Settler Colonialism, Race, and the Law. Natsu Taylor Saito
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colonized territories. “The process of ‘forming a community’ in the new land necessarily meant unforming or re-forming the communities that existed there already, and involved a wide range of practices including trade, plunder, negotiation, warfare, genocide, enslavement and rebellions.”9 This dimension is incorporated into professor Jürgen Osterhammel’s theoretical overview of colonialism, which defines colonization as “a process of territorial acquisition,” a colony as “a particular type of sociopolitical organization,” and colonialism as “a system of domination.”10 Colonialism, Osterhammel notes, is a relationship “in which an entire society is robbed of its historical line of development, externally manipulated and transformed according to the needs and interests of the colonial rulers.”11 Or, as Stokely Carmichael put it, “Colonization is not just the economic raping of someone” but the “destroying [of] the person’s culture, his language, his history, his identification, his total humanity.”12 This is why colonization is inherently genocidal, for genocide, by definition, involves the intended destruction, “in whole or in part, [of] a national, ethnical, racial or religious group, as such.”13
The exploitation of land, labor, and natural resources by people or entities not indigenous to the territory is a common feature of all forms of colonialism, as is the imposition of economic, political, and social institutions intended to facilitate such exploitation. As a general rule, the European colonial domination of the past several centuries was exercised by states over lands and peoples not recognized by the colonial powers as sovereign.14 State sovereignty is a peculiarly circular construct, dependent on the recognition of one state by other states, and a commitment by the latter to respect the former’s territorial integrity and powers of government.15
A state, as summarized by cultural geographer Bernard Nietschmann, is “a centralized political system within international legal boundaries recognized by other states,” which “uses a civilian-military bureaucracy to establish one government and to enforce one set of institutions and laws.”16 A “nation,” on the other hand, may be understood as the “geographically bounded territory of a common people as well as . . . the people themselves,” where they identify as “a people” based not only on common ancestry but also common culture, history, worldview, and social institutions.17
Until recently, state recognition has been a dimension of international law controlled by colonizing powers and dependent on their assessment of the level of “civilization” possessed by those wishing to be so recognized.18 This reflects another important dimension of colonial relationships—the assertion that the colonizing power and its representatives are inherently more civilized than the peoples being colonized.19 In fact, the hallmark of European colonial expansion, later emulated by the United States and Japan, among others, has been its self-described “civilizing mission.” Legal scholar Antony Anghie explains this as “the grand project that has justified colonialism as a means of redeeming the backward, aberrant, violent, oppressed, undeveloped people of the non-European world by incorporating them into the universal civilization of Europe.”20 Such redemption, in turn, has been the rationale for imposing extensive administrative structures intended to eradicate the cultures, languages, religions, and histories, as well as the social, economic, legal, and political structures and institutions of the colonized.
Osterhammel identifies three salient characteristics of colonialism. The first is that it goes beyond domination or exploitation to sunder societies from their “historical line of development,” transforming them “according to the needs and interests of the colonial rulers.”21 A second characteristic is its emphasis on the differences, real or perceived, between the colonizers and the colonized, and “the unwillingness of the new rulers to make cultural concessions to subjugated societies,” a dynamic that has not necessarily characterized other forms of empire or expansion in world history.22 Finally, colonialism is not only a structural relationship, but also an “ideological formation” in which, “rejecting cultural compromises,” “the colonizers are convinced of their own superiority and of their ordained mandate to rule.”23
The construction and imposition of racial identities facilitate colonial administration, but also go beyond that to render racialized privilege and subordination more or less permanent. Anghie calls this the “dynamic of difference”—an “endless process of creating a gap between two cultures, demarcating one as ‘universal’ and civilized and the other as ‘particular’ and uncivilized, and seeking to bridge the gap by developing techniques to normalize the aberrant society.”24 Colonial domination is justified only to the extent that “civilization” is being promoted and, thus, the colonized must be rendered perpetually inferior.25 As historian Lorenzo Veracini explains, “A triumphant colonial society is a state of affairs where . . . the promised equality between colonizer and colonized . . . is forever postponed, where colonizer and colonized know and ultimately retain their respective places.”26
The contemporary construct of “race” has functioned as a kind of shorthand for the cultural differences used to justify colonialism’s “civilizing mission.” This mission, in turn, has served—and continues to serve—as the rationale for the exploitation of the land, labor, and natural resources of those deemed Other. Race has the added benefit, from the colonizers’ perspective, of being considered a “scientific” descriptor of physical characteristics, serving to perpetuate the dynamic of difference by linking cultural attributes identified as savage, barbaric, or otherwise uncivilized to relatively immutable biological factors.27 Racialization allows colonial administrators to claim they are uplifting and civilizing “the natives” through assimilationist measures intended to eradicate Indigenous identities while simultaneously invoking characteristics they claim are innate to “cap” the political, social, or economic rights of the peoples subjected to their rule.28
It is an oversimplification, however, to posit racism (at least as we now understand the term) as the driving force of colonialism, for factors other than perceived racial differences have served the same purposes in other eras. Thus, for example, before Europe could engage in colonial expansion, the various peoples and nations of that region had to be “Europeanized,” a process that involved the conquest and assimilation of many “pagan” peoples indigenous to the region we now call Europe.29 In this process, religious and cultural differences were emphasized to justify political domination and consolidation.30 As European colonialism extended out of what had become Europe into Africa, Asia, and the Americas, “race” emerged as a shifting political and social construct that conveniently incorporated the notion of more and less civilized peoples and provided markers of “difference” relied upon by colonizing powers to justify their ventures.31
Generally speaking, the characteristics summarized above apply to all European (and many non-European) colonial encounters of the past several centuries. There are, however, some significant distinctions between external and settler colonial formations. External or “classic” colonialism has been characterized rather famously by Jürgen Osterhammel as “a relationship of domination between an indigenous (or forcibly imported) majority and a minority of foreign invaders.”32 Decisions are made and implemented by colonial administrators in pursuit of interests often defined in a distant metropolis; they generally involve exploitation of the land, labor, and natural resources of territories where, for the most part, the colonists do not intend to settle permanently.33 By contrast, settler colonists plan not only to profit from but also to occupy permanently the territories they colonize.34 These divergent purposes have resulted in distinct colonial narratives and forms of social organization. Their differences are explored in more detail below, as they help explain why the global movement for decolonization had so little effect on settler colonial regimes, and why analyses of internal colonialism that rely on classic colonial models have been inadequate to explain racialized domination and subordination in the United States.
External Colonialism
European colonialism emerged as participation in networks of trade—initially in spices, textiles, precious metals, and enslaved humans—evolved into assertions of exclusive control over these and other profitable resources.35 This control rested on the colonial powers’ claims to “own” the territories from which these resources were obtained. In this respect, external or “classic” colonialism