Sunday, June 24, 2018


excerpted from: Natsu Taylor Saito, Race and Decolonization: Whiteness as Property in the American Settler Colonial Project, 31 Harvard Journal on Racial & Ethnic Justice 31 (Spring 2015) (220 Footnotes) (Full Document)


If we change the stories we live by, quite possibly we change our lives.
Ben Okri


NatsuTaylorSaitoA half-century after some of the most celebrated victories of the civil rights movement, the formal equality achieved during that era has had little discernible impact on the disparities that continue to define the material and psychological conditions of life for most people of color in the United States. Critical race theory has provided invaluable tools for understanding privilege and subordination but, as lawyers and legal scholars working to remediate racial injustice, we have been met at every turn by an ever-constricting framework of constitutional rights and protections.

As we attempt to theorize--or litigate--our way out of this box, there is a largely unspoken question that poses a significant obstacle to the realization of racial justice for all. Challenges to institutionalized racism are often framed in terms of equitable access to, and redistribution of, the wealth and power accumulated and controlled by those who have defined themselves, or been defined, as White. If, however, that wealth and power owes its existence to the ongoing colonization of Indigenous lands and peoples, how do non-Indigenous people of color claim equal rights to the spoils of conquest without tacitly legitimizing and thereby reinforcing the subordination and exploitation of American Indians, as well as Native Hawaiians and Alaska Natives?

Even within critical discourse, there seems to be a membrane separating these struggles. When we focus on past and present horrors inflicted upon Indigenous peoples, the racism toward other peoples of color that pervades American life is often acknowledged as a historical consequence of the initial Angloamerican occupation, but rarely theorized as an integral and ongoing aspect of that process. Conversely, in discussions about redress for racialized injustice more generally, American Indians are often referenced, if at all, as one of many “minority groups,” their unique relationship to the United States relegated, metaphorically if not literally, to a footnote. The effect of this construction--the subtext, if you will--is the transformation of (non-Indigenous) calls for racial justice into demands for “our fair share of what White folks stole from the Indians.” It leaves non-Indigenous people of color in the untenable position of fighting for rights that can only be realized at the expense of Indigenous sovereignty.

Rereading Professor Cheryl I. Harris' Whiteness as Property some twenty years after its publication, I am struck by how her insights regarding Whiteness and the construction of property can help us move beyond remedial measures that not only have proven futile, but that also contribute to the “disappearing” of struggles for Indigenous self-determination by framing racial justice in terms of obtaining rights equal to those of White Americans. Her incisive analysis cuts straight to the heart of the matter:

The legal legacy of slavery and of the seizure of land from Native American peoples is not merely a regime of property law that is (mis)informed by racist and ethnocentric themes. Rather, the law has established and protected an actual property interest in whiteness, itself.

Harris explains, carefully and thoroughly, how Whiteness is, by any meaningful definition, a form a property, encompassing “‘not only external objects and people's relationships to them, but also all of those human rights, liberties, powers, and immunities that are important for human well-being.”’ She describes how Whiteness was reified by establishing it as “an objective fact” and institutionalizing the benefits of White privilege. Harris also demonstrates how Whiteness has been a prerequisite to owning other forms of property, constructing and reinforcing racial hierarchy in the United States by ensuring an inequitable distribution of land, income, political rights, and social status.

Going further, Cheryl Harris invites us to consider the role Whiteness has played in the formation of property, allowing us to see the very existence of the most significant forms of property in Western societies--land and personhood--as racially contingent. as Property illuminates the symbiotic relationship between racialization and the very nature of property as it has been defined and continues to be recognized in American law.

This essay explores some ways in which Professor Harris' critical insights can help us move beyond the paradigm of constitutional rights to theorize Indigenous rights and racial justice within an integrated and more liberatory framework.

Part I provides a brief overview of how rights have been constrained by race within the United States legal system, focusing first on the limits imposed upon the constitutional guarantee of equal protection, then reviewing ways in which Indigenous nations have been entirely excluded from constitutional protection.

Because an explanatory framework limited to constitutional rights is unable to account for the construction of Whiteness and the racial disparities that persist to this day, I suggest in Part II that settler colonial theory accounts more coherently for contemporary racial realities, allowing us to understand the subordination of Indigenous peoples and non-Indigenous Others in terms of the perceived needs of the Angloamerican settler class for land and labor.

Part III goes beyond Whiteness as one form of property to the integral role Whiteness has played in the construction of both land and personhood as property.

Having concluded that racialization is thus inherent to property as we know it, Part IV concludes by considering some of the liberatory options that could emerge from the reconceptualization and reconstruction of property in this society.

. . .

The deployment of Whiteness to construct property and defend property rights explains a lot about the intractability of structural racism in the United States and why our efforts to gain equal rights have been consistently thwarted. It helps us understand why the dismantling of Whiteness has met and continues to meet with concerted resistance. If Whiteness is viewed as a form of property constructed by Angloamerican settlers and used as a vehicle for asserting their presumed prerogative over all they encounter, its deconstruction threatens not only the privileges generally associated with White identity, but property more generally, right down to the territorial base upon which the settler state rests.

The analysis provided by Cheryl Harris in Whiteness as Property suggests that we need to consider whether some of our efforts to dismantle institutionalized racism may, in fact, be reinforcing racial hierarchy. When we demand equal access to property that depends, for its existence, on Whiteness, whether those demands are framed in terms of formal equality or some version of redistributive justice, we run the risk of implicitly validating the terms and conditions of its existence. If this state exists only by virtue of its transformation of the land into (White) property, and its primary function is to protect its territorial integrity and sovereignty over its claimed lands, resources, and population, even our efforts to gain participatory rights in the management or functions of the state (the struggle for voting rights, for example) may be reinforcing rather than dismantling the hegemony of Whiteness.

Or they may not. It depends on how these struggles are contextualized. Stokely Carmichael, chair of the Student Nonviolent Coordinating Committee, went to jail dozens of times for defending the voting rights of Black people in the rural South in the 1960s--even though he did not believe that voting would bring about meaningful social change--because the struggle itself was empowering:

The act of registering to vote . . . gives one a sense of being. The black man who goes to register is saying to the white man, . . . “You have said that I cannot vote. You have said that this is my place. This is where I should remain. You have contained me and I am saying ‘No’ to your containment.”

The longstanding and ongoing struggles for equal protection and equal rights in this country have been, and still are, vital to our survival--both literally and in terms of maintaining our own humanity. But that does not mean that they will liberate our communities. Institutions that simply privilege and protect Whiteness could, perhaps, be transformed to ensure equal access to all persons. But to the extent that these institutions protect property (and a range of associated rights) and Whiteness cannot be separated from that property (or those rights), then the institutions at issue cannot exist in de-racialized form.

This has practical and theoretical consequences. Nothing fundamental has changed about the legality of, or rationale for, the occupation of this land since Johnson v. McIntosh. Furthermore, the structures created to provide the labor to make that land profitable to the settler class continue to operate through our legal, political, and economic institutions. Black labor is now, for the most part, considered redundant, and Black people are systematically relegated to institutions of economic dependence and/or mass incarceration. Immigrant Others continue to be subject to the plenary power of the state which, in turn, responds to the perceived labor needs of the settler class. While “rights” to various forms of property have been modified in formalistic ways, they still reproduce racial hierarchy and protect both Whiteness as property and property as Whiteness.

I said initially that Cheryl Harris' analysis gets us beyond the framework of equal protection to a more liberatory paradigm. So far, my conclusions could be characterized as somewhat depressing. But for me, what is more depressing are the realities confronted by communities of color, every day; the fact that the light has gone out in the eyes of so many young people; and the fact that the legal remedies we continue to pursue feel increasingly like exercises in futility. What I find liberatory is that, by taking seriously the twin notions of Whiteness as property and property as Whiteness, we are forced out of the box. We are not limited to thinking in terms of “equal rights,” all the while suppressing that nagging question of “but what about Indians?” Instead, we can consider the potential Stokely Carmichael was referencing when he said, “For racism to die, a totally different America must be born.”

What would it mean for a different America to be born? Before anyone begins to panic, it is worth noting a few points. The first is that the status quo is not all that wonderful. For those of us inclined to read law review articles, it may be preferable to uncertainty, but that is probably true only to the extent that it is not our children being gunned down in the streets, and we are not the ones patching unheated trailers with cardboard when it is 40 degrees below zero. There is no harm in being open-minded about the possibility of real change. The second point is that being willing to think about justice for everyone, including Indigenous peoples, does not mean that all of us who are not native to this land have to leave. Indigenous nations are not calling for the departure of all settlers or other migrants, “but rather accountability for their discourses and practices that ultimately come at Native expense.”

The real issue is whether we are willing to accept the Angloamerican settlers' claimed prerogative to encompass everything and everyone within their state--in other words, their conviction that only those possessed of Whiteness can be self-determining. According to Andrea Smith, “[t]he western subject knows that it is self-determining because it compares itself to ‘others' who are not. In other words, I know who I am because I am not you. These ‘others' of course are racialized.” International law, by way of contrast, recognizes that all peoples have a right to self-determination, a right “understood generally, at its core, as encompassing 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, and not imposed upon them by alien domination.”

How we might begin to exercise this right in a manner designed to de-racialize property, rights, and personhood in this society is a subject far beyond the scope of this essay. My hope here is simply to open up that discussion by making a few preliminary observations. The first, illustrated by Andrea Smith's comment, is that self-determination is, by definition, something that must come, organically, from the people and cannot be prescribed from the top down. To the extent we impose our own value judgments on other peoples' exercise of their right to self-determination, we are, in essence, invoking a variant of Justice Brown's uncontrovertibly colonial assertion in the Insular Cases that the real interests of “dependencies” can and will be protected by the “principles of natural justice inherent in the Anglo-Saxon character.”

A second observation is that the process requires decolonizing our minds, to borrow a concept from Kenyan scholar Ngugi wa Thiong'o. To the extent we are willing to step outside the parameters of a colonial worldview that is linear, hegemonic, and triumphalist and acknowledge that we live in a “pluriverse” of worldviews, we might see settler colonial regimes as but one of many ways in which human societies can be organized and recognize that both sovereignty and identity can be constructed in layered and overlapping, rather than exclusive ways. We may even be able to envision lands, resources, and persons as sites of responsibility rather than possession. “If we change the stories we live by, quite possibly we change our lives,” Nigerian author Ben Okri notes.

Expressing a similar thought, the late law professor Robert Cover famously declared that “[n]o set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning.” Moving beyond this descriptive statement, he said, “The position that only the state creates law . . . confuses the status of interpretation with the status of political domination.” In other words, we refuse domination by actively and collectively engaging in the construction of the law. The same, of course, could be said for the construction and reconstruction of political, economic, and cultural institutions.

This brings me to a third and final observation, which is that self-determination is not a static right. As Erica-Irene Daes, a Special Rapporteur for the UN's Sub-Commission on Human Rights, has emphasized,

It is very important to think of self-determination as a process. The process of achieving self-determination is endless. This is true of all peoples--not only indigenous peoples. Social and economic conditions are ever-changing in our complex world, as are the cultures and aspirations of peoples. For different peoples to be able to live together peacefully, without exploitation or domination--whether it is within the same state or in two neighboring states--they must continually renegotiate the terms of their relationships.

If the relationship between racialized identity and property was a colonial relationship when this country was founded, it still is, notwithstanding the Reconstruction amendments, the achievements of the civil rights movement, or even the election of a Black president. Colonialism is defined by structural relations, not by geography, and settler states have no superior claim to colonized territories or populations simply because those lands or peoples have been incorporated into their claimed boundaries or their political structures. Similarly, sustained occupation does not, per se, alter the nature of the relationship. As Justice Ammoun of the International Court of Justice observed with respect to South African claims to Namibia (South West Africa), “Sovereignty, which is inherent in every people, just as liberty is inherent in every human being, . . . did not cease to belong to the [colonized] people. . . . It had simply, for a time, been rendered inarticulate and deprived of freedom of expression.”

Patrick Wolfe's insight that settler colonial “invasion is a structure not an event” tells us that decolonization, likewise, will not be an event but a process of de- and re-construction. The good news is that, regardless of the policies maintained by those in power, there are innumerable opportunities to assert human dignity, to exercise the right to self-determination, and to set in motion processes that are, themselves, liberatory. Exercising the right to self-determination can take an infinite variety of forms, from a community's demand for a stop sign at a dangerous intersection; to local control of policing, education, and/or healthcare services; to the reorganizing of economically self-sufficient and politically independent nations. The litmus test, as I see it, is whether any given action empowers communities and promotes decolonization, or further entrenches extant relationships of domination and subordination.

By explaining how property and property relations are inherently racialized, Cheryl Harris' Whiteness as Property explains why supporting the efforts of other communities is vital our own liberation. Rather than fighting for a bigger piece of the pie (which happens to have been stolen in the first place), we can see ourselves as engaged in mutually complementary efforts to dismantle Whiteness as embodied in various forms of property. From this perspective, any community's success benefits us all, and it is this understanding of collective self-interest that could turn the tide in our struggles for racial justice.

Natsu Taylor Saito, Professor of Law, Georgia State University.

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