 117; revenue from undocumented workers, 126; University of, 103; US annexation of, 117; Waco, 209 Thind, Bhagat Singh, 145 Thiong’o, Ngũgĩ wa, 47–48, 201 Thompson, Smith, 184 TigerSwan (mercenaries), 76 Tohono O’odham, 29, 207 Tolowa, 63 Trail of Broken Treaties, 18 Trask, Haunani-Kay, 55 Treaty of Guadalupe Hidalgo: and citizenship, 117, 260n84; and land grants, 145, 182 Trudell, John, 214 Trump, Donald 1, 21–23, 26, 33; administration of, 1, 13, 60, 128, 130; and American exceptionalism, 229n56; anti-Indian rhetoric and policies, 59–60; and immigration policy, 128, 130, 150, 153, 157, 159; and international law, 181; “make America great again,” 2, 26; protests against, 13, 23; supporters of, 103, 153; and structural racism,

12; and travel ban, 2, 13, 159; and white supremacy, 10 Tsosie, Rebecca, 39, 195 Tulsa (OK), racial violence in, 101 Ture, Kwame. See Stokely Carmichael Tuscarora, 37 United Nations (UN) 167–68; Committee on Decolonization, 172; and decolonization, 117, 172, 189; founding of, 167, 181; and genocide, 175, 182; and human rights treaties, 168, 183; and Indigenous peoples, 182; member states, 17, 167; plebiscite requested by BPP, 18; and self-determination, 18, 191; special rapporteur on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance, 170, 171; special rapporteur on extreme poverty and human rights, 10, 22; special rapporteur on indigenous peoples, 68; special rapporteurs and Standing Rock, 76; and US, 181; Working Group on Indigenous Populations, 172. See also specific UN organs and agencies UN Charter, 167, 168, 170, 172, 182–83, 187, 189, 191 UN Convention Relating to the Status of Refugees (1951), 127 UN Declaration on the Rights of Indigenous Peoples (UNDRIP), 172–73; 269n59, 273n39 UN General Assembly, 167, 172, 176, 182, 183; Basic Principles on remedies and reparations, 176–177; and decolonization, 187, 189, 191, 193, 194; Resolution 1514, 187, 191, 194; Resolution 1541, 187, 190, 193, 194 UN High Commissioner for Human Rights, 171 UN High Commissioner for Refugees (UNHCR), 130, 131 UN Human Rights Committee, 171

Index

UN Human Rights Council: and racism, 170; Universal Periodic Review, 168 UN Security Council, 194 United States (US): decolonization of, 114, 198–200, 202; demographics, 83, 89, 111–12, 114, 115, 125, 132, 142, 153; economy, 102; exports of, 92; as an external colonial power, 28, 42, 117–19, 155–58; global hegemony, 26, 33, 57, 114, 133; and industrial revolution, 26; and international law, 166, 170–72, 178–79, 181–85, 186; as “land of opportunity,” 79, 112; master narrative, 25–33, 57, 143; as a “nation of immigrants,” 1, 27, 56, 114; opposition to UNDRIP, 172–73; origin story, 25, 33; as “postracial,” 1, 216; and racial hierarchy, 1, 7, 10–12, 45, 50, 103, 133, 166; as settler colonial state, 2n*, 3–4, 28, 36, 41–42, 51–56, 111, 113, 154, 211, 221n10; territorial claims, 5, 7, 66, 67, 116–118, 177, 190; “values” of, 30, 36; wars and military interventions, 7, 13, 17, 35, 95, 127–31, 136, 142–43; as a White nation, 58, 115, 125, 148. See also specific governmental subdivisions and specific peoples US Army, 14, 66, 138–39, 237n37; Corps of Engineers, 67, 75; Union Army, 96 US Census Bureau, 10, 144 US Congress, 20; acquisition of Hawai‘i, 117; acquisition of Puerto Rico and Pacific Island colonies, 117–18, 134; African American representation in, 95; and American Indian lands, 66, 72; Black Identity Extremism (BIE) hearings, 210; and civil rights, 16, 23, 101; and citizenship, 72, 115–18; and debt peonage, 121; immigration restrictions, 123–25, 128, 142, 159; ICWA, 73; and international law, 184; and Japanese American internment, 147; and New Mexico statehood, 144; and peonage, 121; and plenary power, 155–58; during

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Reconstruction, 96; and slavery, 87, 88, 90 US Department of Agriculture, 100 US Department of Homeland Security (DHS), 278n61 US Department of the Interior (DOI), 14, 66, 156 US Department of Justice (DOJ): Bureau of Justice Statistics, 96; crimes in Indian country, 65; and Dakota Access pipeline, 14; and education, 12; and immigration policy, 12, 14; and police practices, 12, 14; and prosecutions, 22; and PTSD, 11. See also Federal Bureau of Investigation US Senate, oversight committee, 21; Select Committee to Study Governmental Operations with Respect to Intelligence Activities (Church Committee), 226n106; treaty ratification, 183 Universal Declaration of Human Rights (UDHR), 167, 168–69, 170, 175 Universal Declaration on the Rights of Peoples (Algiers Declaration), 193 urban rebellions: in 1960s, 16–17, 21, 103, 162 Utah: enslavement of American Indians, 242n7; transcontinental railroad, 120; US acquisition of, 117 uti possidetis, 189, 190, 192–193 Vachon, Robert, 195 vagrancy laws, 97 Vattel, Emmerich de, 184 Venne, Sharon, 37, 172 Veracini, Lorenzo, 44; on assimilation, 143; on classic colonial narratives, 47; on erasing Indigenous presence, 74, 154, 207, 276n5; on populations within settler society, 113, 235n73, 252n15; on settler colonial invisibility, 55, 79, 154, 276n5; on settler colonial “transfer” strategies, 58, 59 (“perception transfer”), 70–71

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Veracini, Lorenzo, (cont.) (“transfer by accounting”), 74 (“narrative transfer”), 84 (“transfer by coerced lifestyle change”), 142 (“conceptual displacement”), 239n86 (“ethnic transfers”) Veterans Administration, 101 Vietnam/Vietnamese Americans: anticolonial resistance, 17; demographics in US, 254n54; deportations of, 129; and KKK, 152; racialized in US, 139; refugees from, 127, 129; US war in, 55, 127, 129, 206 Virgin Islands (US), 157 Virginia: Charlottesville, 14; early colonization, 60–61, 81–82; convict leasing, 98; and Haudenosaunee, 38; population in 1770, 83; slave codes, 90, 92, 98 Virginia Company, 60–61 Vogel, Howard, 193, 275n75 Volpp, Leti, 138 Voting Rights Act of 1965, 16, 23 Waco (TX): Branch Davidians, 209 Wacquant, Loïc, 105 Warren, Earl, 147 “wars”: on crime, 21, 103; on drugs, 21,103, 105; on poverty, 17, 101, 103; on terror, 21, 209 Washington, George, 59, 61–62, 236n9 Washington (state): alien land laws, 146; attacks on Chinese and Asian Indians, 151–52 Washington, DC, 18, 23; police exams, 161; “Redskins” football team, 59 Watson, Irene, 52, 172, 205 Webb, Clive, 151 welfare programs, 12, 19, 21; cutbacks, 22, 23; expansion of, 34; and Hmong, 143; requiring sterilization, 107 Welke, Barbara, 100 Wells-Barnett, Ida B., 99 Westcott, James D., 135

Western civilization, 26; and domination of nature, 27; hierarchical ordering, 27; and human progress, 27, 57; as patriarchal, 27; portrayal of God, 27, 38; privileging of science, 27; as superior, 47, 210; United States as apex of, 27, 57; as universalizing paradigm, 206 Western Sahara: right to selfdetermination, 155, 273n31, 274n52 White, Byron, 157 White (identity)/Whiteness 1, 3; American/United States as, 21, 33, 58, 67, 115, 147–49; as basis for legal rights, 31, 87, 98, 136, 251n115; citizenship, 115–16, 137–38, 144; as civilized, 32, 86, 103; as construct, 29; defined, 1n*, 29, 87, 163, 222n10, 260n84; fears, 75, 213; education, 222n16; “hate groups,” 226n106; immigration, 123–25; inauthenticity, 241n134; incarceration, 107; income/wealth, 10, 102; innocence, 230n65; institutions, 17; and interest convergence, 185, 213–14; health, 64, 222n14; homeownership, 222n15; and police killings, 77; population, 115, 125, 132; and poverty, 10; privilege, 26, 94, 103, 160, 164; and/as property, 31, 32, 81, 89, 92, 160; and public benefits, 100–101, 103; and racial violence, 13–14, 62, 65, 90, 99, 109, 139, 151–52, 209; settlers as, 2n*; and segregation, 99–101, 104–5, 164, 267n83; support for Trump, 153; supremacy, 1, 2, 10, 12, 13, 25, 33, 81, 99, 100, 105, 209, 210, 226n106; 213; unemployment, 223n17; “white flight,” 101; women, 35, 106, 136; workers 5, 34, 95, 97, 102, 114, 120, 123, 133, 135, 231n2. See also Europe/European; settler colonialism Williams, Robert A., Jr., 39, 58, 190–91, 231n98

Index

Wilson, Woodrow, 100 Wind Cave (SD), 37 Wolf, Eric, 27–28 Wolfe, Patrick, 50–52, 68, 74, 76, 78; on decolonization, 190, 207; on settler colonialism as structure, 52, 53, 202; on surplus populations, 102, 106 Women’s March, 13 World Trade Center, 152 World War I, 97, 99, 118; and immigration, 97, 122, 124; postwar era, 99 World War II, 100, 101; and immigration and refugee policies, 124, 127; and international law, 167, 181, 187, 204; Japanese American internment, 5, 137, 146, 159; and labor, 121; and Pacific islands, 117–19; postwar era, 9, 95, 101, 119, 124

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Wounded Knee: 1890 massacre, 62, 237n37; 239n93; 1973 siege, 18, 20, 65–67 Wyoming: racial violence in, 151; US acquisition of, 117 xenophobia, 124, 141, 145, 153; and international law, 170–172 Yahi, 63 Yana, 63 “yellow peril,” 135, 141 Yellow Thunder, Raymond, 65 Yemen, refugees from, 128 Young Lords, 19 Yuki, 63 Zimmerman, George, 224n46

About the Author

Natsu Taylor Saito is a Distinguished University Professor and Professor of Law at Georgia State University in Atlanta. She is the author of Meeting the Enemy: American Exceptionalism and International Law (2010), From Chinese Exclusion to Guantánamo Bay: Plenary Power and the Prerogative State (2006), and numerous law review articles.

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