INTRODUCTION TO SETTLER COLONIAL LEGAL THEORY

by Caryma F Sa'd on Jul. 30, 2018

Civil & Human Rights 

Summary: There is growing demand for reflection and critical scholarship on settler colonialism as a distinct social and historical formation. This need arises from the fact that settlers ‘come to stay’: they bring with them political orders, and assert claims to sovereignty in the lands they occupy.

There is growing demand for reflection and critical scholarship on settler colonialism as a distinct social and historical formation.This need arises from the fact that settlers ‘come to stay’: they bring with them political orders,and assert claims to sovereignty in the lands they occupy.Colonialismand settler colonialisminterpenetrate and overlap,but they have differing implications for Indigenous peoples.In particular,settler colonialism is a resilient formation that rarely ends.In this work,I introduce the concept of Settler Colonial Legal Theory (SCLT).SCLT challenges the official representation of colonization as “an unfortunate but already transcended national past.[1]In so doing,it de-historicizes the process settler colonialism,and unveils insidious forms of present-day colonialism.SCLT sheds light on the noxious relationship between the Settler state and Indigenous peoples.Firstly,SCLT reveals the ongoing appropriation and exploitation of Indigenous land and resources.[2]Secondly,SCLT shows how prejudicial beliefs about Indigeneity can translate into the creation of eliminatory laws and policies.[3]

I hope to show that SCLT is an effective approach as far as refining critical legal analyses of settler colonialism.The first part of the paper is a preliminary venture at outlining the building blocks of this theory.I consider the analytical distinction between colonialism and settler colonialism,and frame Settler motivations in terms of the “logic of elimination.” In the second part of the paper,I undertake a brief SCLT analysis of Settler-Indigenous relations in Canada,and trace some of the drastic changes in Settler legislation since the early years of contact.I also use SCLT to deconstruct Settler myths held in the collective Canadian consciousness.Finally,in the last part of the paper,I look at the Indian Act through an SCLT lens and expose its deleterious effects on Indigenous peoples in Canada.If legislation reveals the mores of a society,the Indian Act speaks volumes about Canada’s attitudes towards Indigenous peoples.The registration rules have no connection to Indigenous conceptions of identity,and in effect provide for the legislative extinction of Indians within the next few generations.As a result,the Indian Act distorts Indigenous conceptions of citizenship and identity,and results in the cultural exclusion of non-Status Indians.

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