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

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СКАЧАТЬ time.15 As Israeli historian Benny Morris put it, “Even the great American democracy could not have been created without the annihilation of the Indians. There are cases in which the overall, final good justifies harsh and cruel acts in the course of history.”16

      A Story of Race and Gender

      The master narrative is also a story of race and gender, despite the fact that its protagonists are almost exclusively men of European ancestry. This is because the colonists assumed that mutually exclusive classifications of race and gender simply existed or could be constructed, that these classifications were or could be ordered hierarchically, and that imposing the resulting relations of domination and subordination upon the peoples they encountered was essential to their “civilizing mission.” Indigeneity is erased by pretending that the land was vacant when the settlers arrived—thereby facilitating their pretense to be “native” to it—and by overwriting extant forms of self-identification with colonial constructs of gender, race, and citizenship. To the extent Indigenous peoples are acknowledged—usually as part of the settlers’ depiction of their valorous conquests—they are characterized not as independent sovereigns but as a “savage race.”

      Globally, with the expansion of European colonial rule over the past five centuries, several thousand nations have been arbitrarily (and generally involuntarily) incorporated into the approximately two hundred political constructs we call independent states.17 States are generally understood to have relatively well-defined boundaries and populations under the jurisdiction—that is, effective control—of a centralized government.18 “Nations,” as I am using the term, refers to those who identify “as ‘one people’ on the basis of common ancestry, history, society, institutions, ideology, language, territory, and, often religion,” as well as to “the geographically bounded territory” of such a people.19 The United States, of course, is an internationally recognized state that exercises jurisdiction over the lands and peoples of perhaps five hundred Indigenous nations, over those who migrated to this land involuntarily as well as voluntarily, and over externally colonized territories such as Puerto Rico.

      The imposition of state formations upon Indigenous peoples represents a transformative moment in the relationship between gender, identity, and power. The “civilized” European state is unremittingly patriarchal; the worldview it embodies insists not only on gendered identities that are binary and mutually exclusive but also hierarchically ordered, with presumptively heterosexual males always dominant. By contrast, many of the nations being subsumed by these states have had—and often still have—a much more fluid understanding of gender and gendered relations designed to promote balance rather than domination and subordination.20

      Most North American Indigenous societies are matrilineal, and women hold considerable decision-making authority, often being responsible for the use of land, the distribution of goods, the maintenance of stable social relations, and the appointment of political leaders.21 But the issue is not one of women being “equal” or having more “rights” in Indigenous societies; rather, it is that gendered balances are an integral aspect of the cosmos itself.22 The subordination of complex, multilayered, and organic understandings of gender identities and relations constitutes part of the collateral damage of the colonial encounter. In their place, the master narrative imposes exclusionary, binary, and biologically assigned gendered identities as well as patrilineal and patriarchal forms of social organization, and then frames “women’s rights” solely as a matter of achieving formal equality with men. I cannot do the subject justice here, but must note that I believe decolonization to be as essential to gendered freedom as it is to overcoming racial subordination.

      Like gender, race is presented by the master narrative as a preexisting reality rather than a colonial construct. In fact, we know that Indigenous peoples in what is now the United States have consistently identified themselves not as “a race” but in relation to their clans and nations—from the Penobscot and Lenape of the northeast coast to the O’odham of the southwest borderlands, to the Salish peoples of the Pacific Northwest. We know, too, that the Europeans arriving in North America did not initially see themselves as White but as, perhaps, English, French, Dutch, or German; that Africans did not come as Black but as Hausa or Mandingo, Yoruba, Ibo, Ashanti, or any of the other nations swept up into the colonial slave trade.23 The same holds true, of course, for most migrants from Asia, the Americas, and the Middle East.

      “Race” is a social and legal construct, not a biological reality.24 There is more genetic variation within “racial” groups than between them;25 beyond that, common sense tells us that there is no inherent logic in, or biological rationale for, a system that limits Whiteness to those of exclusively European ancestry, defines persons with but “one drop” of African ancestry as Black, and refuses to recognize persons indigenous to these lands as “Indian” simply because their ancestors’ names were not inscribed on lists created by White colonizers.26

      Nonetheless, we live in a society in which “race mediates every aspect of our lives,”27 and “has consistently functioned as a proxy for power.”28 Race is an integral part of our personal identity, and a primary determinant of our educational and economic prospects, our access to healthcare or housing, the infrastructure and social resources in our neighborhoods, and the nature of our interactions with law enforcement and the judicial system. We inhabit, in other words, what Eduardo Bonilla-Silva terms a racialized social system.29 Racialization as we know it is a product of colonial expansion, on this continent and globally.30 While racism and colonialism are distinct phenomena, they are genealogically inseparable. As a result, the ways in which “race” has been constructed, and the presumptions of racial hierarchy that flow from that construction, have always been at the core of the American settler colonial narrative.

      The legitimacy of the United States rests on the purported supremacy of its “values,” which are said to include liberty, democracy, and equality—or, at least, equal opportunity. To reconcile the discrepancy between these claimed values and actual social conditions, the dominant narrative must consistently resort to racialization. Thus, for example, the Supreme Court could not declare the United States a “government of laws”31 and simultaneously declare American Indians incapable of owning land without identifying Indigenous peoples not only as a distinct race, but one characterized by savagery and lawlessness.32 Similarly, chattel slavery could not exist in a society in which all persons—or at least men—were deemed equal, unless some people were racially identified—“raced”—as less-than-human.33 Thus, even as race has been erased from the story of America, it permeates the narrative at every turn.

      A Story of Property

      Finally, it is important to note that the master narrative is a story of property. From the arrival of the first British colonizers, European understandings of property and property rights have been superimposed upon this land and its residents, with the result that racialized and gendered34 constructions of property are deeply, inextricably embedded in the prevailing paradigm. Like race and gender, the existence of property—that which can be owned and alienated—is simply asserted. There may be questions about whose property it is, but the construct itself is rarely questioned and, for the most part, ownership is envisioned in terms of exclusive rights rather than collective responsibilities.

      The early Angloamerican settlers considered “canonical” John Locke’s contention that, under natural law, the transformative power of human labor allowed commonly held natural resources to be converted into private property.35 From this perspective, settler appropriation of Indigenous lands and resources contributed to the betterment of humanity as a whole for, as Locke put it, “he who appropriates land to himself by his labour, does not lessen but increase the common stock of mankind.”36 This “productive use” justification for appropriating American Indian territory is belied by the colonizers’ knowledge of the extensive agricultural cultivation of American Indian communities,37 as well as the fact that, until the mid-1860s, much of the country’s productive activity was not carried out СКАЧАТЬ