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Settler Colonialism, Race, and the LawWhy Structural Racism Persists$

Natsu Taylor Saito

Print publication date: 2020

Print ISBN-13: 9780814723944

Published to NYU Press Scholarship Online: September 2020

DOI: 10.18574/nyu/9780814723944.001.0001

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Decolonization and Self-Determination

Decolonization and Self-Determination

(p.186) 11 Decolonization and Self-Determination
Settler Colonialism, Race, and the Law

Natsu Taylor Saito

NYU Press

Abstract and Keywords

International law recognizes the unique status of Indigenous peoples and the right of all peoples to self-determination. However, it is also largely controlled by states whose primary interest is in maintaining their own power, wealth, and “territorial integrity.” Considering what the right to self-determination encompasses and how it differs from the law protecting “minorities” from discrimination, this chapter suggests that decolonization of settler states will not be implemented by international legal structures but must be undertaken by the peoples themselves.

Keywords:   international law, human rights, peoples, decolonization, neocolonialism, self-determination

The position that only the state creates law … confuses the status of interpretation with the status of political domination. … Legal meaning is a challenging enrichment of social life, a potential restraint on arbitrary power and violence. We ought to stop circumscribing the nomos; we ought to invite new worlds.

—Robert Cover

International law goes well beyond the United States’ domestic law in its interpretation of the prohibition of racial discrimination, its recognition of the unique status of Indigenous peoples, and its acknowledgment of forced assimilation—among other measures—as inherently genocidal. States are responsible for protecting all of these rights, and for providing effective remedies when they are violated. States resist the application of this body of law to oppressed or colonized peoples within their claimed borders, but generally do so by denying, for example, that genocide has occurred, or that a contemporary state practice is discriminatory. They rarely contest the fact that human rights law prohibits such conduct. As a result, the arbitrary exercise of state power and the subordination of peoples on the basis of race, ethnicity, national origin, religion, gender, or any number of other characteristics are now understood not only as moral wrongs, but also as violations of law.

Nonetheless, international law, like domestic law, remains tightly controlled by those who wield state power and, as a result, often serves to perpetuate colonial relations both within and among extant states. The ideological framing and aspirational norms embodied in law are often in tension with the exercise of raw power. By bringing the contradictions between ideals and reality to bear, we can, at times, expand substantive legal protections and facilitate their implementation. A legal framing can also empower those who work for justice at the grassroots level by confirming that law, at some level, acknowledges the legitimacy of their efforts to protect their communities and their insistence that society writ large respect their rights and their humanity. However, both international and domestic legal systems remain some variant of “the Courts of the conqueror,” to return to Justice Marshall’s blunt descriptor.1

(p.187) This means that, while drawing on the legal resources available to us, we must also conceptualize ways of organizing human society that go beyond the parameters of extant law. As Robert Cover reminded us, rather than conflating law with political domination, we have the capacity to frame it in much broader and more socially constructive ways. In this endeavor, the right of all peoples to self-determination provides a useful starting point. This chapter begins with an overview of the decolonization process of the 1960s and early 1970s, noting in particular the failure of this process to extend the right of self-government to internally colonized peoples in either external colonies or settler states. The chapter then considers the potential applicability of the right to self-determination to Indigenous peoples and people of color in the United States.

The “Decolonization Era”

The political changes of the decades following World War II were accompanied by dramatic transformations of international law and legal institutions, many of which purported to facilitate a decolonized world. Three chapters of the UN Charter and one of its principal organs were devoted to ensuring the eventual independence of “non-self-governing territories” and the well-being of their “inhabitants.”2 On December 14, 1960, the General Assembly issued a Declaration on the Granting of Independence to Colonial Countries and Peoples (Resolution 1514), “solemnly proclaim[ing] the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations” and acknowledging that the “subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the charter of the United Nations, and is an impediment to world peace and co-operation.”3 “Immediate steps” were to be taken in all non-self-governing territories “to transfer all powers to the peoples of those territories, without any conditions or reservations.”4

The following day the General Assembly adopted Resolution 1541, which identifies three options for non-self-governing territories: sovereign independence, free association with an independent state, and integration with an independent state.5 Mindful of the reluctance of colonial powers to relinquish “their” territories, the resolution notes that the status of “free association” is to be contingent upon the free and voluntary choice of the peoples of the territory, must “respect[] the individuality and the cultural characteristics of the territory and its peoples,” and may be modified by the people.6 Integration, if chosen, was to be on the basis of full equality, and “should be the result of the freely expressed wishes of the territory’s peoples acting with full knowledge of (p.188) the change in their status.”7 The choice, clearly, was not up to the colonizing powers, but one for colonized peoples to make.

To all appearances the colonial world order was crumbling and, initially, the prospect of truly liberatory change on a global scale seemed imminent. On June 30, 1960, celebrating the occasion of the independence of the Democratic Republic of the Congo, prime minister Patrice Lumumba noted that the successful effort “to put an end to the humiliating slavery that had been forced upon us” marked the beginning of another “sublime struggle that will bring our country peace, prosperity, and grandeur.”8 The following year, Ghana’s first prime minister, Kwame Nkrumah, said with respect to Africa’s vast mineral, agricultural, and hydrological resources, “Never before have a people had within their grasp so great an opportunity for developing a continent endowed with so much wealth.”9 Besides political independence, Nkrumah stated, “all we ask of the former colonial powers is their good will and co-operation to remedy past mistakes and injustices.”10

This request, of course, was not met. Lumumba was assassinated in early 1961 at the behest of Belgium and with the support of the United States; Nkrumah was overthrown in a 1966 coup soon after he published Neo-Colonialism: The Last Stage of Imperialism, a radical critique of Western responses to African nationalism.11 Their fates reflect the broader reality that the anticipated benefits of decolonization have not materialized in any meaningful way for most formerly colonized peoples. Substantive decolonization under international law has been constrained by many factors, including most prominently the presumptions that (1) decolonization meant independent statehood and nothing more; (2) the rules of international law, developed by and for colonial powers, would remain largely unchanged; (3) the boundaries of existing external colonies would become the boundaries of the new states; and (4) only territories “geographically separate” from colonizing powers were eligible for decolonization.

Antony Anghie notes that the jurists of the decolonization era were “framing the project as though the colonial encounter was about to occur, as opposed to already having taken place.”12 Rather than “remedy[ing] past mistakes and injustices” as Nkrumah requested, the changes initiated by the most powerful states and their leaders ignored the history of colonialism, thereby precluding substantive analyses of structural inequities.13 The extent to which newly recognized states had been stripped of their wealth was disregarded, as was the extent to which the Western powers had relied upon the exploitation of the resources of these territories for their own development.14 It was as if the historical slate had been wiped clean at the moment the former colonies became independent.15

(p.189) This clean slate was subject to one important caveat. The historical record had not been erased with respect to the leases and concession agreements entered into prior to independence, which the colonial powers now insisted were binding on the new states.16 Although colonized peoples—like American Indian nations—had not been recognized as sovereign enough to prevent colonial occupation and expropriation, they were now deemed to have had just enough sovereignty to alienate their natural resources.17 The result, as Nkrumah observed in 1965, was that Africa’s “earth is rich, yet the products that come from and above and below her soil continue to enrich, not Africans predominantly, but groups and individuals who operate to Africa’s impoverishment.”18

The formerly colonized territories were now characterized as simply “backward” or “less developed” states, and the colonial powers that had become rich and powerful at their expense began creating institutions that would “aid” in their development without risking any fundamental change in global economic power.19 In this respect, decolonization has functioned similarly to the “granting” of formal legal equality under US law—a level playing field was declared and remedial measures addressing a long history of exploitation were, for the most part, off the table.

For internally colonized peoples in classic and settler colonial territories, the United Nations’ “solemn proclamation” of “bringing to a speedy and unconditional end colonialism in all its forms and manifestations” did little—or nothing—to further their decolonization. The UN Charter prohibits “the threat or use of force against the territorial integrity or political independence of any state,” a principle reiterated in several General Assembly resolutions.20 This principle protects colonial boundaries that were externally imposed with no recognition of Indigenous peoples’ ties to the land or their cultural, political, or economic realities. Known as uti possidetis, “the doctrine that old administrative boundaries will become international boundaries when a political subdivision achieves independence”21 has been consistently employed to require that arbitrarily imposed colonial boundaries be accepted by emerging states in Latin America, Africa, and Asia as a condition of independence, thereby “legitimiz[ing] the denial of sovereignty to pre-colonial, independent African states and communities.”22 The result, law professor Tayyab Mahmud observes, “is often a mockery of the right to self-determination” as “colonial lineage and the process of territorial demarcation of postcolonial states ensured that internal colonialism became the rule rather than the exception.”23

Settler states similarly rely on “territorial integrity” to deny Indigenous land rights, but the mere fact of militarized occupation gives them no superior claim. France quite famously attempted to maintain its colonial power (p.190) over Algeria by declaring Algeria to be part of its metropolitan territory, largely because such a significant French population had taken up what it considered to be permanent residence in the colony.24 The French claim was never accepted as compatible with international law, yet there is nothing that meaningfully distinguishes it from the claims of the United States to, say, Hawai‘i or Alaska, both incorporated into the United States in accordance with the wishes of the settlers and without regard for the preferences of their Indigenous populations.25

As we consider the decolonization of territories occupied by settler states, it becomes clear that the roadblocks created by international law’s emphasis on respect for “territorial integrity” are reinforced by the exemption of settler states from the decolonization mandate. Thus, Resolution 1541 attempts to limit the definition of non-self-governing territories to those that are “geographically separate” as well as “distinct ethnically and/or culturally” from the “administering” state.26 This is sometimes described as a requirement that territories be separated from their colonizing powers by an open expanse of “salt water” (or “blue water”) in order to have a right to decolonization.27 Like the uti possidetis doctrine, its territorial focus undermines the right of peoples to self-determination, and reinforces internal colonial regimes.

Settler states wield much power in the international legal system and they have ensured that the right to decolonization will not be interpreted to reach them. Nonetheless, the legal and economic limitations imposed upon the mandate to decolonize were political compromises, not a reflection of what international law actually required at the time, now mandates, or could evolve to be. As Patrick Wolfe observes, “Nothing … about settler colonialism requires there to be a spatial hiatus (or ‘blue water’) between metropole and colony. Settler colonization occurs and persists to the extent that a population sets out to replace another one in its habitation regardless of where the colonizing population originated.”28 Conversely, its decolonization will not be imposed from above, but must be effectuated from below. With this in mind, we consider how recognition of the right to self-determination may aid us in this process.

The Right to Self-Determination

“Liberation does not come as a gift from anybody,” Adolfo Gilly observed in introducing Fanon’s Studies in a Dying Colonialism.29 Self-determination, likewise, is not granted; rather, we realize it by fulfilling our responsibilities for ourselves, for the well-being of our communities, and for all of our relations. As Robert Williams summarized, it “is understood generally, at its core, (p.191) 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.”30 From this perspective, it comes as no surprise that self-determination is central to the movements of Indigenous peoples, peoples subjected to external colonialism, and those who are colonized within recognized states.

According to the International Court of Justice, “The right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character”; in other words, it is binding on all.31 The UN Charter identifies the development of “friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples” as one of the United Nations’ primary functions.32 As mentioned above, the General Assembly’s 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples (Resolution 1514) “solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations.”33 It states forthrightly, “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”34

This is repeated almost verbatim in Common Article 1 of the ICCPR and the ICESCR.35 According to the UN Human Rights Committee, the right to self-determination was given such primacy because it is a foundational precept whose “realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights.”36 In other words, individual rights cannot be fully realized absent decolonization. As with any legal principle, the real debates emerge in its application. Legal scholar Richard Falk observes that self-determination “bears directly on many of the bloodiest and persistent struggles that presently beset every region of the planet.”37 Its redemptive potential, he notes, hinges on “whether the criteria relied upon to clarify the right to self-determination are to be determined in a top-down manner through the mechanisms of statism and geopolitics or by a bottom-up approach that exhibits the vitality and potency of emergent trends favoring the extension of democratic practices and the deepening of human rights.”38

Not surprisingly, states do not see it as in their interest for peoples purportedly under their jurisdiction to exercise their right to self-determination and, as a result, have developed strategies for resisting such efforts or minimizing their impact. Because self-determination is articulated as a right of “peoples,” a state’s first line of defense is often to claim that a particular group is not a distinct “people” but simply a minority group within the general population. (p.192) 39 Settler states and other entities with internally colonized peoples also continue to rely on the “salt water” or “blue water” doctrine to limit decolonization to territories that are “geographically separate” as well as “distinct ethnically and/or culturally” from the “administering” state.40 Finally, states claim that their right to “territorial integrity” precludes interference with their “internal affairs.”41

A different picture emerges when self-determination is viewed from the bottom up. From this perspective, five foundational principles are worth noting:

  1. 1. Territorial integrity is a legal fiction.

  2. 2. Peoplehood is constructed and defined by the people, not the state.

  3. 3. Self-determination cannot be constrained by a paradigm of “universal” rights.

  4. 4. States are not the only viable forms of political organization.

  5. 5. Self-determination is a process and a continuing right.

We turn now to these principles.

Territorial Integrity

State resistance to decolonization based upon the right to territorial integrity quickly devolves into claims based on raw power rather than legality. With respect to internally colonized peoples, states rely primarily on the principle of uti possidetis or the “salt water” thesis to deny that the legal obligation to decolonize applies to them. In realpolitik terms, it makes sense for these principles to have been incorporated into a body of law established largely by and for states. Substantively, however, these rules lack legitimacy, even within that framework, prompting international legal scholar Henry J. Richardson III to observe more than a quarter century ago that “the colonialism-derived condition that a ‘people’ may only exist on territory not belonging to the metropolitan state … has arguably been dropped.”42

Uti possidetis, ita possideatis was a principle of Roman law meaning “as you possess, so may you possess,” and it was not the rule of decision in a dispute over real property but merely the starting point, establishing that the party not in possession had the burden of proof.43 Contemporary international law’s transformation of this presumption into an inflexible determinant of territorial rights simply gives force the imprimatur of law. As law professor Steven Ratner observes, it is “a complete reversal from the Roman law concept, (p.193) which excluded even provisional possession to a party who accomplished it by violence.”44

The so-called “salt water” thesis is no less transparently based on power rather than law. Why would geographic contiguity render an otherwise colonial occupation into a legally acceptable territorial acquisition? This restrictive interpretation of the mandate to decolonize originates with UN General Assembly Resolution 1541, but that simply reflects the power of the major settler states to conform the law to their practice, as well as the fact that, in this case, their interests were aligned with those of the newly independent states anxious to preempt secessionist movements. The right to decolonization is a function of structural relations, not location. As a result, “self-determination units” may encompass “entities part of a metropolitan State [that] have been governed in such a way as to make them in effect non-self-governing territories,” according to international law scholar James Crawford.45

Defining Peoples

The right to self-determination is one that may be exercised by peoples, and peoplehood is established by the history, beliefs, and actions of the people. States do not have an exclusive right to determine which groups under their claimed jurisdiction constitute peoples. Rather, as legal scholar Howard Vogel observes, “the definition of the term ‘peoples’ in a minority rights context must be left to the people themselves.”46 The 1976 Universal Declaration on the Rights of Peoples, also known as the Algiers Declaration, states not only that “every people has an imprescriptible and unalienable right to self-determination” but also that this encompasses “the right to break free from any colonial or foreign domination, whether direct or indirect, and from any racist regime.”47

Groups previously relegated to “minority” status are increasingly recognized as having a right to self-determination.48 Richardson observed in the mid-1990s that “a new constitutive feature of the world community comprises the recent global phenomenon of claims to the right of self-determination of peoples, by a wide variety of peoples and groups,” including Chechens and Georgians in Russia, Chiapas “rebels” in Mexico, the Ogoni in Nigeria, and Native peoples in the United States and Canada.49 Other examples abound, including but not limited to the Basques and Catalans in Spain, the Nagas in India, and the Tamils in Sri Lanka.50 In 1998 the Canadian Supreme Court noted with respect to the status of Quebec that “a people” may be a minority within a state,51 and that a “definable group” may have the right to determine (p.194) their own political status when they are consistently excluded from political, social, and cultural participation in government.52

Peoplehood is often conceived in static or essentialist terms, but it can be actively constructed. In 1971, in the Namibia case, the International Court of Justice rejected South Africa’s argument that “tribalism” within Namibia prevented its population from constituting a people.53 Addressing “the Namibians’ status of a people,” vice president Fouad Ammoun’s separate opinion recognized the role of agency in this process by pointing out that “the Namibian people … asserted its international personality by taking up the struggle for freedom” and, as a result, had been recognized by UN General Assembly and Security Council resolutions, as well as by the Court.54 Similarly, sustained occupation does not, per se, alter the nature of the relationship. Justice Ammoun also observed that neither Germany’s colonization of Namibia nor South Africa’s administrative “mandate” erased Namibia’s legal personality.55 “Sovereignty, which is inherent in every people, just as liberty is inherent in every human being, therefore did not cease to belong to the people subject to mandate. It had simply, for a time, been rendered inarticulate and deprived of freedom of expression.”56

As the two major human rights treaties unequivocally state, all peoples have “the right to freely determine their political status and to freely pursue their economic, social and cultural development.”57 They also have the right to “freely dispose of their natural wealth and resources,”58 which is why the major settler states fought a protracted battle to have Indigenous peoples referred to as “populations” rather than “peoples” in international legal forums.59 But this does not necessarily imply any particular course of action. As Resolutions 1514 and 1541 affirm, colonized peoples have the right to choose, for themselves, whether they wish to be politically independent or to negotiate other relationships with their (former) colonizers. Legal scholar Maivân Clech Lâm notes that “the overwhelming majority of indigenous peoples represent, even as they pursue the recognition of their full right of self-determination, that they do not plan to exercise the right to effect separation or secession from encompassing states, but only to re-negotiate, albeit in fundamental respects, their relations with them.”60 Nonetheless, the choice is to be made by the people themselves, not by the colonizing power.

Moving beyond “Universality”

According to the preamble to the Universal Declaration of Human Rights, human rights comprise a “common standard of achievement for all peoples and nations,” to be promoted and respected by “every individual and every (p.195) organ of society.”61 Universality is often considered the greatest strength of the international human rights system but may also be its Achilles’ heel, as the values and presumptions at issue are so explicitly Euroderivative. Rights are framed primarily in terms of the relationship between the individual and the state, and it is presumed that they are most effectively protected by democratic governance, as that concept has been developed in the West. “The paradox of the corpus is that it seeks to foster diversity and difference but does so only under the rubric of Western political democracy,” Makau Mutua notes, thereby resulting in a system characterized by “inelasticity and cultural parochialism.”62

All human societies have developed norms and expectations of behavior—what we might call the rights and responsibilities of its members. One can envision a global framework of human rights that recognizes and respects the plurality of cultural perspectives and the importance of particularized context, but our contemporary human rights norms emerge from an explicitly colonial setting. Mutua observes that its colonial legacy is perpetuated in a narrative subtext that consistently “depicts an epochal contest pitting savages, on the one hand, against victims and saviors on the other.”63 In this construction, the “saviors” utilize human rights to protect the “victims” from “savage” or “backward” practices. Thus framed, the globalization of human rights tends to impose particularly Western constructs upon non-Western societies as well as on those deemed Other within Western societies, thereby replicating the hierarchies characteristic of colonial relationships.64

In many cultures, human beings are understood not as atomized individuals but in relation to their communities, and human communities do not exist autonomously but in relationship to all other forms of life. “Indigenous identity is formed by the intersection of land, culture, and community,” according to legal scholar Rebecca Tsosie. It is a reciprocal relationship, with the land looking after the people and “orient[ing] the people in understanding how to meet their responsibilities to each other and to the land.”65 From this perspective, one’s rights cannot be coherently understood apart from one’s responsibilities.

For those of us raised within the dominant culture of the United States, it is difficult to grasp the meaning of Robert Vachon’s admonition that among many traditional Indigenous cultures, the word “rights” does not exist, and that for many people “it is difficult to understand that rights or entitlements could be homocentrically defined.”66 Continuing, he notes, the notion “that they, furthermore, could be defined by a sovereign state … is almost ridiculous.”67 Gustavo Esteva and Madhu Suri Prakash report learning from their “grassroots experiences … that we do not live in a universe, but in a pluriverse; (p.196) that the universality in the human condition claimed by human rights propagators exists only in their minority worldview.”68 Among other things, this means that true self-determination will inevitably take many different forms.

Thinking beyond States

States are not inevitable forms of human social organization. The contemporary international legal order is composed of state actors, and we tend to presume that lands and peoples would, of course, come under the exclusive jurisdiction of a particular state. But history tells us otherwise. The current state-centric system is generally traced to 1648 and the Peace of Westphalia, but it took an additional three centuries before the world was divided up almost exclusively between state actors.69 Human societies were organized in many different ways for millennia before states were imposed upon them, and “sub-state” forms of governance continue to be as influential, in many respects, as state governments. “Possession of sovereignty is the result of force threatened and applied,” and “states are the results of wars fought and won, rather than of some sort of natural truth about the community,” Paul Kahn observes.70

State boundaries have always been, and continue to be, in flux, and the viability of the state system itself is increasingly being called into question.71 It is not clear that states have contributed in any significant way to human well-being. Instead, they have functioned to override alternative forms of social organization, imposing in the process very Western, universalizing, hierarchical, and exclusive presumptions about governance. But we know that nations can be organized in multiple and overlapping ways, that territories may be shared between them, that individuals can identify themselves within networks of relationships rather than as subjects of a particular sovereignty. This means that self-determination can take many forms. As Rosa Ehrenreich Brooks suggests, “If we stop fetishizing the state, perhaps many phenomena that now often appear … as problems … would instead appear as virtues or opportunities.”72

Self-Determination as a Continuing Process

Finally, self-determination is not a static right, but a “continuing” one. As framed by international legal scholar Antonio Cassese, “The issue of whether the government of a sovereign State is in compliance with [common article 1 of the ICCPR and the ICESCR] is a legitimate question, with reference to (p.197) any State, at any point in time.”73 This means that the status of a people subject to the jurisdiction of any state may always be reassessed.74 Perhaps more importantly, self-determination continuously addresses the conditions under which people live and the ways in which they are governed.75 Erica-Irene Daes emphasizes that

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.76

In other words, self-determination is not an endpoint but a way of being.

Nations Within

Henry Richardson summarizes the state of the law as follows: “The right of self-determination of peoples remains authoritative as international jus cogens. Not only has there been no limiting of the right under international law, but rather the right has expanded and continues to do so. It is no longer limited to freedom from overseas colonialism and foreign occupation if it ever was.”77 What does this mean for people under US jurisdiction?

A key feature of settler colonialism is the colonizers’ presumption that they came with, and still maintain, a sovereign prerogative to assert control over the lands, resources, and peoples found within their claimed territorial boundaries. Asserting this prerogative, the American settler state has defined all peoples “encapsulated” within its borders as “minorities” with only such rights as it chooses to grant or recognize.78 But this does not mean that these groups are not “peoples” with legal rights. The determination of who constitutes “a people” is largely in the hands of the people themselves. As Justice Ammoun of the ICJ noted in the Namibia case, international personality can be asserted “by taking up the struggle for freedom,” and sovereignty does “not cease to belong to the people” simply because it has “been rendered inarticulate” by sustained occupation.79

International law tends to speak of “peoples” in relatively fixed and essentializing ways, but it is much more realistic to see peoples and nations as living beings, organic entities that grow and adapt in response to their environments. Indigenous peoples around the world have long recognized that (p.198) kinship connects them to others in ever-expanding networks of relationship without eviscerating their own identities.80 As a result of our histories and the social relations we have chosen or have had thrust upon us, Indigenous and non-Indigenous peoples within the United States are not easily separated into distinct and exclusive identities, racial or otherwise. This does not, however, preclude their recognition as peoples.

Native Nations

The most fundamental principles of international law thus establish that the Native nations of the “lower forty-eight” states, the Indigenous nations in Alaska, and Native Hawaiians constitute peoples with the right to self-determination. In light of their long-standing relationships with the territory now occupied by the United States—their rights to and responsibilities for these lands—there is no reason, other than raw colonial power, why they should not be recognized as non-self-governing peoples with a right to decolonization. And that, in turn, means that it is their decision as to whether they wish to be independent, to be incorporated into the settler state, or to negotiate a compact of free association on terms acceptable to all parties. (These rights, of course, also apply to external US colonies of Puerto Rico, Guam, the Northern Marianas, “American” Samoa, and the “US” Virgin Islands.81)

This raises the possibility of an entirely different configuration of “American” territorial rights and responsibilities. Indigenous peoples on territories claimed by the United States also have a right to restitution with respect to stolen lands and natural resources, and to both compensation and satisfaction for the egregious harms inflicted upon their peoples. And it is at this point that we encounter the “fear factor.” In my experience it is difficult to have a rational discussion about decolonizing American society with anyone who is not Indigenous because the very idea triggers a defensive reaction that generally manifests as “but then we’d have to leave,” quickly followed by “and I don’t have anywhere to go.”82 As this reaction illustrates, it is useful for settler culture to project sovereignty and identity as all-or-nothing propositions, leaving non-Indigenous peoples to imagine that their disappearance is the only alternative to the status quo. Because this is not a thinkable alternative, it allows them to dismiss the foundational issue of colonial occupation without even addressing it.

In fact, however, it was Angloamerican settlers, not American Indian nations, who imposed their presumption of exclusivity, who arrived with a firm conviction that they could live on this land only if Indigenous peoples were eliminated. As Dean Saranillio observes, “Imagined violence on the part of (p.199) Indigenous movements is a common trope that allows Native savagery to stand in for settler self-critique.”83 But it is the settler state that has always imposed itself through violence. What decolonization actually entails is a relinquishment of the settlers’ self-assigned entitlement to encompass everything and everyone within their state; in other words, their insistence that only they have the right to be self-determining.84 Indigenous nations “encapsulated” within the United States have rarely if ever called for the departure of all settlers or other migrants, “but rather accountability for their discourses and practices that ultimately come at Native expense.”85 The presumption that relinquishing exclusive settler sovereignty equates to a wholesale evacuation of the territory by non-Indigenous peoples does not reflect any material reality but simply an inability to conceive of living with, or within, others’ polities.

“Nations Becoming”

What are the implications of decolonization and self-determination for non-Indigenous people of color in the United States? This question has been debated, in one way or another, since the arrival of the first enslaved Africans in the British colonies,86 the annexation of Mexico in 1848, and the United States’ acquisition of external colonies from the late nineteenth through mid-twentieth centuries. Ultimately, it will only be answered by the people themselves, for this is what self-determination means. But we can make some preliminary observations.

People of African descent in the United States have long been described as a “nation within a nation”87 and, according to Richardson, under international law they are best understood as “encapsulated” within a national state but nonetheless a “people” entitled to rights of self-determination.88 International law does not give internally colonized or “encapsulated” peoples within the United States a right to function as colonizers themselves. The fact that peoples indigenous to one part of the world have been relocated to the territories of other Indigenous peoples does not erase their peoplehood or their inherent sovereignty, but neither does it give them a legitimate claim to someone else’s lands. Relocated peoples are, however, entitled to freely determine their political relationship to the colonizing power, and they are certainly free to negotiate with the Indigenous owners of the lands they now occupy or wish to occupy.

The distinct rights of peoples and nations can help communities to think of themselves outside the institutions imposed upon them by the state. This is why there were so many “nationalist” movements among people of color in the United States during the 1960s. One striking example was “El Plan (p.200) Espiritual de Aztlán,” a 1969 Chicano declaration of “the Independence of our Mestizo Nation,” a “Union of free pueblos.”89 The invocation of Aztlán became a bold assertion of Chicano identity, recognizing the Indigenous heritage of Mexicans in the Southwest, emphasizing the occupation of their lands, and rejecting assimilation in favor of cultural independence. Other non-Indigenous people of color have found it more difficult to pinpoint what might make them a “people,” but nonetheless we continue to struggle, as individuals and communities, to develop identities that do not intrinsically reinforce the settler state.

Envisioning and realizing identity, like self-determination itself, is a process. Peoplehood may be forged and kept alive through struggle, as Justice Ammoun recognized. While our histories and relationships are essential components of our identities, we need not invoke or rely upon a mythical or essentialized past. Frantz Fanon observed that “a national culture is not a folklore, nor an abstract populism. … It is not made up of the inert dregs of … actions which are less and less attached to the ever-present reality of the people. A national culture is the whole body of efforts made by a people in the sphere of thought to describe, justify, and praise the action through which that people has created itself and keeps itself in existence.”90

In 1970 the late poet and playwright Amiri Baraka urged Black Americans to live “as if we were liberated people,” and called for the establishment of a political organization that would “be a model for the nation becoming.”91 What is it that we—any of us—are becoming? In the final chapter we consider ways to move beyond the presumption that “only the state creates law” as Cover put it, and to “invite new worlds.”92


(2) See UN Charter, arts. 73–91 (addressing non-self-governing territories) and arts.7–8 (describing principal organs); see also United Nations, Trusteeship Council.

(6) Ibid., Principle VII.

(7) Ibid., Principles VIII, IX.

(10) Ibid., xi.

(20) UN Charter, art. 2(4); UNGA Res. 1514, para. 7; UNGA Res. 2625 (XXV).

(30) Robert A. Williams, “Columbus’s Legacy,” 51 (paraphrasing S. James Anaya).

(31) Case Concerning East Timor, 102 (citing Legal Consequences for States [Namibia Opinion], 276, as well as Western Sahara, 31–33). See also Laing, “Norm of Self-Determination” (identifying the right to self-determination as customary law binding on all states); and Seshagiri, “Democratic Disobedience,” 567 (“The classical right of colonial self-determination has acquired jus cogens status”).

(35) ICCPR, art. 1; ICESCR, art. 1. On the evolving concept of self-determination, see Vogel, “Reframing Rights,” 448–78. For a more orthodox summary, see generally Hannum, “Rethinking Self-Determination.”

(39) See Daes, “Overview,” 12–13. Attempts by the United States and other settler states to substitute the term “populations” for “peoples” delayed the UN Declaration on the Rights of Indigenous Peoples for many years. See Daes, “UN Declaration,” 18.

(41) See UN Charter, art. 2(4) (prohibiting “the threat or use of force against the territorial integrity or political independence of any state”); and UNGA Res. 1514, para. 7.

(44) Ibid.

(48) See Vogel, “Reframing Rights,” 448. See also Kly, International Law, 124 (noting that “the term ‘peoples’ … is becoming generally accepted to include minorities or nationalities”).

(50) See Churchill, “Law Stood Squarely,” 703–4 (providing a much longer list of locations and attendant sources).

(52) Ibid., 76. The ICJ has concluded that groups in the Western Sahara, East Timor, and Palestine constitute peoples with a right to self-determination. See Kornacki, “When Minority Groups Become ‘People,’” 79 (citing Western Sahara, 68; Case Concerning East Timor, 106; and Legal Consequences of the Construction of a Wall, 183).

(54) Ibid. (Ammoun, J.), 69.

(55) Ibid., 68.

(56) Ibid. See also Anaya, Indigenous Peoples (“Decolonization demonstrates that self-determination’s remedial aspect may trump or alter otherwise applicable legal doctrine,” including claims to territorial sovereignty).

(58) Ibid., common art. 1(2).

(63) Ibid., 10.

(64) See Esteva and Prakash, Grassroots Post-Modernism, 110–51 (describing human rights as “the trojan horse of recolonization”).

(65) Tsosie, “Land, Culture,” 1302. See also Mutua, Human Rights, 82–84 (discussing the dialectical relationship of rights and duties found among many African peoples).

(67) Ibid.

(p.275) (68) Ibid., 125.

(71) See Falk, Declining World Order, 11 (noting that “the state system … [is] both a guiding and incoherent myth that does not now and never did correspond with patterns of behavior in international politics”).

(73) Cassese et al., Self-Determination, 55. Cassese, however, does not believe that this right applies to “internal minorities.” Ibid., 62.

(74) Ibid., 54.

(75) Vogel, “Reframing Rights,” 478 (“The right to self-determination serves the well-being of groups who define themselves as a people by addressing the conditions under which they live and are governed through an on-going process of negotiation of the terms on which they live with their neighbors”).

(80) Kwaymullina, “Aboriginal Nations,” 13–15 (discussing “relationship based citizenship”).

(82) See Matsuda, “Are We Dead Yet?,” 1041–42 (discussing fears engendered by assertions of Native Hawaiian sovereignty); see also Durham, Certain Lack of Coherence, 173–75.

(84) “The 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.” Andrea Smith, “Problem with ‘Privilege’” (summarizing Denise DaSilva’s critique of the western subject).