Legal jurisprudence is a tool of colonialist futurity and dispossession for the Indigenous; must constantly inject the history of Indigenous exclusion in order to confront the affirmative’s notion of settler benevolence and replacement

On September 13, 2007, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples by a vote of 143 in favor to 4 against with 11 abstentions. Thirty years of coalition building and lobbying by the International Indian Treaty Council and indigenous groups worldwide and more than two decades of negotiation within the UN preceded the vote.1 The groundwork for the declaration arguably goes as far back as September 1923, when Cayuga chief Deskaheh traveled to Geneva on behalf of the Haudenosaunee (the Iroquois Confederacy) to petition the League of Nations about violations of international law by the United States and Canada. Conspicuous as the four dissenting votes in 2007 were Australia, Canada, New Zealand, and the United States. Strident opposition by these countries suggests the substantial threat that indigenous rights claims continue to pose to the fictive coherence of settler nation-states, which have historically sought to render the persistence of “nations within” as a domestic concern without international implication. Indeed, settler colonialism in the United States has insinuated itself over time in such a way as to obscure the persistence of colonialism as anything other than a historical trace, as well as to ostensibly naturalize settlers by habitation and descent. In the United States, the vote against formalizing the rights of indigenous peoples has of course direct relevance for U.S.–American Indian relations and should be considered in the context of the recent U.S. Supreme Court decision City of Sherrill v. Oneida Indian Nation of New York. In March 2005, the Court ruled against the Oneida, concluding that two centuries of non-Indian land tenure in effect annulled the tribe’s outstanding territorial claims. Although the decision directly affected only taxation, its legal implications further undermined tribal self-determination in the United States and quickly served as precedent in a number of prominent court cases. That jurisprudence has so thoroughly defined and determined the legacies of the colonial encounter not only constrains the terms of redress but, inasmuch as law promises to be a correlate of justice, also promises future resolution. This perpetually deferred resolution compels liberal juridical subjectivity and contract as requisite points of departure. The role of legal reason in the making of the modern rights-bearing possessive individual and in animating the conflict of private interests on which legal regulation is premised has been essential for the notions of self and property in liberal societies generally and in settler societies in particular. Moreover, Jacques Derrida argues, “Law is always an authorized force, a force that justifies itself or is justified in applying itself, even if this justification may be judged from elsewhere to be unjust or unjustifiable. Applicability, ‘enforceability,’ is not an exterior or secondary possibility that may or may not be added as a supplement to law.”2 The U.S. vote against the UN declaration and the Sherrill ruling are especially interesting for the ways in which they apply equality in law and authorize the force of law in order to safeguard inequality outside of law. This essay focuses on what this U.S. posture conveys about the colonial present in North America, as well as the ways in which white settler colonialism in the United States is articulated with the present-day constellation of neoliberal antistatism and post–civil rights “color-blind” discourse. I examine the statement issued by Robert Hagen, U.S. advisor to the UN, against the Declaration on the Rights of Indigenous Peoples and analyze his remarks in relation to both the Sherrill decision and the reactionary populist discourse of antisovereignty groups more broadly. Non-Indian “citizen” groups lobbying and litigating against American Indian sovereignty are an important part of this conjuncture, not only because their rhetoric shares Hagen’s emphasis on equality and rights claims detached from historical inequities, but also because of the ways in which these groups in fact envision themselves in opposition to the state and their actions as a more pure and authentic embodiment of American principles. In this essay, I am primarily concerned with the relationships among three elements of U.S. colonialism: the role of settler claims historically and in the present; how colonial projects advanced in part by legal disputes over the distribution of political authority; and the assertion of historical dispossession as a means to preempt American Indian self-determination and restitution. Settler colonialism in North America is not a relic of the past but a historical condition remade at particular moments of conflict in the service of securing certain privileges and often to symbolically negotiate inequalities among white people. The postconquest history of North America and the making of the U.S. nation-state have been overdetermined by competing colonial regimes, settler claims, circuits of slavery, and the negotiation of seemingly incommensurable borders and cosmologies.3 Understanding this context as more than a bygone historical era whose significance was eliminated with the overthrow of British rule demands addressing the peculiarities of settler colonialism and the ways in which “settlement” compromises and complicates colonialism as a relationship to a geographically distant ruling authority. As historian Ian Tyrell argues, “Settler societies represented a particularly complex and resilient form of European colonial expansion often not recognized as imperial conquest by its own agents precisely because they claimed to do more than extract wealth and then return to the metropolitan space.” Similarly, anthropologist Patrick Wolfe notes, “Settler colonies were not primarily established to extract surplus value from indigenous labor. Rather, they are premised on displacing indigenes (or replacing them) on the land.”4 Accordingly, settler colonialism is not so much an “event” or a static relationship as a condition of possibility that remains formative while also changing over time.