Settler Colonialism, Race, and the Law. Natsu Taylor Saito

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 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.

      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 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