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

that bring about fundamental, structural change or will they, too, soon “slide into irrelevance”?

      According to Bell, only by acknowledging the persistence and adaptability of racism—an approach he termed racial realism—will we be able envision strategies capable of bringing about meaningful structural change and perhaps even liberation.3 This book is about imagining and implementing such strategies. As a precursor to doing so, I believe we need to acknowledge that, despite the elimination of legally mandated apartheid, racial disparities have not changed significantly over the past fifty years. At the same time, we will need to recapture the energy of movements with liberatory visions, mindful of the ways in which struggles for racial justice have been both repressed and diverted throughout US history. These themes are explored in this chapter, which lays the groundwork for reframing the narrative of race in America—the specific histories and lived realities of communities of color—to incorporate the functions served by racialization.

      Persistent Disparities

      Moving toward strategies with liberatory potential requires us to acknowledge our current racial realities. In my experience it is rare to have a public discussion about race in which someone doesn’t say, “But don’t you think things are getting better?” Thanks to the displays of White supremacist sentiment attending Donald Trump’s campaign and presidency, the question gets asked less often these days. Nonetheless, there is a deep-seated presumption that despite occasional setbacks, the United States is moving, inexorably, toward racial equality.4 This makes it difficult for many Americans to acknowledge the racial disparities that persist in all indices of social well-being, much less to recognize these as the result of well-entrenched structural dynamics.5

      Social and economic relations have changed over the past half century, but the statistics tell us that overall, in both absolute and relative terms, things have not “gotten better” for people of color in the United States. Since the 1970s, community-based programs focusing on health, education, and economic self-sufficiency have been replaced by increasingly restrictive governmental programs whose funding tends to shrink with each budget cycle.6 In what is still one of the richest countries in the world,7 the United Nations special rapporteur on extreme poverty and human rights found in 2017 that forty million Americans (almost 13 percent of the population) lived in poverty, and almost half of them reported family incomes of less than one-half the poverty threshold.8 The gap between rich and poor is widening, and by a number of measures, race-based inequities are also increasing.9

      Despite laws prohibiting racial discrimination and a growing number of elected officials of color—even a Black president—nothing approaching socioeconomic parity has been achieved. More than one-quarter of all Black, Latina/o, and American Indian or Alaska Native residents continue to live below the poverty line, compared to about one-tenth of White residents.10 In 2010 the Census Bureau estimated the median household income of Black heads-of-household to be less than 60 percent of their White counterparts, a percentage that had not changed significantly since 1972.11 Moreover, a majority of African Americans born to middle-income families in the late 1960s have been “downwardly mobile” since the civil rights era.12 Disparities in wealth—as distinct from income—are even more glaring. According to the Pew Research Center, the median wealth of White households in 2013 was thirteen times that of Black households and ten times that of Hispanic households.13 Similar disparities are reflected in healthcare,14 housing,15 education,16 and employment.17

      In all communities of color, the effects of poverty and unemployment are reflected in and compounded by rapidly rising and disparate rates of arrest and incarceration. Since 1972, the American prison population has grown sixfold to over 2.2 million people, giving the United States the dubious distinction of having the world’s largest prison population and highest rate of incarceration.18 In addition, more than twice that many people are on probation or parole.19 Over 60 percent of the US prison population is now comprised of racial or ethnic minorities; almost 40 percent is African American.20 Communities of color have diminished political power due to the disenfranchisement of those with felony convictions and, more fundamentally, they are being stripped of some of their most vital human and economic resources.21 The National Bureau of Economic Research noted in a 2014 study that rising incarceration and unemployment rates “have left most black men in a position relative to white men that is really no better than the position they occupied only a few years after the Civil Rights Act of [1964].”22

      Not surprisingly, settler colonial occupation impacts Indigenous communities with particular intensity. About one-third of those identifying only as American Indian or Native Alaskan live on reservation or “tribal” lands, where poverty rates average 36 percent.23 At the end of the 1990s, “the average on-reservation [American] Indian citizen still had per capita income of less than $8,000, compared to more than $21,500 for the average US resident,” making American Indians “the economically poorest identifiable group in America.”24 There is no evidence that economic conditions have improved since then. Shannon County, South Dakota, is 93 percent American Indian, and between 2009 and 2013, over half its population lived below the poverty line.25 At least fifteen federally recognized tribes have unemployment rates above 80 percent,26 and even in urban areas such as Rapid City, South Dakota, and Minneapolis, Minnesota, about 50 percent of American Indians live in poverty.27

      In concrete terms, this means that Indigenous peoples in the United States continue to live with hunger and preventable illness, in overcrowded and substandard housing, with life expectancies decades shorter than the national average.28 These harsh realities are compounded by a systemic disregard for criminal assaults on Indigenous people and the transgenerational trauma resulting from the federally imposed boarding school system,29 leaving the most vulnerable members of the community chronically exposed to violence. According to a 2014 study commissioned by the US Department of Justice (DOJ), American Indian and Alaska Native children experience post-traumatic stress disorder (PTSD) “at the same rate as veterans returning from Iraq and Afghanistan and triple the rate of the general population.”30 Not coincidentally, the suicide rate among Indigenous youth in the United States is more than three times the national average; in some communities it is almost twenty times as high.31

      All of these disparities are likely to intensify, for this is an era in which those who profit from poverty and disenfranchisement—as well as those who overtly advocate White supremacy—have been empowered. It is quite clear that President Trump will never acknowledge the harm done to people of color by structural racism.32 Indigenous sovereignty is under direct attack by a man whose business interests have long clashed with Native gaming rights.33 His administration is revoking fair pay and workplace safety requirements; rolling back regulation of the financial services industry; reducing funding for healthcare, education, and basic social welfare; and promoting policies that will result in higher incarceration rates for people of color.34 The Justice Department has prioritized harsh sentencing and dramatically expanded immigration detention as well as deportation.35 Black and Central American immigrants are particularly harshly affected by intensified immigration policies.36 Islamophobia is on the rise as Muslims are targeted by programs purporting to counter “violent extremism” and, more generally, activists of color are being depicted by federal law enforcement agencies as “identity extremist” threats to the national security.37

      Simultaneously, it is becoming more difficult to address the racially disparate impacts of such policies directly. The Justice Department is not enforcing consent decrees arising from egregious abuses of police powers, and is calling for an end to affirmation action in education.38 Ethnic studies programs and other sources of information about the histories of communities of color are being eliminated, making it more difficult to understand that many social measures now described as “welfare” or “racial preferences” were instituted to redress long histories of institutionalized racial exclusion.39 Poverty, crime, healthcare, education, and migration are portrayed as unrelated phenomena, and scrubbed of their racialized dimensions. As a result, the structural dynamics of systemic disparities are rarely acknowledged, much less addressed by those with access to institutional resources.

      Activism Rekindled

      The good news is that we see renewed political engagement across a wide spectrum of the population,