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

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, 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 disease-related 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 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 one-third 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 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 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