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

. . . 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 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 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 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