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      Library of Congress Cataloging-in-Publication Data

      Names: Saito, Natsu Taylor, author.

      Title: Settler colonialism, race, and the law : why structural racism persists / Natsu Taylor Saito.

      Description: New York : New York University Press, [2020] | Includes bibliographical references and index.

      Identifiers: LCCN 2019008926| ISBN 9780814723944 (cl.; acid-free paper) | ISBN 0814723942 (cl.; acid-free paper)

      Subjects: LCSH: Race discrimination—Law and legislation—United States—History. | Minorities—Legal status, laws, etc.—United States—History. | Racism—United States—History. | United States—Race relations—History. | United States—Colonization—History. | Indigenous peoples—Legal status, laws, etc.—United States—History. | Decolonization—United States—History. | United States—Territorial expansion.

      Classification: LCC KF4755 .S25 2020 | DDC 305.800973—dc23

      LC record available at https://lccn.loc.gov/2019008926

      New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability. We strive to use environmentally responsible suppliers and materials to the greatest extent possible in publishing our books.

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      For Ward

      Contents

      Introduction

      1. Racial Realities

      2. Unsettling Narratives

      3. Settler Colonialism

      4. Land and Indigenous Peoples

      5. Enslaved Labor and Strategies of Subjugation

      6. “Emancipated” African Americans: Rights and Redundancy

      7. Others of Color: Inclusions and Exclusions

      8. Others of Color: Subordination and Manipulation

      9. Constitutional Protection and the Dynamic of Difference

      10. International Law and Human Rights

      11. Decolonization and Self-Determination

      12. Mapping New Worlds

      Conclusion: We Won When We Started

      Acknowledgments

      Notes

      Works Cited

      List of Cases

      Index

      About the Author

      Introduction

      How do we rectify a system that so brilliantly serves its intended purpose?

      —Dorothy E. Roberts

      Racialization has always been essential to the establishment and maintenance of structures of power and privilege in the United States. Racial realism, as the late Derrick A. Bell Jr. termed it, forces us to acknowledge that communities of color in the United States remain economically, politically, and socially subordinated, long after the formal abolition of American apartheid.1 An honest assessment of these realities makes it clear that neither the Constitution’s guarantee of equal protection nor the “nation of immigrants” mantra can effectively dislodge structural racism. Yet we continue to return to the courts, the legislatures, and “our” political leaders in these terms, seeming, collectively, at a loss for meaningful alternatives.

      The 2008 election of Barack Obama, the country’s first Black president, generated a wide range of public reaction.1 It gave those contesting racialized subordination renewed hope for meaningful structural change. Those generally content with the status quo hailed it as evidence that the United States was already a “postracial” society.2 And for those clinging to the perceived benefits of White supremacy, it signaled the crumbling of their world. The visuals shifted during the Obama era, but ultimately very little changed with respect to racial disparities in the distribution of power and wealth.

      Since the beginning of 2017, President Donald Trump’s administration has illustrated how quickly and easily the perceived gains of subordinated groups can be reversed by executive action. Within just a few weeks of taking office he expedited approval of oil pipelines contested by Indigenous peoples, intensified immigration enforcement and approved a travel ban targeting persons from predominantly Muslim countries, undercut enforcement of healthcare legislation, and appointed an attorney general who—despite the mass incarceration crisis—ordered federal prosecutors to seek the toughest charges and harshest sentences possible, even for persons accused of nonviolent drug offenses.3 Of equal significance, Trump’s call to “make America great again,” with

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