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

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СКАЧАТЬ gap between reality and ideology is bridged by racialization. The settlers were unwilling, of course, to concede that enslaved persons were entitled to own the lands they were rendering productive.39 Instead, the colonial narrative transformed the workers themselves into “a highly volatile and unstable form of property,” property that could be bought or sold; raped, tortured, or abused at will; pledged as collateral; deeded and inherited.40 As Chief Justice Roger Taney explained in the 1856 Dred Scott case, when the Constitution was adopted, “negroes” were considered “an ordinary article of merchandise,” adding that this “opinion was at that time fixed and universal in the civilized portion of the white race.”41 As this illustrates, not only did the opinions of those deemed White provide the foundation for legal decision making, but White people who were unwilling to view Black people as property could be disregarded as insufficiently “civilized.”

      If property is understood as something to which a person may have legal entitlement,42 then some people may be designated as property and others as owners only if we posit a distinction between them that transcends personhood. That distinction, in our history, has been Whiteness. It is not simply that some humans, or their labor, were commodified. Rather, according to Taney, all those of the “African race,” whether enslaved or not, were “regarded as beings of an inferior order . . . so far inferior, that they had no rights which the white man was bound to respect.”43 Only those identified as White were legally recognized as full persons and, as law professor Cheryl Harris has brilliantly explained, this identification—their personhood, in the form of Whiteness—itself became a form of property.44

      The fact that racialization once allowed human beings to be defined as alienable property in the United States is commonly acknowledged, a dimension of the master narrative that most often falls under the heading of “look how far we’ve come,” thereby reinforcing its presumption of continuous and inevitable progress. We generally fail to recognize, however, that “real” property—land capable of being bought and sold—is a construct equally dependent upon racialization. The US assertion of ownership of the continent rests on a legal theory that vested land rights in the “first possessor,” defined possession in Lockean terms of “productive use,” and then recognized only Euroderivative colonial activity as “productive.”45 In other words, the earth was transformed into property when lived on by some people but not others.

      In Johnson v. McIntosh, the Supreme Court’s 1823 opinion that still undergirds the United States’ territorial claims, Chief Justice John Marshall held that only the settler state (not the Indians) could hold title to the land.46 After noting that the doctrine of discovery gave the European colonial power making first contact the right to assert title vis-à-vis other European powers, Marshall then inverted the doctrine—which was, in essence, a non-compete agreement between European states—to hold that because American Indian nations could not “dispose of the soil at their own will, to whomsoever they pleased,” they could not have owned it.47

      At its most basic level, Marshall’s argument was an assertion of settler prerogative rather than an appeal to legality or justice. The United States’ power to grant title to lands “has been exercised uniformly over territory in possession of the Indians,” he noted, and “must negative the existence of any right which may conflict with” it.48 Why? Because “conquest gives a title which the Courts of the conqueror cannot deny.”49 The chief justice candidly added that these “principles” may “find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.”50 Thus, an exercise of raw power became a foundational principle of American law based on the racialization of American Indians. As explained by Justice William Johnson, concurring in Cherokee Nation v. Georgia, American Indians were simply “wandering hordes, held together only by ties of blood and habit, and having neither laws or government, beyond what is required in a savage state.”51

      Depicting American Indians as savages or animals with no natural right to own land allowed the settlers—racialized as White, Christian, and civilized—to assert an exclusive right to hold title to land.52 This conceptualization did not, of course, mean that the Indigenous peoples of North America would simply cede their territories to the colonizers, but it did lay the ideological foundation for the settlers’ forcible “clearing” of the lands they claimed by any and all means available to them, and for reconciling their seemingly contradictory claims that the lands they occupied were both “vacant” and legitimately obtained by conquest.53 The racist stereotypes embedded within the settler narrative were as essential to the Angloamerican transformation of land into property as they were to the construction of enslaved persons as property.54

      The American origin story thus justifies the occupation of the continent (and beyond), the appropriation of its resources, and the exploitation of its peoples by inventing “races,” attributing particular characteristics to these classifications, and constructing property as a racially contingent social good. While many of its specifics are now contested, the dominant narrative’s triumphalist framing of American history in terms of “progress”—the constant expansion of its claimed territory, its scientific and technological prowess, its economic and military might—continues unabated. President Trump was channeling this narrative as he ended his “taming of the continent” speech by saying, “America is the greatest fighting force for peace, justice and freedom in the history of the world. . . . We are not going to apologize for America. We are going to stand up for America.”55

      This is a story of origins and identity comforting to those who benefit—or believe, or want to believe, that they benefit—from the status quo. Its core message is that the United States represents the most advanced and democratic form of sociopolitical organization available, so those fortunate enough to be identified as Americans should be grateful. Moreover, we are assured, the United States has deployed and will continue to deploy its unparalleled military, political, and economic power for the greater good of all humanity.56 Across the political spectrum, the presumption is that contemporary social problems result from a failure to adequately implement the founders’ vision of American society; rarely are the problems understood to be a necessary consequence of that vision. Those who wish to “make America great again” are invoking the trope of America-as-pinnacle-of-human-progress in the past tense, warning that White supremacy is under attack and calling for restorative action. Liberal critics of the status quo generally perceive political exclusion, racialized injustices, and social inequities as aberrational and diminishing, and rely on America’s uniquely egalitarian values to ensure their disappearance.57

      There is no room in the master’s narrative for the voices of those who have been disappeared, literally or figuratively, from the story, for the stories of the enslaved or indentured, or those who live with the constant fear of violent attacks, incarceration, or deportation. That means that within the dominant narrative there are no effective paths to freedom for those deemed Other. Moreover, just as men can be oppressed by gender discrimination, those who are at least nominally of the White settler class and, therefore, privileged may also be limited by the constraints of settler hegemony. The conflation of “American” with “White” in both law and popular culture has obscured the histories of varied European immigrant populations and the pressures they have felt to conform to a homogenizing norm, relinquishing their own stories as well as their cultures, languages, and other aspects of a distinct ethnicity.58 The racial privilege built into the dominant narrative masks the exploitation of White workers and leaves those who do not “succeed” in accordance with the expectations it creates to blame themselves or, as we have seen repeatedly, people of color for their failures.59

      This book does not attempt to address the impact of settler colonialism on the settlers themselves. Nonetheless, as we consider alternative narratives, it seems worth noting that the dominant narrative not only conceals the realities of those deemed Other, but also limits and controls those who identify as White. Speaking as a beneficiary of “the privilege of Western patriarchy,” American studies professor Eric Cheyfitz describes this as being “locked away in our comfort.” “We cannot afford to enter most of the social spaces of the world,” he says, СКАЧАТЬ