Settler Colonialism, Structural Racism, and the Law

Natsu Taylor Saito in conversation with Ntina Tzouvala on the recently-published Settler Colonialism, Race, and the Law: Why Structural Racism Persists (NYU Press, 2020).

TWAILR: Dialogues #8/2021

Ntina: Your book’s central claim is that it is impossible to understand racism in the US outside the settler-colonial framework. Can you explain to our readers your thinking on this? 

Natsu: The dominant (neo)liberal narrative presumes the legitimacy of states as currently constructed, adopts formal equality as its stated objective, and presumes that representative government and democratic institutions will ensure the ‘level playing field’ needed to eliminate status- or identity-based disparities. However, it has been more than 150 years since the Reconstruction Amendments to the US Constitution abolished slavery and guaranteed due process, equal protection under the law, and voting rights. It has been more than 60 years since the – purportedly successful – civil rights movement sought to realize these rights. And yet racial disparities and violence against people of color persist and, in some cases, are increasing.  

As of 2018, over 25 per cent of American Indian and 20 per cent of African American families live in poverty.  Black-White disparities in income and wealth are as great now as they were in the 1960s. We’ve always been told that education will help, but the wealth gaps increase for those with college education and advanced degrees. Even with recent declines in incarceration rates, people of color in the US are still imprisoned at up to 7 times the rate of White people. Longstanding disparities in health and access to healthcare are starkly evident in the current pandemic. Black Americans are twice as likely to contract COVID-19 than their White counterparts, and coronavirus mortality rates for American Indians in their 20s and 30s are more than ten times that of young White people. We could go on indefinitely, but the point is that, despite the hopes and assurances of mainstream America, things really are not getting better, regardless of changes in law or leadership.   

To change something that is so deeply rooted, we have to understand why it persists; what functions it has served and continues to serve. Those inquiries led me to conclude that racism cannot be eliminated as long as societal wealth and privilege continue to be based on the illegal occupation of the land and appropriation of its resources, and the exploitation of labor; processes fueled by the racialization of Indigenous peoples, those of African descent, and other people of color. 

It’s hard to absorb this reality. The strategies we have employed to realize racial justice in the United States for the past century and a half simply have not worked. Yet we still proceed as if our social, economic, and political institutions are fundamentally sound, presuming that racialized hierarchies of privilege and power are mere vestiges of a troubled past and that racism will be rooted out as we move, collectively, to a more ‘enlightened’ understanding of our common humanity. We continue to assert this – despite all evidence to the contrary – because, I believe, we can’t see any other way past the depressing realities that surround us. 

To change something that is so deeply rooted, we have to understand why it persists; what functions it has served and continues to serve. Those inquiries led me to conclude that racism cannot be eliminated as long as societal wealth and privilege continue to be based on the illegal occupation of the land and appropriation of its resources, and the exploitation of labor; processes fueled by the racialization of Indigenous peoples, those of African descent, and other people of color. ‘Race’ was constructed and racism invoked to facilitate the Anglo-American settler project -the construction and perpetuation of a state that the colonizers control, fully, on other peoples’ lands. Proclaiming a colorblind Constitution has not removed the incentives foundational to its establishment and maintenance. 

The settlers still feel the need to maintain an illegal occupation, to exploit labor in order to profit from the land, to be able to readily dispose of those who are no longer seen as contributing to the colonial venture, and to depict racialized others as ‘enemies’ in the process of consolidating a ‘national’ identity. The late Derrick Bell argued that only by embracing racial realism will we be able to overcome the all-too-familiar cycle of hard-won victories, consistently followed by the retrenchment of White supremacy. Attempting to be realistic, in this sense, has convinced me that we can’t rectify racialized injustice without acknowledging that we operate within a colonial framework that depends upon the construction and perpetuation of a racialized dynamic of difference, to use Antony Anghie’s term.  

Ntina: One of the book’s most admirable features is your detailed discussion of the role of law in racialising different groups in different ways depending on the changing needs of the settler capitalist economy. Can you guide us through your argument? 

Natsu: If racialized privilege and subordination have been designed to facilitate the colonial project, there’s some basic information we need before we can develop strategies of decolonization. Why did the ‘founding fathers’ believe it necessary to kill as many Indigenous people as possible, and force the rest from their lands? What motivated the enslavement of millions of Africans, as well as American Indians? Why have Latin American and Asian peoples been encouraged to migrate and then summarily excluded or deported? How do these motivations persist in contemporary institutional structures?

In addressing these issues, I find it helpful to think in terms of both the origins and the structural drivers of racial oppression. ‘Race’, as the term is commonly used in the United States, is an entirely illogical construct. Historically, racial classifications have been defined by state laws that change over time in response to political pressure. Generally, ‘White’ has evolved to refer to persons of exclusively European ancestry and ‘Black’ to encompass those with any discernible African ancestry, with everyone else defined by an ever-shifting array of social and political dynamics. Depending on the context, ‘Indians’ have been subjected to more than eighty federal definitions, many of which ultimately rely on the fantastical notion of ‘blood quantum’. Over time, some stigmatized groups have become White, whereas it is clear that others never will.

All of this only makes sense if we think about the purposes of racialization. john powell rather famously noted that ‘race’ is best understood as a verb rather than a noun. From that perspective, it becomes clear that people have been ‘raced’ in order to facilitate the settler colonial project, and that racism has been mobilized to excuse the attendant horrors. Those purposes aren’t obvious within the framework of formal equality and colorblind justice, but they jump out if we think of the United States’ history as a settler state.

Put most simply, Anglo-American colonists ‘needed’ land, which meant eliminating its Indigenous owners. Having occupied Native lands, they ‘needed’ labor to make the land profitable. Profit being the primary goal, labor that was as close to free as possible was optimal. Later, settler priorities shifted somewhat. As the settlers struggled with having to incorporate formerly enslaved workers into the polity, a labor force that could be summoned or disposed of at will became increasingly attractive. Racialization is what allowed the colonizers to create the social institutions that enabled these goals, and we continue to live with those structures and the worldview underlying them. They’re not a thing of the past. 

Turning to structural drivers, it’s pretty easy to see that racialization permeates the foundations of this society; not only our social institutions and interactions, but the very land on which we live. Cheryl Harris’ groundbreaking assessment of Whiteness as property helped clarify that property consists not necessarily of ‘things’ but of rights. It also lets us see that the concept of ‘property’ itself relies upon Whiteness. Thus, for example, Chief Justice John Marshall made it clear in Johnson v McIntosh (1823), that American Indians did not actually ‘own’ the land they lived on, but simply occupied it. In other words, it wasn’t actually property – that which can be owned and alienated – until White people claimed it.

How was this justified? Marshall acknowledged frankly that ‘Conquest gives a title which the Courts of the conqueror cannot deny’. This explicit reliance on force rather than law might be excused, he says, by ‘the character and habits of the people whose rights have been wrested from them’. Which character and habits? Already using the past tense, Marshall asserted that the ‘Indians inhabiting this country were fierce savages, whose occupation was war’; ‘to leave them in possession of their country, was to leave the country a wilderness’. Thus, the settlers’ claims to North American lands were based entirely on racial denigration.  

Similarly, ‘wealth’ in this society cannot be disentangled from its roots in enslavement – itself a system of racialized property rights – and, concomitantly, colonialism. The international slave trade was one of both ‘classic’ colonialism and settler colonialism’s most profitable enterprises. Slavery was a driver of European colonial expansion and necessary to the settler colonial project. This is reflected in the 1696 Preamble to South Carolina’s slave code, which acknowledged straightforwardly that the colony couldn’t survive without ‘the labor and service of negros and other slaves’ (the latter being Native people) and went on to explain that special laws were necessary because these enslaved people were of such ‘barbarous, wild, savage natures’ as to be ‘wholly unqualified to be governed by the laws, customs, and practices’ of the colonizers. Racialization was thus necessary to maintain the distinctions on which slavery rested;  distinctions that ended up being built into the very foundations of this country.

And then we have peoples of color who have been seen as sources of at-least-somewhat-voluntary labor; labor that is, preferably, both readily accessible and disposable. And the ‘acquisition’ of territories that are not incorporated into the United States proper but held as external colonies to be exploited as US leaders see fit. It’s no accident that migrant workers, colonial possessions, and American Indian nations have all been consigned to a realm of law dominated by the plenary power doctrine, which grants absolute power to Congress and the executive branch of government. But we have nothing to fear, the Supreme Court assures us, because ‘[t]here are certain principles of natural justice inherent in the Anglo-Saxon character, which need no expression in constitutions or statutes to give them effect or to secure dependencies against legislation manifestly hostile to their real interests’.

Ntina: Your book is in conversation with a long, but nowadays largely forgotten, radical tradition that thought of racial oppression in the US in terms of colonialism; this included groups beyond Native Americans. What is it that you find politically and jurisprudentially attractive in this conceptualisation? 

Natsu: When I started writing this book many years ago, I was trying to figure out what it would take for disheartened young people to feel some of the energy and hope, the joy in struggle, that we felt in the ’60s and early ’70s. I realized that, in those days, a lot of our excitement came from the fact that the world around us was changing so dramatically. We were surrounded by wars for independence – successful ones – and movements for decolonization across Africa and Asia. Anything seemed possible. Here in the US, the American Indian Movement, the Chicano Brown Berets, the Puerto Rican Independentistas, the Black Panther Party, and other organizations characterized themselves as national liberation movements. More generally, many of us saw ourselves as internally colonized peoples participating in broader global struggles for freedom. That framing resonated deeply with me and was tremendously energizing.

Once I started thinking about racial injustice through the lens of settler colonial theory, however, a lot of things fell into place. It let me see that we are, in fact, still colonized, and this provided not only analytical insights but also the energy that comes from seeing that decolonization is possible. That’s what I hope to share with this book.  

Thinking back on that period led me to ask why so many non-Indigenous people of color stopped talking about being internally colonized. Was our analysis wrong? Was it crushed, politically, along with so many of our movements? Political repression did focus intently on organizations whose analyses addressed contemporary colonization, but I don’t think that was the whole story. In addition, I believe, our understanding of internal colonization was limited by the fact that we were relying on parallels between what was happening in the United States and the conditions of peoples under ‘classic’ colonial rule. Some thinkers of that period were very clear that we were dealing with settler colonial relations – Stokely Carmichael and Jay Sakai, for example – but most of us were operating within a framework that only provided analogies rather than concrete roadmaps. And that’s why, I think, we largely stopped talking about being colonized. Once I started thinking about racial injustice through the lens of settler colonial theory, however, a lot of things fell into place. It let me see that we are, in fact, still colonized, and this provided not only analytical insights but also the energy that comes from seeing that decolonization is possible. That’s what I hope to share with this book.  

Ntina: Another position you share from radical movements from the 1970s is your scepticism toward the ability of US law (including constitutional adjudication) to deliver justice for racialised people in the US. Instead, you are much more optimistic about the emancipatory potential of international law, especially human rights. Do you want to explain to us the differences you see between the two? 

Natsu: International law is created by and for state actors. As such, it is not likely to prioritize justice for those who are subordinated within states. Nonetheless, for a variety of historical reasons, the world’s most powerful states have wanted to be perceived not only as legitimate but also as leaders in a global movement to enhance human wellbeing. In addition, the dynamics of the Cold War and the emergence of newly independent states have contributed to an evolving body of human rights law that addresses racial discrimination more thoroughly than does US law.    

In the United States, all of the promised legal avenues to racial justice have been systematically blocked. The Reconstruction era amendments and the legislation attempting to implement them were eviscerated by the Supreme Court, leading Justice Powell to observe in Bakke that the Constitution’s guarantee of equal protection was ‘[v]irtually strangled in infancy by post-civil-war judicial reactionism’. The strict scrutiny test was articulated in Korematsu, which upheld the mass internment of Japanese Americans, and has rarely been applied to benefit people of color since then. The decision in Brown v Board of Education, often hailed as of the civil rights movement’s greatest victories, was largely based on the assimilationist presumption that segregated schools had a ‘detrimental effect’ on children of color – but not on White children. More generally, racial discrimination, to be actionable in the context of US constitutional law, almost inevitably requires evidence of discriminatory intent. It is not an accident that this society remains mired in the racial disparities referenced earlier.

International human rights law provides more substantive protections against racialized subordination than are available under US law. Most significant to me are its recognition that human dignity is foundational to all rights; its broader definition of what constitutes racial discrimination; the fact that disparate effect, rather than discriminatory intent, is the harm addressed; its acknowledgment of the unique status of Indigenous peoples; and its relatively expansive understanding of what constitutes genocide. Equally important is the scope of remedial relief. The contrast with domestic law is reflected in the UN’s Basic Principles on the Right to a Remedy for the most serious violations of human rights and humanitarian law. These (i) emphasize the state’s duty to investigate and prosecute such violations, (ii) define both the harms and the “victims” more broadly than we do in domestic law, and (iii) mandate equal and effective access to justice; adequate, effective, and prompt reparation; and access to relevant information concerning both the violations and the available avenues of reparation.  

As is true in other dimensions of international law, human rights law has a broad conception of remedial relief. When a violation of law has been established, reparation of the resulting harm requires restitution – ie, an attempt to restore the status quo ante – where possible. This is followed, depending on the circumstances, by compensation, rehabilitation, satisfaction, and guarantees of non-repetition. The perspective of those harmed is centered, and the perpetrator doesn’t get to determine the remedy. The state – where it acknowledges a violation of law – doesn’t get to simply announce ‘shut up and go away now, we’ve put X dollars in your bank account’ as, for example, the United States has done in countless land claims brought by American Indians.  

Finally, and perhaps most significantly, the stated goal of domestic law is equal protection, period. By contrast, international law recognizes that while equality is a prerequisite, the most fundamental right is that of self-determination. At best, equality without self-determination ensures equal opportunity within someone else’s system. In a settler state, that translates to a ‘fair share’ of stolen land and resources, or wealth generated by the exploitation of unfree labor. And when that becomes our goal, whether or not it is reached, we are legitimizing colonial rule. ‘Equality’ within settler society is inevitably assimilationist. To the extent absorption into colonial society is possible, it is always conditioned on giving up our identities. The late Stokely Carmichael (Kwame Ture) noted that the exploited and the colonized are both are oppressed and, therefore, their material conditions may look quite similar. But, in addition, he emphasized, colonized peoples’ ‘culture, their values, their language, their entire way of life are stripped from them and they are forced to identify with the oppressor’. And, as international law recognizes, this is genocidal. As Raphael Lemkin, the jurist who coined the term observed, ‘genocide has two phases: one, destruction of the national pattern of the oppressed group; the other, the imposition of the national pattern of the oppressor’.  

Beyond non-discrimination, international law recognizes that ‘all peoples have the right to self-determination’ and that, ‘by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’. As Rob Williams summarizes, this encompasses ‘the idea that human beings, individually and as groups, should be in control of their own destiny, and that systems of government should be devised accordingly’. We know that the world’s most powerful states have tightly constricted the interpretation and implementation of the right to self-determination. This is not a right that will be ‘granted’ us by the international legal system. However, its articulation in law, and its recognition as an ever-evolving right and reality, is empowering to those who struggle, every day, to protect their communities, and to determine, for themselves, the conditions under which they live and the ways in which they are governed. This is something that domestic US law cannot do.  

Ntina: In your earlier writings you have adopted an ambivalent position about international law. For example, your (amazing!) Villanova Law Review piece on the Seminole wars also discusses the role of international law in devaluing racialised people and their lives-be it in the form of slavery or through denying them life-saving medication because of patents. Has your thinking changed about international law since?  

Natsu: In the more than two decades since that piece was written my understanding of international law has certainly been enriched by the work of many amazing scholars, but my attitude hasn’t changed in any fundamental way. I don’t think of it as ambivalence but, rather, as appreciating that international law can serve useful purposes despite remaining tightly controlled by those who wield state power. We have to begin by acknowledging that the international legal system was created to make the world safe for European colonialism and imperial expansion, and it functions now to maintain a statist status quo shaped by that history of colonialism. Speaking on a UCLA Promise Institute panel on reconceptualizing international law, Professor Sundhya Pahuja emphasized the need to move away from thinking about how we can fix our problems by making international law a little better, or more effectively enforced, to understanding how the legal system creates the relations, the problems at issue. Being realistic about the actual functions of international law and envisioning true alternatives – as you and many TWAIL scholars have been doing – is absolutely critical.

That said, I think we also have to recognize that international law does provide certain protections and recognize certain fundamental rights that are critical to our survival. As a result, it can empower human rights defenders at the grassroots level by confirming that law, in some form, acknowledges the legitimacy of their efforts to protect their communities. Thus, for example, international law mandates decolonization, even if it interprets the mandate narrowly, and it recognizes that the right to self-determination is foundational to all other acknowledged human rights – civil and political as well as economic, social, and cultural. It affirms that peoples and nations arise out of common histories, beliefs, and actions; they need not be essentialized but may be actively constructed. With respect to decolonizing settler states, I am encouraged by ICJ vice president Fouad Ammoun’s observation in the Namibia case that ‘sovereignty, which is inherent in every people, just as liberty is inherent in every human being, did not cease to belong to the people’ as a result of prolonged colonization. None of this means that we will be able to liberate ourselves by invoking or relying on international law. For that, we will have to have to step out of the box and envision very different ways of organizing our communities, our nations, our inter-national relations.  

Realizing these visions will be a slow process. By definition, meaningful change won’t be mandated from above but will have to come from the ground up. In the meantime, we have to do what we can to ensure the survival and the well-being of all. Speaking in the context of domestic law, law professor Mari Matsuda said, ‘There are times to stand outside the courtroom door and say “this procedure is a farce, the legal system is corrupt, justice will never prevail in this land as long as privilege rules in the courtroom”. There are times to stand inside the courtroom and say “this is a nations of laws, laws recognizing fundamental values of rights, quality and personhood”‘. And sometimes, she continues, ‘there is a need to make both speeches in one day’.  This applies quite aptly, I believe, to international law as well.