{"id":373,"date":"2019-09-10T16:34:12","date_gmt":"2019-09-10T20:34:12","guid":{"rendered":"https:\/\/www.nlg.org\/nlg-review\/?post_type=article&p=373"},"modified":"2019-09-10T16:38:33","modified_gmt":"2019-09-10T20:38:33","slug":"identity-extremism","status":"publish","type":"article","link":"https:\/\/www.nlg.org\/nlg-review\/article\/identity-extremism\/","title":{"rendered":"\u201cIdentity Extremism\u201d"},"content":{"rendered":"

Natsu Taylor Saito<\/strong><\/p>\n

Natsu Taylor Saito is a Professor of Law and Distinguished University Professor, Georgia State University College of Law, Atlanta, Georgia.<\/em><\/p>\n

 <\/em><\/p>\n

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.<\/em><\/p>\n

-International Covenant on Civil and Political Rights<\/p>\n

-International Covenant on Economic, Social and Cultural Rights<\/em>1<\/sup><\/p>\n

Governmental policies have shifted rapidly over the past few years, making it difficult to keep up with current events, much less assess their long-term im\u00adplications. One development that warrants concern is the increasingly frequent association of \u201cidentity,\u201d most often defined in racial or religious terms, with \u201cextremism\u201d and its connotations of armed attacks on civilian targets. This leads to a false equivalence between White supremacy and the nationalistic frameworks invoked by many individuals and organizations of color engaged in struggles for social, racial and environmental justice.2 Law enforcement agencies, much of the media, and many self-styled liberals and progressives claim, implicitly or explicitly, that (non-statist) nationalism fosters racialized hatred and, therefore, threatens public safety. The underlying message is that people of color in the United States must forswear our identities\u2014other than as \u201cAmericans\u201d\u2014if we wish to have racial equality. In other words, the right to be free from discrimi\u00adnation on the basis of race, ethnicity, national origin or religion can be achieved only at the expense of the right to self-determination. This essay suggests that the opposite is true, particularly within the context of on-going settler colonialism; that only by exercising our right to self-determination will we be able to liberate ourselves from structural racism.<\/p>\n

 <\/strong><\/p>\n

Constructing \u201cIdentity Extremism\u201d as a Threat<\/strong><\/p>\n

On August 3, 2017, the Federal Bureau of Investigation (FBI)\u2019s Counterter\u00adrorism Division issued an \u201cintelligence assessment\u201d entitled \u201cBlack Identity Extremists Likely Motivated to Target Law Enforcement Officers.\u201d3 Citing six incidents of actual or intended assaults on police officers between 2014 and 2016, the report found it \u201cvery likely that BIEs\u2019 perceptions of unjust treatment of African-Americans and the perceived unchallenged illegitimate actions of law enforcement will inspire premeditated attacks against law enforcement.\u201d4 The FBI\u2019s report was first publicly revealed in an October 2017 Foreign Policy article which notes that the term \u201cblack identity extremist\u201d (BIE) was recently invented, perhaps as \u201cpart of a politically motivated effort to find an equivalent threat to white supremacists.\u201d5 Questioned by Congresswoman Karen Bass, Attorney General Jeff Sessions\u2014who claimed not to have read the report\u2014was unable to identify any African American group that had targeted police officers, could not explain why there was no similar report on White extremists, and refused to say whether he considered Black Lives Matter an extremist organization.6<\/p>\n

In 2011, the Obama administration initiated the \u201cCountering Violent Extrem\u00adism\u201d or CVE policing programs, described by Khaled Beydoun as the cornerstone of structural Islamophobia in the United States today.7 According to the White House, its \u201cunderlying premise . . . is that (1) communities provide the solution to violent extremism; and (2) CVE efforts are best pursued at the local level. . . .\u201d8 What this actually means, Beydoun notes, is that under these programs there are only two choices. One can become a \u201cgood Muslim\u201d by disavowing and apolo\u00adgizing for every violent act committed by any Muslim, anywhere, and by being willing to inform on other Muslims. One who refuses to become an informant, or who simply demonstrates a renewed interest in his or her faith, is \u201cvulnerable to identification as a bad Muslim, followed by the surveillance and state violence [that attend] that classification.\u201d9 There need be no evidence of actual violence\u2014or extremism, whatever that means\u2014to be treated as a security threat.10<\/p>\n

Law enforcement agencies have also targeted Indigenous individuals, organiza\u00adtions, and movements, particularly those protesting the environmental damage caused by extractive industries. In Canada, the police have explicitly labeled such activists \u201cAboriginal extremists\u201d in order to encompass Indigenous struggles for self-determination within the government\u2019s \u201cwar on terror.\u201d11 In the U.S., many Indigenous activists asserting treaty rights, most notably the Standing Rock water protectors, have been labeled by the Department of Homeland Security (DHS) as \u201cenvironmental rights extremists\u201d or, in the alternative, dupes of extremists who \u201cattempt to exploit indigenous causes for their own ideological purposes,\u201d12 conveniently sidestepping questions of American Indian sovereignty and treaty compliance. The government\u2019s desire to avoid recognizing Indigenous rights is also reflected in its continued efforts to reduce indigeneity to a \u201cracial\u201d classification,13 the precursor, one suspects, to labeling as \u201cidentity extremists\u201d those who maintain traditional practices or exercise their rights as Indigenous peoples.<\/p>\n

In many respects this is nothing new. American Indians defending their homelands and enslaved Africans rising in rebellion have long been the stuff of settler nightmares, justifying the state\u2019s use of overwhelming military force against those who would assert their rights and independent identities. Neither the colonial occupation of Indigenous lands nor the racialized subjugation of peoples involuntarily incorporated into the polity has ceased. As a result, the fears of uprising (a.k.a. decolonization) persist.<\/p>\n

During the global decolonization era of the 1960s and early 1970s, the FBI\u2019s counterintelligence programs (COINTELPROs) prioritized the American Indian Movement and Puerto Rican Independentistas, as well as \u201cBlack Nationalist-Hate Groups.\u201d14 Under the latter descriptor, there was a particularly vicious focus on the Black Panther Party, but virtually all predominantly African American activist organizations were targeted, from the Southern Christian Leadership Conference (SCLC) to the Nation of Islam, regardless of their tactics, goals, or ideologies.15 In other words, organizing along \u201cracial\u201d lines to contest explicitly racialized subordination posed a threat to the national security.<\/p>\n

A similar elasticity characterizes the FBI\u2019s current definition of BIEs \u201cas indi\u00adviduals who seek, wholly or in part, through unlawful acts of force or violence, in response to perceived racism and injustice in American society and some do so in furtherance of establishing a separate black homeland or autonomous black social institutions, communities, or governing organizations within the United States.\u201d16 This sentence, quoted directly from the Bureau\u2019s Intelligence Assess\u00adment, is so incoherent I\u2019m not even sure where to insert the \u201c[sic].\u201d Nonetheless, we can glean from it that (1) persons willing to consider violating the law to contest racism and injustice may be legitimately targeted; and (2) the Bureau attaches particular significance to those who advocate separatism or support \u201cautonomous\u201d Black communities or institutions.<\/p>\n

A significant difference between COINTELPRO operations and the govern\u00adment\u2019s current targeting of \u201cextremists\u201d is that the latter is proceeding quite pub\u00adlicly, with very little criticism from the public, the mainstream media, or political leaders, Karen Bass being the notable exception. By contrast, the exposure of the secret surveillance and disruption programs of numerous governmental agencies in the mid-1970s created quite a scandal. After a significant if notably incomplete investigation,17 the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities published a multi-volume report condemn\u00ading these programs as both illegal and undemocratic. The Committee\u2014hardly a left-leaning group\u2014stated bluntly:<\/p>\n

Many of the techniques used would be intolerable in a democratic society even if all of the targets had been involved in violent activity, but COINTELPRO went far beyond that. The unexpressed major premise of the programs was that a law enforcement agency has the duty to do whatever is necessary to combat perceived threats to the existing social and political order.18<\/p>\n

In the post-9\/11 era, with so much of the public apparently numbed by a per\u00adpetual \u201cwar on terror,\u201d it\u2019s difficult to imagine law enforcement agencies that \u201cdo whatever is necessary to combat perceived threats\u201d to the status quo being censured in this manner. Instead, the dominant sentiment, even among many progressives, seems to be acquiescence in, if not approval of, the government\u2019s targeting of racialized \u201cidentity extremists.\u201d<\/p>\n

 <\/strong><\/p>\n

Using \u201cIdentity Extremism\u201d to Discredit Resistance <\/strong><\/p>\n

In distilling the FBI\u2019s definition of Black identity extremists, I purposely omitted its reference to \u201cacts of force or violence\u201d because I believe this to be a cosmetic rather than functional part of the definition. In the government\u2019s construction, BIEs constitute a threat because other <\/em>\u201cidentity extremists\u201d\u2014most notably White supremacists19\u2014have engaged in violent attacks, not because of the actual conduct of those labeled BIEs. Thus, for example, in what some have described as the FBI\u2019s first arrest of a \u201cBlack identity extremist,\u201d Christopher Daniels, also known as Rakem Balogun, was charged with illegally possessing firearms, not with a crime involving force or violence.20 At the time of his arrest in December 2017 he had been under FBI surveillance for nearly two years, targeted for protesting police brutality, and for advocating gun ownership and training. In May 2018 a federal judge dismissed the charges but only after Daniels had spent five months in custody, during which time he lost his job and his home.21 Reinforcing this anecdotal evidence, the Department of Homeland Security explicitly acknowl\u00adedges that \u201cenvironmental rights extremists\u201d are protesting \u201cpeople, businesses, or governmental entities perceived to be destroying, degrading, or exploiting the natural environment\u201d and that many of their actions are entirely peaceful and nonviolent. Nonetheless, DHS justifies its characterization with the argument that \u201csome [of their] tactics\u2014such as shutting off pipeline valves []\u2014carry an inherent risk of death or serious injury, regardless of intent.\u201d22<\/p>\n

It seems clear that the terms \u201cidentity\u201d and \u201cextremist\u201d are being conjoined to scare off support for those resisting racialized injustice, thereby freeing up the state and\/or its corporate partners to crush such resistance at will.23 This brings to mind FBI Director J. Edgar Hoover\u2019s 1968 instructions to his agents to discredit \u201cmilitant black nationalist groups and leaders\u201d first to \u201cthe responsible Negro community,\u201d then \u201cto the white community, both the responsible community and to \u2018liberals\u2019 who have vestiges of sympathy for militant black nationalist [sic],\u201d and finally to \u201cthe followers of the movement.\u201d24 This, of course, laid the foundation for what Hoover euphemistically called \u201cneutralization\u201d\u2014tactics intended to \u201cdisrupt and destroy\u201d individuals, organizations, and movements by manufacturing conflict and suspicion within groups, framing people for crimes they did not commit and, when all else failed, simply murdering the leadership.25<\/p>\n

Today, it is difficult to discredit massive and popular struggles for racial jus\u00adtice, or the enforcement of treaty rights, or the protection of drinkable water and breathable air. Repressive measures can be implemented much more easily when the substance of the struggles and their historical contexts are stripped away, when advocates are simplistically described as motivated by hate and willing to engage in \u201cextreme\u201d measures. A contemporary example may be found in the \u201cliberal\u201d Southern Poverty Law Center (SPLC)\u2019s inclusion of 233 \u201cBlack nationalist\u201d groups in their June 2018 roster of 954 \u201chate groups\u201d in the United States. Throughout, the SPLC uses the terms \u201cnationalist\u201d and \u201cseparatist\u201d in\u00adterchangeably, and appears to equate separatism with racial supremacy.26 Mark Potok, a Senior Fellow at the SPLC acknowledges that about 14% of the groups covered are \u201cblack separatists, or black supremacists, [] depending on how you want to characterize them,\u201d despite the fact that \u201cthere\u2019s not much violence at all out of that sector.\u201d27<\/p>\n

If they\u2019re not engaging in violence, why are they being tracked and vilified? Ac\u00adcording to the SPLC\u2019s website, Black nationalism \u201cmay be the predictable reaction to white supremacy\u201d but \u201c[i]f we seek to expose white hate groups, we cannot be in the business of explaining away black ones.\u201d28 Some types of racialized hate speech constitute advocacy of genocide and have been condemned as such under international law.29 However, the SPLC\u2019s simplistic hate group framing does not help us identify actual threats to society. Rather, it reinforces the narrative that links racialized identity to hatred and then to armed attacks; a narrative that, in turn, the state relies on to justify the profiling, surveilling, arresting, assaulting, and murdering of people of color.<\/p>\n

White supremacists have posed a threat to the physical security of people of color throughout U.S. history.30 Some of their most notable\u2014or at least most noted\u2014recent actions include a 21-year-old Confederate history buff\u2019s attack on a study group at an African American church in 2015 that killed nine people.31 In just eight days in May 2017, a Black university student was stabbed and killed in Maryland by a member of the \u201cAlt-Reich: Nation\u201d; two men in Portland who tried to stop a white supremacist from harassing two Muslim women were murdered and a third seriously injured; a California man was arrested for yelling racial slurs and then attacking a Black man with a machete; and in Washington state one American Indian man was killed and another injured when a white man shout\u00ading racial slurs and \u201cwar whoops\u201d ran them over with his pickup truck.32 And, of course, there was the August 2017 torch-lit rally of neo-Nazis and Klansmen chanting \u201cblood and soil\u201d in the college town of Charlottesville, Virginia, that resulted in a lethal attack on counter-protesters.33 Such individuals and groups are frequently described as \u201cnationalists\u201d and the picture is complicated by the confla\u00adtion of race, religion and, identity in the so-called \u201cChristian Identity movement\u201d associated with the Br\u00fcder Schweigen (Silent Brotherhood), the Aryan Nations, many White militia groups, and Timothy McVeigh, who was responsible for the 1995 Oklahoma City bombing in which 168 people were killed.34<\/p>\n

\u201cHate\u201d is a grossly inadequate term for describing White supremacist world\u00adviews and objectives. Nonetheless, once they have been associated with terrorist attacks and with organizations classified as \u201chate groups,\u201d there is a certain su\u00adperficial logic to characterizing other \u201cnationalists\u201d as security threats. (A logic also reflected in President Trump\u2019s description of the Charlottesville confronta\u00adtion as an \u201cegregious display of hatred, bigotry, and violence on many sides, on many many sides.\u201d35) This conflation of White supremacy with the nationalism advocated by subordinated peoples of color allows what Hoover described as \u201cthe white community, both the responsible community and [the] \u2018liberals\u2019\u201d to define the terms upon which racism may \u201clegitimately\u201d be opposed in this society. Racialized \u201chatred\u201d may be condemned; equal protection, colorblind\u00adness, and assimilation may be promoted. But the structural issues need not be confronted. By employing the construct of identity extremism, those willing \u201cto do whatever is necessary to combat perceived threats to the existing social and political order\u201d36 are tapping into the deep-seated fears that prevent so many Americans from being willing to confront racialized injustice at its roots. That said, we are not going to achieve any semblance of racial justice in this country without a much deeper and more thoughtful analysis.<\/p>\n

 <\/strong><\/p>\n

Conflating Nationalism with Racism <\/strong><\/p>\n

In equating White supremacy to the nationalism of people of color in the United States a superficial moral equivalence is being invoked to gloss over inequities that need to be taken seriously.37 The FBI\u2019s August 2017 report on Black identity extremists emphasizes that \u201cperceptions of police brutality\u201d have \u201cspurred an increase in premeditated, retaliatory lethal violence against law enforcement and will very likely serve as justification for such violence\u201d in the future.38 In sup\u00adport, it cites six incidents in 2014 and 2016, two of which resulted in the deaths of eight officers, but provides no accounts of contemporary attacks by \u201cBIEs\u201d on any other targets.39 According to the Washington Post<\/em>, in 2016 alone, 963 people were shot and killed by the police, 234 of them Black.40 The FBI\u2019s report acknowledges \u201cperceived\u201d police brutality as a causal factor, but says nothing about these killings. With respect to private violence, the Anti-Defamation League catalogues 387 deaths attributable to \u201cdomestic extremists\u201d between 2008 and 2017. Of these, right-wing extremists account for 71% of the murders; 26% are associated with Islamic extremism, and only 3% are attributed to left-wing extremism, defined to include both anarchists and Black nationalists.41 There is no evidence that Black nationalism poses a meaningful threat to public safety; there is plenty of evidence that racism does.<\/p>\n

Moving beyond the numbers, asserting a right to dominate others, or to benefit from their exploitation, is simply not comparable to insisting upon a right to live in dignity, and in community, free from racialized subordination. Purpose mat\u00adters. As Keisha Blain notes, \u201cwhat has distinguished black nationalist thought . . . is a militant response to white supremacy, a recognition of the distinctiveness of black culture and history, and an emphasis on how people who represent a \u2018nation within a nation\u2019 ought to create for themselves autonomous spaces in which to advance their own social, political, and economic goals.\u201d42 None of this involves the subjugation of others; the focus, instead, is on self-determination. Nonetheless, as the FBI\u2019s description of BIEs illustrates, the state considers such efforts to build \u201cautonomous black social institutions, communities, or govern\u00ading organizations\u201d problematic, even in direct response to racialized injustice.43<\/p>\n

Self-proclaimed \u201canti-racists\u201d also often oppose self-determination. Many advocate \u201cprogressive\u201d social order in which the state is committed to protect\u00ading individual human rights, including the right to be free from discrimination. To achieve this, they are willing to insist that people of color subordinate other dimensions of our identities to our state citizenship. This is not a news flash. Almost thirty years ago Gary Peller explained that as early as 1963 Malcolm X had<\/p>\n

identif[ied] the basic racial compromise that the incorporation of \u201cthe civil rights struggle\u201d into mainstream American culture would eventually embody: Along with the suppression of white racism that was the widely celebrated aim of civil rights reform, the dominant conception of racial justice was framed to require that black nationalists be equated with white supremacists, and that race consciousness on the part of either whites or blacks be marginalized as beyond the good sense of enlightened American culture.44<\/p>\n

And that\u2019s pretty much where we are. Many \u201cprogressives\u201d recognize the distinction between self-defense and racially motivated criminal attacks; many do not explicitly equate White supremacy with Black nationalism. Nonetheless, their critiques of the government\u2019s suppression of \u201cidentity extremists\u201d do not generally challenge the legitimacy of the construct directly. Instead, they rely on the right to equal protection, arguing that these law enforcement programs are being used pretextually or disproportionately against those deemed Other. With remarkable consistency, the left\/liberal narrative proclaims, implicitly or explicitly, \u201cwe are all Americans.\u201d45<\/p>\n

In this framing, the only acceptable form of nationalism is statist.46 \u201cAmerican\u201d national unity is a presumptive good; internal divisions are inherently problematic. Somewhat ironically, both the white supremacist and <\/em>anti-racist agendas invoke and promote an overarching, universalizing, exclusive statist identity, despite their divergent visions for that identity. Left and right are quick to condemn \u201ctribalism,\u201d using this racially coded term to associate sub-state nationalism with a devolution to \u201cprimitive\u201d times characterized by civil disorder, racialized warfare, and the potential disintegration of the state.47 It is not surprising that the overt advocates of White privilege would take this position. The more interesting question is the why so many who believe the state should provide \u201call persons equal and effec\u00adtive protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,\u201d to quote the International Covenant on Civil and Political Rights,48 also believe that this can only be achieved by rejecting non-state group loyalties in favor of a common (statist) national identity.<\/p>\n

To condition equal protection on statist allegiance is to eviscerate the right to self-determination. And why should we care about self-determination? Perhaps because it allows us to envision what it would mean to be free from discrimination and also to be free, period. Free to determine our political status; free to create our own economic, social and cultural institutions.49 Free to develop understandings of ourselves that are not singular and exclusive, limited by colonially-imposed boundaries of race and state, but multi-dimensional, layered, and reflective of our actual histories. Non-discrimination is a presumptive bottom line but it should not be confused with freedom.<\/p>\n

 <\/strong><\/p>\n

Assimilating Others <\/strong><\/p>\n

Throughout U.S. history, racialization has been used to facilitate the appro\u00adpriation of Indigenous lands and resources and the exploitation of the labor and talents of both voluntary and involuntary migrants.50 After the Civil War, the federal government was forced to recognize people of color within the United States as entitled to the equal protection of the law, and implementation of this constitutional guarantee was a major focus of the civil rights movement of the 1950s and \u201860s. In international law, World War II and the subsequent decolo\u00adnization movements forced the powerful European and Euroderivative states to condemn racial discrimination, most notably in the Convention on the Elimina\u00adtion of All Forms of Racial Discrimination.51 These are critically important legal guarantees, but they are not sufficient. Among other things, the right not to be discriminated against does not protect us from efforts to erase our histories and cultures in the name of assimilation.<\/p>\n

When racial identity could no longer be legitimately invoked (overtly, anyway) to serve those purposes, the official policy became colorblindness.52 The playing field was declared level, precluding the need for redress for centuries of racially contingent exploitation. Thus, just seventeen years after the abolition of slavery, the Supreme Court declared that \u201c[w]hen a man has emerged from slavery, . . . there must be some stage in the progress of his elevation when he . . . ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men\u2019s rights are protected.\u201d53 Colorblindness conveniently allows for racial disparities in virtually all dimen\u00adsions of life to be attributed to poverty, or some variant of cultural inadequacy, rather than structural racism\u2014just as, in the international realm, \u201cunderdevel\u00adopment\u201d rather than colonialism is blamed for the problems of the Third World or the global South.54 Within this paradigm, equal protection becomes the sole remedy for racial subordination, and assimilation would seem to be the natural path to achieving equality.<\/p>\n

Assimilationism is the flip side of attacks on identity extremism; to condemn those who prioritize their non-statist identities is to implicitly require confor\u00admity to the tenets of a Euroderivative settler culture. Assimilationist ideology allows racialized exclusions to be framed as temporary; it puts the burden of behavioral change on those who are excluded, and it provides an excuse to sup\u00adpress the cultures, histories, and identities of those deemed Other. The horrors of governmentally imposed assimilation programs are both well documented and beyond the scope of this essay,55 but a few points are worth noting. One is that, as Lorenzo Veracini has pointed out in the context of settler societies, the quest for assimilation is futile because its success is \u201cnever dependent on indigenous performance\u201d but, instead, requires absorption by settler society.\u201d56 This absorp\u00adtion never occurs because settler societies, like other forms of colonialism, rely on what Anthony Anghie calls the \u201cdynamic of difference,\u201d an \u201cendless process of creating a gap between two cultures, demarcating one as \u2018universal\u2019 and civilized and the other as \u2018particular\u2019 and uncivilized.\u201d57<\/p>\n

The dynamic of difference, in turn, provides the rationale both for perpetually excluding those deemed other and for requiring them to comply with assimila\u00adtionist policies intended to systematically destroy them as \u201ca national, ethnical, racial or religious group, as such.\u201d58 Such destruction is, of course, the textbook definition of genocide. As Raphael Lemkin, who coined the term, explained, \u201c[g]enocide has two phases: one, destruction of the national pattern of the op\u00adpressed group; the other, the imposition of the national pattern of the oppressor.\u201d59 To the extent that we accept the identity extremist paradigm, we give law enforce\u00adment agencies the discretion to obliterate \u201cseparatist\u201d groups targeted not because they pose a threat to others but because they refuse to recognize the legitimacy of the state. A prime example is the 1985 bombing by the Philadelphia police of the house occupied by members of MOVE, a group that followed the teachings of John Africa, including \u201ca communal \u2018back to nature\u2019 lifestyle, vegetarianism, reverence for all animal life, and scorn for \u2018The Establishment.\u201d60 City officials not only bombed the house but decided to let it burn, allowing eleven MOVE members, including five children, to burn to death and over sixty houses to be destroyed.61 The invocation of \u201cidentity extremism\u201d for such purposes sanctions the state in its exercise of a claimed sovereign power described by Giorgio Agam\u00adben as \u201cthe originary exception in which human life is included in the political order in being exposed to an unconditional capacity to be killed.\u201d62 The distinction between equal protection under law and the right to main\u00adtain an independent identity in community with others who share that identity has been recognized by colonized peoples the world over. The Algerians, for example, fought a long and bitter war for independence, rejecting French at\u00adtempts to avoid decolonization by incorporating Algeria into the French polity.63 This distinction is also repeatedly articulated in international law. Beyond the prohibition on genocide, international human rights law specifically requires states to ensure that \u201cethnic, religious or linguistic minorities\u201d have the ability to enjoy their culture, practice their religion, and use their own language \u201cin community with other members of their group.\u201d64 The UN Declaration on the Rights of Indigenous Peoples, long-delayed and watered down as it is, explicitly recognizes that \u201cIndigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture,\u201d and that states must act to prevent and provide redress for \u201c[a]ny action which has the aim of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities.\u201d65<\/p>\n

 <\/strong><\/p>\n

Prioritizing Self-Determination <\/strong><\/p>\n

International law not only recognizes but prioritizes the right of all peoples to self-determination. According to the International Court of Justice, \u201cthe right of peoples to self-determination, as it evolved from the UN Charter and from United Nations practice, has an erga omnes character\u201d\u2013 in other words, it is binding on all.66 The Charter identifies the development of \u201cfriendly rela\u00adtions among nations based on respect for the principle of equal rights and self-determination of peoples\u201d as one of the United Nations\u2019 primary functions.67 The General Assembly\u2019s 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples (Resolution 1514) \u201c[s]olemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations.\u201d68 It states forthrightly: \u201cAll peoples have the right to self-determination; by virtue of that right they freely determine their politi\u00adcal status and freely pursue their economic, social and cultural development.\u201d69 This is repeated almost verbatim in Common Article 1 of the ICCPR and the International Convention on Economic, Social and Cultural Rights.70 I t h as been recognized as a norm of customary international law and, by some, as a jus cogens <\/em>norm from which no derogation may be permitted.71<\/p>\n

According to the UN Human Rights Committee, the right to self-determination was given such primacy because it is a foundational precept, one whose \u201cre\u00adalization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights.\u201d72 Implied in this construction is the very powerful point that our strug\u00adgles to promote and strengthen the right to be free from racial discrimination cannot be effective except to the extent they are waged within a social order firmly grounded in the realization of the right to self-determination. There is considerable debate over whether self-determination gives people of color in the United States any right beyond that of participating in processes of democratic governance.73 Not surprisingly, states do not see it as in their interest for peoples under their (claimed) jurisdiction to exercise their right to self-determination and, as a result, have developed strategies for resisting such movements or mini\u00admizing their impact.<\/p>\n

The first argument invoked is often the international legal principle of \u201cnon-interference in the internal affairs\u201d of states that is considered essential to the protection of their \u201cterritorial integrity.\u201d74 Settler states and other entities with internally colonized peoples also invoke the \u201csalt water\u201d or \u201cblue water\u201d doctrine which attempts to limit decolonization to territories that are \u201cgeographically sepa\u00adrate\u201d as well as \u201cdistinct ethnically and\/or culturally\u201d from the \u201cadministering\u201d state.75 Finally, because self-determination is articulated as a right of \u201cpeoples,\u201d states often claim that particular groups are simply \u201cminorities,\u201d or subsets of the general population, rather than distinct \u201cpeoples.\u201d76 That is why the Trump administration would like to classify American Indians as a \u201crace\u201d rather than peoples or nations.<\/p>\n

None of these arguments, however, can overcome the fundamental illegality of colonial occupation. As stated in the 1976 Universal Declaration of the Rights of Peoples (\u201cAlgiers Declaration\u201d), \u201c[e]very people has an imprescriptible and unalienable right to self-determination\u201d including \u201cthe right to break free from any colonial or foreign domination, whether direct or indirect, and from any racist regime.\u201d77 Settler states have no superior rights to the \u201cintegrity\u201d of colo\u00adnized territories simply because they have claimed particular boundaries.78 And, as Howard Vogel observes, \u201cthe definition of the term \u2018peoples\u2019 in a minority rights context must be left to the people themselves.\u201d79 In the Namibia <\/em>case, the International Court of Justice rejected South Africa\u2019s argument that Namibian \u201ctribalism\u201d precluded recognition of Namibians as a people.80 P erhaps m ore significantly, the Court\u2019s Vice President Fouad Ammoun pointed out that the Namibian people had achieved recognition of \u201cits international personality\u201d by the UN General Assembly and the Security Council, as well as the Court, \u201cby taking up the struggle for freedom.\u201d81 In other words, we have agency in the process of decolonization.<\/p>\n

As Richard Falk notes, much hinges on \u201cwhether 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.\u201d82 Viewed from the bottom, the arguments summarized above, when invoked by the United States, look very much like a desperate attempt to avoid coming to terms with the fact that this is, still, a settler colonial state whose existence depends on the illegal occupation of Indigenous lands and the appropriation of Indigenous resources, and whose wealth is built upon the labor of enslaved, imprisoned or grossly underpaid workers, many of whom are the descendants of entirely involuntary migrants.83<\/p>\n

 <\/p>\n

Conclusion <\/strong><\/p>\n

She dreamed of land, a spacious house, fresh air, organic food, and endless meadows without boundaries, free of evil and violence, free of toxins and environmental hazards, free of poverty, racism, and sexism . . . just free. <\/em><\/p>\n

-Robin D.G. Kelley84 <\/sup><\/p>\n

\u201cIdentity extremism\u201d is a construct that is being used by law enforcement agen\u00adcies to transform those who do not comply with state-imposed assimilationist measures into enemies of the state. I do not feel threatened by people who contest racialized injustice and are willing to protect their communities; nor by those who have a genuine interest in their religious traditions. I deeply appreciate those will\u00ading to risk the wrath of the state and powerful corporate interests to protect the earth and water and air, for without those none of the rest of this matters. From my perspective, the identity extremism that actually threatens our collective wellbe\u00ading is reflected in Donald Trump\u2019s 2018 triumphalist commencement address at the U.S. Naval Academy, in which he proclaimed that \u201cour ancestors trounced an empire, tamed a continent, and triumphed over the worst evils in history,\u201d adding that \u201c[w]e are not going to apologize for America.\u201d85 It is a narrative of identity that reinforces the AngloAmerican settler presumption of sovereign entitlement, the colonizers\u2019 right to exercise exclusive control over stolen lands and to decide who is allowed to remain on those lands, who is to be exterminated or relocated, who may or may not migrate and who will be forced to do so.86 It creates hierarchies of racialized privilege and subjugation while simultaneously erasing the identities of the subordinated. Ng\u0169g\u012b wa Thiong\u2019o calls such erasure the \u201ccultural bomb\u201d of colonialism, that which \u201cannihilate[s] a people\u2019s belief in their names, in their languages, in their environment, in their heritage of struggle, in their unity, in their capacities and ultimately in themselves,\u201d with the result that they \u201cwant to identify with that which is furthest removed from themselves.\u201d87<\/p>\n

The history of the United States is one of the forcible inclusion of peoples who were always intended to be excluded from settler society. American Indians have been overrun by European invasions; subjected to genocidal campaigns of exter\u00admination and assimilation; had their identities defined and re-defined at the will of the federal government; and were ultimately declared to be U.S. citizens without consultation or consent.88 Indigenous peoples from Africa were kidnapped, forcibly relocated, and enslaved in North America for centuries before their descendants were unilaterally \u201cgranted\u201d birthright citizenship in 1868.89 T he northern half of Mexico, the Kingdom of Hawai\u2019i, and Alaska were all claimed and absorbed by the United States, without the consent of their residents.90 The Philippines, Puerto Rico and Guam were claimed as external colonies in 1898; the latter two, along with the Northern Mariana Islands, the U.S. Virgin Islands, and American Samoa remain \u201cunincorporated territories,\u201d i.e., external colonies, of the U.S.91 The histories of all of these lands and peoples embody forms of \u201cinclusive exclusion,\u201d the phrase employed by Agamben to describe the process \u201cby which something is included solely through its exclusion.\u201d92<\/p>\n

The exclusions represented by racial domination and subordination cannot be remedied without also addressing the harm embodied in the underlying inclu\u00adsions. To focus solely on the exclusions legitimizes the process of colonization that established the state and this, in turn, reinforces the structural racism that undergirds and perpetuates the status quo. This is why, in international law, the prohibition on discrimination is prefaced by recognition of the right to self-determination. What does it mean to \u201cremedy the inclusion\u201d in real life? The beauty of self-determination is that we don\u2019t know the end of the story. And we 43<\/p>\n

don\u2019t get to tell other people what they \u201cshould\u201d want. But we know that it is a right realized by human agency, not state action, and that we can create spaces within which communities are empowered to realize their own visions. We can claim identities that are not merely \u201cintersectional\u201d but multiple and overlapping; we can envision ways of organizing society not limited to state formations; we can move beyond the linear, universalizing claims of \u201cWestern civilization\u201d to acknowledge a pluriverse of worldviews.93<\/p>\n

For those of us who are lawyers, we can heed the late Robert Cover\u2019s reminder, found in his powerful essay \u201cNomos and Narrative,\u201d that \u201c[t]he position that only the state creates law [] confuses the status of interpretation with the status of po\u00adlitical domination.\u201d94 What if we were to insist that treaties with American Indian nations be honored, or Indigenous rights to unceded territories acknowledged? Or the history of American imperial expansion acknowledged and rectified? Or the wealth generated by enslaved African and Indigenous peoples recognized and their descendants provided with meaningful redress? Put in such broad terms, these issues can seem overwhelming, but each embodies countless struggles in discrete communities; struggles that are small, but may be decisive; struggles that are happening today and could use our help. T hese are struggles for self-determination that the state is trying to crush, in part, by condemning nationalism and vilifying unsanctioned assertions of identity as \u201cextremism.\u201d<\/p>\n

\u201cLegal meaning is a challenging enrichment of social life, a potential restraint on arbitrary power and violence,\u201d Cover said. \u201cWe ought to stop circumscribing the nomos<\/em>; we ought to invite new worlds.\u201d95 We do not need to accede to the political domination embodied in the construct of identity extremism, or to accept that we will achieve racial equality only at the expense of self-determination. Like Robin Kelley\u2019s mother, described in the quote that began this section, we can dream of being not merely \u201cequal\u201d but free.<\/p>\n

 <\/p>\n

Notes <\/strong><\/p>\n

1 International Covenant on Civil and Political Rights, art. 1, Dec. 16, 1966, entered into force <\/em>Mar. 23, 1976, 999 U.N.T.S. 171 [hereinafter ICCPR] and International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, entered into force <\/em>Jan. 3, 1976, 999 U.N.T.S. 3 [hereinafter ICESCR], common art. 1(1). The United States signed both treaties in 1977; the ICCPR was ratified in 1992 but the ICESCR has not been ratified.<\/p>\n

2 I have capitalized the terms White and Black to indicate their use not as descriptive adjectives but as proper nouns that, thanks to the racial classifications imposed upon people in the United States, reference, respectively, individuals of (purportedly) exclusive European descent and those with any trace of African descent.<\/p>\n

3 Federal Bureau of Investigation, Black Identity Extremists Likely Motivated to Target Law Enforcement Officers \u201d [hereinafter FBIReport], https:\/\/privacysos.org\/wp-content\/ uploads\/2017\/10\/FBI-BlackIdentityExtremists.pdf.<\/p>\n

4 Ibid. <\/em>at 7; see also <\/em>Khaled A. Beydoun and Justin Hansford, Op-Ed, The F.B.I.\u2019s Dangerous Crackdown on “Black Identity Extremists,\u201d <\/em>N.Y. Times, Nov. 15, 2017, https:\/\/www.nytimes.com\/2017\/11\/15\/ opinion\/black-identity-extremism-fbi-trump.html.<\/p>\n

5 Jana Winter and Sharon Weinberger, The FBI\u2019s New U.S. Terrorist Threat: \u201cBlack Identity Extremists,\u201d <\/em>ForeignPolicy, Oct. 6, 2017, https:\/\/foreignpolicy.com\/2017\/10\/06\/ the-fbi-has-identified-a-new-domestic-terrorist-threat-and-its-black-identity-extremists\/.<\/p>\n

6 PBS News Hour, Lawmaker asks Sessions why there\u2019s an FI report about black \u2018extremists,\u2019 but not one about those who are white<\/em>, https:\/\/www.pbs.org\/newshour\/politics\/watch-lawmaker-asks-sessions-why-theres-an-fbi-report-about-black-extremists-but-not-one-about-those-who-are-white (providing video of House Judiciary Committee hearing).<\/p>\n

7 Khaled Beydoun, American Islamophobia: Understanding the Roots and Rise of Fear (2018).<\/p>\n

8 The White House, Office of the Press Secretary, Fact Sheet: The White House Summit on Countering Violent Extremism<\/em>, Feb. 18, 2015, https:\/\/obamawhitehouse.archives.gov\/ the-press-office\/2015\/02\/18\/fact-sheet-white-house-summit-countering-violent-extremism.<\/p>\n

9 Ibid. <\/em>at 121-122.<\/p>\n

10 See generally <\/em>Sahar F. Aziz, Losing the \u201cWar of Ideas\u201d: A Critique of Countering Violent Extremism Programs<\/em>, 52 Tex. Int\u2019l L.J. 255 (2017).<\/p>\n

11 Andrew Crosby and Jeffrey Monaghan, Policing Indigenous Movements: Dissent and the Security State 15-16 (2018).<\/p>\n

12 Department of Homeland Security, Field Analysis Report, \u201cTTPs Used in Recent US Pipeline Attacks by Suspected Environmental Rights Extremists\u201d pp. 2, 4, May 2, 2017, https:\/\/thein\u00adtercept.com\/document\/2017\/12\/11\/may-2017-field-analysis-report\/ [hereinafter DHSField Analysis Report]. \u201cTTPs\u201d refers to \u201ctargeting, tactics and procedures.\u201d See generally <\/em>Will Parrish, An Activist Stands Accused of Firing a Gun at Standing Rock. It Belonged to Her Lover\u2014an FBI Informant<\/em>, The Intercept, Dec. 11, 2017, https:\/\/theintercept.com\/2017\/12\/11\/ standing-rock-dakota-access-pipeline-fbi-informant-red-fawn-fallis\/.<\/p>\n

13 See <\/em>Levi Rickert, Trump Administration Wants American Indians To Be Considered a Race Rather Than Sovereign Nations<\/em>, Native News Online.Net, Apr. 22, 2018, https:\/\/native\u00adnewsonline.net\/currents\/trump-administration-wants-american-indians-to-be-considered-a-race-rather-than-sovereign-nations\/; Dan Diamond, Trump challenges Native Americans\u2019 historical standing<\/em>, Politico, Apr. 22, 2018, https:\/\/www.politico.com\/story\/2018\/04\/22\/ trump-native-americans-historical-standing-492794.<\/p>\n

14 Karen Bass makes this point, see supra <\/em>note 6; see also <\/em>Ward Churchill & Jim Vander Wall, The COINTELPROPAPERS: Documents from the FBI\u2019s Secret Wars Against Dissent in the United States, 242-302 (American Indian Movement), 68-90 (Puerto Rican Independence Movement), 91-164 (Black Liberation Movements) (2d Ed. 2001). See generally <\/em>Natsu Taylor Saito, Whose Liberty? Whose Security? The USA PATRIOT Act in the Context of COINTELPRO and the Unlawful Repression of Political Dissent<\/em>, 81 Or. L. Rev. <\/em>1051 (2002).<\/p>\n

15 See <\/em>Churchill & Vander Wall, supra <\/em>note 14 at 123-164; Senate Select Comm. To Study Government Operations with Respect to Intelligence Activities, Final Report: Intelligence Activities and the Rights of Americans, S. Rep. No. 755, 94th Cong., 2d Sess. bk. III, at 22 (1976) [hereinafter Senate Select Committee, Final Report].<\/p>\n

16 FBIReport, supra <\/em>note 3 at 2 fn.b. \u201cEnvironmental Rights Extremists\u201d are defined by the Department of Homeland Security \u201cas groups or individuals who facilitate or engage in acts of unlawful violence against people, businesses, or governmental entities perceived to be destroying, de\u00adgrading, or exploiting the natural environment.\u201d DHS Field Analysis Report, supra <\/em>note 12. The Report acknowledges that they may only be engaged in property damage but claims that poses a threat to life.<\/p>\n

17 The Committee \u201ctemporarily\u201d suspended its investigation prior to scheduled hearings on opera\u00adtions targeting the American Indian Movement and organizations supporting Puerto Rican independence; these hearing were never held. Churchill & Vander Wall, supra <\/em>note 14 at 119-134, 366-370.<\/p>\n

18 Senate Select Committee, Final Report, supra <\/em>note 15 at 3.<\/p>\n

19 See <\/em>Erroll G. Southers, President Trump wants \u201cthe facts\u201d on right-wing extremism. Here they are. <\/em>USAToday, Aug. 18, 2017 (noting that of the 372 people killed by \u201cextremists\u201d between 2007-2016, 74% were murdered by right wing extremists), https:\/\/www.usatoday.com\/story\/ opinion\/2017\/08\/18\/president-trump-wants-facts-right-wing-extremism-here-they-are-erroll-southers-column\/577308001\/.<\/p>\n

20 See <\/em>Martin de Bourmont, Is a Court Case in Texas the First Prosecution of a \u201cBlack Identity Extremist\u201d? <\/em>ForeignPolicy, Jan. 30, 2018, https:\/\/foreignpolicy.com\/2018\/01\/30\/is-a-court-case-in-texas-the-first-prosecution-of-a-black-identity-extremist\/. See also <\/em>FBIReport, supra <\/em>note 3 (retroactively identifying individuals and groups active decades ago as BIEs).<\/p>\n

21 Bourmont, supra <\/em>note 20 (noting that one of the items seized in the raid of Daniels\u2019 apartment was a copy of Robert F. Williams\u2019 book, Negroes With Guns<\/em>); Alex Macon, Charges Dropped Against Alleged \u201cBlack Identity Extremist\u201d in Dallas<\/em>, DMagazine, May 11, 2018, https:\/\/www. dmagazine.com\/frontburner\/2018\/05\/rakem-balogun-dallas\/.<\/p>\n

22 DHSField Analysis Report, supra <\/em>note 12 at 1 fn.*, 2. See also <\/em>Jamie Bartlett, The Next Wave of Extremists Will Be Green<\/em>, ForeignPolicy, Sept. 1, 2017 (\u201cWe will not easily forgive our\u00adselves if our attention is exclusively occupied by the Islamic State of the far-right when the coming wave of environmental radicalization hits.\u201d), http:\/\/foreignpolicy.com\/2017\/09\/01\/ the-green-radicals-are-coming-environmental-extremism\/.<\/p>\n

23 As an example, see Thomas Dresslar, American Civil Liberties Union, How Many Law Enforcement Agencies Does It Take to Subdue a Peaceful Protest? <\/em>https:\/\/www.aclu.org\/blog\/free-speech\/ rights-protesters\/how-many-law-enforcement-agencies-does-it-take-subdue-peaceful (docu\u00admenting the deployment of officers from 76 law enforcement agencies to Standing Rock to protect construction of the Dakota Access Pipeline).<\/p>\n

24 Airtel of Mar. 4, 1968, from FBI Director to all special agents assigned to \u201cRacial Intelligence,\u201d reproduced in Churchill & Vander Wall, supra <\/em>note 14 at 108-111 (quote at 110-111).<\/p>\n

25 For a cogent summary of illegal practices employed by the FBI during this era, see generally Ward Churchill, \u201cTo Disrupt, Discredit and Destroy\u201d: The FBI\u2019s Secret War Against the Black Panther Party<\/em>, in <\/em>Liberation, Imagination and the Black Panther Party 78-117 (Kathleen Cleaver & George Katsiaficas eds., 2001).<\/p>\n

26 See <\/em>Southern Poverty Law Center, Hate Map<\/em>, https:\/\/www.splcenter.org\/hate-map; see also Frequently asked questions about hate groups, <\/em>https:\/\/www.splcenter.org\/20171004\/ frequently-asked-questions-about-hate-groups#violence%20play%20a%20role.<\/p>\n

27 Mark Potok, Political Extremism and Domestic Terrorism in America<\/em>, 6 U. Miami Nat\u2019l Sec. & Armed Conflict L. Rev. <\/em>90, 99 (2016).<\/p>\n

28 Southern Poverty Law Center, Black Nationalist<\/em>, https:\/\/www.splcenter.org\/fighting-hate\/ extremist-files\/ideology\/black-nationalist.<\/p>\n

29 See generally <\/em>Noah Benjamin Novogrodsky, Judging Stories<\/em>, 18 Lewis & Clark L. Rev. <\/em>37 (2014) (providing examples from Julius Streicher\u2019s conviction at Nuremberg through cases handled by the International Criminal Tribunals for Rwanda and the Former Yugoslavia).<\/p>\n

30 I am using the term \u201csupremacist\u201d to distinguish individuals and groups that promote the subor\u00addination or elimination of people of color from those that do not advocate or engage in attacks on people of color but focus on subsisting independently of the state. On the complex history of White separatist and supremacist organizations in the United States, see generally Betty A. Dobratz and Stephanie L. Shanks-Meile, The White Separatist Movement in the United States (2000).<\/p>\n

31 See generally <\/em>Jesse J. Norris, Why Dylann Roof Is a Terrorist Under Federal Law, and Why It Matters<\/em>, 54 Harv. J. Legis. 259 (2017).<\/p>\n

32 Southers, supra <\/em>note 19.<\/p>\n

33 See generally <\/em>Farah Peterson, Foreword<\/em>, 104 Va. L. Rev. Online 1 (2018).<\/p>\n

34 See <\/em>Mark Juergensmeyer, Christian Violence in America<\/em>, 58 Annals Am. Acad. Pol. & Soc. Sci. 88, 95-98 (1998); see generally <\/em>Dobratz and Shanks-Meile, supra <\/em>note 29.<\/p>\n

35 Jackie Calmes, Trump responds to Charlottesville violence with vague statements blaming \u201cmany sides,\u201d <\/em>L.A. Times, April 17, 2017, https:\/\/www.latimes.com\/politics\/la-pol-updates-trump-tweets-charlottesville-violence-htmlstory.html.<\/p>\n

36 See supra <\/em>note 18 and accompanying text.<\/p>\n

37 On Black nationalism, see Keisha N. Blain, Set the World on Fire: Black Nationalist Women and the Global Struggle for Freedom 5 (2018) (noting that while \u201cblack nationalism is neither static nor monolithic,\u201d its core tenets encompass \u201cracial separatism, black pride and unity, political self-determination, and economic self-sufficiency\u201d); for background see generally Is It Nation Time? Contemporary Essays on Black Power and Black Nationalism (Eddie S. Glaude, Jr., ed., 2002); Rod Bush, We Are Not What We Seem: Black Nationalism and Class Struggle in the American Century (2000).<\/p>\n

38 FBIReport, supra <\/em>note 3 at 2.<\/p>\n

39 Ibid. <\/em>at 4-6. The report goes on to state that \u201cBIE violence peaked in the 1960s and 1970s in response to changing socioeconomic attitudes and treatment of blacks during the Civil Rights Movement,\u201d providing \u201ccriminal incidents\u201d involving the Black Liberation Army as its sole examples. Ibid. <\/em>at 6.<\/p>\n

40 Fatal Force<\/em>, Wash. Post, https:\/\/www.washingtonpost.com\/graphics\/national\/police-shootings-2016\/.<\/p>\n

41 Anti-Defamation League, ADL Report: White Supremacist Murders More Than Doubled in 2017<\/em>, Jan. 17, 2018 , https:\/\/www.adl.org\/news\/press-releases\/adl-report-white-supremacist-murders-more-than-doubled-in-2017.<\/p>\n

42 Blain, supra <\/em>note 37 at 6.<\/p>\n

43 FBIReport, supra <\/em>note 3 at 2 fn. b.<\/p>\n

44 Gary Peller, Race Consciousness<\/em>, 1990 Duke L.J. 758, 760 (referencing a 1963 speech found at Malcolm X, Malcolm X Speaks <\/em>31 (1965)).<\/p>\n

45 See, e.g., <\/em>Meshea L. Poore, The Power of One<\/em>, 2018-Wtr W. Va. Law. <\/em>6 (2017-2018) (describing individual actions capable of overcoming hate and fear in the interest of a racially harmonious America).<\/p>\n

46 I am using the term \u201cstate\u201d to refer to the political constructs currently recognized as the primary actors in international law and \u201cnation\u201d to refer to the perhaps 5,000 peoples who see themselves as such based on their common history, culture, language, and\/or geographic ties. See generally <\/em>Bernard Neitschmann, The Fourth World: Nations Versus States<\/em>, in Reordering the World: Geopolitical Perspectives on the Twenty-First Century 237 (George J. Demko & William B. Wood, eds., 1994).<\/p>\n

47 See, e.g., <\/em>David Brooks, The Retreat to Tribalism<\/em>, N.Y. Times, Jan. 1, 2018 (lamenting that \u201cwe\u2019ve regressed from a sophisticated moral ethos to a primitive one\u201d),<\/p>\n

https:\/\/www.nytimes.com\/2018\/01\/01\/opinion\/the-retreat-to-tribalism.html. See also Montoya v. U.S.<\/em>, 180 U.S. 261, 264-265 (1901) (explaining that due \u201cto the natural infirmities of the [American] Indian character, their fiery tempers, . . . their nomadic habits, and lack of mental training\u201d as well as the fact that they had \u201cno established laws\u201d or \u201crecognized method of choosing their sovereigns,\u201d they should not be recognized as \u201cnations\u201d but only as \u201ctribes\u201d and \u201cbands\u201d); Dan Gunter, The Technology of Tribalism: The Lemhi Indians, Federal Recognition, and the Creation of Tribal Identity<\/em>, 35 Idaho L. Rev. <\/em>85, 99-104 (1998) (discussing the relationship between \u201ctribalism\u201d and \u201cOrientalism\u201d).<\/p>\n

48 ICCPR, supra <\/em>note 1, art. 26.<\/p>\n

49 Ibid. <\/em>at art. 1(2).<\/p>\n

50 For a brief summary, see Natsu Taylor Saito, Tales of Color and Colonialism: Racial Realism and Settler Colonial Theory<\/em>, 10 Fla. A&MUniv. L. Rev. <\/em>1, 47-64 (2014).<\/p>\n

51 International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, entered into force <\/em>Jan. 4, 1969, 660 U.N.T.S. 195. On the significance of international human rights law and this treaty in particular to the struggle for racial justice in the United States, see Jeremy I. Levitt, \u201cFuck Your Breath\u201d: Black Men and Youth, State Violence, and Human Rights in the 21st Century<\/em>, 49 Wash. U. J.L. & Pol\u2019y 87, 100-111 (2015). Levitt\u2019s title derives from the final works spoken by a Tulsa, Oklahoma police officer to Eric Harris, an unarmed Black man who could not breathe because the officer had just fatally shot him in the chest. Ibid. <\/em>at 99.<\/p>\n

52 See generally <\/em>Neil Gotanda, A Critique of \u201cOur Constitution is Color-Blind<\/em>,\u201d <\/em>44 Stan. L. Rev. <\/em>1 (1991).<\/p>\n

53 The Civil Rights Cases<\/em>, 109 U.S. 3, 26 (1883) (declaring sections of the Civil Rights Act of 1875 mandating equal access to public accommodations to be unconstitutional).<\/p>\n

54 See generally <\/em>Natsu Taylor Saito, Decolonization, Development, and Denial<\/em>, 6 Fla. A& MU. L. Rev. 1 (2010); Ruth E. Gordon & Jon H. Sylvester, Deconstructing Development, 22 Wis. Int\u2019l L.J. 1 (2004).<\/p>\n

55 For examples and analysis, see generally Ward Churchill, Kill the Indian, Save the Man: The Genocidal Impact of American Indian Residential Schools (2004); Jerome M. Culp, Jr., Black People in White Face: Assimilation, Culture, and the Brown Case<\/em>, 36 Wm. & Mary L. Rev. <\/em>665 (1995); George A. Martinez, Latinos, Assimilation and the Law: A Philosophical Perspective<\/em>, 20 Chicano-Latino L. Rev. 1 (1999).<\/p>\n

56 Lorenzo Veracini, Settler Colonialism: A Theoretical Overview 38 (2010).<\/p>\n

57 Antony Anghie, Imperialism, Sovereignty and the Making of International Law 4 (2007).<\/p>\n

58 International Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, entered into force <\/em>Jan. 12, 1951, 102 Stat. 3045, 78 U.N.T.S. 277, art. II.<\/p>\n

59 Raphael Lemkin, Axis Rule in Occupied Europe 79 (1944).<\/p>\n

60 Eric Ledell Smith, MOVE Bombing <\/em>in The Civil Rights Movement in America: From Black Nationalism to the Women\u2019s Political Council 230-232, 230 (Peter B. Levy, ed., 2015); see also In re City of Philadelphia Litigation<\/em>, 938 F.Supp. 1278 (E.D. Pa. 1996).<\/p>\n

61 Smith, supra <\/em>note 60 at 231-232. See also <\/em>Akinyele Omowale Umoja, We Will Shoot Back: Armed Resistance inthe Mississippi Freedom Movement 194-210 (2013) (describing gov\u00adernmental attacks on the \u201cRepublic of New Africa\u201d in Mississippi in the early 1970s). While it is beyond the scope of this essay, a similar case could be made regarding nonviolent White separatist movements, as illustrated by the FBI\u2019s chemical attack on a compound in Waco, Texas that killed 76 Branch Davidians, including 27 children. See generally <\/em>David B. Kopel & Paul H. Blackman, No More Wacos: What\u2019s WrongWith Federal Law Enforcement and How to Fix It (1997).<\/p>\n

62 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life 85 (Daniel Heller-Roazen, trans., 1998).<\/p>\n

63 See <\/em>Fiona Barclay, Charlotte Ann Chopin & Martin Evans, Introduction: Settler Colonialism and French Algeria<\/em>, 8(2) Settler Colonial Studies <\/em>115 (2017).<\/p>\n

64 ICCPR, supra <\/em>note 1, art. 26.<\/p>\n

65 United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61\/295, Sept. 13, 2007, art. 8(1) and (2)(a). For critiques of the process and its outcome, see generally Special Issue: The 2007 Declaration on the Rights of Indigenous Peoples: Indigenous Survival\u2014Where To From Here?, <\/em>20(3) Griffith Law Review Law 507 (2011).<\/p>\n

66 Case concerning East Timor (Portugal v. Australia)<\/em>, 1995 I.C.J. 90, 102 (June 30, 1995).<\/p>\n

67 U.N. Charter, art. 1(2). For background on the intent of the parties drafting this provision; see W. Ofuatey-Kodjoe, Principle of Self-Determination in International Law 104-113 (1977).<\/p>\n

68 UNGA Resolution 1514 (XV) UN GAOR, 15th Sess., Supp. 16, UN Doc A\/4684 (December 14, 1960). For background, see Ofuatey-Kodjoe, supra <\/em>note 67 at 115-22.<\/p>\n

69 UNGA Resolution 1514, supra <\/em>note 68, para. 2.<\/p>\n

70 ICCPR and ICESCR, supra <\/em>note 1, common art. 1(1). On the evolving concept of self-determination, see Howard J. Vogel, Reframing Rights from the Ground Up: The Contribution of the New U.S. Law of Self-Determination to Recovering the Principle of Sociability on the Way to a Relational Theory of International Human Rights<\/em>, 20 Temple Int\u2019l & Comp. L.J. 443, 448-78 (2006). For a more orthodox summary, see generally Hurst Hannum, Rethinking Self-Determination<\/em>, 34 Va. J. Int\u2019l L. <\/em>1 (1993).<\/p>\n

71 See generally <\/em>Edward A. Laing, The Norm of Self-Determination, 1941-1991<\/em>, 22 Cal. W. Int\u2019l L.J. 209 (1991) (explaining the norm as customary law, binding on all states); Lee Seshagiri, Democratic Disobedience: Reconceiving Self-Determination and Secession as International Law<\/em>, 51 Harv. Int\u2019l L.J. <\/em>553, 567 (2010) (noting that \u201cthe classical right of colonial self-determination has acquired jus cogens status\u201d).<\/p>\n

72 Office of the High Commissioner for Human Rights, Human Rights Committee, General Comment No. 12, art. 1: The Right to Self-Determination of Peoples, para. 1. 21st Sess., Annex, UN Doc. CCPR\/C\/21\/Rev.1 (April 12, 1984).<\/p>\n

73 See, e.g., <\/em>James Crawford, The Creation of Stats in International Law 100 (1979) (noting that \u201cself-determination units\u201d may encompass \u201centities part of a metropolitan State [] which have been governed in such a way as to make them in effect non-self-governing territories\u201d).<\/p>\n

74 UNGA Resolution 1514, supra <\/em>note 68, para. 6; see also <\/em>U.N. Charter, art. 2(4) (prohibiting \u201cthe threat or use of force against the territorial integrity or political independence of any state\u201d). For a critique of \u201cterritorial epistemology,\u201d see generally <\/em>Tayyab Mahmud, Colonial Cartographies, Postcolonial Borders, and Enduring Failures of International Law: The Unending Wars along the Afghanistan-Pakistan Frontier<\/em>, 36 Brook. J. Int\u2019l L. <\/em>1, (2010).<\/p>\n

75 See <\/em>UNGA Resolution 1541 (XV), UN GAOR, 15th Sess., Supp. 16, UN Doc A\/4684 (December 14, 1960), Principles which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information called for Under Article 73e of the Charter, prin. IV. For analysis, see Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law 88 (2015).<\/p>\n

76 See <\/em>Erica-Irene A. Daes, An Overview of the History of Indigenous Peoples: Self-Determination and the United Nations<\/em>, 21 Cambridge Rev. Int\u2019l Aff. 7, 12-13 (2008). The United States and other settler states delayed finalization of the UN Declaration on the Rights of Indigenous Peoples by many years with their attempt to substitute the term \u201cpopulations\u201d for \u201cpeoples.\u201d See Erica-Irene A. Daes, The UN Declaration on the Rights of Indigenous Peoples: Background and Appraisal<\/em>, in Reflections on the UN Declaration on the Rights of Indigenous Peoples 11-40, 18 (Stephen Allen & Alexandra Xanthaki, eds., 2011).<\/p>\n

77 Universal Declaration of the Rights of Peoples, Algiers, July 4, 1976, arts. 5-6, reproduced in UN Law\/Fundamental Rights: Two Topics inInternational Law 219-223 (Antonio Cassese, ed., 1979).<\/p>\n

78 See <\/em>Patrick Wolfe, Structure and Event: Settler Colonialism, Time, and the Question of Genocide <\/em>in Empire, Colony, Genocide: Conquest, Occupation, and Subaltern Resistance in World History 102-132, 122 (A. Dirk Moses, ed., 2008).<\/p>\n

79 Vogel, supra <\/em>note 70 at 447.<\/p>\n

80 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)<\/em>, Advisory Opinion, 1971 I.C.J. Reports 16, 63 (declaration of President Muhammad Zafrulla Khan).<\/p>\n

81 Ibid. <\/em>at 69 (separate opinion of Vice-President Fouad Ammoun).<\/p>\n

82 Richard Falk, Preface in <\/em>Y.N. Kly & D. Kly, InPursuit of the Right to Self-Determination<\/em>, 6-11, 6 (2000).<\/p>\n

83 For an expanded version of this argument, see generally Saito, Tales of Color and Colonialism<\/em>, supra <\/em>note 50.<\/p>\n

84 RobinD.G. Kelley, Freedom Dreams: The Black Radical Imagination2 (2003)<\/p>\n

85 Jason Le Miere, Donald Trump Says, \u201cOur Ancestors Tamed a Continent\u201d and \u201cWe Are Not Going To Apologize for America<\/em>,\u201d <\/em>Newsweek, May 25, 2018, https:\/\/www.newsweek.com\/ donald-trump-tame-continent-america-945121.<\/p>\n

86 See <\/em>Veracini, supra <\/em>note 56 at 53-55.<\/p>\n

87 Ng\u0169g\u012b wa Thiong\u2019o, Decolonising the Mind: The Politics of Language in AfricanLiterature 3 (1986).<\/p>\n

88 For background, see generally David Stannard, AmericanHolocaust: Columbus and the Conquest of the New World (1993); Ward Churchill, ALittle Matter of Genocide: Holocause and Denial inthe Americas, 1492 to the Present (1997). On identity and citizen\u00adship, see generally Robert B. Porter, The Demise of the Ongwehoweh and the Rise of the Native Americans: Redressing the Genocidal Act of Forcing American Citizenship Upon Indigenous Peoples<\/em>, 15 Harv. BlackLetter L.J. 107 (1999).<\/p>\n

89 See generally <\/em>Vincent Harding, There Is a River: The Black Struggle for Freedom in America (1981).<\/p>\n

90 See generally <\/em>Juan F. Perea, A Brief History of Race and the U.S.-Mexican Border: Tracing the Trajectories of Conquest<\/em>, 51 UCLAL. Rev. 283 (2003); Mililani B. Trask, Historical and Contemporary Hawaiian Self-Determination: A Native Hawaiian Perspective<\/em>, 8 Ariz. J. Int\u2019l & Comp. L. <\/em>77 (1991); Marilyn J. Ward Ford, Twenty Five Years of the Alaska Native Claims Settlement Act: Self Determination or Destruction of the Heritage, Culture, and Way of Life of Alaska\u2019s Native Americans? <\/em>12 J. Environ. L. & Litig. 305 (1997).<\/p>\n

91 See generally <\/em>Foreignina Domestic Sense: Puerto Rico, American Expansion, and the Constitution(Christina Duffy Burnett & Burke Marshall, eds., 2001).<\/p>\n

92 Agamben, supra <\/em>note 62 at 21, 18.<\/p>\n

93 See <\/em>Gustavo Esteva & Madhu Suri Prakash, Grassroots Postmodernism: Remaking the Soil of Cultures 125 (1998).<\/p>\n

94 Robert M. Cover, Nomos and Narrative<\/em>, 97 Harv. L. Rev. <\/em>4, 43 (1983).<\/p>\n

95 Ibid. <\/em>at 68.<\/p>\n","protected":false},"excerpt":{"rendered":"

Natsu Taylor Saito Natsu Taylor Saito is a Professor of Law and Distinguished University Professor, Georgia State University College of Law, Atlanta, Georgia.   All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. -International Covenant on Civil […]<\/p>\n","protected":false},"author":32,"featured_media":0,"menu_order":54,"comment_status":"closed","ping_status":"closed","template":"","format":"standard","meta":{"_kad_blocks_custom_css":"","_kad_blocks_head_custom_js":"","_kad_blocks_body_custom_js":"","_kad_blocks_footer_custom_js":"","footnotes":"","_members_access_role":[],"_members_access_error":""},"categories":[],"tags":[],"issuem_issue":[121],"class_list":["post-373","article","type-article","status-publish","format-standard","hentry","issuem_issue-nlg-review-vol-76-no-1-spring-2019","post"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t