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

independent news services, transportation for prison visits, support for workers’ struggles, and patrols to protect community residents against police brutality.91 Young Lords leaders Iris Morales and Denise Oliver-Velez reflect, “We woke up each day to serve the people . . . and at night we dreamed about the new society that we would create, convinced that the richest country on the globe had sufficient resources to make a better world.”92

      These groups represent only a handful of the hundreds of organizations that emerged in the United States during the 1960s and early 1970s, but they are still considered iconic, perhaps because of their ability to galvanize the popular imagination. Providing a liberatory vision of what could be, each had a network of chapters dedicated to empowering people within their own communities as they struggled to survive on a daily basis. Simultaneously, these local formations participated in regional, national, and international coalitions that transcended the boundaries of race or ethnicity. Their analyses situated their communities’ problems and potential solutions within the global context of anti-colonial movements and evolving interpretations of collective rights under international law, particularly the right to self-determination. But the fact remains that, despite their commitment, these movements were not able to implement most of their goals, or to sustain the institutions they created. If contemporary struggles are to be more effective, there is much we need to learn from both the successes and failures of these movements.

      Retrenchment and Repression

      What happened to the energy and vision of the organizations and social movements struggling so hard for structural transformation during the “long sixties”? More than half a century later, how is it that overt acts of racialized violence still dominate the headlines,93 Americans have elected a president endorsed by the Ku Klux Klan,94 and structural racism remains largely undisturbed?95 These developments are not simply a reaction to the Obama years; instead, they reflect the retrenchment that followed the civil rights era much as, in the wake of the Civil War, the gains of Reconstruction were quickly eviscerated. By 1991, the late author and activist Maya Angelou was lamenting, “In these bloody days and frightful nights when an urban warrior can find no face more despicable than his own, no ammunition more deadly than self-hate and no target more deserving of his true aim than his brother, we must wonder how we came so late and lonely to this place.”96 The despair she described continues to permeate many communities and, because we cannot afford to keep “circling the same old rock,” as Nakota legal scholar and theologian Vine Deloria Jr. put it,97 we must confront this question head-on.

      Direct governmental repression is, no doubt, part of how we came to this place, a phenomenon that has not abated over the past several decades, regardless of who is president or which political party controls Congress.98 All of the movements of the 1960s were subjected to intensive surveillance, infiltration, and the use of disinformation to create splits within organizations and to discredit them in the public eye, most famously through the COINTELPRO (counterintelligence program) operations of the FBI.99 Organizations perceived as the most “radical” faced barrages of criminal prosecutions that relied on false testimony and fabricated evidence to incarcerate their leadership and to divert their resources into protracted legal defense efforts.100 When these tactics failed to meet their stated goal of “neutralizing” threats to the status quo, leaders such as Fred Hampton and Mark Clark of the Illinois Black Panthers were simply assassinated.101 In other cases, as in the 1973 siege of American Indian Movement activists and supporters at Wounded Knee, armed force was intensively deployed and military counterinsurgency methods subsequently used to undermine support for AIM on the Pine Ridge Reservation.102

      Under these conditions it is not surprising that many of those who once identified as “warriors” would come to consider defending their communities and creating alternative institutions to be, at best, an exercise in futility. No one was held responsible for the violations of constitutional rights attending COINTELPRO or similar governmental operations, despite their being condemned as illegal and unconstitutional by a Senate oversight committee. Instead, many victims of these operations remain incarcerated today.103 For the most part, organizations that advocated self-determination for people of color under US jurisdiction have been erased from mainstream history or are portrayed as “gangs” of criminals and thugs.104 Numerous COINTELPRO tactics have since been legalized in the “war on terror”105 and advocates of “separatism” are now classified as extremists and potential terrorists not only by the FBI but also by liberal organizations such as the Southern Poverty Law Center.106

      The evolution of broader governmental policies and programs also helps explain what has been described as political apathy. Responding to the mass movements that swept the country in the 1960s, the urban rebellions, and the recommendations of governmental commissions, the federal government instituted a wide range of programs intended to improve employment, education, the welfare system, and housing in poor communities.107 Despite evidence that these programs had positive effects and that criminal activity was not increasing, President Richard Nixon shifted his focus to an ever-intensifying “war on crime” soon after his 1968 election.108 As Christian Parenti summarizes, “Crime meant urban, urban meant Black, and the war on crime meant a bulwark built against the increasingly political and vocal racial ‘other’ by the predominantly white state.”109

      By the early 1970s, the war on crime had morphed into a “war on drugs,” whose disproportionate effect on Black communities is well documented and succinctly summarized in the fact that, by 1999, African Americans comprised about 13 percent of the US population and its drug users, but 74 percent of those imprisoned for drug offenses.110 The drug war was accompanied by a rise in the militarization of police forces throughout the country, altering their character, in Kenneth Nunn’s terms, “from law enforcement agencies to military occupation forces.”111 All of these dynamics have intensified in the “war on terror” generally associated with the attacks of September 11, 2001, but more accurately traced, at least domestically, to draconian legislation passed in the 1990s during the administration of President Bill Clinton.112 Counterterrorism provides the backdrop for the “Countering Violent Extremism” or CVE policing programs initiated in predominantly Muslim communities by President Obama, and for the current targeting of “Black Identity Extremists” by the FBI.113

      Trump’s first attorney general, Jeff Sessions, was an Alabama senator who had been nominated but not confirmed as a federal judge in the 1980s, apparently because of racist statements he had made.114 Evincing a complete disregard for the crisis of mass incarceration, Sessions instructed federal prosecutors to “charge and pursue the most serious, readily provable offense,” describing this as a “core principle” of DOJ policy.115 Trump has reversed the promises of the post-Ferguson Obama administration to demilitarize local policing, with the result that “police departments will now have access to military surplus equipment typically used in warfare, including grenade launchers, armored vehicles and bayonets.”116

      Thus, over the past half century, crime, drugs, and terrorism have been invoked consistently to dramatically expand governmental power, militarize policing, eviscerate constitutional rights, and significantly curtail the rights of immigrants. In the meantime, people of color have been particularly hard-hit by the deindustrialization of the American economy and by the attendant shift from relatively stable manufacturing jobs to low-wage, part-time service sector employment.117 Welfare “reform” has virtually eliminated any safety net, with the result that—to give just one example—in 2011, six million Americans had no income besides food stamps.118 While these rollbacks have had a disproportionate impact on people of color, Peter Edelman observes that they were instituted with little explicit discussion of such effects because “welfare,” like “crime,” “had become a code word for race.”119

      Predictably, more and more people are consumed by the struggle to ensure food, shelter, healthcare, and schooling for their families. Trump’s priorities are reflected in his budget proposals, which have urged cutbacks in healthcare, education, housing, labor, and environmental protections, while proposing expanded funding for law enforcement and the military.120 As summarized by the UN special rapporteur in late 2017, the welfare cuts will “shred crucial dimensions of a safety net that is already full of holes” and “the proposed tax reform package stakes out America’s bid to become the most unequal society in the