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

Since the dawn of the twenty-first century, millions of Americans have taken to the streets, advocating for social justice. Hundreds of thousands joined the anti-war protests that swept the globe in 2003, as the United States prepared to invade Iraq.41 In the spring of 2006, some five million people participated in the immigrant rights marches taking place in hundreds of US cities.42 Inspired by the Arab Spring of 2011, the Occupy Movement motivated tens of thousands of (mostly) young people to contest economic inequality.43

      Despite widespread insistence that the United States was a “postracial” society during the presidency of Barack Obama, protests over the killing of Black men by the police dramatically shifted popular discourse about the persistence of racism. In 2014 Michael Brown, an unarmed eighteen-year-old Black man, was shot by a White police officer in Ferguson, Missouri, and left to die in the street, just a few blocks from his home.44 Although such killings are not uncommon, Brown’s death and the state’s failure to indict the officer sparked weeks of large demonstrations and increasingly militarized governmental responses.45 Under the banner of “Black Lives Matter,” grassroots protests swept the country, “propelled by high-profile deaths of unarmed African-Americans at the hands of police in Cleveland, New York and Baltimore” and a consistent failure to hold these officers accountable.46 In 2015 and 2016, tens of thousands of protesters again took to the streets in the wake of the police killings of Black men in Baltimore, Baton Rouge, and St. Paul, and national demonstrations continue as men, women, and children of color are killed by law enforcement officials.47

      Simultaneously, in late 2016 over ten thousand people—including three thousand veterans—travelled across the country to join the water protectors encamped on or near the Standing Rock Sioux Reservation in North Dakota, determined to prevent the completion of a 1,200-mile oil pipeline that endangers Indigenous lands and sacred sites and threatens significant ecological damage.48 Those joining the camps—Indigenous people from hundreds of nations throughout the Americas, environmentalists, and activists from a diverse range of groups, including the Black Lives Matter movement—were supported by demonstrations in scores of cities across the United States.49

      In 2017 and 2018 Americans took their political opinions to the streets in numbers we had not seen since the 1960s. President Trump’s inauguration was met by a massive Women’s March50 and “J20” protest,51 shortly followed by mobilizations across the country contesting his anti-Muslim travel ban and intensified immigration restrictions, raids, and deportations.52 In 2018, tens of thousands protested the Trump administration’s policy of separating migrant families at the US border.53 We saw marches for “science” advocating evidence-based governmental policies, and the contestation of Confederate monuments in many locations.54 While White supremacists were also emboldened, they were less inclined to take to the streets, perhaps because after their “Unite the Right” rally in Charlottesville, Virginia—where a counterprotester was killed—they found themselves substantially outnumbered.55

      The willingness of so many individuals to engage in public protest—largely, although not exclusively, to support the rights and well-being of marginalized people—has had tangible effects. Many of the president’s immigration proposals were delayed if not derailed. Several iterations of the Muslim ban were rejected, attempts to rescind the Deferred Action for Childhood Arrivals (DACA) program were enjoined, and the DOJ had to reverse course on its policy of separating migrant children from their parents.56 While these were minimal gains, one expects that in the absence of highly visible protests and constant scrutiny, considerably less humane immigration practices and policies would have long since been implemented.

      Although the Ferguson grand jury failed to indict the officer who shot Michael Brown,57 the Justice Department was compelled to document the routine violations of the Constitution and federal law by the Ferguson police, illustrating how the city’s “law enforcement practices are shaped by [its] focus on revenue rather than public safety needs” and confirming that “African Americans experience disparate impact in nearly every aspect of Ferguson’s law enforcement system.”58 In the wake of widespread protests over Freddie Gray’s killing by the Baltimore police in 2015, the DOJ issued another scathing report acknowledging pervasive racial discrimination in police practices that routinely involved unconstitutional stops, searches, arrest, and wanton use of unreasonable force.59 Such reports do not, of course, resolve the abuses of state power at issue, but they identify structural mechanisms that perpetuate racial injustice and create opportunities for us to move beyond the dominant narrative’s insistence that racism is an individualized rather than systemic phenomenon.

      In 2016, concerted resistance to the Dakota Access pipeline resulted in executive intervention that, in essence, overruled a federal court’s decision to allow construction to continue while the Standing Rock Sioux Tribe’s claims were being litigated.60 Going further, the DOJ, the Army, and the Interior Department jointly acknowledged “the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects” and proposed formal consultations on the adequacy of the existing statutory framework for “the protection of tribal lands, resources, and treaty rights.”61 The federal government is never going to dismantle the colonial paradigm upon which the state relies for its existence as well as its wealth and power, but the resistance of Indigenous peoples and their allies forced it to acknowledge the extent to which colonial power undergirds the status quo.

      In these actions we have seen a willingness to directly confront state and corporate power and a refusal to accommodate policies and practices that relentlessly destroy lives and communities, sacred sites, traditional lands, and natural resources. The movements being led by Indigenous and African American youth, in particular, are rooted in and carry forward long traditions of resistance to invasion, occupation, enslavement, apartheid, and racial subjugation in US history, and they reflect a commitment to profound structural change.

      Thus, the pipeline protests have not only been about stopping environmentally and culturally devastating construction projects. They are very concrete expressions of a fundamental responsibility to protect the land and the life it supports, unconstrained by colonial law or power. According to Nataanii Means, a young Indigenous leader, “We are making this stand for water. For your future’s right to clean water, for our futures’ right, for all the winged, four-legged, water beings, things that crawl and cannot speak for themselves’ right to clean water.”62 The water protectors have been clear that they are contesting not simply a pipeline but also any further incursions into Indigenous sovereignty. As Oglala Lakota elder Regina Brave stated at the Standing Rock occupation, “If you want to protest here, you must incorporate [this] belief: We are Nations. We are enacting our sovereign right to say what happens to our children, our water and our land.”63

      Similarly, “young Black activists are showing us once again what it means to step into history as subjects, not objects . . . challenging a system not attuned to their needs, or the needs of their communities,” according to professors Bernardine Dohrn and Bill Ayers.64 Legal scholar Charles R. Lawrence III observes that “Black Lives Matter articulates the everyday violence visited on black communities by the savage inequalities of segregated schools, by unemployment, and an ever-increasing wealth gap, by our disproportionate numbers in prisons and our declining numbers in universities and the professions.”65 In August 2016, after a year of consultation among more than sixty organizations, the Movement for Black Lives (M4BL) presented a comprehensive policy paper identifying six demands, or goals, supplemented by forty specific proposals and thirty-four policy briefs. As summarized by history professor Robin D. G. Kelley, it is a platform “aimed at ending all forms of violence and injustice endured by black people; redirecting resources from prisons and the military to education, health, and safety; creating a just, democratically controlled economy; and securing black political power within a genuinely inclusive democracy.”66

      While the water protectors at Standing Rock and the M4BL activists articulate goals that differ in many significant respects, both have moved beyond protesting governmental policies and practices to envisioning and strategizing the restructuring of social relations in very fundamental ways. Rather than accepting that power rests with the state and its agencies, these activists are recognizing and reclaiming the power that rests with the people. In this respect, much of what is being said and done is reminiscent of