CITIZENSHIP AND MIGRATION IN THE AMERICAS
General Editor: Ediberto Roman
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Run for the Border: Vice and Virtue in U.S.-Mexico Border Crossings
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Those Damned Immigrants: America’s Hysteria over Undocumented Immigration
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Strange Neighbors: The Role of States in Immigration Policy
Carissa Hessick and Gabriel G. Chin
Revoking Citizenship: Expatriation in America from the Colonial Era to the War on Terror
Ben Herzog
Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases
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The New Deportations Delirium: Interdisciplinary Responses
Daniel Kanstroom and M. Brinton Lykes
At Home in Two Countries: The Past and Future of Dual Citizenship
Peter J. Spiro
Settler Colonialism, Race, and the Law: Why Structural Racism Persists
Natsu Taylor Saito
Settler Colonialism, Race, and the Law
Why Structural Racism Persists
Natsu Taylor Saito
NEW YORK UNIVERSITY PRESS
New York
NEW YORK UNIVERSITY PRESS
New York
© 2020 by New York University
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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
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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