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

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      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, and the neoliberals seem to have abandoned their claims to have brought us to the “end of history.”40 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.

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