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

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. 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

      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

      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