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

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 experiences 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 oppressed 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 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