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

languages, and taught that all things Indian were unworthy.118 Subjected to harsh corporal punishment, sexual predation, involuntary labor, malnutrition, and communicable diseases, during some periods up to half the children died.119 For these reasons, Indian “education” could quite appropriately be considered one of the strategies of indirect killing discussed earlier. Predictably, most of the survivors of these institutions suffered—and continue to suffer, as do their children and grandchildren—the effects of sustained traumatic abuse.120

      A related strategy for assimilating Indigenous peoples out of existence has been the widespread termination of parental rights and the “out-adoption” of American Indian children. Facilitated by an Indian Adoption Program organized by the Child Welfare League of America in cooperation with the BIA, by the early 1970s perhaps one-third of all American Indian children were in adoptive homes, foster care, or institutions, and 90 percent of the placements were in non-Indian homes.121 Just as the stated objective of the boarding schools had been to “kill the Indian, save the man” in each child, the adoption program was explicitly intended to preclude these children from knowing their cultures, thereby eviscerating the ability of their nations to survive.122 As such, these policies were explicitly genocidal, designed—in the words of the Genocide Convention—“to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” by “forcibly transferring children of the group to another group.”123

      Eventually congressional hearings “documented the existence of a crisis in the Indian family of sufficient proportion to threaten tribal survival,” in the words of law professor Barbara Atwood,124 and resulted in passage of the 1978 Indian Child Welfare Act (ICWA). Nonetheless, these practices continue. In March 2015, for example, a federal judge found South Dakota officials still removing hundreds of Indian children from their homes every year, after hearings that routinely took just a few minutes.125 Native families were not allowed to present testimony and often did not know why their children were taken. Eighty percent of these children were being placed in White foster homes, illustrating the assimilationist presumptions that underlie assessments of children’s “best interests.”126

      Ultimately, of course, assimilation is futile because its success is “never dependent on indigenous performance” but instead requires absorption by settler society.127 Such absorption does not happen, except in isolated instances, because the maintenance of settler privilege requires unassimilable difference. In the meantime, however, assimilationist ideology “allows indigenous people to be envisaged as only temporarily excluded” and supports settler claims to be “ultimately representing all residents.”128 Simultaneously, it paves the way for vilifying and criminalizing those Indigenous peoples who are either structurally prevented from assimilating or do not wish to do so.

      The assimilationist model allows the dysfunction found in all impoverished, colonized, and traumatized communities to be, in this case, attributed to Indians being “drunk,” “lazy,” “violent,” or “incompetent.” It justifies high rates of incarceration and the continued removal of Indian children from their communities.129 In turn, such vilification and criminalization are “crucial to the disavowal of the inherently political character of indigenous demands.”130 In sum, within the dominant narrative, American Indians may be assimilated out of existence and, therefore, have no legitimate claims against the settler state, or they may be insufficiently assimilated (“civilized”) to have such claims.

      Indians as Anachronism

      The final strategy of conceptual disappearance considered here is the consignment of Indigenous peoples to a different time rather than space; a construction so pervasive that even today American Indians are almost always discussed by non-Indigenous people in the past tense. As part of the past, they cannot exist in the present; in Wolfe’s words, the “primary effect” of defining “authentic” indigeneity “as a frozen precontact essence . . . is to provide a formula for disqualification.”131 This can be seen in the common social practice of presuming that someone is or is not “really” Indian based on stereotypes about what Indians should look like, or how they should act.132

      To the extent Indigenous realities reflect such imagery, the settler narrative deems them to be vestiges of a prior era that, for better or worse, is now irrelevant. When Indigenous people do not conform to the stereotypes, they are ignored as not-really-Indian. This construction of the-Indian-as-anachronism (a practice Veracini terms “narrative transfer”) serves to render Indigenous peoples—and their claims—invisible in contemporary settler society. They may exist as individuals, but their “Indian-ness” is not allowed to intrude into the present.

      In one contemporary example, Mike Taylor, an American Indian blogger, explained that he had taken down his Facebook page after discovering that his White “friends” overwhelmingly believed that he “lived in the past” and needed to “get over” it, apparently because about 15 percent of his posts addressed Indigenous issues.133 Noting that virtually all of these posts discussed current tribal issues or upcoming events, Taylor concluded that the real problem was that these contemporary reminders of “our very existence” constituted “an unpleasant reminder . . . that Turtle Island is not their land.”134 In other words, just as the settlers in the Southeast found the Cherokees too civilized and, therefore, likely to be permanent, the dominant narrative resists the injection of Indian-ness into the present not because Indigenous people are living in the past, but because they should be. This framing serves to alleviate settler guilt, for if real Indians exist(ed) only in the past, nothing needs to be done in the present. More insidiously, it facilitates the repression of resistance, for, as Veracini observes, when Indigenous peoples’ “defeat is irretrievably located in the past, their activism in the present is [rendered] illegitimate.”135

      Looking Ahead

      Between April 2016 and February 2017, some ten thousand water protectors gathered in prayer camps just north of the Standing Rock Reservation in North Dakota to contest construction of the Dakota Access oil pipeline.136 The pipeline, which now threatens the water supply of the Standing Rock and Cheyenne River Reservations, was initially slated to run slightly north of Bismarck, a city that is over 90 percent White, but the Army Corps of Engineers rejected this route because it would endanger the municipal water supply of a “high consequence area.”137 In an act described by the Reverend Jesse Jackson as “the ripest case of environmental racism I’ve seen in a long time,”138 the pipeline was rerouted through unceded lands in the Great Sioux Nation, as recognized by the 1851 and 1868 Fort Laramie treaties.139

      The resistance camps were located where the pipeline would ultimately cross the Missouri, known as Inyan Makangapi Wakpa, the River That Makes Sacred Stones, because of whirlpools that created large sandstone spheres.140 Pointing out the historical significance of that land as well as the burial grounds and other sacred sites located along the river, LaDonna Bravebull Allard, who established the Sacred Stone camp in April 2016, explained:

      This river holds the story of my entire life. . . . The US government is wiping out our most important cultural and spiritual areas. And as it erases our footprint from the world, it erases us as a people. These sites must be protected, or our world will end, it is that simple. . . . If we allow an oil company to dig through and destroy our histories, our ancestors, our hearts and souls as a people is that not genocide? . . . We are the river, and the river is us. We have no choice but to stand up.141

      The local settler population had a very different perspective, of course, and their hostility toward the water protectors, and to American Indians generally, was palpable. In the surrounding, overwhelmingly White counties, residents received “reverse 911” calls to warn them about areas that were “unsafe” because prayer circles or demonstrations were occurring, and local businesses were encouraged to deny service to persons supporting the occupation.142 Prior to the trials of arrested water protectors, a National Jury Project survey found that well over three-quarters of the juror-eligible population was already convinced of the defendants’ guilt.143 The local White residents’ reactions reflected a deep-seated fear that the legitimacy of their presence on Indigenous lands was being questioned. “I’m the son of farmers, and we worked hard for everything