Colorblind: Indigenous and Black Disproportionality Across Criminal Justice Systems (Critical Criminological Perspectives) 3031381564, 9783031381560

Table of contents :
Preface
Acknowledgments
Contents
Abbreviations
Part I Historical Framework
1 Introduction
The Disproportionate Incarceration of Indigenous and Black People
The British Empire's White Settler Colonialism Structure
British Settler Colonialism’s Complex Web of Subjugating Strategies
Settler Colonialism Is Not a Concluded Historical Event
The Present-Day Impact of Settler Colonialism on Indigenous and Black People
Indigenous People
Black People
The Criminal Justice System as a Subjugating Force
Key Terms
Settler Colonialism
Critical Race Theory (CRT)
Tribal Critical Race Theory (TribalCrit)
Indigenous Peoples
Black People
Institutional Racism
Structural Racism
Criminal Justice System
Criminal Justice System Disproportionality
References
2 Great Britain’s Colonizing Project Part 1
Investigating Unknown Lands
Initial Attempts to Colonize North America
Becoming the British Empire
The Arguments for Colonization
Beliefs Informing the Colonizing Project
The British Colonies
The 13 Eastern Seaboard Colonies of North America
Mercantilism in the 13 Colonies
Push and Pull Factors for British Colony Settlers
An Already Inhabited Land
The Doctrine of Discovery
Disease
Genocidal Violence and Slavery
The Arrival of British Colonists and Settlers—Jamestown
Jamestown–Powhatan Confederacy Conflict
Jamestown—Powhatan Confederacy Culture Clash
Establishing a Framework for the British Settler Colonialism Project
The Revolutionary War, Expansionism, and Indigenous Land Dispossession
References
3 Great Britain’s Colonizing Project Part 2
Canada
Laying Claim
New France
Great Britain Begins Its Colonization of Canada
The Seven Years’ War
The Indigenous Nations of Canada and the French
Great Britain Assumes Control of Canada
The Royal Proclamation of 1763
Treaties and Indigenous Land
Economic Development, Immigration, and the Dispossession of Indigenous Land
The Civilizing Mission and Indigenous British Assimilation Policies
The Birth of the Dominion of Canada
Clearing the Indigenous Peoples from Their Homelands
Policies to Eradicate All Indigenous Cultures
Australia
Laying Claim
Great Britain Begins Its Colonization of Australia
Indigenous Resistance
Colony Expansion
Mercantilism and the New South Wales Colony
The Exponential Growth in Settler Colonialism and Its Impact on the Indigenous Population
Land Dispossession and Genocidal Violence Against Indigenous Peoples
The Civilizing Mission and Indigenous British Assimilation Policies
The Birth of the Commonwealth of Australia
Elimination Through Assimilation
The Net Results of Elimination Through Assimilation
The Net Result of Settler Colonialism on the Indigenous Peoples of Australia
On the Margins of Settler Colonialism
References
4 Black People in the UK, the U.S., and Canada
The UK
The First Era of Black Settlement in Britain
The Black Population in Seventeenth-Century England
The Black Community in Eighteenth-Century London
The Abolition of Slavery and the Black Population in England
Scientific Racism
Black People Become a Significant and Permanent Feature of British Life
Get Them Out
The Growth of the Black British Population, 1947 to 1970
The U.S.
Black People in the Pre-Slavery North American Colonies
Slavery and the Changed Status of Black People
The Catalyst for the Lifetime Enslavement of Black People and Their Offspring
The Othering of Enslaved Black People
Enslaved Black Peoples’ Vital Role in the Colonial Economy
Three-Fifths of a Person
Second-Class Citizenship
Jim Crow Laws
Upholding White Supremacy
Continued Structural and Systemic Inequality
Canada
The Need for Enslaved Black Labor
Indigenous and Black Enslaved People
Privileges
The 1763 Treaty of Paris
The Offer of Freedom and the Promise of Land
Freedom
Settling in Nova Scotia
Segregation
Ending Slavery in Canada
Migration and the Growth of the Black Population
The Black Experience in Canada
Final Thoughts
References
5 The Political, Legal, and Criminal Justice Systems of the UK, the U.S., Canada, and Australia
England and Wales
Political System
Magna Carta
Bill of Rights
Act of Settlement
Legal System
Criminal Justice System
Police Forces
CPS (Crown Prosecution Office)
HMCTS (His Majesty's Courts and Tribunals Service)
Magistrates’ and Crown Court
The Court of Appeal
The Sentencing Council
The U.S.
Political System
U.S. Constitution
Statutes
Common Law
Criminal Justice System
Law Enforcement
The Prosecution
The Courts
Corrections
Tribal Justice System
Canada
Political System
Legal System
Charter of Freedom
Canadian Federal, Provincial, and Municipal Governments
Criminal Justice System
Law Enforcement
Courts
First Nations/Indigenous Courts
Prosecution
Corrections
Australia
Political System
Constitutional Monarchy
The Westminster System
Legal System
Criminal Justice System
Police Forces
The Court System
Indigenous Sentencing Courts
Legal Representation
Juries
Judges
Corrective Services
Prison
References
Part II Contemporary and Historical Analysis
6 Law Enforcement and Indigenous and Black People: The UK and U.S.
The UK
The Demand for Ending Racial Discrimination in the UK Criminal Justice System
The Police Involved Fatal Shooting of Mark Duggan
The Best Use of Stop and Search Scheme
Stop and Search Resumes
Disproportionate Policing of Young Urban Black Males
The British Nationality Act of 1948
Mangrove Nine Protest
The 1980s Rebellions
The Scarman Report
Macpherson Report 1999
The U.S.
Indigenous and Black Americans’ Uneasy Relationship with the Police
Coming into Focus
Shedding a Light on Fatal Encounters
A Relationship Burdened by Historical Mistreatment
Forced Removals
The Reservation System
Tribal Policing
Forced Assimilation
Slavery
Black Codes, Vagrancy Laws, Peonage, and Convict Leasing, 1865 to 1900
Peonage
Jim Crow
Convict Leasing
Jim Crow and Law Enforcement
The Twentieth Century and Onward
References
7 Law Enforcement and Indigenous and Black People: Canada and Australia
Canada
The 2020 Report of the Standing Committee on Public Safety and National Security on Systemic Racism in Policing in Canada
The 2020 General Social Survey (GSS) on Social Identity
The 2019 General Social Survey (GSS) on Canadians’ Safety (Victimization)
Canadian Broadcasting Corporation’s (CBC) Deadly Force Database
Indigenous and Black Peoples’ Fatal Encounters with the Police
Chantel Moore
The Royal Canadian Mounted Police
The Toronto Police Force
Australia
The Mistreatment of Aboriginal People by the Police
A Tense and Mistrustful Relationship
The 1991 Royal Commission into Aboriginal Deaths in Custody
The Exponential Growth in Aboriginal and Torres Strait Islander Deaths in Police Custody
Settler Colonialism
References
8 The Influence of Neoconservatism on the Criminal Justice System
The Neoconservative Framing of Criminal Justice
Neoconservative Ideology and the Shaping of the Criminal Justice Discourse
The UK
Margaret Thatcher
A Free Market Economy Adherent
Law and Order
The Law-And-Order Speech
Law-And-Order Policies
Neoliberal Tony Blair and Law and Order
The Law-And-Order Platform Continues
The U.S.
Richard Nixon
The Southern Strategy and Coded Racial Messaging
The Law-And-Order Template
Ronald Reagan
Bill Clinton the Neoliberal
Violent Crime and Control and Law Enforcement Act of 1994
The Rush to Incarcerate
Neoconservative Push Back
Canada
Brian Mulroney Declares a War on Drugs
Moving Criminal Justice Policy in a Neoconservative Direction
Stephen Harper
Harper’s Law-And-Order Agenda and Policies
The Net Results
Australia
The Shift to a Tough-On-Crime Approach
Lock More People Away
The Sentencing Act 1989
Legislative Hyperactivity
Neoconservative Tough-On-Crime Rhetoric and Legislation
Examining Neoconservative Tough-On-Crime Rhetoric and Its Influence
References
9 Settler Colonialism, Race, and Indigenous and Black Criminal Justice Disproportionality
Pushing Back Against Neoconservative and Neoliberal Conceptualizations of Law-And-Order
Penal Populism as a Continuing Thread in Settler Colonialism’s Subjugating Strategies
The Interconnected Nature of Settler Colonialism, Race, and Criminal Justice System Disproportionality
Settler Colonialism
Racialization and the Creation of Racial Hierarchies
Dehumanizing Narratives and Descriptors of Indigenous and Black People
The Complex Web of Settler Colonialism’s Subjugating Strategies
Colonial Modes of Law Enforcement
Genocidal Violence as a Function of Settler Colonialism Law Enforcement
Settler Colonialism’s Subjugating Strategies for Enslaved Africans and Their Offspring
Post-Slavery Subjugating Strategies
Settler Colonialism’s Subjugating Strategies as the Foundations of Contemporary Law Enforcement
Expendable, Criminalized Indigenous and Black Bodies, Neoconservatism, Globalization, and the Criminal Justice System
Summary
References
10 Where the Criminal Justice Systems of the UK, the U.S., Canada, and Australia Converge
Three Critical Areas of Convergence in the Criminal Justice Systems of the UK, the U.S., Canada, and Australia
Law-And-Order, Getting Tough-On-Crime, and the War on Drugs
Historical Background to the War on Drugs: It Has Always Been About Race
Opium, Anti-Chinese Sentiment, and a Racial War on Drugs in the U.S., Canada, and Australia
Peyote, Indigenous People, and a Racialized War on Drugs
Black Americans, Mexican Immigrants, and a Racialized War on Marijuana Use, 1920s to 1930s
The Drug War Has Always Been About Race
The Modern War on Drugs
The UK
The U.S.
Canada
Australia
Law Enforcement Practices (Stop and Search, Stop and Frisk, Street Checks, Personal Search)
Accusatorial Model Approach to Criminal Procedure (Plea Bargaining)
References
11 Untethering the Respective Criminal Justice Systems from Their Settler Colonial Roots
Existing and Ongoing Efforts to Decolonize the Respective Criminal Justice Systems
Tribal/Indigenous Courts
The U.S.
Canada
Australia
Restorative Justice
The UK
The U.S.
Canada
Australia
Still not Decolonized
Tribal/Indigenous Courts
Restorative Justice
Policy Recommendations for Untethering the Respective Criminal Justice Systems from Their Settler Colonial Roots
Truth Commission
Truth and Reconciliation
Truth Commission Structure
Groundwork Examples from the UK, the U.S., Canada, and Australia
After the Truth Commission
Law and Enforcement Practices
Stop and Search, Stop and Frisk, Street Checks, Personal Searches, and Racial Profiling
Recommendation
Legal System
Plea Bargaining
Recommendation
Mandatory Minimum Sentencing
Recommendation
Legal Pluralism
Community Courts
Ending Incarceration for Non-violent Offenders
References
Index

Citation preview

CRITICAL CRIMINOLOGICAL PERSPECTIVES

Colorblind Indigenous and Black Disproportionality Across Criminal Justice Systems

Bryan Warde

Critical Criminological Perspectives

Series Editors Reece Walters, Faculty of Law, Deakin University, Burwood, VIC, Australia Deborah H. Drake, Department of Social Policy & Criminology, The Open University, Milton Keynes, UK

The Palgrave Critical Criminological Perspectives book series aims to showcase the importance of critical criminological thinking when examining problems of crime, social harm and criminal and social justice. Critical perspectives have been instrumental in creating new research agendas and areas of criminological interest. By challenging state defined concepts of crime and rejecting positive analyses of criminality, critical criminological approaches continually push the boundaries and scope of criminology, creating new areas of focus and developing new ways of thinking about, and responding to, issues of social concern at local, national and global levels. Recent years have witnessed a flourishing of critical criminological narratives and this series seeks to capture the original and innovative ways that these discourses are engaging with contemporary issues of crime and justice. For further information on the series and to submit a proposal for consideration, please get in touch with the Editor: Josephine Taylor, [email protected].

Bryan Warde

Colorblind Indigenous and Black Disproportionality Across Criminal Justice Systems

Bryan Warde Lehman College of the City University of New York New York, NY, USA

ISSN 2731-0604 ISSN 2731-0612 (electronic) Critical Criminological Perspectives ISBN 978-3-031-38156-0 ISBN 978-3-031-38157-7 (eBook) https://doi.org/10.1007/978-3-031-38157-7 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

In 2013, I wrote an article comparing the disproportional incarceration rate of Black men in the criminal justice systems of the U.S., Canada, and the UK that was published in the Journal of African American Studies. While researching the article, I was astounded to find that in the U.S. and Canada, Indigenous incarceration disproportionality was as prevalent, actually even more so in Canada, as it was for Black men. What made this finding so astounding was up until that point, everything I had read framed incarceration disproportionality almost exclusively through the lens of Black men, essentially rendering Indigenous experiences of such disproportionality invisible and not as pressing an issue or concern as it is for Black men. I remember thinking, how can this be, particularly given that the U.S. and Canada exist on the expropriated land of many Indigenous nations, tribes, and people? It was a question that became even more nagging when I examined data from Australia, another English-speaking state birthed by Great Britain’s settler colonial project and found Indigenous incarceration disproportionately there exceeded that of both the U.S. and Canada.

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Preface

At the time, I was not sufficiently exposed to the writing and discussions around settler colonialism as a structure and conceptual framework, such as Brayboy’s tribal critical theory, to have a framework for understanding the reasons, other than racism, for the sheer level and relative invisibility of Indigenous carcel disproportionality across the U.S., Canada, and Australia. I was equally as stumped in understanding and articulating a coherent explanation of the reasons for this Black disproportionality, other than racism. However, I was curious about the possible connection and relationship between Indigenous and Black incarceration disproportionality in the settler colonial states of the U.S., Canada, and Australia, and the UK, whose empire birthed these settler colonial states, which are all now English-speaking, liberal Western democracies. In the years that have passed since the article and my initial curiosity, I have gathered conceptual frameworks for thinking about the reasons for this disproportionality in a much broader way than a decade ago. Primary among those frameworks is the previously mentioned settler colonial lens, critical race theory, which informed my 2013 article, and tribal critical theory. Moreover, although it is common to do so, I no longer think of this unbalance as dichotomous and separate, but rather as a parallel process for differently positioned marginalized peoples within a settler colonial state. Thus, when Palgrave Macmillan approached me about the possibility of doing a monograph or a book based on my 2013 article, I jumped at the opportunity under the condition that it be a book about the relationship between settler colonialism and Indigenous and Black disproportionality in the criminal justice systems of the colonial settler states, U.S., Canada and Australia and the UK. This book is unique because while there is a substantive body of literature about settler colonialism and Indigenous and Black incarceration and criminal justice system disproportionality as a phenomenon in the respective nations, there is nothing specific looking at the phenomenon across the three settler colonial states of the U.S., Canada, Australia, and the UK. Not to do this obfuscates the thread of settler colonialism and its strategies that invariably bind them in their treatment of Indigenous and Black people despite being in vastly different locations and

Preface

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having different development trajectories. As a consequence, it is not at all surprising that each of the nations is remarkably similar in their patterns of incarceration of Indigenous and Black people. This book is also needed because, as Rai Reece (2020) persuasively argues, “Indigenous and Black histories in settler colonial states are often siloed, but it is important to make visible the specificities and uniqueness of anti-Indigenous and anti-Black racism as connected to land stolen from people and people stolen from land.” Thus, while differently situated within the settler colonial state, a duality of histories reflects a parallel familiarity of subjugation, disenfranchisement, racialization, over-policing, and brutalization. This book pays particular attention to analyzing from a historical and contemporary perspective the origins of Great Britain’s settler colonialism project, its development, and the unfolding of its various subjugating strategies, and their deleterious impact on Indigenous and Black bodies by way of disproportionate representation in the criminal justice system. This book provides the reader a frame of reference to do the following: 1. Critically analyze the historical roots of contemporary Indigenous and Black criminal justice system disproportionality. 2. Critically analyze British settler colonialism not as a concluded event assigned to the past but as an ongoing structure that has taken on a new form in the English-speaking, Western liberal democracies that profess color blindness and meritocracy. 3. Critically analyze the various subjugating strategies that have been used and are used to maintain a racial hierarchical status quo in the settler states. 4. Think about how the respective settler colonial states’ respective criminal justice systems could be untethered from their settler colonial roots, so they may indeed be color blind. The Organization of the Book This book is divided into two parts: Part I, Chapters 1 through 5, provides the book’s conceptual and historical framework. Part II, Chapters 6 through 11, is an examination of the interactions between Indigenous and Black people and the criminal justice system across the

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Preface

respective nations from both a contemporary and historical perspective (Chapters 6 and 7), the influence of neoconservative ideology on the modern criminal justice system (Chapter 8), the relationship between settler colonialism, race, and criminal justice system disproportionality (Chapter 9), where the respective criminal justice systems converge (Chapter 10), and how to untether the respective criminal justice systems from their settler colonial roots (Chapter 11). New York, USA

Bryan Warde

Acknowledgments

This book was an emotionally draining process to write. However, I could not have completed the book without the continued support of family and friends, among them my daughter, Deanne Warde, and my new granddaughter, Adora, whose growth and development since her birth on June 25, 2022, have given me such joy. I also want to thank the Osborn family, Helen, Debi, David, Josh, and their respective significant others and children, for a lifetime of love and support. For her invaluable assistance in editing the book, I want to thank my longtime editor collaborator and now friend, Maya Porter, a continued source of ideas and suggestions. At Palgrave Macmillan, I thank Josie Taylor for the opportunity to write the book and subsequent support in the initial review phase. I am super grateful for the opportunity.

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Acknowledgments

Lastly, I want to acknowledge two people who were critical in my life but are no longer with us: first, my dad, Ralph Warde. Without him, I am not sure where I would be today. As each year passes, I increasingly recognize what a great father he was. The other is Peter Roberts. He helped me unknowingly to dream big.

Contents

Part I 1

Historical Framework

Introduction The Disproportionate Incarceration of Indigenous and Black People The British Empire’s White Settler Colonialism Structure British Settler Colonialism’s Complex Web of Subjugating Strategies Settler Colonialism Is Not a Concluded Historical Event The Present-Day Impact of Settler Colonialism on Indigenous and Black People Indigenous People Black People The Criminal Justice System as a Subjugating Force Key Terms Settler Colonialism Critical Race Theory (CRT) Tribal Critical Race Theory (TribalCrit) Indigenous Peoples

3 3 4 5 6 7 7 8 9 10 10 13 17 19

xi

xii

2

3

Contents

Black People Institutional Racism Structural Racism Criminal Justice System Criminal Justice System Disproportionality References

19 20 21 21 22 22

Great Britain’s Colonizing Project Part 1 Investigating Unknown Lands Initial Attempts to Colonize North America Becoming the British Empire The Arguments for Colonization Beliefs Informing the Colonizing Project The British Colonies The 13 Eastern Seaboard Colonies of North America Mercantilism in the 13 Colonies Push and Pull Factors for British Colony Settlers An Already Inhabited Land The Doctrine of Discovery Disease Genocidal Violence and Slavery The Arrival of British Colonists and Settlers—Jamestown Jamestown–Powhatan Confederacy Conflict Jamestown—Powhatan Confederacy Culture Clash Establishing a Framework for the British Settler Colonialism Project The Revolutionary War, Expansionism, and Indigenous Land Dispossession References

29 29 30 31 32 33 34 34 35 35 37 37 38 39 41 42 43

Great Britain’s Colonizing Project Part 2 Canada Laying Claim New France Great Britain Begins Its Colonization of Canada The Seven Years’ War The Indigenous Nations of Canada and the French

53 53 53 54 54 55 55

44 45 47

Contents

4

xiii

Great Britain Assumes Control of Canada The Royal Proclamation of 1763 Treaties and Indigenous Land Economic Development, Immigration, and the Dispossession of Indigenous Land The Civilizing Mission and Indigenous British Assimilation Policies The Birth of the Dominion of Canada Clearing the Indigenous Peoples from Their Homelands Policies to Eradicate All Indigenous Cultures Australia Laying Claim Great Britain Begins Its Colonization of Australia Indigenous Resistance Colony Expansion Mercantilism and the New South Wales Colony The Exponential Growth in Settler Colonialism and Its Impact on the Indigenous Population Land Dispossession and Genocidal Violence Against Indigenous Peoples The Civilizing Mission and Indigenous British Assimilation Policies The Birth of the Commonwealth of Australia Elimination Through Assimilation The Net Results of Elimination Through Assimilation The Net Result of Settler Colonialism on the Indigenous Peoples of Australia On the Margins of Settler Colonialism References

57 57 58

Black People in the UK, the U.S., and Canada The UK The First Era of Black Settlement in Britain The Black Population in Seventeenth-Century England The Black Community in Eighteenth-Century London

79 79 79 80 81

59 59 60 61 61 63 63 64 66 66 67 67 68 69 70 71 72 72 73 74

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Contents

The Abolition of Slavery and the Black Population in England Scientific Racism Black People Become a Significant and Permanent Feature of British Life Get Them Out The Growth of the Black British Population, 1947 to 1970 The U.S. Black People in the Pre-Slavery North American Colonies Slavery and the Changed Status of Black People The Catalyst for the Lifetime Enslavement of Black People and Their Offspring The Othering of Enslaved Black People Enslaved Black Peoples’ Vital Role in the Colonial Economy Three-Fifths of a Person Second-Class Citizenship Jim Crow Laws Upholding White Supremacy Continued Structural and Systemic Inequality Canada The Need for Enslaved Black Labor Indigenous and Black Enslaved People Privileges The 1763 Treaty of Paris The Offer of Freedom and the Promise of Land Freedom Settling in Nova Scotia Segregation Ending Slavery in Canada Migration and the Growth of the Black Population The Black Experience in Canada Final Thoughts References

83 83 84 85 86 87 87 88 89 89 90 91 91 92 92 93 93 94 95 96 96 97 97 98 98 98 99 99 100 100

Contents

5

The Political, Legal, and Criminal Justice Systems of the UK, the U.S., Canada, and Australia England and Wales Political System Legal System Criminal Justice System The U.S. Political System Criminal Justice System Tribal Justice System Canada Political System Legal System Charter of Freedom Canadian Federal, Provincial, and Municipal Governments Criminal Justice System Australia Political System Legal System Criminal Justice System References

Part II 6

xv

105 105 105 107 108 111 111 112 115 115 115 116 117 118 118 122 122 124 125 128

Contemporary and Historical Analysis

Law Enforcement and Indigenous and Black People: The UK and U.S. The UK The Demand for Ending Racial Discrimination in the UK Criminal Justice System The Police Involved Fatal Shooting of Mark Duggan The Best Use of Stop and Search Scheme Stop and Search Resumes Disproportionate Policing of Young Urban Black Males The British Nationality Act of 1948 Mangrove Nine Protest

135 136 136 136 138 139 139 140 141

xvi

Contents

The 1980s Rebellions The Scarman Report Macpherson Report 1999 The U.S. Indigenous and Black Americans’ Uneasy Relationship with the Police Coming into Focus Shedding a Light on Fatal Encounters A Relationship Burdened by Historical Mistreatment Forced Removals The Reservation System Tribal Policing Forced Assimilation Slavery Black Codes, Vagrancy Laws, Peonage, and Convict Leasing, 1865 to 1900 Peonage Jim Crow Convict Leasing The Twentieth Century and Onward References 7

Law Enforcement and Indigenous and Black People: Canada and Australia Canada The 2020 Report of the Standing Committee on Public Safety and National Security on Systemic Racism in Policing in Canada The 2020 General Social Survey (GSS) on Social Identity The 2019 General Social Survey (GSS) on Canadians’ Safety (Victimization) Canadian Broadcasting Corporation’s (CBC) Deadly Force Database Indigenous and Black Peoples’ Fatal Encounters with the Police

141 143 144 145 145 146 146 147 148 149 150 150 151 152 152 153 153 154 156 163 163

163 164 164 165 165

Contents

Chantel Moore The Royal Canadian Mounted Police The Toronto Police Force Australia The Mistreatment of Aboriginal People by the Police A Tense and Mistrustful Relationship The 1991 Royal Commission into Aboriginal Deaths in Custody The Exponential Growth in Aboriginal and Torres Strait Islander Deaths in Police Custody Settler Colonialism References 8

The Influence of Neoconservatism on the Criminal Justice System The Neoconservative Framing of Criminal Justice Neoconservative Ideology and the Shaping of the Criminal Justice Discourse The UK Margaret Thatcher The U.S. Richard Nixon The Southern Strategy and Coded Racial Messaging The Law-And-Order Template Ronald Reagan Bill Clinton the Neoliberal Violent Crime and Control and Law Enforcement Act of 1994 The Rush to Incarcerate Neoconservative Push Back Canada Brian Mulroney Declares a War on Drugs Moving Criminal Justice Policy in a Neoconservative Direction Stephen Harper Harper’s Law-And-Order Agenda and Policies

xvii

166 167 169 170 170 171 173 175 175 176 181 182 183 183 183 187 187 188 188 189 190 190 191 191 192 192 193 193 194

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Contents

The Net Results Australia The Shift to a Tough-On-Crime Approach Lock More People Away The Sentencing Act 1989 Legislative Hyperactivity Neoconservative Tough-On-Crime Rhetoric and Legislation Examining Neoconservative Tough-On-Crime Rhetoric and Its Influence References 9

Settler Colonialism, Race, and Indigenous and Black Criminal Justice Disproportionality Pushing Back Against Neoconservative and Neoliberal Conceptualizations of Law-And-Order Penal Populism as a Continuing Thread in Settler Colonialism’s Subjugating Strategies The Interconnected Nature of Settler Colonialism, Race, and Criminal Justice System Disproportionality Settler Colonialism Racialization and the Creation of Racial Hierarchies Dehumanizing Narratives and Descriptors of Indigenous and Black People The Complex Web of Settler Colonialism’s Subjugating Strategies Colonial Modes of Law Enforcement Genocidal Violence as a Function of Settler Colonialism Law Enforcement Settler Colonialism’s Subjugating Strategies for Enslaved Africans and Their Offspring Post-Slavery Subjugating Strategies Settler Colonialism’s Subjugating Strategies as the Foundations of Contemporary Law Enforcement

195 196 196 196 197 197 198 198 199 205 205 206 207 208 209 211 213 213 214 215 217 218

Contents

Expendable, Criminalized Indigenous and Black Bodies, Neoconservatism, Globalization, and the Criminal Justice System Summary References 10 Where the Criminal Justice Systems of the UK, the U.S., Canada, and Australia Converge Three Critical Areas of Convergence in the Criminal Justice Systems of the UK, the U.S., Canada, and Australia Law-And-Order, Getting Tough-On-Crime, and the War on Drugs Historical Background to the War on Drugs: It Has Always Been About Race Opium, Anti-Chinese Sentiment, and a Racial War on Drugs in the U.S., Canada, and Australia Peyote, Indigenous People, and a Racialized War on Drugs Black Americans, Mexican Immigrants, and a Racialized War on Marijuana Use, 1920s to 1930s The Drug War Has Always Been About Race The Modern War on Drugs The UK The U.S. Canada Australia Law Enforcement Practices (Stop and Search, Stop and Frisk, Street Checks, Personal Search) Accusatorial Model Approach to Criminal Procedure (Plea Bargaining) References 11

Untethering the Respective Criminal Justice Systems from Their Settler Colonial Roots Existing and Ongoing Efforts to Decolonize the Respective Criminal Justice Systems

xix

219 220 221 227 227 228 228 228 231

233 234 234 234 236 239 243 245 245 247 253 255

xx

Contents

Tribal/Indigenous Courts Restorative Justice Still not Decolonized Tribal/Indigenous Courts Restorative Justice Policy Recommendations for Untethering the Respective Criminal Justice Systems from Their Settler Colonial Roots Truth Commission Truth and Reconciliation Truth Commission Structure Groundwork Examples from the UK, the U.S., Canada, and Australia After the Truth Commission Law and Enforcement Practices Stop and Search, Stop and Frisk, Street Checks, Personal Searches, and Racial Profiling Recommendation Legal System Plea Bargaining Recommendation Recommendation Legal Pluralism Community Courts Ending Incarceration for Non-violent Offenders References Index

255 257 263 263 264

265 266 266 267 268 270 270 270 272 272 272 273 274 274 276 277 278 285

Abbreviations

APB BIA CBC CPS CRT GSS HMCTS IPCC NSW NWMP PPSC RCMP SCD11 SCO19 TribalCrit U.S. UK

Aborigines Protection Board Bureau of Indian Affairs Canadian Broadcasting Corporation Crown Prosecution Office Critical Race Theory General Social Survey His Majesty’s Courts and Tribunals Service Independent Police Complaints Commission New South Wales North-West Mounted Police Public Prosecution Services of Canada Royal Canadian Mounted Police Specialist Crime Directorate Specialist Firearms Command Tribal Critical Race Theory United States of America United Kingdom of Great Britain

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Part I Historical Framework

1 Introduction

The Disproportionate Incarceration of Indigenous and Black People As so eloquently stated by Ajani Rolston (2016), “Black bodies continue to be bound by histories not yet resolved, by present-day realities that have not escaped the past, and by things that are far less tangible and much more felt.” Nowhere is this sentiment arguably more manifest than in the Indigenous and Black disproportionality present at every point of the criminal justice systems of the United Kingdom of Great Britain (UK), the United States of America (U.S.), Canada, and Australia. It is disproportionality that in 2021 saw, Black or Black British people, who account for 3% of the general population, make up 13% of the UK prison population (Sturge, 2021). In the U.S., Indigenous people made up 2.1% of all federally incarcerated people in 2019, larger than their share of the total U.S. population, which was less than one percent (Wang, 2021). Moreover, over 10,000 Indigenous people were locked up in local jails in 2019, an increase in the Indigenous jail population of 85% since 2000. Furthermore, just as alarmingly, these figures do not include those held in Indian country jails (Wang, 2021). Also, © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Warde, Colorblind, Critical Criminological Perspectives, https://doi.org/10.1007/978-3-031-38157-7_1

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in the U.S., Black or Black Americans represent 12% of the general population but are 38.1% of federal prisoners as of January 2022 (Federal Bureau of Prisons, 2022). In Canada, Indigenous people make up more than 30% of the prison population despite being only 5% of the general population (Office of the Correctional Investigator, 2020). Also disproportionately represented in Canada, though not anywhere near the rate of their Indigenous counterparts, are Black people. In 2019, for example, they were 3.5% of the population and 7.2% of the adult population in the federal correctional system (Public Safety Canada, 2020). Finally, in Australia, Indigenous people comprise 3.3% of Australia’s general population but made up 30% of all prisoners, ten times the general population’s rate, in 2021 (Australian Bureau of Statistics, 2021). Seventy-eight percent of the Indigenous prisoners in 2021 had experienced prior adult imprisonment (Australian Bureau of Statistics, 2021).

The British Empire’s White Settler Colonialism Structure At first glance, the disproportionate incarceration of Indigenous and Black people in the respective nations might not seem particularly telling or related. After all, the UK, U.S., Canada, and Australia are on three continents separated by thousands of miles and differing cultural landscapes, developmental trajectories, and histories. However, what binds these English-speaking Western liberal democracies is that they are all the progeny of the British Empire’s White settler colonialism structure, whose express purpose was the seizing and establishing of property rights over the land and resources of the Indigenous inhabitants (Cox, 2017; Glen, 2015; Issar, 2021; Kauanui, 2016; Tauri & Porou, 2014; Wolfe, 2006). Whether by genocide, force, doctrine (Cunneen, 2008; Miller et al., 2010; Veracini, 2010; Wolfe, 1999, 2006), charter, occupation (Egerton, 1945), treaty, land appropriation (Choquette, 2020), proselytizing (Cassidy, 2003; Kidd, 1997), slavery (Saito, 2020), or involuntary assimilation (Wolfe, 2006), the seizing of Indigenous land and resources was informed and justified by way of racializing and othering Indigenous

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and Black people, captured and enslaved for labor, as biologically, intellectually, and culturally inferior to White settlers (Hixon, 2013; Tauri & Porou, 2014). In doing so, there was the presumption of a sovereign prerogative to establish a settler state in which they could have complete control over the Indigenous people with little thought or recognition of prior Indigenous occupancy, sovereignty, and nationhood (Kauanui, 2016; Saito, 2014; Veracini, 2015). Critical to gaining this control was creating a racial hierarchy determining who within the settler state would have full agency in gaining ready access to the appropriated land, resources, citizenship, and protections and rights under the British rule of law (Malik, 1996; Wolfe, 2010; Woolford, 2013). Indeed, Moreton-Robinson (2015) asserts that racism was and is inextricably linked to the theft and appropriation of Indigenous lands (p. xii).

British Settler Colonialism’s Complex Web of Subjugating Strategies Undergirding the racial hierarchy of all the British White settler colonialism structures was what Tauri and Porou (2014) describe as a “complex web of subjugating strategies across a range of social and economic policy platforms (p. 22). In the face of the Indigenous communities’ fierce opposition and resistance, these subjugating strategies would include physical elimination by genocide, massacre, and biological warfare through the introduction of infectious disease (Cunneen & Tauri, 2017; Glen, 2015; Hixon, 2013; Jalata, 2013; Wolfe, 2006). Added to this was law-enforced land removal, expulsion, and containment on reservations (Cunneen & Tauri, 2017). Furthermore, there was the involuntary removal of Indigenous children from their homes and placement in Indian boarding and residential schools with the aim of so-called civilizing and eliminating Indigenous culture through assimilation. Lastly, there was strict control of Indigenous wages and labor (Cunneen & Tauri, 2017; Hixon, 2013).

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For Black people, captured and enslaved for labor in the Americas, subjugation was accomplished by enacting slave codes perpetuating hereditary slavery across generations. Accompanying this act were numerous restrictions denying enslaved people political rights, property ownership, education, assembly without a White person’s presence, and freedom of movement without their owner’s permission (Higginbotham, Jr., 1996). Post-slavery subjugation was no less draconian. States enacted Black codes, applicable only to “persons of color,” defined as including anyone with more than one-eighth Negro blood. The codes’ significant features included vagrancy laws and the use of peonage to criminalize and recreate the conditions of slavery and the control of the Black body, all of which were functions of racial policing by law enforcement offices and ordinary White citizens alike (Alexander, 2010; Wilson, 1965). Accompanying these codes were Jim Crow state and local laws in the southern states of the U.S. enforcing racial segregation in all facets of life, denying Black people the franchise and free and ready access to any of society’s resources, rewards, and privileges. Supporting and enforcing the postslavery subjection was a criminal justice system and state and local law enforcement, and, when necessary, terrorist organizations such as the Ku Klux Klan. The Ku Klux Klan used violence to punish or dissuade those Black people and allies who dared to contravene Jim Crow laws (Alexander, 2010).

Settler Colonialism Is Not a Concluded Historical Event Over time, the settler colonialism in the settler states has been mythologized, promoting a story of how the intrepid Europeans conquered inhospitable terrains and hostile savages to forge a new nation where one did not exist. As a result, the horrors of settler colonialism, if acknowledged, are time-stamped as a thing of the past, relegated to the history books, with little modern-day relevance (Midzain & Smith, 2021). But, as Wolfe (2006) and others contend (Allard-Tremblay & Coburn, 2021; Cox, 2017; Cunneen & Tauri, 2017; Glen, 2015; Kauanui, 2016; Tuck & Yang, 2012; Veracini, 2011, 2015), it is essential not to fall

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victim to this belief by accepting settler colonialism as a concluded historical event. Instead, it is an ongoing and present-day structure (Cox, 2017; Glen, 2015; Hixon, 2013; Wolfe, 2006). In its present-day structure, it is a Western liberal democracy. Now that indigenous land and resource dispossession are complete, the Western liberal democracies of the U.S., Canada, and Australia have none of the overt barbarity of the initial phase of settler colonialism. Rather, it is more covert, and embodiment is in the legal, political, social, and economic institutions and structures that continue to employ subjugating strategies, all built on settler colonialism’s interlocking oppression and marginalization of Indigenous people, descendants of enslaved Africans, and others over time.

The Present-Day Impact of Settler Colonialism on Indigenous and Black People Indigenous People For the Indigenous population, the substantial loss of land and 400plus years of continued subjugating strategies contribute directly to their material conditions of extreme socioeconomic disadvantages in presentday U.S., Canada, and Australia (Cunneen & Tauri, 2017). Manifestations of these disadvantages include high rates of economic poverty, an education gap (Sékal & Bazzi, 2021), and devastating health disparities and outcomes, most tellingly in the disproportionately high rates of health conditions such as asthma, diabetes, hypertension, and kidney and heart disease (Australian Government, 2019; Australian Institute of Health & Welfare, 2020; Government of Canada, 2022; Indian Health Services, 2019; National School Boards Association, 2020). Not surprisingly, given these facts, rates for mortality in Indigenous communities are much higher than in the general population (Australian Institute of Health & Welfare, 2020; Government of Canada, 2022; Indian Health Services, 2019). Added to the disadvantages are high and disproportionate rates of victimization and involvement at all levels of the U.S., Canadian, and

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Australian criminal justice systems (Cunneen & Tauri, 2017). (See earlier discussion in this chapter for the data related to incarceration.)

Black People For the descendants of enslaved and colonized Africans in the UK, U.S., and Canada, the 200-plus years of enslavement, de facto segregation, colonization, and continued subjugating strategies contribute directly to a host of socioeconomic disadvantages. While not at the level of the Indigenous populations, in comparison to Whites, the disadvantages are significant. These disadvantages include low household income, economic poverty, lower employment levels, and lower wages earned than their White counterparts with similar qualifications (Batha, 2021; Statistics Canada, 2020). Health is also a significant disadvantage, as Black people in the UK, U.S., and Canada, similar to Indigenous people, have disproportionately higher health conditions such as asthma, diabetes, hypertension, and heart disease (Batha, 2021; Local Government Association, 2021; Statistics Canada, 2020). And, as discussed earlier in the chapter, Black people have higher and disproportionate rates of involvement at all levels of the criminal justice systems of the UK, U.S., and Canada. (See earlier discussion in this chapter for the data related to incarceration.) These descriptions, partial as they are, illustrate that settler colonialism long disavowed as a thing of the past is alive and well today. Its nefarious impact is far-reaching and maintains a racial hierarchical status quo, a status quo in which the Indigenous population remains land dispossessed as a function of elimination, and Black bodies are subordinated and controlled as a function of anti-Black racism and marginalization.

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The Criminal Justice System as a Subjugating Force The criminal justice system is an essential institution undergirding settler colonialism then and now. Under the guise of “justice” and the “rule of law,” the criminal justice system and its constituent parts (i.e., law enforcement, courts, and corrections) is a subjugating force for assimilation, elimination, and/or control (Websdale, 2001). It serves and protects unequal power structures by reinforcing long-standing inequality and continued marginalization of those seen least beneficial to the aims of settler colonialism in its modern-day incarnation as a Western liberal democracy (Cunneen & Tauri, 2017; Moore, 2016). In the contemporary context and beyond the Indigenous and Black populations, the least useful include people with a mental health diagnosis, undocumented immigrants, the homeless, and refugees (Bauman, 2004). Indeed, as Moore (2016) argues, “The criminal justice system was not just built to generate and reinforce inequality but also to utilize human diversity to facilitate social domination by the powerful” (p. 40). No surprise, then, that the Indigenous and Black populations of the UK, U.S., Canada, and Australia are perennially disproportionately represented at all levels of the respective criminal justice systems. This book takes the position that patterns of Indigenous and Black disproportionality in the criminal justice systems of these four countries are best understood and explained using several intersecting frameworks. Primary among these frameworks is settler colonialism. The other frameworks include critical race theory, tribal critical theory, and institutional and systemic racism. These frameworks offer opportunities for counternarratives to the notion of Indigenous and Black criminality, the myth of colorblind justice, race-neutral criminal justice policies, and social and economic deprivation explanations of disproportionality. In doing so, they assert that the disproportionality at all levels of the criminal justice systems of the UK, U.S., Canada, and Australia is a function and outgrowth of settler colonialism imperatives. These are imperatives now embodied in these states’ liberal democratic ideals and structures of subjugation and social control, one of which is the criminal justice system.

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As Cunneen et al. (2013) assert, although the legal racialized systems of discrimination present in settler colonialism have ceased, current processes built around such things as a war on crime and law order continue to single out Indigenous and Black people as a crime-prone population. In this respect, the sentiments of Indian nationalist Bal Gangdhar in 1907 when talking about British justice remain pertinent— though blind, it can distinguish unmistakably Black from White. In preparation for the rest of the book, the remainder of this chapter defines the key terms that feature in the comparative analysis of Indigenous and Black disproportionality in the criminal justice systems of the UK, U.S., Canada, and Australia.

Key Terms Settler Colonialism As a concept, theory, and field, settler colonialism emerged from the work of Indigenous scholars as a critique to the “post” in postcolonialism (Kauanui, 2016). The post in post-colonialism was viewed as unsuitable for explaining and understanding the ongoing Indigenous subjugation and oppression systems in settler nations such as Australia, Canada, New Zealand, and the US (Cox, 2017). While not its originator, the late Wolfe (1999, 2006, 2007), an English-born Australian scholar, anthropologist, ethnographer, and historian, is one of most, if not the most, frequently cited theorists of settler colonialism (Kauanui, 2016; Konishi, 2019). Indeed, Wolfe’s essay “Settler Colonialism and the Elimination of the Native” (2006) is considered seminal in many academic circles. Moreover, settler colonialism is now a burgeoning field of study, with its own journal, a development that some think borders on dogma (Kauanui, 2016; Lethabo-King, 2021; Shoemaker, 2015). The veracity of this thinking aside, Wolfe’s writings particularly, and others in general (Crosby & Monaghan, 2016; Glen, 2015; Kauanui, 2016; Moreton-Robinson, 2015; Veracini, 2010, 2011, 2015) offer a cogent and substantive conceptual framework for understanding and

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explaining the dynamics of settler colonialism. It frames settler colonialism as different from and more expansive in its ongoing deleterious impact on Indigenous peoples than other forms of colonialism practiced on the Asian and African continents (South Africa and Zimbabwe being notable exceptions). These experiences better fit the post-colonialism description regarding nationhood, sovereignty, independence, and the return of seized land to the Native population. Glen (2015) persuasively argues that above and beyond explaining the ongoing deleterious impact on Indigenous peoples, the settler colonialism framework offers the opportunity for a historically grounded and inclusive analysis of race and gender formation (p. 52). Within this framework, settler colonialism is a “distinct transnational formation whose political and economic projects have shaped and continue to shape race relations in nations established through settler colonialism” (p. 52). So what makes settler colonialism different from the other forms of colonialism, most notably classic colonialism? Unlike classic colonialism, which sought to exploit, extract, and transfer natural resources back home for profit while governing from afar through local representatives, settler colonies did not come into being to solely extract surplus value from natural resources or Indigenous labor (Steinman, 2021; Veracini, 2013; Wolfe, 1999). Instead, it arose due to what Wolfe (2006) described as a cultural logic of elimination that insistently seeks to remove Indigenous peoples and seize their land. In doing so, European settlers came not for a sojourn but to stay permanently, eliminate, and replace Indigenous peoples on the expropriated land base and make the country entirely their own (Veracini, 2013; Wolfe, 2006). As Mahmood Mamdani (1998) posits, initial settlers are made by conquest, not immigration, which later is the mechanism to recruit labor and grow the population needed for a replacement state, in the settlers’ image, where a nation already exists. Toward this end and supported by a panoply of strategies of elimination and subjugation (see earlier discussion in this chapter), settler colonialism destroyed to replace (Wolfe, 2006). And consequently, Indigenous peoples become refugees in their own land. The process of elimination and land expropriation that makes them refugees is not a one-off superseded occurrence of the past for Indigenous peoples; Wolfe (1999) posits it is an ongoing structure. As an ongoing structure in

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its contemporary iteration as a Western liberal democracy, Indigenous peoples remain firmly on the social and economic margins, separated from their land, and with only at best a token recognition of their sovereignty as the first people of the land. For the most part, Glen (2015) being a notable exception, settler colonialism as a framework is primarily seen through the prism of the Indigenous/settler divide. And for a good reason. Enslaved Africans and their descendants in the UK, U.S., and Canada, who came to these countries via colonialism, are considered settlers because they reside on the seized land of Indigenous peoples. And while this is true, in the U.S. and to a somewhat lesser and shorter time in Canada, it was initially as involuntary exploitable labor. They were on the lowest rung of the racial hierarchy, which has outlived emancipation or any civil rights legislation (Wolfe, 2001), and is thus an ongoing event. In the presentday Western liberal democracy, it has none of the features of the overt racism of the past. However, lost is culture, customs, language, and a sense of belonging to a land, leaving those not African-born immigrants assimilated but, on the socioeconomic margins. As such, this book seeks to expand the settler colonialism lens to consider, as Baker asserts (2017; see Lethabo-King, 2021), Indigenous and Black histories and identities as not necessarily distinct. Instead, they are intersectional messes of racialized and gendered contestation over and within ongoing colonial forces. This is particularly true in the U.S. and to a lesser extent in Canada. The experiences and losses are not the same, but there is a similar parallel experience of marginalization. Finally, in using a settler colonialism framework for this book, there is an acknowledgment of its critics, of which there are several. For example, some Indigenous scholars view the frame as offering an unnecessarily pessimistic view of the Indigenous experience in Australia, particularly as it relates to the veracity of the logic of elimination in the face of conflicting evidence (see Konishi, 2019). Baker (2017) also critiques what she sees as the field’s structuralist rigidity and its inadvertent erasure of Black people. Sharing Baker’s concerns, Lethabo-King (2021) laments that the "White settler colonial studies’ hold on the imaginations of humanists and social scientists crowds out ongoing discussions between Black and Native feminisms, particularly Black and Native

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idioms of the flesh” (p. 12). Fenelon (2016) identifies the limitations of settler colonialism theory and the need to expand its analysis toward macro-construction of race and systemic race and systemic racism in the longue durèé of the modern world-system, from Indigenous studies perspective (p. 237). Fenelon (2016) asserts that this expansion “must identify colonizers and states as perpetrators of genocidal conquest, and Native Nations (not racialized Indians) as resisting invasion and domination, decolonizing, and revitalizing Indigenous cultures in opposition to neoliberal modernisms” (p. 237).

Critical Race Theory (CRT) Critical race theory (CRT), which has its origins in legal scholarship, offers a valuable framework for understanding racial disproportionality in the criminal justice system and why Black people, in particular, are perennially disadvantaged by criminal justice policies (Bell, 1995; Delgado, 1988; Delgado & Stefancic, 1998, 2000, 2012). Coming out of the work of Derrick Bell, an African American professor at Harvard Law School; Alan Freeman, a White professor at SUNY-Buffalo Law School; and later Richard Delgado, a Hispanic civil rights professor at the University of Alabama School of Law, CRT was a criticism of and heir to the Critical Legal Studies Movement (CLSM). CLMS argued that legal system reform was necessary because of what they saw as a legal system that existed to protect the interests of the wealthy and the powerful (Unger, 1986). While in general agreement with the overall sentiments of the CLMS, Bell, Freeman, and other legal scholars were nonetheless critical of what they saw as its failure to incorporate race and racism in its analysis of the legal system (Bell, 1995; Delgado & Stefancic, 1998). Indeed, they argued that it was an analysis that should be in the foreground and central to any discussion of the legal system (Bell, 1995). Bell, Freeman, and later Delgado and others suggested that by not listening to the lived experiences and histories of those oppressed by institutional racism, the CLSM was limited. More specifically, it did not offer the strategies necessary for transforming the legal system (Bell,

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1995; Crenshaw et al., 1995; Delgado & Stefancic, 2000, 2012; Yosso, 2005). Pulling away from CLSM in the early 1980s with the intent to put race and racism at the forefront, Bell, Freeman, and other legal scholars began to produce legal scholarship that indeed did put race and racism at the forefront (Crenshaw et al., 1995; Delgado, 1988). Conceptually, then, CRT was a movement of a sort from the early 1980s. However, it was not until 1989, at a conference in Madison, Wisconsin, that it got the name CRT. From this moment onward, CRT coalesced as a loosely defined organization with annual workshops, occasional conferences, and a certain degree of thematic agreement on what is important in racial politics and analysis (Delgado & Stefancic, 2000, p. 470). Over the past 40 years, CRT has become an established and dynamic movement in law, taught in law schools across the U.S. with considerable numbers of legal and academic scholars considering themselves CR theorists (Delgado & Stefancic, 2012). Furthermore, CRT has been infused into other disciplines, including education, social work, psychology, and public health (Constance-Huggins, 2012; Ford & Airhihenbuwa, 2010; Lynn & Dixon, 2013; Salter & Adams, 2013). It has also expanded beyond the Black/White racial binary to include the experiences of Native Indians (TribalCrit), Hispanics (Lat/Crit), and Asians (Asian/ Crit; Chang, 1993; Haynes, 2008; Museus & Ifikar, 2013; Valdez, 1996; Yosso, 2005). Relatedly, it also intersects with other theories such as queer critical theory and intersectionality theory (Crenshaw et al., 1995). Moreover, CRT is being used in the U.S., Europe, and countries as far-flung as Australia and China. The central tenets of the CRT are as follows: • Race is the primary, although by no means the only, form of oppression in the U.S. (Bell, 1995; Delgado & Stefancic, 2012). • Race is a contrived system of categorizing people, according to observable physical attributes. It has no correspondence to genetic or biological reality (Bell, 1995; Delgado & Stefancic, 2012). • Racism is ordinary, not aberrational. It is deeply embedded in the social and economic landscape of the U.S. and is the usual way society

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does business (Bell, 1995; Carbado & Roithmayr, 2014; Delgado & Stefancic, 2012). Dominant social discourse and people in power can racialize groups of people in different ways at different times, depending on historical, social, or economic need (Carbado & Roithmayr, 2014). Racial stereotypes are ubiquitous in society and limit the opportunities for people of color (Carbado & Roithmayr, 2014). Racism brings material and psychic advantage to the dominant group, and progressive change occurs when, and only when, the interest of the dominant group converges with those of the racially disadvantaged (Bell, 1995; Carbado & Roithmayr, 2014; Delgado & Stefancic, 2012). The dominant group’s accounting of history routinely excludes racial and other minority perspectives to justify and legitimize its power (Bell, 1995; Delgado & Stefancic, 2012). The nation’s racial past exerts contemporary effects (Carbado & Roithmayr, 2014). Though society’s social institutions claim neutrality, impartiality, objectivity, and even-handed dealings with diverse groups, in fact, they work in the interest of the dominant racial group. Consequently, through policies and practice they promote a system of racial and ethnic subordination for particular racial and ethnic groups (Bell, 1995; Delgado & Stefancic, 2012). The success of various social policy initiatives often depends on whether the perceived beneficiaries are people of color (Carbado & Roithmayr, 2014). Supposed color-blindness allows society to address only extremely egregious forms of racial harm that everyone would notice and not condone, as opposed to the less obvious and more frequent forms (Bell, 1995; Delgado & Stefancic, 2012. Though race is considered the primary form of oppression, one cannot think of racial and ethnic subordination without considering the intersectionality and interlocking oppressions of gender, sexual orientation, and class (Bell, 1995; Delgado & Stefancic, 2012). Counter narratives that challenge the dominant narrative of race and ethnic neutral policies, as well as give voice to the experiences and

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perspectives of the oppressed, are critical to the empowerment of oppressed racial and ethnic groups (Bell, 1995; Carbado & Roithmayr, 2014; Delgado & Stefancic, 2012). CRT scholars broadly apply its central tenets to explaining criminal justice disproportionality by asserting that racial privilege and its related oppression are ingrained in the history, law, and social structures of the majority White Western liberal democracies. Because of its privilege, the majority White population maintains dominance in all areas of society by shaping law and other practices that protect the status quo (Brewer & Heitzeg, 2008; Jefferies, 2019). Historically and now, the most vital of these laws and practices are those related to the criminal justice system and its organizing policies. In contemporary so-called colorblind, Western liberal democracies that assert meritocracy, the criminal justice system provides the perfect set of enforcement codes and narratives for maintaining color lines and corralling Black bodies particularly, and other marginalized bodies in general, under the guise of law and order (Brewer & Heitzeg, 2008). In corralling Black bodies through law enforcement actions that disproportionately target and bring young Black men and women into the criminal justice system, their access to resources and social mobility is effectively controlled (Brewer & Heitzeg, 2008). This control is every bit as effective as during slavery, Jim Crow, and other overt forms of structural racism thought to be a thing of the past (Alexander, 2010). Consequently, outside of academic and criminal justice system reform circles, the public conversation about Black disproportionality in the criminal justice system is not about structural racism. Instead, it centers on a fear of crime, criminal gangs, and drug-infested economically disadvantaged communities—thus offering a justification for criminal justice disproportionality that is not incongruent with society’s notion of colorblind justice, meritocracy, and the continued existence of the racial hierarchy and dominance (Brewer & Heitzeg, 2008).

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Tribal Critical Race Theory (TribalCrit) TribalCrit, which has its roots in CRT, anthropology, political/legal theory, political science, American Indian literature, education, and American Indian studies, was conceived by Lumbee scholar Bryan Brayboy (2005) in the mid-2000s (p. 425). The catalyst for TribalCrit was the need for a framework addressing the specific needs and experiences of tribal people, which CRT, with its focus on African American peoples and the resulting articulation of race issues along a Black-White binary, does not do. Brayboy noted that even later adaptations of CRT developed by Asian (Asian/Crit) and Hispanic scholars (Lat/Crit) focused exclusively on race and believed racism is endemic to society, an assertion that he does not dispute or negate. However, for Indigenous peoples, Brayboy asserts, it is colonization that is endemic to society. In devising TribalCrit, Brayboy (2005) states, “it allows for addressing the complicated relationship between American Indians and the U.S. federal government and begins to make sense of American Indians’ liminality as both racial and legal/political groups and individuals” (p. 427). Undergirding this theory is the historically and geographically located epistemologies (knowledge) and ontologies (wisdom) found in Indigenous communities. Brayboy (2005) asserts that “though they differ depending on time, space, place, tribal nation, and individual, there appear to be commonalities in those ontologies and epistemologies” (p. 427). TribalCrit is grounded in these commonalities while also recognizing the range and variation that exist within and between communities and individuals (Brayboy, 2005, p. 427). In the same vein, Alfred and Corntassel (2005) assert that while there are indeed vast differences among the world’s Indigenous peoples, there are ties that bind them. That is, “the struggle to survive as distinct peoples on foundations constituted in their unique heritages, attachments to their homeland, and natural ways of life, as well as the fact that their existence is in large part lived as determined acts of survival against colonizing states’ efforts to eradicate them culturally, politically, and physically” (p. 597). The nine tenets of TribalCrit are as follows:

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1. First, colonization is endemic to society—that is, European American thought, which dismissed Indigenous knowledge in the same way it dismissed any sociopolitical, cultural life it did not understand, dominates present-day society. 2. U.S. policies toward Indigenous peoples are rooted in imperialism, White supremacy, and a desire for material gain. 3. Indigenous peoples occupy a liminal space that accounts for both the political and racialized natures of their identities. 4. Indigenous peoples have a desire to obtain and forge tribal sovereignty, tribal autonomy, self-determination, and self-identification. 5. The concepts of culture, knowledge, and power take on new meaning when examined through an Indigenous lens. 6. Governmental policies and educational policies toward Indigenous peoples are intimately linked to the problematic assimilation goal. 7. Tribal philosophies, beliefs, customs, traditions, and visions for the future are central to understanding the lived realities of Indigenous peoples, but they also illustrate the differences and adaptability among individuals and groups. 8. Stories are not separate from theory; they make up theory and are therefore real and legitimate sources of data and ways of being. 9. Theory and practice are connected in profound and explicit ways such that scholars must work toward social change (Brayboy, 2005, pp. 429–430). TribalCrit scholars have not used the theory’s tenets to contribute to the issue of Indigenous disproportionality in the criminal justice systems of the U.S., Canada, and Australia. Nevertheless, it speaks to the notion of policies, including criminal justice, rooted in imperialism and White supremacy. Within a colonial context, imperialism and White supremacy seek to subjugate and control the movement of Indigenous bodies across any number of societal structures, including education and the criminal justice system. Thus, although both CRT and Tribal/Crit were devised in a U.S. context with differing focuses, they are, for this book and in conjunction with settler colonialism and structural racism frameworks, valuable

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lenses for examining and explaining Indigenous and Black disproportionality in the criminal justice systems of the UK, the U.S., Canada, and Australia.

Indigenous Peoples The term Indigenous is capitalized. As used in this book, it refers to people with familial heritage from, and membership in, the ethnic groups that lived in the U.S., Canada (First Peoples), and Australia (First Nations) before British settler colonialization. In the U.S. it includes American Indians, Alaska natives, native Hawaiians, the Chanorro from Guam, and the native Taino people of Puerto Rico (Cunneen & Tauri, 2019). In Canada, it includes the First Nations, Inuit, and the Métis (Kumar, 2013). In Australia, this includes Aboriginal and Torres Strait Island peoples (Cunneen & Tauri, 2019). The term Indigenous does not connote being monolithic. On the contrary, there is recognition and acknowledgment of the hundreds of languages, cultures, knowledge bases, religious beliefs, and political systems within the Indigenous diaspora (Brayboy, 2005; Cunneen & Tauri, 2019). What does connect Indigenous peoples in the U.S., Canada, and Australia is the ongoing experience of settler colonialism (Brayboy, 2005; Cunneen & Tauri, 2019).

Black People As used in this book, the term Black is capitalized and refers to people of African descent or native born, who reside in the UK, U.S., and Canada. Statistically, the majority will have been born in the UK, U.S., and Canada. A smaller percentage will be migrants from South America, the Caribbean, Africa, and Europe. All in some way are a product of colonialism, either as direct descendants of enslaved Africans transported to the different regions of the Americas or African-born in a formerly colonialized country. There is a recognition that the term Black does not mean a monolith. Instead, there is an acknowledgment of the myriad

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cultures, identities, knowledge, experiences, and perspectives within the Black diaspora. What is seen as a common link in the UK, U.S., and Canada is their racial categorization as Black.

Institutional Racism Institutional racism was first coined as a term by civil rights and political organizer Kwame Ture (formerly known as Stokely Carmichael) and Columbia University political scientist and scholar Charles V. Hamilton in their 1967 book Black Power: The Politics of Liberation. Ture and Hamilton (in Ture & Hamilton, 1992) defined institutional racism as the predication of decisions and policies on considerations of race by established and respected forces in society to subordinate a racial group and maintain control over that group (p. 20). In contrast with individual forms of racism, institutional racism is less overt, far more subtle, and not attributable to specific individuals committing the acts. Furthermore, because it originates from an institution, there is less public condemnation of their actions, no matter how deleterious the actions, than individual forms of racism. Indeed, Ture and Hamilton (1992) argue that because of its wide-ranging impact and societal sanction, institutional racism is not only more damaging than an individual expression, but it also allows for duality in responsiveness to racism. More specially, it allows respectable individuals who might abhor or disavow individual acts of racism but support institutions whose practices are racist under the guise of the betterment of society to absolve themselves of individual blame. Think law-and-order debate in the 1990s, which had considerable public support and was the catalyst for law enforcement actions targeting young Black males in economically disadvantaged communities in the UK, the U.S., and Canada (Warde, 2013). For Ture and Hamilton (1992), institutional racism is predicated on notions of White superiority and Black inferiority and has its origins in settler colonialism. As used in this book and drawing on the work of Ture and Hamilton, institutional racism is the policies and practices within and across institutions that favor the White majority to the detriment of Indigenous and

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Black people. Examples include school disciplinary policies that punish Indigenous girls at much higher rates than their White counterparts.

Structural Racism Inextricably linked to institutional racism, structural racism is the organizing principles and framework for society’s patterns of discrimination through its institutions (Bailey et al., 2017). It is deeply embedded in the normal operations of institutions and is informed by history, stories, myths, culture, values, norms, and the resulting social arrangements that determine, based on race, who does and does not have agency in society and under what conditions. Structural racism is so deeply rooted that it is assumed to reflect society’s natural, inevitable order (Braveman et al., 2022). It is omnipresent and is a feature of the social, economic, and political systems in which we all exist. While institutions can ostensibly make concessions and incremental changes to their practices in the name of colorblindness, meritocracy, progress, and democracy, the structural racism that informs institutional practices remains fundamentally unchanged. Consequently, racism and the racial hierarchy and inequalities persist unabated. Examples of structural racism include the forcible removement of Indigenous peoples from their native homelands to reservations (Salway-Black, 2008), racial residential segregation (Solomon et al., 2019), and the school-to-prison pipeline (Smith, 2009).

Criminal Justice System There are some minor differences in language when describing the criminal justice system. However, there is consensus on its constituent parts and functions in the UK, U.S., Canada, and Australia. The criminal justice system refers to and will be used in this book as the collective institutions through which an accused offender passes until the accusations have been adjudicated or the assessed punishment has been concluded. The criminal justice system has three components: (1) law enforcement,

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(2) the courts, and (3) corrections. In addition, there is a parallel juvenile criminal justice system for minors in each of the above countries.

Criminal Justice System Disproportionality When the proportion of a group within the control of the system is greater than the proportion of the said group in the general population (Knoth, 2020), it is criminal justice system disproportionality.

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Bell, D. (1995). Who’s afraid of critical race theory? University of Illinois Law Review, 893–901. Braveman, P. A., Arkin, E., Proctor, D., Kauh, T., & Holm, N. (2022). Systemic and structural racism: Definitions, examples, health damages, and approaches to dismantling. Health Affairs, 41(2), 171–178. Brayboy, B. M. (2005). Toward a tribal critical race theory in education. The Urban Review, 37 (5), 425–446. Brewer, R. M., & Heitzeg, N. A. (2008). The racialization of crime and punishment: Criminal justice, colorblind racism, and the political economy of the prison industrial complex. American Behavioral Scientist, 51(5), 625–644. Carbado, D. W., & Roithmayr, D. (2014). Critical race theory meets social science. The Annual Review of Law and Social Science, 10, 149–167. Cassidy, J. (2003). The legacy of colonialism. The American Journal of Comparative Law, 51(2), 409–455. Chang, R. S. (1993). Toward an Asian American legal scholarship: Critical race theory, post-structuralism, and narrative space. California Law Review, 81(5), 1241–1323. Choquette, E. (2020). Appropriating Indigenous lands: The liberal founding of Manitoba. Settler Colonial Studies, 11(1), 86–102. Constance-Huggins, M. (2012). Critical race theory in social work education: A framework for addressing racial disparity. Critical Social Work, 13(2), 1– 16. Cox, A. (2017). Settler colonialism. Oxford Biographies. https://www.oxford bibliographies.com/view/document/obo-9780190221911/obo-978019022 1911-0029.xml#obo-9780190221911-0029-bibItem-0001 Crenshaw, K., Gotanda, N., Peller, G., & Thomas, K. (1995). Critical race theory: The key writings that formed a movement. The New Press. Crosby, A., & Monaghan, J. (2016). Settler colonialism and the policing of idle no more. Studies in Social Justice, 43(2), 37–57. Cunneen, C. (2008). State crime, the colonial question, and Indigenous peoples. In A. Smuelers & R. Haveman (Eds.), Supranational criminology: Towards a criminology of international crimes (pp. 159–180). Intersentia Press. Cunneen, C., Baldry, E., Brown, D., Schwartz, M., Steel, A., & Brown, M. (2013). Penal culture and hyper incarceration: The revival of the prison. Advances in Criminology. Routledge. Cunneen, C., & Tauri, J. M. (2017). Indigenous criminology. Policy Press Scholarship Online.

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Cunneen, C., & Tauri, J. M. (2019). Indigenous peoples, criminology, and criminal justice. Annual Review of Criminology, 2(3), 59–81. Delgado, R. (1988). Critical legal studies and the realities of race: Does the fundamental contradiction have a corollary? Harvard Civil Rights–Civil Liberties Law Review, 23, 407–413. Delgado, R., & Stefancic, J. (1998). Critical race theory: Past, present, and future. In M. Freeman (Ed.), Current legal problems 1998: Legal theory at the end of the millennium (pp. 467–492). Oxford University Press. Delgado, R., & Stefancic, J. (2000). Critical race theory: The cutting edge (2nd ed.). Temple University Press. Delgado, R., & Stefancic, J. (2012). Critical race theory: An introduction (2nd ed.). New York University Press. Egerton, H. E. (1945). A short history of British colonial policy, 1606–1906 (11th ed.). Methuen. Federal Bureau of Prisons. (2022, January 1). Inmate race—last updated. https:/ /www.bop.gov/about/statistics/statistics_inmate_race.jsp Fenelon, J. V. (2016). Critique of Glen on settler colonialism and Bonilla-Silva on critical race analysis from Indigenous perspectives. Sociology of Race and Ethnicity, 2(2), 237–242. Ford, C. L., & Airhihenbuwa, C. O. (2010). Critical race theory, race equity, and public health: Toward antiracism praxis. American Journal of Public Health, 100 (1), 30–35. Glen, E. N. (2015). Settler colonialism as structure: A framework for comparative studies of U.S. race and gender formation. Sociology of Race and Ethnicity, 1(1), 54–74. Government of Canada. (2022). Indigenous health. https://www.sac-isc.gc.ca/ eng/1569861171996/1569861324236 Haynes, J. (2008). Unmasking, exposing, and confronting: Critical race theory, tribal critical race theory and multicultural education. International Journal of Multicultural Education, 10 (2), 1–15. Higginbotham, Jr., A. L. (1996). Shades of freedom: Racial politics and presumptions of the American legal process. Oxford University Press. Hixon, W. L. (2013). American settler colonialism: A history. Palgrave Macmillan. Indian Health Service. (2019). Disparities. https://www.ihs.gov/newsroom/fac tsheets/disparities/ Issar, S. (2021). Theorizing racial/colonial primitive accumulation: Settler colonialism, slavery, and racial capitalism. Race and Class, 63(1), 23–50.

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Jalata, A. (2013). The impacts of English colonial terrorism and genocide on Indigenous/Black Australians. Ethnicity & Politics, Racial Injustice, Cultural Studies, 3(3), 1–12. Jefferies, J. L. (2019). Justice is not blind: Disproportionate incarceration rate of people of color. Social Work in Public Health, 34 (1), 113–121. Kauanui, J. J. (2016). “A structure, not an event”: Settler colonialism and enduring indigeneity. Emergent Critical Analytics for Alternative Humanities Issue, 5 (1). Kidd, R. (1997). The way we civilize: Aboriginal affairs—The untold story. The University of Queensland Press. Knoth, L. (2020). Disparity and disproportionality in the criminal justice system. Washington State Institute for Public Policy. https://sgc.wa.gov/sites/default/ files/public/SGC/meetings/2020/SGC_disparity_in_CJ_WSIPP.pd Konishi, S. (2019). First nation scholars, settler colonial studies, and Indigenous history. Australian Historical Studies. , 50, 285–304. Kumar, Y. (2013). Indigenous people in Canada. Linkr Education. https://www. linkreducation.com/en/content/indigenious-people-in-canada-/38836 Lethabo-King, T. (2021). Some Black feminist notes on Native feminism and the flesh. Environment and Planning d: Society and Space, 39 (1), 9–15. Local Government Association. (2021). Health inequalities: Ethnicity and COVID-19. https://www.local.gov/our-support/safer-and-more-sustainablecommunities/health-inequalities-hub/health-inequalities-3 Lynn, M., & Dixon, A. D. (2013). Handbook of critical race theory in education. Routledge. Malik, K. (1996). The meaning of race: Race, history, and culture in western society. Macmillan. Mamdani, M. (1998, May 13). When does a settler become a native? Reflections of the colonial roots of Equatorial and South Africa. Text of inaugural lecture as AC Jordan Professor of African studies, University of Cape Town. https://citizenshiprightsafrica.org/wp-content/uploads/1998/05/mam dani-1998-inaugural-lecture.pdf Midzain, L., & Smith, H. (2021). Not in the past: Colonialism is rooted in the present. The Conversation. https://theconversation.com/not-in-the-pastcolonialism-is-rooted-in-the-present-157395 Miller, R. J., Ruru, J., Behrendt, L., & Lindberg, T. (2010). Discovering indigenous lands: The doctrine of discovery in the English colonies. Oxford Scholarship Online.

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Moore, J. M. (2016). Built for inequality in a diverse world: The historic origins of criminal justice. Papers from the British Criminology Conference, 16 , 38–56. Moreton-Robinson, A. (2015). The White possessive, property, power, and Indigenous sovereignty. University of Minnesota Press. Museus, S. D., & Ifikar, J. (2013). An Asian critical theory (AsainCrit) framework: Asian students in higher education. Routledge. National School Boards Association. (2020). The conditions of Native American students. https://www.nsba.org/ASBJ/2020/December/condition-native-ame rican-students Office of the Correctional Investigator. (2020). Indigenous people in federal custody surpasses 30%. Correctional investigator issues statement and challenge. https://www.oci-bec.gc.ca/cnt/comm/press/press20200121-eng.aspx Public Safety Canada. (2020). Corrections and conditional release statistical overview 2019. https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ccrso-2019/ ccrso-2019-en.pdf Rolston, A. (2016, April 8). Black body to Black body: Decolonizing myself and liberating my gaze. Blogs LSE. https://blogs.lse.ac/africaatlse/2016/04/ 04/black-body-to-black-body-decolonizing-self-and-liberating-my-gaze/ Saito, N. T. (2014). Tales of Color and Colonialism: Radical Realism and Settler Colonial Theory. Florida a&m University Law Review, 1(1), 1–108. Saito, N. T. (2020). Settler colonialism, race, and the law: Why structural racism persists. New York University Press. Salter, P., & Adams, G. (2013). Toward a critical race psychology. Social & Personality Psychology Compass, 7 (11), 781–793. Salway-Black, S. (2008). American Indian tribes and structural racism. Poverty & Race Research Action Council . https://www.prrac.org/american-ind ian-tribes-and-structural-racism/ Sékal, G. F., & Bazzi, R. (2021). A critical perspective on the Canadian education gap: Assessing First Nation student education outcomes in Canada. Strategy Corp, Institute of Public Policy and Economy. https://strategycorp.com/wpcontent/uploads/2021/05/SCI-First-Nations-Education_Final.pdf Shoemaker, N. (2015). A typology of colonialism. Perspectives on history. https://www.historians.org/publications-and-directories/perspectives-on-his tory/october-2015/a-typology-of-colonialism Smith, C. D. (2009). Deconstructing the pipeline: Evaluating school-toprison pipeline equal protection case though a structural racism framework. Fordham Urban Law Journal, 36 (5), 1009–1049.

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Solomon, D., Maxwell, C., & Castro, A. (2019). Systematic equality: Displacement, exclusion, and segregation: How America’s housing system undermines wealth building in communities of color. Center for American Progress. https://americanprogress.org/wp-content/uploads/2019/08/StructuralRacis mHousing.pdf?_ga=2.10092597.1605738407.1645758165-1821473094. 1530083012 Statistics Canada. (2020). Canada’s Black population: Education, labour, and resilience. https://www150.statcan.gc.ca/n1/pub/89-657-x/89-657-x20 20002-eng.htm Steinman, E. W. (2021). Settler colonialism and sociological knowledge: Insights and directions forward. Theory and Society, 51, 145–176. Sturge, G. (2021, October 29). U.K. prison population statistics. Briefing Paper Number CBP-04334. House of Commons Library. https://researchbrie fings.files.parliament/documents/SN04334/SN04334.pdf Tauri, J. M., & Porou, N. (2014). Criminal justice as a colonial project in settler-colonialism. African Journal of Criminology and Justice Studies, 8(1), 20–37. Tuck, E., & Yang, K. W. (2012). Decolonization is not a metaphor. Decolonization, Indigeneity Education & Society, 1(1), 1–40. Ture, K., & Hamilton, C. V. (1992). Black power: The politics of liberation. Vintage Books. Unger, R. M. (1986). The critical legal studies movement. Harvard University Press. Valdez, F. (1996). Latina/o ethnicities, critical race theory, and post-identity politics in post-modern legal culture: From practice to possibilities. Berkeley La Raza Law Journal, 9 (1), 1–31. Veracini, L. (2010). Settler colonialism: A theoretical overview. Palgrave Macmillan. Veracini, L. (2011). Introducing settler colonial studies. Settler Colonial Studies, 1(1), 1–12. Veracini, L. (2013). Understanding colonialism and settler colonialism as distinct formations. International Journal of Postcolonial Studies, 16 (5), 615–633. Veracini, L. (2015). The settler colonial present. Palgrave Macmillan. Wang, L. (2021). The U.S. criminal justice system disproportionality hurts Native people: The data, visualized. Prison Policy Initiative. https://www.pri sonpolicy.org/blog/2021/10/08/indigenouspeoplesday/

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Warde, B. (2013). Black male disproportionality in the criminal justice systems of the U.S, Canada, and the U.K.: A comparative analysis of incarceration. Journal of African American Studies, 17 (4), 461–479. Websdale, N. (2001). Policing the poor: From slave plantation to public housing. Northeastern University Press. Wilson, T. B. (1965). The black codes of the south. University of Alabama Press. Wolfe, P. (1999). Settler colonialism and the transformation of anthropology: The politics and poetics of an ethnographic event. Cassell. Wolfe, P. (2001). Land, labor, and difference: Elementary structures of race. The American Historical Review, 106 (3), 866–905. Wolfe, P. (2006). Settler colonialism and the elimination of the native. Journal of Genocide Research, 8(4), 387–409. Wolfe, P. (2007). Corpus nullius: The exception of Indians and other aliens in the US constitutional discourse. Postcolonial Studies, 10 (2), 127–151. Wolfe, P. (2010). Race and racialization: Some thoughts. Postcolonial Studies, 5 (1), 51–62. Woolford, A. (2013). The next generation: Criminology, genocide studies and settler colonialism. Revista Critica y Poder, 5, 163–185. Yosso, T. J. (2005). Whose culture has capital? A critical race theory discussion of community cultural wealth. Race, Ethnicity and Education, 8(1), 69–91.

2 Great Britain’s Colonizing Project Part 1

Investigating Unknown Lands Great Britain’s colonizing project began on March 5, 1496, when King Henry VII issued letters of patent to the Italian explorer John Cabot and his sons, authorizing them to explore unknown lands. Under the British banner, they were given the charge of, among other things, "discovering and investigating whatsoever islands, countries, regions or provinces of heathens and infidels, in whatever parts of the world placed, which before this time were unknown to all Christians" (The History Press, 2022, p.1). Toward this end, Cabot made two voyages. The first in 1496 was aborted because of a shortage of food, inclement weather, and disputes with the crew (Britannica Encyclopedia, 2021a). The second in 1497 saw him sail from Bristol, past Ireland, and across the Atlantic, looking for the Northwest Passage, a supposed water route that ran from the Atlantic Ocean to the Pacific Ocean along the border of what today is the U.S. and Canada. Unfortunately, sailors and navigators at the time, who had no conception of the existence of an American continent, mistakenly believed that the yet-to-be-discovered Northwest Passage would allow ships from Europe to travel more quickly and safely to Asia for trading, © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Warde, Colorblind, Critical Criminological Perspectives, https://doi.org/10.1007/978-3-031-38157-7_2

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which was the goal of Cabot’s voyage (Environment & Society Portal, n.d.). Although it is considered the first attempt, Cabot’s second voyage did not find the Northwest Passage. It did, however, sight land, which Cabot called New-found-land, mistakenly believing it to be Asia and claiming it in the name of King Henry VII. Historians dispute the exact location of the land; some believe it to be Cape Breton Islands in Nova Scotia. Others believe it to be southern Labrador or Newfoundland (Britannica Encyclopedia, 2021a). Nevertheless, from his ship, Cabot conducted exploration along the coastline of the sighted land, naming various features: Cape Discovery, Islands of St. John, St. George’s Cape, the Trinity Islands, and Great Britain’s Cape (Britannica Encyclopedia, 2021a). On his return to Great Britain on August 6, 1497, Cabot reported to King Henry VII that the land was excellent, the climate temperate, and the sea covered with enough fish to end Great Britain’s dependence on Iceland’s fish (Britannica Encyclopedia, 2021a). Although not the first European to set foot in North America, as Leif Erickson and Christopher Columbus, both preceded him, Cabot’s voyage, sighting, and claiming of the land were monumental in laying the foundation for Great Britain’s colonizing project. For example, it provided a toehold in North America. Moreover, it proved the existence of a shorter route across the northern Atlantic Ocean, which would later facilitate the establishment of other British colonies in North America.

Initial Attempts to Colonize North America The next vital steps in Great Britain’s colonial project occurred 81 years after Cabot’s second voyage when Queen Elizabeth I granted royal permission to two British men, Sir Humphrey Gilbert in 1578 and Walter Raleigh in 1584, to explore North America and establish colonies in those places not already claimed by other European powers (Royal Museums Greenwich, 2022; Woodward, 1902). However, because Queen Elizabeth I did not allow state sponsorship of high-risk ventures, offering only royal permissions, private investors funded the

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initial attempts at colonizing North America (Royal Museums Greenwich, 2022). Both Gilbert and Raleigh were unsuccessful in their respective attempts to colonize North America. As a result, the British Empire continued to trail behind their European counterparts Portugal and Spain, who, in the so-called age of exploration and discovery, established lucrative settlements on the African and American continents in the 1400s, making them the world’s wealthiest nations (Woodward, 1902). However, a decade or so after the failures of Gilbert and Raleigh, Great Britain’s first settler colonizing project began in earnest as a successful venture in 1607. More specifically, the Virginia Company of London, a British trading company chartered by King James I on April 10, 1606, with the intent to colonize the eastern coast of North America between latitudes between 34º and 41º N, established the first permanent British colony in Jamestown, Virginia, on May 14, 1607 (Britannica Encyclopedia, 2021b).

Becoming the British Empire The founding of the Jamestown colony ushered in a gradual but steady ascension of Great Britain into what became the British Empire, the first genuinely global power superseding the Portuguese, Spanish, and later French colonial empires (Luscombe, 2012). Over 300 years, through racialized, genocidal violence (Wagner, 2018), missionary proselytizing (Nkomazana & Setume, 2016), the doctrine of discovery (Miller, 2019), terra nullius (empty land; Sen, 2017), royal charter, mercantilism (Comstock, 1950), technological and industrial superiority (Luscombe, 2012), and slavery (Padraic, 2016), the British Empire became a worldwide system of colonies, protectorates, and other territories (Britannica Encyclopedia, n.d.). It was a system that, from 1607 to the return of Hong Kong to the Chinese in 1997, included 57 colonies located in Europe, Asia, Australasia, the Pacific, the West Indies, North America, and Africa (Halloran, 2014; Woodward, 1902). To put this in perspective, even with the considerable loss of the 13 American colonies after the War of Independence (1775–1783), at its height in 1922, the British Empire held

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dominion over 413 million inhabitants, about 20% of the world’s population. Moreover, from London it governed nearly 25% of the world’s landmass (Maddison, 2021).

The Arguments for Colonization Although labeled a colonial project, to say that Great Britain’s ascension as the preeminent global colonizing power came about because of a grand strategy or a coherent colonizing policy would be inaccurate. Nor was it a state-sponsored enterprise, as was the case for Spain and Portugal. Instead, it was the result of a confluence of considerations and factors. First, as described earlier, there was John Cabot’s mistaken discovery of land on the coast of Canada, providing Great Britain with a toehold in North America. Next, there were arguments for expansionism by men such as Sir Francis Drake, Sir Walter Raleigh, and Sir Humphrey Gilbert. They took the position that Great Britain had an obligation to discover new routes free from the interference of "any prince living, Christian or heathen," that would enable Great Britain to secure a share of the infinite wealth enjoyed by Spain and Portugal (Woodward, 1902). At least initially, the key to this wealth was thought to be in the East. New routes, it was argued, would enable Great Britain to compete with Portuguese and Spanish traders and put her in a position to trade with regions not yet reached by Europeans. Also, it was thought that part of these newly discovered lands could be settled by Great Britain’s less fortunate citizens, who were forced to commit crimes and be consumed by the gallows because of need (Woodward, 1902). Moreover, it might stimulate industry at home and thus provide employment for the idle and vagabonds. Furthermore, it would aid national defense by strengthening shipping and seamanship. Others, such as Sir George Peckham, recognized the inducements of colonialism for potential settlers. For the gentry, there was the attraction of country life; for the farmer, unlimited lands, most profitable for grazing and corn growing; for the trader, furs, skins, and timber; for the fisherman, the most banks of fish in the known world (Woodward, 1902, p. 42).

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Edward Hayes attached the most significant weight for colonization to religious motives. Focusing on the American continent, he argued that Great Britain had the right to colonize based on the prior right of discovery, the fitness of national character, and economic need because of overpopulation due to long-continued peace. Central to his argument is that God had reserved the right for the British nation to bring Christian civility to the American continent (Woodward, 1902). These arguments, made between 1575 and 1584, spurred Great Britain’s colonial project, aided by technological and industrial superiority and wealthy individuals willing to invest with the state’s blessing, if not the state’s financial support, in the early colonizing efforts. There were also untold numbers of British men and women who voluntarily or involuntarily would become settlers, transporting the language, values, and customs to all corners of the globe.

Beliefs Informing the Colonizing Project To summarize, informing the expansion of Great Britain’s colonial project was the belief in the country’s right of discovery and the natural claim to settlement, improving the economic condition of Great Britain, gaining a commercial advantage over its European rivals, and bringing infidels to Christianity and settled industry (Woodward, 1902). Inherent in Great Britain’s colonial project was the belief in White superiority and native inferiority. It was a sentiment probably best articulated by British imperialist poet and author Rudyard Kipling in his poem “White Man’s Burden” (Kipling, 1899). In the poem, Kipling describes Native People as sullen, half-devil and half-child. Kipling intimates that because of their superiority, it was the moral obligation of the White race to civilize the non-White peoples of the planet. Doing so justifies imperial conquest through colonization as a mission of civilization of primitive peoples incapable of self-government. Even before Kipling’s poem, this sentiment was a mode of thinking that certainly informed settler colonialism in the U.S., Canada, and Australia.

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The British Colonies The 13 Eastern Seaboard Colonies of North America Beginning in 1607 with the Jamestown colony in Virginia and ending in 1733 with the founding of Georgia, the last of its colonies, Great Britain established 13 settler colonies along the Eastern seaboard of North America (Library of Congress, n.d.). Because of the differences in geography and climate, the 13 colonies were separated into regions: New England, middle colonies, and southern colonies. The British settler colonies were not the first or only colonies in North America. Indeed, by the time Great Britain began establishing her colonies, the French, Spanish, Dutch, and even Russians already had outposts scattered on the American continent (Library of Congress, n.d.). However, it was the 13 British colonies that would come together to form the U.S. Without exception, the 13 settler colonies were all founded with royal authority (Middlekauff, 2007). The nature of a colony’s relationship to the crown was determined by whether it was a charter, proprietary preceded colony, or royal colony. In the case of a royal colony, they were colonies that belonged to the crown, whereas the crown granted a charter and proprietary colonies to private commercial interests (Taylor & Foner, 2002). Regardless of its relationship to the crown, the crown had governmental authority over all of the colonies. Moreover, a guarantee was given to all colonists of all the rights and liberties of British subjects, with the agreement that they were forbidden to draft orders or make any law contrary to those of Great Britain (Britannica Encyclopedia, 2021c). The colonies were largely selfgoverning in domestic matters, with the British government holding veto power over colonial legislation. The British government handled matters related to diplomacy and trade policies, while wars and conflicts with the Indigenous people were handled by the local colonial government (Britannica Encyclopedia, 2021c).

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Mercantilism in the 13 Colonies Between 1651 and 1696, the Parliament of Great Britain passed a series of Navigation Acts. These acts regulated British ships, shipping, trade, and commerce between other countries and the British colonies and restricted foreign participation in its colonial trade. It also enabled Great Britain to collect duties (taxes) (Britannica Encyclopedia, 2020). Alongside the acts was the development of triangular trade and trade routes, which involved voyages from Great Britain to Africa, Africa to the Americas, and the Americas back to Great Britain. The trade fell into three categories: (a) raw materials and natural resources from 13 colonies, such as lumber, dried fish, fur, whale oil, iron, sugar, tobacco, rice, indigo, and cotton, (b) manufactured products from Great Britain, such as guns, cloth, and furniture, and (c) enslaved people from West Africa (Harper, 1942). The Navigation Acts and the triangular trade and trade routes were pivotal to the practice of mercantilism, which was the 13 colonies’ one express purpose: to enrich the motherland. Indeed, the 13 colonies were an extremely profitable endeavor for the British crown and private enterprise, adding immensely to Great Britain’s wealth and setting it on the path to becoming a global empire. However, it was a profit gathered through monopolistic laws and practices that, while enriching the crown, wealthy British plantation owners and commercial investors, made it very difficult for colonists themselves to profit (Woodward, 1902).

Push and Pull Factors for British Colony Settlers Nevertheless, the 13 British colonies were a desirable option for British settlers motivated, coxed, or forced by a myriad of push and pull socioeconomic factors. The push factors included crop failure and famine, overpopulation, civil and religious conflict and persecution, mass unemployment, escaping the gallows or jail, religious persecution, and landlessness (Alchin, 2017). The pull factors were ample fertile land and the promise of land grants, employment opportunities, freedom to

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create havens from religious persecution, and safety in a less crowded environment with a reduced fear of disease and civil conflict (Alchin, 2017). In 1618, in need of labor for their tobacco plantations in Virginia, the Virginia Company, which held title to vast amounts of land, introduced the headright system. The system provided headrights, meaning one tract of 50 acres of land to any new settler who paid their own passage to Virginia and worked on the plantation. The headright was awarded to each person who entered Virginia, thus encouraging entire families to migrate together. Wealthy individuals and landowners could accumulate headrights by paying the passage of poor individuals or families, who came as indentured servants, agreeing to perform 5 to 7 years of labor for the landowner. Indeed the headright system is credited with creating the Virginia aristocracy (Allen, 1994). What began as a trickle in 1607 became a flood with the growth of the colonies and their accompanying population. To illustrate, the colonial population grew from 1232 in 1625 to 2.5 million people in 1775 (census.gov, n.d.). Although the majority of the White settlercolonists were British, the colonies also included people from other European countries, most notably German (Kiger, 2021). They also included forcibly enslaved Africans of different ethnic groups and nations, present in all 13 colonies, and accounting for 20% of their inhabitants (Kiger, 2021). Moreover, they included Congregationalists, Anglicans, Lutherans, Dutch and German reformed, Quakers, and Catholics (Henry Holt & Co. Carp, 2010). The New England and middle colonies relied heavily on the emergence of industry and the production of goods to sell and trade, while the southern colonies arose from agriculture and the production of staple crops. At the center of these developments was initially just an encroachment on the land of the Indigenous population, which would slowly but surely evolve into dispossession of the land—moreover, the involuntary lifetime and intergenerational enslavement of imported Africans and their colony-born offspring.

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An Already Inhabited Land When Great Britain staked its claim to the east coast of today’s U.S., it did so, like earlier European colonizing nations in other regions of the Americas, on already inhabited and sovereign land. Although the Indigenous people had not always been, or originated, in the Americas, they occupied the American lands for at least 20,000 years prior to the arrival of Columbus in 1492 (Rutherford, 2017a). As a result, there were thriving Indigenous nations with rich and mature cultures and established languages (Rutherford, 2017b; Walters, 2022). Moreover, they were far from a monolith, with dozens of tribes distributed up and down both the north and south continents (Rutherford, 2017b) with many cultural practices and languages (Walters, 2022). Indeed, they were as diverse as the nations that composed Europe, Africa, and Asia.

The Doctrine of Discovery Beginning with the Spanish (1492), the Portuguese (1532), the French (1603), the British (1607), and the Dutch (1615), the European exploration across the Americas in pursuit of profit from the natural resources was to wreak havoc for the Indigenous populations of the respective regions. A confluence of factors was at the core of this havoc: the doctrine of the discovery, disease, wars, genocidal violence, enslavement, forced relocations, and the destruction of food sources (Smith, 2017). In its various guises, the doctrine of discovery provided a framework for Christian explorers to lay claim in the name of their sovereign to any territories inhabited by non-Christians, thus justifying dispossessing Indigenous peoples of their land despite it already being inhabited by them for thousands of years (Smith, 2017). From 1493 onward, the Spanish were particularly zealous in following Pope Alexander VI’s "Inter Caetera," a public decree ordering any land inhabited by people, not Christians can be "discovered" and then claimed by Christian rulers who had the authority to overthrow "barbarous nations" and forcibly bring tribal nations to the faith itself (Walters, 2022)—in short, asserting the right to colonize, convert, and

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enslave. The doctrine of discovery helped shape the view of Indigenous people as heathen, barbarians who were most certainly socially, culturally, and morally inferior to Europeans. It was a perspective that would remain stubbornly entrenched regardless of the colonizer.

Disease As damaging as the doctrine of discovery was in setting the tone for dispossessing already inhabited Indigenous lands in the Americas, even more deleterious was the combination of disease, wars, genocidal violence, and enslavement (Smith, 2017). The post-Columbus contact and exchange between Europeans and the Indigenous people from 1492 onward introduced to the Americas not just animals, food, crops, and ideas but also diseases to which the Indigenous people had no immunity because of their lack of prior contact with Europeans (Cook, 1998; Crosby, 1972; McNeill, 2019; Nunn & Qian, 2010; Smith, 2017; Walters, 2022). Diseases such as measles, smallpox, typhus, and cholera had a devastating impact on the Indigenous people. However, the exact magnitude might never be known because of the widely differing estimates of the size of the Indigenous population in the Western Hemisphere before 1492. These estimates have ranged from 40 million to 1 12 million (Smith, 2017). The numbers aside, what is known is that within 50 years of contact with Columbus and his crew, the Indigenous Taino population of the Island of Hispaniola, which had an estimated population of between 60,000 and 8 million, was virtually extinct (Cook, 1993). In central Mexico, an estimated population of 25.2 million in 1519 was reduced to an estimated 1.1 million by 1605 because of a smallpox epidemic (Lovell, 1992). In northwest Guatemala, the Indigenous population shrank from an estimated 260,000 in 1520 to 47,000 by 1575 (Lovell, 1992). In Puerto Rico, it is estimated that tens of thousands died (Walters, 2022). Smallpox decimated the Arawaks of the West Indies before making its way to Mexico (Cook, 1998). It is beyond the scope of this book to list all estimates of Indigenous lives lost because of the introduction of European diseases. Suffice it to

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say that these examples over a 50-year period after 1492 were repeated across all regions of the Americas (Cook, 1998). Furthermore, these losses would continue to the 1800s, and still reverberate today by the depletion of the Indigenous population in the Americas.

Genocidal Violence and Slavery Historians argue, however, that disease alone was not responsible for the catastrophic post-Columbus loss of Indigenous life across the Americas. Exacerbating the impact of disease were wars, enslavement, and genocidal violence (Smith, 2017; Walters, 2022). In the years after 1492, the Spanish waged war on Indigenous tribes that resisted their attempts to establish settlements or force them into servitude. The Arauco War, for example, was a long-running and bloody conflict that began in 1536 between the Spanish and the Mapuche people in what is today Chile (Smith, 2017). In addition, there were the Yaqui Wars (1533–1929) between New Spain and the Yaqui Indians, the Mixtón War (1540–1542), a rebellion against the Spanish by the Caxcan people of northwestern Mexico, the Chichimeca War (1550–1590), and the Apache-Mexico Wars (the 1600s–1915; Tenace, 2011; Smith, 2017). Finally, in 1539 a Spanish military expedition began 4 years of war against southeastern Indigenous peoples, ranging across the region now known as Peninsular Florida to northern Arkansas and Eastern Texas, inflicting significant casualties (National Institute of Health and Human Service, n.d.). Paralleling disease and war were the enslavement of Indigenous peoples and the many instances of genocidal violence. For example, in 1493, Columbus initiated the European slave trade with Indigenous peoples from the Americas to pay for his New World expeditions (Resendez, 2016; The Gilder Lehrman Institute of American History, n.d.). Beginning with 500 Arawak men, women, and children Columbus rounded up and sent from Hispaniola for sale in Southern Spain, the Spanish would expand their existing slave markets for Africans to include Indigenous peoples of the Americas (Resendez, 2016; The Gilder Lehrman Institute of American History, n.d.). Within decades,

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the Spanish expanded the slave trade to include Indigenous peoples from what is today Puerto Rico, Jamaica, Cuba, and the Bahamas. Moreover, when the Indigenous populations of these islands declined because of disease, slavery, and warfare, other Indigenous communities in what is now Curacao, Trinidad, Aruba, Nicaragua, Costa Rica, and Honduras were raided for slaves (The Gilder Lehrman Institute of American History, n.d.). Even after the Spanish outlawed enslavement of Indigenous peoples in 1542, those who were labeled as cannibals could still be enslaved. Moreover, slavery was replaced by what could be best described as indentured servitude (repartimiento), which saw Indigenous people do backbreaking work in silver mines and building forts and roads for little or no pay (The Gilder Lehrman Institute of American History, n.d.). Genocidal violence was commonplace and often accompanied the Spanish moving into an unconquered territory or as the result of seeking to subjugate, intimidate, or punish the Indigenous population. In the 1500s, both Antonio de Montesinos, a Dominican missionary in Hispaniola, and Bartolome de Las Casas, who arrived in Hispaniola as a layman and then became a Dominican friar and priest, reported to the Spanish crown the extent of genocidal practices of the Spanish colonists (Las Casas, 1992; Montesinos, 1511). In a 1511 Christmas eve sermon on the just treatment of Indians that shocked and angered Spanish listeners, Montesinos asked: Tell me, by what right or justice do you hold these Indians in such cruel and horrible slavery? By what right do you wage such detestable wars on these people who lived mildly and peacefully in their own lands, where you have consumed infinite numbers of them with unheard-of murders and desolations? Why do you so greatly oppress and fatigue them, not giving them enough to eat or caring for them when they fall ill from excessive labors, so that they die or rather are slain by you, so that you may extract and acquire gold every day?” (Montesinos, 1511)

A year after his sermon, Montesinos took his grievances about the Spanish treatment of the Indigenous people directly to King Ferdinand, which resulted in the Laws of Burgos. The laws set out specific rules to

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prevent the abuse of Indigenous workers and banned the beating and whipping of Indians. It also demanded that the Catholic faith be deeply rooted so that the Indigenous soul would be saved (Macias, 2012). The laws of Burgos were loosely enforced at best, and genocidal violence toward Indigenous populations continued. Indeed, just three decades after Montesinos’ sermon and the passing of the Laws of Burgos, Bartolome de Las Casas spoke passionately about the horrors visited upon the Indigenous people by the Spanish colonizers. In several books and speeches before the Council of Indies, Bartolome de Las Casas described Spanish soldiers rounding up Indigenous leaders and burning them alive, and siccing large, vicious dogs to attack, tear apart and eat Indigenous people. Tortures employed by conquistadors included throwing Indigenous people into pits with sharpened stakes, spearing in the back from horseback as Indigenous people tried to escape, and killing slowly by hard labor (Las Casas, 1992).

The Arrival of British Colonists and Settlers—Jamestown The arrival of the first British settler-colonists in 1607 would prove no less fraught for the Indigenous population than it was with the arrival of the Spanish a century before. However, at least initially, the relationship between the Jamestown settlement and the Powhatan Confederacy, a political, social, and martial structure of 30 or so Algonquian-Speaking Native tribes living along the coastal region of modern-day Virginia, Maryland, and part of North Carolina, was amicable (Mark, 2021). It was a relationship characterized by trade and the Powhatan Confederacy helping the earliest colonist to survive the unfamiliar and challenging land (Library of Congress, n.d.).

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Jamestown–Powhatan Confederacy Conflict Nevertheless, it would not be too long before conflict broke out between the British settlers and the Powhatan Confederacy when John Smith, a soldier, explorer, and a key figure in the founding and survival of the Jamestown settlement, demanded that the Powhatan Confederacy submit to the British crown and provide the Jamestown settlers with an annual tribute of corn (Walters, 2022). In 1609, war broke out between the Powhatan Confederacy and the settlers when under the leadership of Smith, the settlers used force to take food from the Powhatan Confederacy after failed negotiations. In response, the Powhatan Confederacy began attacking settlers, killing their livestock, and burning any crops they planted (History.Com Editors, 2021). Over the next decade, settlers carried out search and destroy raids on Powhatan Confederacy settlements, burning villages and corn crops, the 1610 Paspahegh massacre being a notable example (Walters, 2022). Moreover, as a result of liberal land policies (see headright discussion earlier in the chapter) and the increasing cultivation of tobacco (see earlier discussion), there was a growing settler population and a greater dispersion of British settlements along the James River (Library of Congress, n.d.). The settlers were clearing off forest areas to make the land fit for planting. The developments meant more significant encroachment on Powhatan Confederacy land, resistance, conflict, and often bloody reprisal with deadly outcomes (Library of Congress, n.d.). For the Powhatan Confederacy, resistance was not just about encroachment on land; it was also about opposing attempts to convert them to Christianity, although some did convert, and protecting sovereignty and a way of life. The relentless struggles between the British settlers and the Powhatan Confederacy, which ran from 1610 to 1644, encompassed three AngloPowhatan Confederacy wars and the Tidewater wars of 1622 and 1644 and ended in 1646. The struggles ended with the signing of a peace treaty after the colony’s total victory in the second Tidewater war, a fight for control of coastal Virginia (Soodalter, 2014). As a result of the treaty, the British settlers took complete control of coastal Virginia, and the

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Powhattan Confederacy was restricted to the north side of the York River, effectively displacing the Powhatans and ending the Confederacy. Despite the efforts of the Powhatan Confederacy to force out the Virginia colony, the settlers’ more significant numbers, weaponry, and militarization through creating a militia and a string of fortresses and the introduction of disease would prove too big an obstacle to overcome (Hixon, 2014).

Jamestown—Powhatan Confederacy Culture Clash One cannot ignore that the settlers’ lack of cultural understanding of the Powhatan, which was tinged with racism and feelings of social, cultural, and spiritual superiority brought with them from Great Britain, contributed mightily to the conflicts. For example, the settlers did not understand Powhatan marriage customs and sexual practices, in which Powhattan women had complete sexual freedom (Rountree, 2020). For the British colonist who founded Jamestown, this was one reason the Powhattan needed to be converted to Christianity (Rountree, 2020). Just as much an anathema for the British colonist was the Powhatan views on land ownership. For the Powhatans, there was the apportioning of specific parcels of land among themselves, which could be sold for use, not ownership, to colonists (Bobroff, 2001). However, private ownership of land in perpetuity was different for the settlers. For the settlers and the colonial project in general, private land ownership was the mark of rational and civilized society and was essential to prosperity and social arrangements. It was also vital to the wealth and the commercial interests of the colonial settlement shareholders and the crown (Allen, 1994). Religion was another area of conflict. Religion was a part of daily life for the Powhatans, marked by prayers and offerings. While respecting the idea of a Christian deity to worship, the Powhatans worshiped a hierarchy of gods and spirits, much to the chagrin and anger of the British (Jamestown-Yorktown Foundation, n.d.; The Mariner’s Museum, 2002). No surprise, then, that Virginia’s first governor, Francis Wyatt, concluded

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that it would be "infinitely better to have no heathen among us than to be at peace and league with them" (Hixon, 2014 p. 20). Indeed, the notion of Powhatans as less than human was articulated by John Smith, when he described them as savages and barbarians (Smith, 1624, p. 43). On the other hand, though, he would also say they were strong and honest but also dangerous and inscrutable if somewhat uncultivated because of their unfamiliarity with tools such as a compass (Smith, 1624, p. 46). However, Smith did acknowledge in his observations that the settlers may not be as superior to the Powhatan as they thought because it was the Powhatan who brought food to the settlers and saved them from starving (Smith, 1624). He further noted that in response to the kindness of the Powhatan, the settlers were strict and cruel; they would shoot them down before asking what they wanted and punished them in a very hard way, betraying them by shooting them instead of trading with them (Smith, 1624, pp. 41–42).

Establishing a Framework for the British Settler Colonialism Project As Hixon (2014) asserts, the campaign of killing, relocating, and generally driving hostile Powhatans from their midst established a framework for the British settler colonial project. Indeed, Jamestown foreshadowed the essence of the settler and Indigenous population relationship across all 13 colonies, even with their differences. Despite having a variety of complex and well-structured social arrangements for thousands of years, the Indigenous peoples were routinely depicted by many, but not all, of the colonists as bloodthirsty savages and heathens (Hixon, 2014). However, alongside this depiction, colonists and the Indigenous peoples, regardless of tribe, engaged in diplomacy and trade and were even allies at different times (Hixon, 2014). Nevertheless, what can never be contradicted is that the British colonial project at its heart was the desire for land and the exploitation of its resources for profit at the expense of the numerous Indigenous tribes and societies that already inhabited the continent. No surprise, then, that

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the colonial period before the declaration of independence was characterized by conflict across all 13 colonies. The most notable of these include the King Philip’s War (1675–76) in New Great Britain (Fisher, 2017), the Tuscarora War (1711–1715) in North Carolina, the Yamasee War (1715-1717) in South Carolina, the Cherokee War (1759–1761), and the Pontiac’s rebellion (1763–1765; History.Com Editors, 2022).

The Revolutionary War, Expansionism, and Indigenous Land Dispossession The fate of the Indigenous peoples would take a decidedly worse turn after the 13 colonies revolted against the British rule in 1775, fighting and winning the Revolutionary War (1775–1783) against Great Britain and declaring independence, forming what became the U.S. At the heart of this decidedly worse fate was the convergence of several social, economic, and political factors helping to speed westward expansion in the nineteenth century. Among these factors was President Thomas Jefferson’s Louisiana Purchase from France in 1803, which with a stroke of pen doubled the size of the already expanding country. Moreover, a confluence of wars, skirmishes, and treaties with France and Spain in the decade after the Louisiana Purchase saw the acquisition of what is today known as Florida and the Pacific Northwest (Heidler & Heidler, 2021). Coupled with this was mass migration from Europe, swelling the eastern coast of the U.S., pushing settlements westward (Smithsonian Art Museum, n.d.). At least initially, the U.S. government maintained the British policy of treaty making with the Indigenous tribal nations to define boundaries of their lands and to compensate for the taking of land. Indeed, between 1778 and 1871, the U.S. entered into more than 500 treaties with various Indigenous nations and tribes across the North American continent (Pruitt, 2020). These treaties, however, were often not ratified by the Senate, and therefore not necessarily deemed enforceable. The result was a succession of broken treaties, armed resistance and conflict, and the inevitable loss of Indigenous tribal land and most often displacement. Among these treaties were the Treaty of Canandaigua/Pickering

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Treaty/Calcio Treaty in 1794, the Treaty of Greeneville in 1795, and the Treaty of Fort Wayne in 1809 (Pruitt, 2020). All pretense of recognizing the Indigenous tribal nations as having sovereignty over their lands was to be abandoned under the presidency of Andrew Jackson. In 1812, servings as a federal commissioner, Jackson negotiated treaties with the Choctaws, Chickasaws, Creeks, Seminoles, and Cherokees, the so-called Five Civilized Tribes of the Southeast. As a result of these negotiations, which included the threats of military action and bribery, Jackson was able to gain a total of 50 million acres of tribal land for the U.S. in what is today Alabama, Florida, Georgia, Tennessee, Mississippi, Kentucky, and North Carolina were ceded to the U.S. government (Constitutional Rights Foundation, 2023; Pruitt, 2020). In 1830, as President, Andrew Jackson, at the urging of White settlers on the Western frontiers who converted the already occupied lands and resented the Native tribal presence, set forth the Indian Removal Act of 1830. Jackson had long been an advocate of Indian removal, which he saw as the best way to resolve what was euphemistically coined “the Indian Problem” (Pruitt, 2020). Before Jackson, Thomas Jefferson, and later President James Monroe both proposed the idea of Indian removal. Jefferson believed that while the equal of Whites in body and mind, Indigenous people were culturally inferior because of their lifestyle and traditions (Smithsonian Art Museum, n.d.). It was Jackson, though, who brought Indian removal to fruition. The Indian Removal Act of 1830 granted land west of the Mississippi River to Native tribes who agreed to give up their homelands. Although the removal was supposed to be voluntary, in actuality, Jackson used threats of the withholding of payment and legal and military action to conclude 70 removal treaties during his presidency. The result was opening up 25 million acres of land in the South to White settlement and slavery (Library of Congress, 2019; Office of the Historian, n.d.). The cost for those tribes that resisted relocation, of which there were many, was catastrophic. For example, during the fall and winter of 1838 and 1839, the Cherokees were forcibly moved west by the U.S. government, resulting in approximately 4000 Cherokees dying on their forced

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march, which became known as the Trail of Tears (Library of Congress, 2019). The Indian Removal Act of 1830 was not the only act that would prove disastrous for Indigenous tribal sovereignty. However, it was a watershed moment that from 1830 to 1890 ushered in 60 years of systemic policies of removal, annexation to barren tracts of lands on reservations, assimilation efforts with the introduction of the Indian boarding school system, and, when deemed necessary, physical and cultural elimination (Keating, 2020). These 60 years recast the Indigenous peoples as interlopers in their own land, with the descendants of settlers claiming indigeneity and rightful ownership of the land through the Doctrine of Discovery and Manifest Destiny. As Chief Red Cloud observed: They made us many promises, more that I can remember, but they never kept but one; they promised to take our land, and they took it. (Brown, 2000, p. 449)

References Alchin, L. (2017). Push and pull factors of British migration. https://www.emi gration.link/push-pull-factors-British-migration.htm Allen, T. W. (1994). The invention of the white race. Vol.1–Racial oppression and social control. Verso. Bobroff, K. H. (2001). Retelling allotment: Indian property rights and the myth of common ownership. Vanderbilt Law Review, 54 (4), 1560–1594. Britannica, T. Editors of Encyclopedia. (2020, May 27). Navigation acts. Encyclopedia Britannica. https://www.britannica.com/event/Navigation-Acts Britannica, T. Editors of Encyclopedia. (2021a, January 7). John Cabot. Encyclopedia Britannica. https://www.britannica.com/biography/John-Cabot Britannica, T. Editors of Encyclopedia. (2021b, April 5). Virginia company. Encyclopedia Britannica. https://www.britannica.com/topic/Virginia-Com pany

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Britannica, T. Editors of Encyclopedia. (2021c, October 19). American colonies. Encyclopedia Britannica. https://www.britannica.com/topic/Ame rican-colonies Brown, D. (2000). Bury my heart at Wounded Knee: An Indian history of the American west. Census.gov. (n.d.). Population in the colonial and continental periods. https:// www.census.gov/history/pdf/colonialbostonpops.pdf Comstock, A. (1950). British economic policy: I. Mercantilism. Current History, 19 (109), 135–138. Cook, D. N. (1993). Disease and depopulation of Hispaniola, 1492–1518. Colonial Latin America Review, 2(1–2), 213–245. Cook, D. N. (1998). Born to die: Disease and new world conquest, 1492–1650. Cambridge University Press. Constitutional Rights Foundation. (2023). BRIA 211 c Indian removal: The Cherokees, Jackson, and the Trail of Tears. https://www.crf-usa.org/bill-ofrights-in-action/bria-21-1-c-indian-removal-the-cherokees-jackson-andthe-trail-of-tears.html#:~:text=After%20the%20War%20of%201812,Civili zed%20Tribes”%20of%20the%20Southeast Crosby, A. W. (1972). The Columbian exchange: Biological and cultural consequences of 1492. Greenwood Press. Environment & Society Portal. (n.d.). Timeline of the northwest passage. https:/ /www.environmentandsociety.org/exhibitions/northwest-passage/timeline/ northwest-passage-timeline Fisher, L. D. (2017). “Why shall wee have peace to bee made slaves”: Indian surrenders during and after King Phillip’s War. Ethnohistory, 64 (1), 91–114. Halloran, R. (2014). The sad, dark end of the British Empire—Scottish independence could be the final insult. Politico Magazine. https://www.politico. com/magazine/story/2014/08/the-sad-end-of-the-british-empire-110362/ Harper, L. A. (1942). Mercantilism and the American revolution. Canadian Historical Review, 23(1), 1–15. Heidler, J. T., & Heidler, D. S. (2021, August 20). Manifest destiny. Encyclopedia Britannica. https://www.britannica.com/event/Manifest-Destiny Henry Holt & Co. Carp, B. L. (2010). Defiance of the patriots: The Boston tea party and the making of America. Yale University Press. History. Com Editors. (2021). John Smith. History. https://www.history.com/ topics/colonial-america/john-smith History. Com Editors. (2022). American Indian wars: Timeline. https://www. history.com/topics/colonial-america/american-indian-wars-timeline

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Hixon, W. I. (2014). No savage shall inherent the land: The Indian enemy other, indiscriminate warfare, and American national identity, 1607–1783. In M. P. Cullinane & D. Ryan (Eds.), U.S. foreign policy and the other (pp. 14–41). Berghahn Books. Jamestown-Yorktown Foundation. (n.d.). Powhatan Indian world . https:// jyfmuseums.org/pdf/Powhatan-Indian-World/Powhatan%20Indian%20W orld.pdf Keating, J. (2020). The assimilation, removal, and elimination of the Native Americans. McGrath Institute for Church Life. https://mcgrath.nd.edu/ass ets/390540/expert_guide_on_the_assimilation_removal_and_elimination_ of_native_americans.pdf Kiger, P. J. (2021). 13 facts about the 13 colonies. History. https://www.history. com/news/13-colonies-facts Kipling, R. (1899). The white man’s burden. Fordham University. https://source books.fordham.edu/mod/kipling.asp Las Casas, B. d. (1992). A short account of the destruction of Indians. Penguin Books [originally published in 1522]. Library of Congress. (n.d.). U.S. history primary source timeline. https://www. loc.gov/classroom-materials/united-states-history-primary-source-timeline/ colonial-settlement-1600-1763/overview/ Library of Congress. (2019). Indian removal act: Primary documents in American history. https://guides.loc.gov/indian-removal-act Lovell, G. W. (1992). Heavy shadows and black night: Disease and depopulation in colonial Spanish America. Annals of the Association of American Geographers, 82(3), 426–443. Luscombe, S. (2012). The British Empire–Where the sun never sets. https://www. britishempire.co.uk Macias, F. (2012). The laws of Burgos – 500 years of human rights. Library of Congress. https://blogs.loc.gov/law/2012/12/the-laws-of-burgos-500-yearsof-human-rights/ Maddison, A. (2021). The world economy–A millennial perspective. Organization for Economic Co-Operation and Development. http://theunbrok enwindow.com/Development/MADDISON%20The%20World%20Econ omy--A%20Millennial.pdf Mark, J. J. (2021). Powhattan confederacy. World History Encyclopedia. https:/ /www.worldhistory.org/Powhatan_Confederacy/ McNeill, J. (2019, September 30). Columbian exchange. Encyclopedia Britannica. https://www.britannica.com/event/Columbian-exchange

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Middlekauff, R. (2007). The glorious cause: The American revolution, 1763– 1789. Oxford University Press. Miller, R. J. (2019). The doctrine of discovery: The international law of colonialism. The Indigenous People’s Journal of Law, Culture & Resistance, 5 (1), 35–42. Montesinos, A. d. (1511). Antonio de Montesinos: Christmas eve sermon of 1511 on the just treatment of Indians. Georgetown University Berkley Center for Religion, Peace & World Affairs. https://berkleycenter.georgetown.edu/quo tes/antonio-de-montesinos-christmas-eve-sermon-of-1511-on-just-treatm ent-of-indians National Institute of Health and Human Services. (n.d). Timeline, colonizers and resistance, AD 1539: Spain wages war against southeastern Native peoples. Native Voices. https://www.nlm.nih.gov/nativevoices/timeline/186.html Nkomazana, F., & Setume, S. D. (2016). Missionary colonial mentality and the expansion of Christianity in Bechuanaland protectorate, 1800–1900. Journal of the Study of Religion, 29 (2), 29–55. Nunn, N., & Qian, N. (2010). The Columbian exchange: A history of food, and ideas. Journal of Economic Perspectives, 24 (2), 163–188. Office of the Historian. (n.d.). Indian treaties and Indian removal act of 1830. https://history.state.gov/milestones/1830-1860/indian-treaties Padraic, S. X. (2016). Blood, money, and endless paper: Slavery and capital in British imperial history. LSE Research Online, 14 (5), 218–230. Pruitt, S. (2020). Broken treaties with Native American tribes: Timeline. History.com. https://www.history.com/news/native-american-brokentreaties Resendez, A. (2016). The other slavery: The uncovered story of Indian enslavement in America. Mariner Books. Rountree, H. (2020, December 7). Marriage in early Virginia Indian society. Encyclopedia Virginia. https://encyclopediavirginia.org/entries/marriage-inearly-virginia-indian-society/ Royal Museums Greenwich. (2022). Queen Elizabeth 1: Colonizing America. https://www.rmg.co.uk/stories/topics/queen-elizabeth-i-colonising-america Rutherford, A. (2017a). A brief history of everyone one who has ever lived: The human story retold through our genes. Experiment LLC. Rutherford, A. (2017b, October 3). A new history of the first peoples in the Americas. The Atlantic. https://www.theatlantic.com/science/archive/2017b/ 10/a-brief-history-of-everyone-who-ever-lived/537942/

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Sen, U. (2017). Developing terra nullius: Colonialism, nationalism, and Indigeneity in the Andaman Islands. Comparative Study of Society and History, 59 (4), 944–973. Smith, D. M. (2017, November). Counting the dead. Estimating the loss of life in the Indigenous holocaust, 1492–present. Paper presented at the 2017 Native American Symposium at Southern Oklahoma University, Durant, OK. https://www.se.edu/native-american/wp-content/uploads/ sites/49/2019/09/A-NAS-2017-Proceedings-Smith.pdf Smith, J. (1624). The general history of Virginia, New Great Britain, and the Summer Isles. https://docsouth.unc.edu/southlit/smith/smith.html Smithsonian Art Museum. (n.d.). Manifest destiny and Indian removal. https:// americanexperience.si.edu/wp-content/uploads/2015/02/Manifest-Destinyand-Indian-Removal.pdf Soodalter, R. (2014). Tidewater wars, 1622. Historynet. https://www.histor ynet.com/tidewater-wars-1622/ Taylor, A., & Foner, E. (2002). American colonies: The settling of North America.(The Penguin History of the United States, Volume 1. Penguin Publishing Company Tenace, E. (2011). Chichimecas war (1550–1590). Wiley Online library.https:/ /doi.org/10.1002/9781444338232.wbeow111 The Gilder Lehrman Institute of American History. (n.d). Indian slavery in the Americas. http://ap.gilderlehrman.org/essay/indian-slavery-americas The History Press. (2022). John Cabot and first British expedition to America. https://www.thehistorypress.co.uk/articles/john-cabot-and-thefirst-British-expedition-to-america/ The Mariner’s Museum. (2002). Native Americans post contact. https://www. marinersmuseum.org/sites/micro/cbhf/native/nam015.html Wagner, K. A. (2018). Savage warfare: Violence and the rule of colonial difference in early British counterinsurgency. History Workshop Journal, 85, 217–237. Walters, K. (2022). History through a native lens. Native American in Philanthropy: Candid . https://nativephilanthropy.candid.org/timeline/sort/eventyear_asc_num/era/tribal-independence-era/ Woodward, W. H. (1902). The expansion of the British empire: 1500–1902 (2nd ed.). Cambridge University Press.

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Canada Laying Claim As discussed in Chap. 2, on his attempted voyage to Asia in 1497, the explorer John Cabot sighted land in what is today Canada, most likely the Cape Breton Islands in Nova Scotia (Britannica Encyclopedia, 2021). Although not the first European to sight or land in the region—the Norse, somewhere between 990 and 1050 CE, built short-lived settlements in the northernmost tip of Newfoundland—Cabot was the first in the so-called Age of Discovery (Birgitta, 2009; Blakemore, 2019). By laying claim to the territory for Great Britain in the name of Henry VII, Cabot’s expedition began Great Britain’s colonizing project in Canada. However, the project was halting and initially lagged behind the French. The primary reason for the initial lag is that Henry VII did not immediately establish a permanent settlement in the region, thus, not exercising Cabot’s claim to the lands on behalf of Henry VII and Great Britain.

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New France In the meantime, for France, maritime explorer Jacques Cartier planted a cross in the Gaspé Peninsula in 1534, claiming the land in the name of Francis I and creating a region they called Canada. Then, in 1604, French settlers established the colony of Acadia on the land surrounding the Gulf of St. Lawrence (Blakemore, 2020). Furthermore, in 1608, Champlain founded the first permanent French settlement in what is now Quebec City, which would become the capital of New France. Comprising the five colonies established in the early 1600s along the St. Lawrence River by French traders, New France’s primary focus was the fur trade, which over time proved remarkably lucrative for French traders (Blakemore, 2020; Government of Canada, 2017). Although relatively small in population, New France covered a massive swath of North America at its peak, stretching from Hudson Bay in the north to the Gulf of Mexico in the south.

Great Britain Begins Its Colonization of Canada Led by explorer Humphrey Gilbert, Great Britain began its colonization of Canada in 1583, claiming St. John’s Newfoundland as the first North American British colony by the royal prerogative of Queen Elizabeth I (Blakemore, 2019). British settlements were also established in Novia Scotia in 1621 when King James I granted the land to Scottish colonizer Sir William Alexander and in Hudson Bay in 1670 by a royal charter from King Charles II to the Hudson Bay Company (Beck, 2009; Ray, 2009). Great Britain’s settlements were primarily agricultural and much larger in population than their French counterparts (Blakemore, 2019). Great Britain and France’s quest for supremacy in Europe, India, and the so-called New World (North America, the Caribbean, and India) would inevitably pit the British and French colonies against one another in what was to become Canada. The culmination of this quest was the French and Indian War (1754–1763), which was the North American colonial conflict within a larger imperial war between Great Britain and

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France, known as the Seven Years’ War from1756 to 1763 (Government of Canada, 2017).

The Seven Years’ War The Seven Years’ War, the first European conflict on the global stage, was waged in Europe, India, and North America (The Canadian Encyclopedia, 2020). In Europe, it pitted Great Britain, Prussia, and Hanover against France, Austria, Sweden, Saxony, Russia, and Spain. In India and North America, the British colonies fought against the French colonies for an increased sphere of influence in the region and greater trading opportunities (Office of the Historian, n.d.). As its name suggests, the Indigenous nations were integral to the French and Indian War. More specifically, the French colonists invited all the Indigenous nations to join them in repelling the British, whom they framed as wanting to drive them off their land (Cave, 2004). The call for allyship was not unprecedented; French fishermen, settlers, fur traders, missionaries, and colonial agents were among the earliest Europeans to have sustained contact with Indigenous peoples in what is now Canada (The Canadian Encyclopedia, 2020).

The Indigenous Nations of Canada and the French The Indigenous nations had been occupants of the land for thousands of years and were thriving with their own languages, cultures, and ways of knowing. In the early colonial period, the relationship between the French and the Indigenous peoples was complex and essentially interdependent. The French saw the Indigenous nations not as subjects but as allies and relied on them for survival, trade, and fur trade wealth (The Canadian Encyclopedia, 2020). Moreover, they were willing to embrace Indigenous practices and cultural ideas and include them in the governance of New France. Even the Jesuit efforts of converting Indigenous peoples to Christianity were not done forcibly or at the barrel of a gun, as was often the case with the Spanish and British (Cave, 2004). Instead, in most cases it

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was an invitation, and those Indigenous peoples who did covertly were considered natural Frenchmen by ordonnance (Cave, 2004). Indeed, as quoted by the nineteenth-century historian Francis Parkman: “Spanish civilization crushed the Indian; British civilization scorned and neglected him; French civilization embraced and cherished him” (Cave, 2004, p. 42). However, Parkman’s perspective is overly mawkish and does not acknowledge that there was undoubtedly a dark side to the relationship between the French and the Indigenous peoples. So while settlers and Indigenous peoples certainly co-existed and lived together in mutually beneficial circumstances in New France, many settlers enslaved Indigenous peoples as domestic servants (Jaenen, 2007). Indeed, between 1671 and 1834, there were more than 4000 enslaved people in New France and the Province of Quebec, two-thirds of whom were Indigenous, with the remainder of African origin. Governing enslavement in New France, which was domestic rather than agriculture and not vital to the economy as it was in the American south, was the Code of Noir of 1685. It was a code formally ended in 1833 with the Emancipation Act of 1833 (Jaenen, 2007). Illustrating the complexity of the relationship, the interdependence between the French settlers and the Indigenous peoples was always sufficiently strong enough that they allied in every conflict preceding the French and Indian War. Moreover, so numerous was intermarriage in New France between French and Scottish fur traders and Cree and Anishinabe women that the offspring of these unions gave rise to the Métis people. In time, the decedents of these intermarriages would form a distinct culture, collective consciousness, and nationhood, with Métis communities developed along the fur trade routes (Government of Canada, 2020). No surprise, then, that there was an alliance between the French and the Wabanaki Confederacy member tribes Abenaki and Mi’kmaq and the Algonquin, Lenape, Ojibwa, Ottawa, Shawnee, and Wyandot (Huron) tribes to fight the British. Conversely, the British, at various times in the conflict, had the support of the Iroquois, Catawba, and Cherokee tribes (Cave, 2004). It was a conflict that the British would eventually

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win when in 1763, Great Britain and France signed the Treaty of Paris to formally end the Seven Years’ War (Government of Canada, 2020).

Great Britain Assumes Control of Canada In the resulting Treaty of Paris, France was effectively expelled from North America, losing all claims to Canada, and giving Louisiana to Spain. In turn, Great Britain secured significant territorial gains in the region, including all French territory east of the Mississippi River, Upper Canada, and Spanish Florida (History.com Editors, 2010; Office of the Historian, n.d.). As a concession, France would retain a few small islands off the coast of Canada and the Caribbean (Government of Canada, 2020). The Treaty also agreed that France would stay out of India, thus allowing Great Britain to become the supreme military and economic power in North America and South Asia by removing European rivals (History.com Editors, 2010).

The Royal Proclamation of 1763 After the French and Indian War, weary of the financial cost of further potential conflict with the Indigenous nations fearful of a British land grab, the British King George II enacted a new law called the Royal Proclamation of 1763. The Royal Proclamation gave ownership of North America to King George II. However, this Royal Proclamation also explicitly stated that Aboriginal title had existed and continued to exist and that all land would be considered Aboriginal land until ceded by Treaty. Moreover, it forbade settlers from claiming land from the Aboriginal occupants unless it had been first brought by the Crow and then sold to the settlers, thus setting out that only the Crown could buy land from the First Nations (Indigenous Foundations,arts.ubc.ca, n.d.). The Royal Proclamation can, on the one hand, be seen as recognizing and acknowledging Indigenous rights and title to the land, including self-determination, and negotiating treaties on a nation-to-nation basis. Indeed, the Royal Proclamation, which to this day has not been rescinded

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or overruled by law, is enshrined in Section 25 of Canada’s Constitution Act. However, on the other hand, it was conceived and written by British colonists absent Indigenous input and explicitly established a monopoly over Indigenous lands by the British Crown (Indigenous Foundations,arts.ubc.ca, n.d.). It was not anticipated that the cost of winning the Seven Years’ War set in motion a chain of events that would shape the future of Indigenous peoples’ land rights in Canada. The catalysts were the Stamp Act of 1765, which the British levied on its 13 colonies to help recoup some of the massive debt accrued from the war with France. It was the first such tax on a range of transactions in the 13 colonies, which had decided their own taxes up to this point. The act was fiercely resented and resisted. In concert with acts and events such as the banning of settlements West of the 13 British colonies (1763), the Townsend Act (1767), the Boston Massacre (1770), the Boston Tea Party (1773), the Coercive Acts (1774), the Battle of Lexington and Concord (1775), and the British attack on Costal towns (1775), it led to the revolutionary war of Independence between the 13 colonies, their French allies, and the British (Kiger, 2019).

Treaties and Indigenous Land Winning the revolutionary War of Independence, the newly formed U.S. concluded the revolution by signing the Treaty of Paris in 1783. The Treaty not only established a boundary between the newly independent American colonies and the remaining territories in North America but also gave the U.S. valuable lands reserved for Indigenous peoples by the Royal Proclamation of 1763. In doing so, the numerous treaties made with Indigenous peoples, who were not invited to participate in the Paris negotiations, were ignored (Jaenen, 2006). Some 50 years after the Royal Proclamation, the Treaty of Ghent, which concluded the War of 1812 between Great Britain and the U.S., would be equally deleterious to Indigenous peoples. The war saw tens of thousands of Indigenous people fight and die for their land and preservation of their culture, as allies to both countries. Indeed, the Western

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Confederacy, led by Tecumseh and Tenskwatawa, and allies to Great Britain, were critical to protecting Upper and Lower Canada from American invasion. The Treaty of Ghent contained an article agreeing to return captured lands and all possessions rights and privileges to 1811 conditions for Indigenous peoples of eastern North America of what is now Canada. However, it was an article ignored by the Americans, and the lands were never returned (Canada’s History, 2019).

Economic Development, Immigration, and the Dispossession of Indigenous Land In addition, a confluence of events destroyed the fur trade and over time rendered the Indigenous social and economic structure ineffective. These events included the development of global commerce, industrialization and urbanization, and new crops and animals giving rise to mining and farming as the primary sources of commerce. Indeed, beginning as early as the 1770s, increasing numbers of Europeans flocked to Maritime Canada with the express purpose of farming or mining (Miller, 2006). Gradually, this altered the status of the Indigenous populations (Miller, 2006). Where the fur trade and military alliances had required collaboration between Indigenous peoples and new settlers, farming and mining set them up as competitors in the eyes of settlers. More specifically, the First Nations people in the main lived by hunting and gathering on arable land that was coveted by the new settlers (Miller, 2006). Consequently, the Indigenous use if the arable land was seen as a significant barrier to economic development. The result of this tension was a shift to policies of dispossession and removal of the First Nations from the territories coveted by the new settlers (Miller, 2006).

The Civilizing Mission and Indigenous British Assimilation Policies Along with a focus on land dispossession and removal, post-1812 saw the emergence of a new perspective throughout the burgeoning

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British Empire about the role the British should play concerning Indigenous peoples (Government of Canada, 2017). It was a perspective that believed British society and culture were superior to those of the Indigenous peoples. Informed by this belief, the now firmly ensconced British administration in Upper and Lower Canada colonies brought an almost religious zeal to what they saw as their civilizing mission of the Indigenous peoples. Central to this were bringing Christianity and agriculture to the First Nations, encouraging the abandoning of traditional lifestyles, and assimilation into British culture and social norms (Government of Canada, 2017). Slowly, but surely, the passing of policies to achieve the civilizing aims came into being. In 1845, the Bagot Commission (1842–1844) proposed to the Legislative Assembly that separating Indigenous children from their parents and placing them into industrial schools was the best way to assimilate them into Euro-Canadian culture. The template suggested for such a school was the Mohawk Institute, founded in 1831 and operated by the Society for the Propagation of the Gospel in New England as a day school for boys (The Canadian Encyclopedia, n.d.). In 1857, the Gradual Civilization Act was passed in the Province of Canada. As the name indicated, the act’s purpose was to assimilate Indigenous men by offering them the right to vote if they gave up various rights, including treaty rights. The act also required status Indians and Métis over 21 to read, write, speak British or French, and choose a government-approved surname. Moreover, it awarded 50 acres of land to any sufficiently advanced Indigenous male, who must remove any tribal affiliation or treaty rights (The Canadian Encyclopedia, n.d.).

The Birth of the Dominion of Canada In 1867, the British North American Act came into effect, marking the birth of the Dominion of Canada, composed of four provinces, Nova Scotia, New Brunswick, Quebec, and Ontario, as a nation, albeit still tethered to Great Britain as a commonwealth (Canadian Museum of History, n.d.). Under the auspices of the British North American Act, the

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federal government took authority over First Nations and land reserved for First Nations, which later extended to the education of status Indians, those registered under the Indian Act (The Canadian Encyclopedia, n.d.).

Clearing the Indigenous Peoples from Their Homelands The founding of Canada as a nation accelerated both land dispossession and removal and the civilizing and assimilation efforts of the British. For example, in 1871, the 11 Numbered Treaties, signed by the Canadian government and Indigenous nations, made vast areas of traditional Indigenous land available for White settlement and development. In return, the Indigenous were given treaty land (reserves), cash payment, access to agriculture tools, and hunting and fishing rights (The Canadian Encyclopedia, n.d.). Between 1871 and 1876, treaties 1 to 7 cleared the Western path for the construction of the Canadian Pacific Railway. The clearing involved the destruction of the bison herds in the prairies, which were one of the main sources of food for the Indigenous peoples (Bongiorno, 2020). In the treaty negotiations with the Cree on the Saskatchewan plains, the Canadian government promised humanitarian aid in times of crisis as their main food source disappeared (Facing History & Ourselves, 2015). However, the promise of aid to the now starving Cree was made conditional on their moving to appointed reserves. The North-West Mounted Police were ordered not to feed any non-treaty Indians. The forced removals to appointed reserves allowed for the clearing of land for both the railway and ever-increasing numbers of European settlers. Once the tracks had been laid, the railway allowed for the mass settlement of the territories across the country formerly occupied by First Nations peoples (Facing History & Ourselves, 2015).

Policies to Eradicate All Indigenous Cultures In 1876, the Indian Act was introduced. The express purpose of the Act was to eradicate First Nations culture in deference to assimilation into

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Euro-Canadian society. Furthermore, the Act reinforced the demand that the Status Indians must voluntarily give up status and treaty rights to vote federally (The Canadian Encyclopedia, n.d.). In 1880, an amendment to the Indian Act formally disenfranchised and disempowered Indigenous women by proclaiming that they ceased to be an Indian in any respect if they married anyone other than an Indian, or a non-treaty Indian (The Canadian Encyclopedia, n.d.). In 1883, Sir John A. Macdonald authorized the creation of the residential school system designed to isolate Indigenous children from their families and cultural ties. It was a proposal that set in motion the Canadian Indian residential school system, a system funded by the Canadian government where from 1894 to 1947, attendance was mandatory for Indigenous children. The horrors of this system are still being revealed today as hundreds of buried bodies are found on the sites of these schools and survivors recount their experiences (The Canadian Encyclopedia, n.d.). In 1884, the federal government, in response to pressure from missionaries, outlawed the Potlatch ceremony and the Tamanawas winter dance of the Indigenous peoples in British Columbia (The Canadian Encyclopedia, n.d.). It is beyond the scope of this book to document all of the legislative efforts made by the Canadian government to dispossess, remove, civilize, assimilate, and disenfranchise the Indigenous peoples of Canada; suffice to say that it has been successful in the dispossession and removal of Indigenous lands. The Indigenous peoples of Canada have certainly not been complicit in this process, nor have they been passive in their opposition and resistance. However, the onslaught of disease, war, slavery, assimilation efforts, broken treaties, and social policy over 100-plus years has been relentless. Consequently, the Indigenous peoples are secondclass citizens in their land. They, not the colonial practices of the British, have now been cast as the problem. Nevertheless, in contemporary Canada, Indigenous peoples continue to fight for recognition and adherence to the promises of the Royal Proclamation of 1763.

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Australia Laying Claim Under the guise of a scientific trip, with secret orders to continue Britain’s colonial project in Terra Australis, the name given to the unknown southern continent, the HMB Endeavour, commanded by Lieutenant James Cook, landed on the eastern portion of what is today, Botany Bay, Australia, on April 29, 1770 (Boissoneault, 2018). With authorization to take possession of a continent or land thought to exist in the southern latitude, Cooke’s remit from the British government and Royal Navy for the voyage was as follows: (1) Map the coastline of any new land, (2) Observe the number and disposition of the natives, (3) Cultivate a friendship and alliance with the natives, and (4) With the consent of the natives, annex any convenient trading posts in the name of the King (Boissoneault, 2018; Foundingdocs.gov.au, n.d.-a). One week after landing, Cook and the HMB Endeavour continued to chart the coast north to the tip of what is today Possession Island off the Cape York Peninsula in Queensland. Once there and on land, Cook hoisted the British flag in the name of the King, declaring the whole Eastern Coast a British possession by the name New South Wales in August 1770 (Boissoneault, 2018; Foundingdocs.gov.au, n.d.-a). Far from being devoid of human occupation, Cook was well aware that the territory was inhabited. It was the spiritual homeland of several Indigenous cultures and had been so for thousands of years. Indeed, Cook and his landing party had first encountered Gweagal warriors of Botany Bay on his initial landing (Williams, n.d.). In taking possession of the territories, Cook ignored the directive of seeking consent from the Native population for any possession of land, which none of the Indigenous populations Cook and his crew encountered showed any interest in doing. Indeed, in Botany Bay, in Cook’s first encounter with the Gweagal two warriors threw spears at the landing party, an action recorded as Indigenous peoples attacking the party without provocation. However, the Indigenous scholar Dr. Shane T. Williams (n.d.) offers a retort to the narrative of an unprovoked attack by the Gweagal warriors.

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Williams (n.d.) posits that the Gweagal warriors were carrying out their spiritual duty to the country by protecting it from the presence of persons not authorized to be there. As Williams explains, in the Indigenous cultures, it is not permissible to enter another’s country without consent, a consent that is always negotiated. This negotiation is not necessarily a matter of immediate dialog and often involves spiritual communication through a ceremony (Williams, n.d.). While Cook had no way to know of the tradition, it is clear that consent was not sought or given. Cook’s claiming of the territories and other territories in his subsequent two expeditions expanded the British Empire’s geographical reach to an almost incomprehensible degree by the time he returned to England in 1771 (Boissoneault, 2018). On his return to England in 1771, Cook gave favorable reports on the soil and climate of New South Wales, but he was mixed in his views of the Indigenous peoples, whom he described as having no valuable goods to tempt him with, nor did they show any inclination of wanting to offer anything of their own to the crew (Boissoneault, 2018; Foundingdocs.gov.au, n.d.-a). In time, Cook’s landing and claiming territory in the King’s name would be symbolic for Indigenous peoples; though the Indigenous peoples could not know it at the time, Cook’s actions portended the end of their cultural domination over their own lands. Moreover, it ushered in Great Britain’s settler colonial project of finding exploitable natural resources, expanding control of strategic trading posts around the world, and in time, settlement, land acquisition, and expansionism (Oxford University Press, n.d.). Furthermore, these actions, particularly settlement, land acquisition, and expansionism, could never be compatible with the Indigenous peoples’ wishes (Oxford University Press, n.d.).

Great Britain Begins Its Colonization of Australia Eighteen years after Cook’s landing, based on his favorable reports, Great Britain decided to establish a penal colony in Botany Bay without consent or consultation with the Indigenous populations (Oxford University Press, n.d.). A confluence of push and pull factors informed

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this decision. These factors included an increase in the crime rate in Great Britain and subsequent overcrowding of prisons, while the newly independent U.S. refused to take any more British convicts. Furthermore, Great Britain needed the raw materials present in New South Wales, such as timber and flax, and to keep pace with French explorers colonizing new territories in the Pacific (Oxford University Press, n.d.), and there was the strategic significance of the colonization because, as a location, it facilitated remote control over the Indo-China trade routes (History is Now Magazine, 2020). On January 26, 1788, 11 British ships commanded by Captain Arthur Phillips, first Governor of the new colony, anchored on the east coast of Australia at Sydney Cove and raised the British flag, taking possession of the land in the name of King George III. All told, the First Fleet, as it has become known, transported 1,500 people, composed of convicts, crew, and guards. Just over half, 759, were convicts (Oxford University Press, n.d.). This was the first British settlement established. The first 2 years of the New South Wales colony were difficult as the harsh landscape, burning hot summers, and the settlers’ lack of experience made farming difficult. These circumstances resulted in starvation, inadequate shelter, and a lack of tools necessary for survival, leading to the near collapse of the colony. The collapse was averted only by the arrival of the Second Fleet with supplies and more convicts in 1790. By the time the Third Fleet arrived with more convicts in 1792, colony residents had become experienced enough to build farms and sustain the New South Wales population (Oxford University Press, n.d.). The arrival of a Third Fleet signaled the end of Captain Phillips’s reign as the governor as he returned to England because of failing health. However, Phillips had successfully established a permanent colony, which was one of his instructions from King George III. Moreover, by all accounts, he took seriously and adhered to another of King George III’s instructions that the Indigenous peoples’ lives and livelihoods be protected and friendly relations with them encouraged (Fletcher, 2006). However, tellingly, it was not an instruction that included protecting or even recognizing their lands (Thompson, 2011). Instead, it was assumed, even with ample evidence to the contrary, that the land was terra nullius (Thompson, 2011).

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Indigenous Resistance No surprise, then, that while trying to have peaceful cohabitation with the Indigenous Eora, undergirded by the perspective of convincing them of the so-called wonders of the British way of life, tensions and skirmishes were an ongoing feature of the relationship. Indeed, several instances occurred in the first year of Eora warriors attacking and killing convicts. Even with established relationships, Phillips’s cultural lack of understanding of the Eora people meant that he could not fully comprehend that they would not yield to British rule or laws (Karskens, 2017). The Eora were inhabitants of the land with their own culture, practices, and social structure thousands of years before the arrival of Europeans. Phillips and his colony were the interlopers, expecting the inhabitants to yield to their laws and customs. The Eora were not and did not want to be British subjects, although Phillips did not consider the Eora to be sovereign occupants or owners of their land (Karskens, 2017).

Colony Expansion Until 1810, the New South Wales colony, whose population had grown with the arrival of more convicts and an increasing number of free British migrants, was confined to an area that did not extend past 100 kilometers in any direction from Sydney (Oxford University Press, n.d.). However, in 1813, the crossing of the Blue Mountains by explorers Wentworth, Blaxland, and Lawson allowed settlements to expand inland. Other explorers followed, and by 1850, New South Wales opened up to British settlers by clearing the land, allowing small farms, and building new towns (Oxford University Press, n.d.). The assisted migration scheme, introduced in 1831, was one of the principal ways of attracting free migrants to settle in the colonies. This scheme allowed potential employers in the colony to choose British workers, whom they assisted with the passage, to come to the colony and work for them for 2 to 3 years (Oxford University Press, n.d.).

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Mercantilism and the New South Wales Colony The presence of growing numbers of migrants and ex-convicts transformed New South Wales from a convict outpost to a free settler colony, a colony that from 1821 onward produced and exported wool and fishery products, such as whale oil and sealskins, at a rate comparable to Spain and Germany. Indeed it replaced Spain and Germany as Britain’s source of wool, thus drawing it more closely into the British imperial network as an outlet for migrants and a market for investment capital and manufactured products (Britannica.com, n.d.). New South Wales’ wealth, population, and influence increased further with the discovery of gold in 1850. Of course, the expansion of New South Wales came at a high cost for the Indigenous peoples. While the first governors had instructions to garner the affections of the natives, the pushing of the boundaries of the settlements gave way to land dispossession, competition for scarce resources, and Indigenous population group resistance and violent clashes, beginning in 1788 and getting progressively worse over the decades (Britannica.com, n.d.).

The Exponential Growth in Settler Colonialism and Its Impact on the Indigenous Population However, it was not just the expansion of New South Wales that was problematic for the Indigenous peoples and their respective nations; it was also the establishment of other colonies between 1803 and 1859. During this period, five more settler colonies were established. First, in 1803, Van Diemen’s Land (later Tasmania) was established as a penal colony, the first outside the boundaries of New South Wales. Initially a dependent of the New South Wales colony, it became a separate colony in 1825. Then, in 1829, a third penal colony was established in the Swan River (Western Australia); the fourth was South Australia in 1836, the fifth, Victoria in 1851; and the sixth, Queensland in 1859 (Maxwell-Stewart & Oxley, 2017).

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The most immediate consequence of this exponential growth in settler colonialism, primarily from Great Britain, was the introduction of European diseases, including smallpox, measles, and influenza. These diseases immediately impacted the Indigenous peoples, who had no immunity, killing an estimated 70% of the Indigenous population. As mentioned earlier, there was also land dispossession and the profound disruption of the Indigenous peoples’ social life and food supplies. There were, of course, skirmishes and violence as Indigenous peoples resisted the invasion that was settler colonialism.

Land Dispossession and Genocidal Violence Against Indigenous Peoples Over time, the violence, undoubtedly genocidal, became more urgent as the ever-expanding industrial juggernauts that the colonies were becoming necessitated more land and the removal of the obstacles to that objective—the Indigenous peoples (Oxford University Press, n.d.). As Canon (1993) explains, the more settlers expropriated the native land and destroyed their means of survival, the more the Indigenous population groups engaged in resistance. The settlers interpreted the resistance “as barbarous opposition to the enlightened forces of White civilization” (Canon, 1993, p. 169). The actors in the genocidal violence were multiple. It was former convicts operating beyond the frontier borders and massacring Indigenous peoples resisting the taking and occupation of their land. It was settler communities protecting what they saw as their property from attack or raid (Oxford University Press, n.d.). It was the colonial government’s response, utilizing martial law to sweep and clear the lands of Indigenous resisters. It was the state-sponsored Native Police, charged with patrolling and dispersing Indigenous peoples. In Richmond alone, the Native Police tallied 65,000 killings, between 22 and 26% of the pre-contact population (Evans & Ørsted–Jensen, 2014). It is beyond the scope of this chapter to list all the instances of genocidal violence toward Indigenous peoples. However, the University of Newcastle’s colonial frontier massacre research based on data from the

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Colonial Frontier Massacre Digital Map Project offers some grim reading when charting the massacre map of Australia’s frontier killings of Aboriginal peoples by settlers from 1788 to 1930. Keep in mind that the definition of a frontier massacre is the deliberate killing of six or more Indigenous people. Based on the data collected for the project, which is a conservative estimate, there were 419 massacres between 1778 and 1930, 406 of Indigenous people, 12 of colonists, and one other (The Center for 21st Century Humanities, 2022). Colonists were responsible for 399 of the 406 massacres of Indigenous people, with a staggering 10,991 victims. Colonial victims of the 12 massacres numbered 152 (The Center for 21st Century Humanities, 2022). Suffice it to say that incidents of genocidal and non-genocidal violence toward Indigenous peoples were numerous enough for the authorities in the colonies, many sponsors of the violence, to paradoxically make attempts to safeguard Indigenous people by placing them under the supervision of Aboriginal Protection Boards in the 1830s (Maxwell-Stewart & Oxley, 2017). Moreover, in 1869, Victoria became the first colony to enact a comprehensive scheme to regulate the lives of Indigenous people, the Aboriginal Protection Act 1869 (Foundingdocs.gov.au, n.d.-b).

The Civilizing Mission and Indigenous British Assimilation Policies While ostensibly well-meaning, the protection boards and the Aboriginal Protection Act were little more than efforts to assimilate Indigenous peoples. More specifically, and in the language of the day, by placing half-caste (mixed-raced) children on designated missions, stations, or reserves run by missionaries—smoothing the pillow of the dying race, as an Irish-born amateur anthropologist would later say (Marks, 2008). Just as troubling, these protection boards/acts effectively gave the authorities

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complete control and authority over the lives of Indigenous and mixedrace children. It regulated conditions such as where people could live, where they could work, and their types of jobs, marriage, and social life. In 1886, in a further act, Victoria also initiated a policy of removing Indigenous children of mixed descent from Indigenous stations or reserves to assimilate with White society (Foundingdocs.gov.au, n.d.-b). It is no surprise that this separation caused distress and protest. It was, however, only a precursor to what in the twentieth century would be more comprehensive policies developed by state officials for removing children of part-Indigenous descent from their families and communities for absorption into White Australia (Jacobs, 2006). One cannot separate these assimilation efforts and genocidal actions from the British sense of racial and cultural superiority and Indigenous racial and cultural inferiority. It was a sense of superiority that manifested through the characterization of Indigenous peoples and their culture as backward and inferior, necessitating the creation of a racial boundary that made elimination, assimilation, or annexation justifiable in the eyes of government officials and settlers alike (Jalata, 2013).

The Birth of the Commonwealth of Australia As the six British colonies were established as industrial juggernauts, albeit with an economic depression in the 1890s, there was a growing debate around the idea of the six colonies coming together to form one nation. Among the perceived benefits were that rather than six colonies with their own government and laws, defense force, and collected tariffs and taxes on the good that crossed its borders, they would be better served coming together as a federation (Parliamentary Education Office, 2022). As a federation, they would have a greater capacity for a strong national government to manage issues such as trade, the economy, defense, and immigration. In addition, services like the post and railways would be centralized, and taxes and duties on goods being moved across colonies would be eliminated (Parliamentary Education Office, 2022).

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Some were concerned that forming the federation would lead to the loss of the cultural ties to Great Britain and the cultural identities of each of the six colonies (Parliamentary Education Office, 2022). However, the argument for the federation won out. After approving draft legislation by colonial voters, the British Parliament passed legislation in 1900 to enable the six colonies, renamed as a state, to become a self-governing dominion in the British Empire in 1901 (Parliamentary Education Office, 2022). While the new nation was sovereign regarding domestic affairs, Great Britain retained control over its relations with the wider world (Parliamentary Education Office, 2022).

Elimination Through Assimilation As was the case with the U.S. and Canada, the transition from a settler colony to a fully fledged self-governing nation, albeit as a commonwealth in the case of Canada and Australia, only worsened the position of the Indigenous peoples. For example, it was not until 1967 that Indigenous peoples were counted in the census (Daley, 2017). Relatedly, the federated states retained exclusive power over Indigenous affairs until the constitution was amended in 1967 (Australian Human Rights Commission, n.d.). Moreover, as part of a policy of allowing Indigenous peoples to die out through natural elimination or assimilation into the White community, they continued the forced removal of mixed-race (half-caste in the vocabulary of the day) and other Indigenous children from their families. Central to this were Australian federal and state government agencies and church missions under acts of their respective parliaments (Read, 2006). The rationale for these actions was that children were more adaptable to White society than adults. Mixed-race Indigenous children were particularly vulnerable to removal because of this line of reasoning (Behrendt, 2012). As Behrendt (2012) notes, many children were forced to reject their Indigenous heritage and adopt the White culture once taken from their parents and community. Toward this end, Indigenous names were often changed into anglicized ones. Children were also usually forbidden to speak their native language (Behrendt, 2012).

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Between 1910 and 1967, and in some places into the 1970s, official government estimates are that in certain regions, 1 in 10 Indigenous and mixed-race children were taken (Australians Together, 2022). These generations of children have become known as the Stolen Generations (also Stolen Children).

The Net Results of Elimination Through Assimilation The net results of generations of removals have been multilayered and nothing short of catastrophic for Indigenous peoples. For example, many children were psychologically, physically, and sexually abused while in state care and by adoptive families, resulting in lifelong trauma. Moreover, efforts to have stolen children reject their cultural heritage created a sense of shame about Indigenous heritage, and thus they were not able to pass on their culture to future generations. Also, many of the children received low levels of education and were expected to work on the lower rungs of the labor market (Australians Together, 2022). The impact on parents and family members of these children was equally deleterious. Indeed, some parents did not recover psychologically from the grief and subsequent trauma of losing their children. Many were never reunited with their children (Australians Together, 2022). There was also an impact on the descendants of the Stolen Generations members. Among the consequences was that removals severely disrupted the passing of cultural knowledge, in many instances being lost or lying dormant (Australians Together, 2022). Relatedly, they experienced intergenerational trauma of familial and cultural disconnection (Australians Together, 2022).

The Net Result of Settler Colonialism on the Indigenous Peoples of Australia Just as in the case of the U.S. and Canada, the net result of British settler colonization of the Indigenous population has been land dispossession. The land is not just about borders, but for many Indigenous people, relates to all aspects of their existence—culture, spirituality, language,

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law, family, and identity (Australians Together, 2021). In their culture, the person is entrusted with the knowledge and responsibility to care for the land. This deep relationship is often described as a connection to the country; the land and the people are one. Andrew Johnson, a community member from Lajamanu in the Northern Territory, explains, “If they come and destroy our land and sacred site, they take away our life too” (Australians Together, 2021). Djapirri Muninggirrty from the Nhulunbuy in the Northern Territory says succinctly, “Without the land, we are nothing” (Australians Together, 2021). Given all these efforts of the settler countries, dislocation from the dispossessed land has devastated all aspects of Indigenous life. The impact of the dispossession has recast the Indigenous peoples of Australia not as sovereign inhabitants of land stolen by British settler colonialism but as problematic interlopers, marginalized by their supposed inability to conform to British-grounded ideals of good citizenship. Little thought is given to the thoroughly integrated view of White racial, social, and cultural superiority and Indigenous inferiority.

On the Margins of Settler Colonialism Chapters 2 and 3 have provided a summarized overview of the Britishdescended U.S., Canada, and Australia’s development from a colony to a settler colonial state, where today descendants of the colonist are politically dominant over the Indigenous peoples whose land was expropriated in the process. Though the development trajectories of these British-descended settler states had some differences, all used common settler colonial strategies to forcibly expropriate sovereign Indigenous land, be it by genocidal violence, coercion, annexation, treaties, doctrine of discovery, or terra nullius. As Patrick Wolfe asserts (2006), this author agrees that race has been the organizing grammar for expropriating Indigenous land and eliminating Indigenous peoples. In all cases, the Indigenous peoples of what became the settler states of the U.S., Canada, and Australia were racialized and othered. As a result, their myriad cultures, beliefs, social

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arrangements, and language were deemed inferior to those of the British colonists and their descendants. Thus Indigenous peoples are cast as the obstacle to progress and an orderly, civilized society in which commercial interests necessitate land and the removal of the Indigenous people from that land. As has been noted in the chapters, it is a removal that has utilized genocidal violence, coercion, annexation, treaties, the doctrine of discovery, terra nullius, and assimilation efforts, all of which have left the Indigenous peoples on the margins of the settler states of the U.S., Canada, and Australia.

References Australian Human Rights Commission. (n.d). Track the history timeline: The stolen generations. https://humanrights.gov.au/our-work/education/track-his tory-timeline-stolen-generations Australians Together. (2021). The importance of land. https://www.australianst ogether.org.au/discover/indigenous-culture/the-importance-of-land/ Australians Together. (2022). The stolen generations. https://australianstogether. org.au/discover/australian-history/stolen-generations/ Beck, J. M. (2009). Nova Scotia. The Canadian Encyclopedia. https://www.the canadianencyclopedia.ca/en/article/nova-scotia Birgitta, W. (2009). L’Anse aux Meadows historic site. In F. P. McManamon, L. S. Cordell, K. Lightfoot, & G. R. Milner (Eds.), Archaeology in America: An encyclopedia (p. 82). Greenwood. Blakemore, E. (2019). Canada’s long, gradual road to independence. History.com. https://www.history.com/news/canada-independence-from-bri tain-france-war-of-1812 Blakemore, E. (2020). The story of New France: the cradle of modern Canada. https://www.nationalgeographic.com/history/article/story-new-fra nce-cradle-modern-canada Behrendt, L. (2012). Indigenous Australia for dummies. Wiley. Boissoneault, L. (2018). Captain Cook’s 1768 voyage included a secret mission. Smithsonian Magazine. https://www.smithsonianmag.com/history/captaincooks-1768-voyage-south-pacific-included-secret-mission-180970119/

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Bongiorno, J. (2020, December 21). Uncovered tracks: The bloody legacy of Canada’s railways. Canada’s National Observer. https://www.nationalobse rver.com/2020/12/21/opinion/bloody-legacy-canadas-railways-indigenouspeoples Britannica.com. (n.d.). New South Wales. https://www.britannica.com/place/ New-South-Wales/The-growth-of-a-free-society Britannica, T. Editors of Encyclopedia (2021, January 7). John Cabot. Encyclopedia Britannica. https://www.britannica.com/biography/John-Cabot Canada’s History. (2019). The Treaty of Ghent. https://www.canadashistory.ca/ explore/military-war/the-treaty-of-ghent Canadian Museum of History. (n.d.). The birth of the dominion. https://www. historymuseum.ca/history-hall/birth-of-the-dominion/ Canon, M. (1993). Black land, White land . Minerva. Cave, A. A. (2004). The French and Indian War—The Greenwood guide to historical events, 1500–1900. Greenwood Press. Daley, P. (2017, May18). It’s 50 years since Indigenous Australians first counted. Why has so little changed. The Guardian. https://www.thegua rdian.com/inequality/2017/may/18/50-years-since-indigenous-australiansfirst-counted-why-has-so-little-changed-1967-referendum Evans, R., & Ørsted–Jensen, R. (2014). I cannot say the numbers that were killed: Assessing violent mortality in the Queensland frontier. Social Science Research Network, 1–11. https://papers.ssrn.com/sol3/papers.cfm?abstract_ id=2467836 Facing History and Ourselves. (2015). Stolen lives: The Indigenous peoples of Canada and the Indian residential schools. https://www.facinghistory.org/ stolen-lives-indigenous-peoples-canada-and-indian-residential-schools/histor ical-background/dispossession-destruction-and-reserves Fletcher, B. H. (2006). Arthur Phillips (1738–1814). Australian Dictionary of Biography. https://adb.anu.edu.au/biography/phillip-arthur-2549/text3471 Foundingdocs.gov.au. (n.d.-a). Secret instructions for Lieutenant James Cook appointed to command his majesty’s bark the Endeavour 30 July 1768. National Library of Australia. https://www.foundingdocs.gov.au/item-did-34.html Foundingdocs.gov.au. (n.d.-b). Indigenous Protect Act 1869 (Vic). Museum of Australian Democracy. https://www.foundingdocs.gov.au/item-sdid-22.html Government of Canada. (2017). First Nations in Canada. https://www.rcaanccirnac.gc.ca/eng/1307460755710/1536862806124 Government of Canada. (2020). Métis nation. https://www.bac-lac.gc.ca/eng/ discover/aboriginal-heritage/metis/Pages/introduction.aspx

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History.com Editors. (2010). The French and Indian War ends. https://www.his tory.com/this-day-in-history/the-french-and-indian-war-ends History is Now Magazine. (2020). The British colonization of Botany Bay: A brutal encounter. http://www.historyisnowmagazine.com/blog/2020/6/28/ the-british-colonization-of-botany-bay-a-brutal-encounter#.Yq8Kwy2cbv0 Indigenous Foundations,arts.ubc.ca.( n.d). Royal Proclamation, 1763. https:// indigenousfoundations.arts.ubc.ca/royal_proclamation_1763/ Jacobs, M. D. (2006). Indian boarding schools in comparative perspective: The removal of Indigenous children in the United States and Australia, 1880– 1940. Faculty Publication Department of Histor y, 202–231. Jaenen, C. J. (2006). The Treaty of Paris, 1783. The Canadian Encyclopedia. https://www.thecanadianencyclopedia.ca/en/article/treaty-of-paris-1783 Jaenen, C. J. (2007). Indigenous–French relations. The Canadian Encyclopedia. https://www.thecanadianencyclopedia.ca/en/article/aboriginal-frenchrelations Jalata, A. (2013). The impacts of English colonial terrorism and genocide on Indigenous/Black Australians. Sage Open, 1–12. Karskens, G. (2017). Governor Phillips and the Eora. Dictionary of Sydney. https://dictionaryofsydney.org/entry/governor_phillip_and_the_eora Kiger, P. J. (2019). Seven events that enraged the colonists and led to the American revolution. History.com. https://www.history.com/news/americanrevolution-causes Marks, K. (2008, March 3). The great white queen of the nevernever. Independent. https://www.independent.co.uk/news/world/australasia/ the-great-white-queen-of-the-nevernever-790488.htm Maxwell-Stewart, H., & Oxley, D. (2017). Convicts and colonization of Australia, 1788–1868. https://www.digitalpanopticon.org/Convicts_and_ the_Colonisation_of_Australia,_1788-1868 Miller, J. R. (2006). Indigenous-British relations pre-confederation. The Canadian Encyclopedia. https://www.thecanadianencyclopedia.ca/en/article/ aboriginal-european-relations Office of the Historian. (n.d). French and Indian War/Seven Years’ War, 1754– 1763. https://history.state.gov/milestones/1750-1775/french-indian-war Oxford University Press. (n.d.). Australia (1750–1918). https://www.oup.com. au/__data/assets/pdf_file/0019/58213/Chapter-10-Australia-1750-1918.pdf Parliamentary Education Office. (2022). What were the arguments for and against the federation? https://peo.gov.au/understand-our-parliament/yourquestions-on-notice/questions/what-were-the-arguments-for-and-againstfederation

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Ray, A. J. (2009). Hudson Bay. The Canadian Encyclopedia. https://www.the canadianencyclopedia.ca/en/article/hudsons-bay-company Read, P. (2006). The stolen generations: The removal of Indigenous children in New South Wales 1883 to 1969. https://web.archive.org/web/200608201 50941/http://www.daa.nsw.gov.au/publications/StolenGenerations.pdf The Canadian Encyclopedia. (2020). Seven years’ war (language summary). https://www.thecanadianencyclopedia.ca/en/article/the-seven-years-warplain-language-summary The Canadian Encyclopedia. (n.d.). Timeline—Indigenous peoples. https:// www.thecanadianencyclopedia.ca/en/timeline/first-nations The Center for 21st Century Humanities. (2022). Colonial frontier massacres in Australia, 1788–1930. The University of Newcastle Australia. https://c21ch. newcastle.edu.au/colonialmassacres/statistics.php Thompson, S. (2011). 1787 Draught instructions for Governor Phillips. Migration Heritage Center. https://www.migrationheritage.nsw.gov.au/exhibition/ objectsthroughtime/draughtinstructions/index.html Williams, S. T. (n.d.). An Indigenous Australian perspective on Cook’s arrival. British Library. https://www.bl.uk/the-voyages-of-captain-jamescook/articles/an-indigenous-australian-perspective-on-cooks-arrival Wolf, P. (2006). Settler colonialism and the elimination of the native. Journal of Genocidal Research, 8(4), 387–409.

4 Black People in the UK, the U.S., and Canada

The UK Black people have had a presence in Britain dating back to the Roman occupation, predating the English. They were soldiers in the imperial Roman army, as part of a North African division of Moors, who for three and half centuries occupied the northern part of the British Isles (Fryer, 2018). There is further evidence of a Black presence in Britain some 400 to 500 years after the Romans left (Fryer, 2018). Moreover, beginning in the sixteenth century, there are scattered references to Black people serving in the royal courts of England and Scotland (Blake & Blake, 2020; Syracuse University London, 2019).

The First Era of Black Settlement in Britain However, Britain’s involvement in the transatlantic slave trade in the 1550 s ushered in the first era of a small-scale settlement of Blacks in Britain, more specifically England (Fryer, 2018). They were brought to England as servants, enslaved people (though slavery in England was © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Warde, Colorblind, Critical Criminological Perspectives, https://doi.org/10.1007/978-3-031-38157-7_4

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illegal), court entertainers, or comfort workers for well-to-do English and Dutchmen (Blake & Blake, 2020; Fryer, 2018). Indeed, such was the population size that Queen Elizabeth I expressed concern about the growing presence of Black people in England. The professed reason for her concern was that even without the Black population, the 3 million people in England were struggling to survive as a result of a series of bad harvests. Queen Elizabeth I saw the Black population as taking food out of the mouths of the native English people, a situation she believed intolerable. In response, she proposed transporting the Black population from the realm to Spain or Portugal (Fryer, 2018). It was not a proposal that came to fruition, but it is a nativist sentiment foreshadowing a later twentieth-century argument about the place of Black migrants in England.

The Black Population in Seventeenth-Century England Throughout the first half of the seventeenth century, a small Black population was scattered across England, working as pages and laundrymaids, and serving as household servants in the mansions of the English nobility and landed gentry (Fryer, 2018). However, the growth of the transatlantic slave trade and the tremendous profits it made for plantation owners in the West Indies and the British economy increasingly brought numbers of young, enslaved Blacks to England from the late seventeenth century onward (Blake & Blake, 2020). They were brought by officers of slave ships, mates, ship surgeons, and sometimes ordinary seamen, who acquired them from the ship’s cargo as a perk. Many were sold off to the West Indies, with others sold privately in England to wealthy families as servants or bequeathed to friends (Fryer, 2018). Other enslaved Blacks were brought to England by the army and navy officers, government officials returning from service abroad, and others who came as recruited free seamen to replace English crew members who died or deserted on the African coast. These free men intended to return to Africa on the return journey but often found themselves stranded in Britain (Fryer,

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2018). Fryer (2018) notes that most of the enslaved Black population brought to England were young. Moreover, they became part of an active underground slave trade within England. The possession of an enslaved African in seventeenth-century Britain was a marker of riches, status, and fashion and, as such, had exotic overtones. In some cases, they were dressed in expensive unique costumes and painted in portraits with their enslavers. They were also performers in pageants, adorned with colorful costumes, and portrayed as coming from a rich, exotic, and mysterious continent that was Africa (Fryer, 2018). Treatment ranged from humane in the more affluent households to harsh and sometimes brutal in other circumstances (Fryer, 2018). London had by far the largest population of Black people during the seventeenth century. Still, by the turn of the eighteenth century, the thriving slave ports of London and Bristol would be challenged by Liverpool (Christian, 1998). Around these slave ports, ever-increasing numbers of Black people, enslaved or otherwise, would arrive, and small Black communities began to take shape. The number of Black people in England during the eighteenth century is difficult to ascertain but estimates for those in London vary between 10,000 and 20,000 (Fryer, 2018; Syracuse University London, 2019).

The Black Community in Eighteenth-Century London The Black community in the eighteenth century, most notably in London, was diverse, some coming directly from Africa with others from the Caribbean, with a multitude of linguistic, cultural, and religious heritages (Blair, 2013). Many could be found as household servants— domestics, pages, footmen, cooks, and maids—in the elegant homes of the rich in the fashionable areas of Westminster, Haymarket, and Covent Garden along the Strand, enjoying varying degrees of privilege (Blair, 2013). Others lived in less salubrious surroundings—settlements, developments along the waterfront, tenements, jerry row houses, or ramshackle dwellings built by squatters and the homeless who could not

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afford to rent (Blair, 2013). Those Black people in these poorer surroundings eked out a meager living, forever on the edge of destitution (Blair, 2013). The Black community of London, regardless of station, was positioned between chattel slavery and domestic servants. Nevertheless, pockets of Black people would find ways to meet and socialize outside the White gaze. There were observances of christenings, weddings, and funerals, and in times of trouble, support for those in crisis. Moreover, over time, new arrivals would be welcomed into the various associations of Black people, albeit scattered in different communities (Fryer, 2018). The late eighteenth century saw the Black population in England swell by the arrival of hundreds of loyalist refugees from North America who had taken the side of the British in the American War of Independence. The reality of life in Britain was harsh for all the promises of freedom and compensation that were made to them as a consequence of their loyalty and service to the crown. They gained freedom, but payment was not forthcoming for most of them, leaving the majority destitute and reduced to begging for survival (Fryer, 2018). Indeed, such was the level of destitution and begging that the government sought to alleviate the issue by offering the Black loyalists passage to Sierra Leone, as was the case with the Black loyalists in New Canada (Fryer, 2018). With much skepticism and trepidation, some 411 Black settlers left for Sierra Leone from England in 1787. Four years later, only 60 of the 347 survived the trip and remained in Sierra Leone. It is important to note that the Black population in London rejected the notion of enslavement and was a militant force fighting for freedom and equality through work with the growing abolitionist movement in eighteenth-century England. Some resisted servitude and selfemancipated by running away from their enslavers, a frequent enough occurrence that could find advertisements for the capture and return of a runaway Black servant (Fryer, 2018). Indeed, Blair (2013) argues that the Black Londoners birthed a positive Black identity and communal perspective. “They were in the anti-slavery vanguard, rallying for all proletarians, Black or White, enslaved person or free” (p. 6).

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The Abolition of Slavery and the Black Population in England The nineteenth century saw the ending of British involvement in slavery after decades of resistance, protest, and political advocacy by enslaved Black people in the British Caribbean, England, New Canada, and the abolition movement. In 1806, for example, the Foreign Slave Trade Act was passed, and in 1807, the Slave Trade Act was passed. The former Act prohibited British slave traders from operating in foreign territories belonging to foreign powers, and the latter abolished Britain’s involvement in the transatlantic slave trade (Fryer, 2018). Continued Black resistance in the British Caribbean and political campaigning by the abolition movement culminated in the passing of the 1833 Slavery Abolition Act, freeing, albeit gradually, enslaved Black people in the British West Indies and other colonies (Oldfield, 2021). The abolition of slavery in 1833 effectively ended small-scale Black immigration to London and Britain, shrinking the Black population to minuscule numbers, even in London. However, there were exceptions in Liverpool, where Black and Chinese seamen, many of whom were abandoned by their companies, put down roots in small communities (BBC.co.uk, n.d.). In addition, there were other small Black and multicultural communities in Canning Town, London, and Tiger Bay, Wales (BBC.co.uk, n.d.).

Scientific Racism While ending slavery, the British empire of the nineteenth century nevertheless continued to display and embody a view of its subjects whereby Whites were of higher status than non-Whites. Undergirding and justifying this perspective and the accompanying imperialist actions that it executed throughout its colonies was “scientific racism.” The pseudoscientific racism began its ascension with the publication of Darwin’s wildly popular On the Origin of the Species in 1859 (Conlin, 2018). Darwin’s ideas of natural selection and survival of the fittest were adapted and applied to humans in a racist light by Francis Galton, the father

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of eugenics, in 1865 (Conlin, 2018). In 1864, James Hunt, president of the London Anthropological Society, wrote On the Negro’s Place in Nature. In the paper, Hunt considered the White man and the Negro to be two distinct species (p. xxvi). With regard to intellect, Hunt argued that nobody who had ever been in Africa could suppose for a moment that a Negro could match a European in any respect (p. xviii). Moreover, Hunt wrote that not only was the Negro inferior intellectually to Europeans, but they could only be civilized by Europeans. He further noted that aside from Toussaint Louverture, the Negro race had not produced a single great man (p. xxix). These perspectives and others, which included comparing Negros to apes and suggesting they had smaller brains than Europeans, soon became institutionalized in scientific societies, journals, and print media. By extension, these perspectives were disseminated to British Victorian society and across the British empire, justifying British imperialism and creating a narrative of Black inferiority and British and White racial and cultural superiority.

Black People Become a Significant and Permanent Feature of British Life In the twentieth century, Black people became a significant and permanent feature of British life. For example, in World War I in 1914, Black Britons and Blacks from England’s West Indian colonies volunteered to fight on behalf of England against Germany (Bourne, 2020). Indeed, the West Indian volunteers traveled to England at their own expense, becoming part of the British West Indian Regiment (BWIR), a separate Black unit within the British army. Joining the Black presence once the war began were Blacks from Nigeria, the Gold Coast, Sierra Leone, Gambia, and other African colonies (Bourne, 2020). At the war’s end in 1918, 15,204 Black men had served in the BWIR. Moreover, 60,000 Black South Africans and 120,000 other Africans served in uniformed labor units (Bourne, 2020). Moreover, in World War II, between 1939 and 1945, more than half a million Black Africans fought in the British army (Losh, 2019). Added to

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this number were approximately 16,000 West Indians who volunteered for service (Caribbean Elections, 2019). In both wars, Black soldiers were not treated as equal to their White counterparts. In World War I, they served in segregated units led by White officers. They were used as noncombatant labor, loading ammunition, digging trenches, and laying telephone lines (Bourne, 2020). During World War II, the army paid African soldiers significantly less than their White counterparts (Losh, 2019).

Get Them Out Between the two world wars, the Black British population numbered between 20,000 and 30,000; but in 1918, they were barely visible to most of White Britain. In 1919, this changed when White racial mob violence was aimed against Blacks, Arabs, and Chinese in the British seaport areas of Liverpool, Cardiff, and Salford (Hunter, 2018). Liverpool, well known for its Black population, experienced the most sustained and ferocious rioting. For example, a young African Caribbean, Charles Wooten, was lynched in Liverpool by a rioting crowd reaching 10,000. It was rioting stoked by social, economic, and political anxieties and anger by White union workers and demobilized White service members, who saw Blacks and other racial minorities as foreign competition for jobs and the attention of White women, thus threatening their national identity (Hunter, 2018). The British government’s response in the aftermath of the 1919 riots was not to compensate those victims whose property was damaged or who lost a loved one (Hunter, 2018). Instead, it was to institute a repatriation scheme, offering Black and Arab seamen a resettlement and disembarkment allowance to leave Britain. As sporadic rioting continued in 1920 and 1921, the scheme removed 3,000 Black and Arab seamen and their families from Britain (Hunter, 2018). Furthermore, shipping companies employing Caribbeans assisted the state by firing Black laborers and returning them to the West Indies (Hunter, 2018). Furthermore, sustained racism and post-war economic hardships saw the reclassification of Blacks and Arabs as aliens with the Aliens Order

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1920, a statutory instrument under the 1919 Aliens Restrictions Act (Hunter, 2018). Among its many stipulations, the 1919 Aliens Restriction Act stated that no alien might land on British soil without the permission of an immigration officer. It also restricted the employment rights of alien residents in Britain, barring them from specific jobs, which particularly affected foreign Black and other racial and ethnic minority seamen working on British ships. The act was renewed every year until it was replaced by the Immigration Act of 1971. Even more explicitly racist was the Special Restriction (Colored Alien Seamen) Order of 1925, issued Article II of Aliens Order 1920. In short, the order mandated that “colored” seamen who did not possess documentary proof of their status as British must register as “aliens” in Britain whether or not they had been in the UK for more than 2 months. The net result of this order was explicitly linking race and ethnicity to citizenship and Britishness. To be British was to be exclusively White, no matter how long a person of color, British-born, or foreign, had resided in Britain (Tabili, 1994).

The Growth of the Black British Population, 1947 to 1970 As the point has been made in this chapter, the Black presence in Britain is not a recent phenomenon. However, the post-World War II years between 1947 and 1970 saw the unprecedented migration of nearly half a million West Indians from commonwealth countries to Britain, a migration encouraged by a British government that needed labor and willing hands (Fryer, 2018). Indeed, the 1948 Nationality Act granted UK citizenship to citizens of Britain’s colonies and former colonies, providing a strong incentive for migration to Britain from the West Indies (Fryer, 2018). As a result, the West Indian immigrants who arrived between 1947 and 1970 put down permanent roots, forming Black communities in London, Birmingham, Manchester, and Bristol. The Black presence would further be bolstered in the 1980s and 1990s by the migration of Black Africans to Britain (Fryer, 2018).

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Blacks who settled in the 1950s and 1960s were not the victims of official segregation policies. Still, de facto segregation was very much in practice, limiting them to menial jobs and substandard housing. Their British-born children often received subpar education and limited opportunity to pursue a university education. A flurry of antidiscrimination legislation in the 1970s was to remedy some discrimination, allowing many Black British people to progress to higher rungs of social and political office (Fryer, 2018). However, even after seven decades, Black people, particularly those from lower socioeconomic urban communities, still experience structural and systemic inequality. The particular areas of inequality include education, housing, income, and employment (Fryer, 2018).

The U.S. Black People in the Pre-Slavery North American Colonies In 1619, about 20 Africans seized by the British warship White Lion from the Portuguese slave trip Sao Juan Bautista were carried to the Jamestown, Virginia, colony and traded for provisions (History.Com Editors, 2009). Although these 20 Africans would be the first Black people in Britain’s North American colonies, they were not the first enslaved Africans within continental North America. The first arrived in 1526 by way of what is today Santo Domingo to the San Miguel de Gualape colony, founded by Spanish explorer Lucas Vazquez de Avllón, located in present-day South Carolina (Wright, 1902). At least for the first two decades of the fledgling North American colonies, there were no slave laws or any large-scale participation in the transatlantic slave trade. Indeed, enslaved Africans’ treatment was not too different from White indentured servants, whom they worked alongside, sharing a common antipathy toward their masters (Gruber, n.d.; Mark, 2021). Moreover, a small number of enslaved Africans did gain freedom and live in the colonies as free folk. One example was Anthony Johnson (listed as Antonio the Negro in Jamestown’s 1625 census). Johnson

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purchased his freedom, and by 1640, lived in Northampton County, Virginia, with other free Africans and colony-born Blacks (Gruber, n.d.).

Slavery and the Changed Status of Black People However, it is essential to note that while seemingly not too dissimilar from their White indentured counterparts, Africans were not on par with them—in 1640, the General Court of Colonial Virginia sentenced John Punch, a Negro, to serve his master for the term of his natural life for attempting to run away with two White indentured servants. However, the two White indentured runaways were given only 4-year extensions to their servitude. The sentencing of Punch was the first in the British colonies to codify legally lifelong and race-based slavery, foreshadowing and ushering in the gradual deterioration of the status of enslaved Africans in the colonies (Gruber, n.d.). In 1641, for example, Massachusetts became the first North American colony to recognize slavery as a legal institution. Then, in 1662, Virginia passed a law establishing that children born to an enslaved mother would also be enslaved, codifying racebased and hereditary enslavement in Virginia. Within 5 years of this law, other colonies legalized slavery, including Maryland in 1663, and New York, New Jersey, North Carolina, and South Carolina in 1664 (Gruber, n.d.). These laws, bolstered by an anti-miscegenation statute prohibiting marriage between Blacks and Whites, and rulings prohibiting non-Whites from owning firearms, culminated in Virginia’s Slave Code of 1705. The Virginia Slave Code of 1705 would serve as a template for other colonies, sealing the fate of all Black people for generations to come. The code declared that all servants imported and brought into the country who were not Christians in their native country would be counted as enslaved people. Consequently, they were deemed to be real estate and the property of their masters, with no legal rights. Likewise, children born to enslaved Africans would also be considered real estate and the property of their masters. Enslaved people were prohibited from owning property, bearing arms (unless to fight Native Americans),

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moving, assembling without permission, or fraternizing with Whites. The code also established harsh physical punishment for enslaved people found to be offending in any way. For example, committing a robbery would result in an enslaved person receiving 60 lashes and placement in stocks. More tellingly, an enslaved person could be whipped, branded, or maimed for associating with a White person. Finally, if an enslaved person resisted his master’s correction and was slain in the process, the master was free of all punishment as if the incident had not happened (Allen, 1994; Vaughn, 1989).

The Catalyst for the Lifetime Enslavement of Black People and Their Offspring The catalyst for the lifetime enslavement of Africans and their Americanborn offspring was the worldwide demand for the cash crops produced in southern colonies. Harvesting cash crops such as cotton, tobacco, rice, indigo, and sugar cane to meet the worldwide demand required a labor force well beyond the size and scope of the system of temporary indentured servitude. Instead, what was needed was a large, permanent, controlled, and geographically static labor force that had no rights and would not be compensated for their labor. Instead, they would work from near cradle to grave from one generation to the next (Galenson, 1984). Given the existence of the transatlantic slave trade and the outright rejection of enslaving White indentured servants for life, it was only natural that the southern colonies would enter the African slave trade to meet their immense labor needs. From 1707 to 1770, approximately 300,000 enslaved Africans were imported primarily to the southern colonies.

The Othering of Enslaved Black People Their unfamiliarity with European culture and sensibilities quickly saw imported enslaved Africans socially constructed as a nearly subhuman species, physically strong and imposing but lacking in intellect. The

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words commonly used to characterize enslaved Africans include childlike, docile, primitive, backward, and sexually promiscuous (Allen, 1994; Horton & Horton, 2006). These social constructions linked the enslaved African’s skin color to moral and mental inferiority, stripping the enslaved Africans, and later their American-born offspring, of their humanity. The stripping of humanity allowed enslavers to see enslaved Africans and their American-born offspring as the “other,” discernibly different from and inferior to Whites. It was a sentiment that no less than Thomas Jefferson articulated in his Notes on the State of Virginia in 1785. In the notes, Jefferson wrote, “Blacks, whether originally a distinct race, or made distinct by time and circumstances, are inferior to Whites in the endowments both of body and mind” (Jefferson, 1785, p. 150; Smith, 1995, p. 21).

Enslaved Black Peoples’ Vital Role in the Colonial Economy Nevertheless, enslaved Africans and their American-born offspring would soon become vital to all the colonies’ economies, mainly the southern colonies. In New York and New Jersey, they tended the wheat fields and fruit orchards. They operated dairies in Delaware, piloted fishing boats, and worked the docks in New Great Britain. In the southern colonies, they brought their unique skills from their homelands, shaping the continent’s cash crop industry and agriculture (Library of Congress, n.d.). For example, many Africans were well familiar with large-scale rice and indigo cultivation, entirely unknown to White Americans. Indeed, without the skills of Africans and their descendants, the rice fields of South Carolina and Louisiana might never have existed, let alone be profitable (Library of Congress, n.d.). The need for slave labor saw the exponential growth of the slave population of the colonies. In 1680, enslaved people, who lived primarily in the south, comprised less than a tenth of the southern population. By 1790, that number grew by a third, with Virginia accounting for 42% of all the colonies’ enslaved population. Colonies such as South Carolina, North Carolina, and Maryland had equally large slave populations that

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composed a large proportion of the overall population. After the American Revolution, the southern slave population increased again, reaching 1.1. million in 1810 and over 3.9 million in 1860 (United States Bureau of the Census, 1975).

Three-Fifths of a Person As was the case for the Native population, the Black population did not fare well after the Revolutionary War established the U.S. as an independent nation. With its pronouncement of equality for all men, the constitution relegated enslaved people to be three-fifths of a person. It also prohibited Congress from banning the importation of enslaved people for 20 years (Bill of Rights Institute.org, n.d.). Other indignities that would solidify Blacks as the subordinated other were the Naturalization Act of 1790, which reserved naturalized citizenship for free Whites only (H.R.40, Naturalization Bill, 1790). Without citizenship, Blacks and the Native population were denied the right to vote, own property, bring suit, or testify in court.

Second-Class Citizenship Blacks fared little better in the nineteenth century with Congress passing laws such as the Fugitive Slave Act of 1850, which compelled free states to return enslaved fugitives to their enslavers at the risk of fines, thus strengthening the institution of slavery (Campbell, 1970). Also confirming the second-class citizenship of Blacks was the U.S. Supreme Court’s Dred Scott decision in 1857. In that decision, the Court ruled that all people of African ancestry—enslaved and free people—could never become citizens and could never sue in federal court (Finkelman, 2007). The decision further ruled that the federal government did not have the power to prohibit slavery in the territories. It also approved the Missouri Compromise of 1820, which declared slavery unconstitutional in certain territories (Finkelman, 2007).

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Jim Crow Laws Even with the end of the Civil War and the adoption of the 13th Amendment to the U.S. Constitution in 1865, ending slavery in the U.S., the road to full citizenship and personhood would remain fraught. The years after the Civil War, ushering in reconstruction (1863 to 1877), offered brief hope for Black people. It was a hope to enjoy citizenship and the fruits of their labor. However, it was to be snatched away by Jim Crow laws. From 1877 to 1964, Jim Crow laws were in effect in all former southern slaveholding states. These laws were unabashed in articulating White superiority and Black inferiority (Foner & Fredrickson, 2004; Vann, 1974). Jim Crow laws segregated public venues, restaurants, restrooms, hospitals, churches, libraries, schoolbooks, waiting rooms, housing, prisons, cemeteries, and asylums. They also regulated social relationships, with most states barring interracial relationships, and adopted the one-drop rule, which decreed that any person with even a trace of Black heritage, regardless of outward appearance, was considered Black (Vann, 1974). Tacit support was given to Jim Crow laws by the Plessey v. Ferguson U.S. Supreme Court’s decision in 1896. Their decision ruled that the segregation of Blacks and Whites (i.e., separate but equal) was fair and did not violate the Fourteenth Amendment, which recognized Blacks as citizens for the first time and gave Black men, but not women, the right to vote (Elliot, 2006).

Upholding White Supremacy In its ferocity and determination to uphold White supremacy, Jim Crow laws were much more than a series of rigid anti-Black state and local laws upholding racial apartheid. Instead, they were a way of life that was arguably more insidious than slavery. For example, Jim Crow spawned the Black codes, vagrancy laws, peonage, sharecropping, and convict leasing, all ensuring the maintenance of enslaved person-like conditions for supposedly freed southern Blacks. Just as insidious was the use of extrajudicial terrorism and violence of organizations such as the Ku Klux

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Klan that visited on those Blacks who dared to demand their rights or contravene some norm that challenged White sensibilities. As an illustration, between the end of reconstruction and 1950, some 4,000 Black people were lynched, with the peak years being between 1880 and 1940 (Equal Justice Initiative, 2015).

Continued Structural and Systemic Inequality Black people in America have made tremendous strides in the social and political life of the U.S. since the passing of the Civil Rights Act of 1964. The election and reelection of President Barack Obama and other key appointments in the highest rungs of the government and the judicial system are key examples of these strides. Nevertheless, there is ample evidence of continued structural and systemic inequality. The areas of inequality for Black people, particularly in comparison to their White counterparts, include education, housing, health care, household income, and employment (History. Com Editors).

Canada The first recorded Black person to set foot in what is today Canada was Mathieu Da Costa. Arriving with French explorers Pierre Du Cua De Monts and Samuel de Champlain in 1604, Da Costa was a multilingual interpreter hired to act as a translator for the explorers in their encounters with the Mi’kmaq people in Acadia (Government of Canada, 2022; The Canadian Encyclopedia, 2022). In 1628, an unnamed 6-year-old boy from Madagascar was the first recorded enslaved African to be imported to colonial Canada (i.e., Quebec in New France). Given to Sir David Kirke as a gift by the English, the unnamed boy would be sold several times, finally as an 11year old to Father Paul Le Jeune, a superior of Jesuits in Quebec. Le Jeune baptized the boy in 1633 as a Catholic, naming him Olivier Le Jeune (The Canadian Encyclopedia, 2022).

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It was not until 1686 that the next enslaved African in New France, a man named La Liberté, appeared in the census records. It was a period in the burgeoning New France colonies when there was a growing demand for a labor force to work the numerous exploitable and potentially profitable resources, including mines, fisheries, and agriculture.

The Need for Enslaved Black Labor With too few colonists to meet the labor demand, an appeal was made to France for the importation of Negro (using the parlance of the day) enslaved people (Oyeniran, 2022; The Canadian Encyclopedia, 2022; Winks, 2021). The appeal argued that servants were prohibitively expensive and thus ruined all attempts to be enterprising. Therefore, as a remedy and a less costly option, Negro and indigenous enslaved people were seen as the best alternative to meet their labor needs (Winks, 2021). In 1689, following the appeal, King Louis XIV of France permitted the colonists to enslave the Indigenous Pawnee and Africans (Government of Canada, 2022). Although not proclaimed in New France and officially limited to the West Indies, King Louis XIV’s Code Noir was used in customary law to guide the ownership and treatment of enslaved people (Government of Canada, 2022). These guidelines included enslaved people being baptized and educated in the Catholic faith and prohibiting enslavers from making their enslaved persons work on Sundays. It also required enslaved people to be clothed, fed, and cared for when sick. In addition, enslaved people were prohibited from owning property and had no legal capacity (Buckingham, 2011). Finally, in 1709, King Louis XIV formally authorized slavery when he permitted his subjects in New France to own enslaved people in complete proprietorship (The Canadian Encyclopedia, 2022). There was no precise census of the enslaved population in New France. However, noted history Professor Marcel Trudel of the University of Ottawa conducted exhaustive research of 200 years of unpublished archival records, resulting in his seminal book, Canada’s Forgotten Slaves: Two hundred years of bondage (English translation from French). In the book, Trudel (2013) estimates the number of enslaved persons in colonial

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Canada and offers a compelling narrative of the enslaved populations’ often horrific living conditions and their quest to gain freedom.

Indigenous and Black Enslaved People Trudel (2013) estimates that beginning with the French regime in 1629 and ending with slavery’s abolition from the British Empire in 1833, more than 4,000 Indigenous (Pawnees or closely related tribes) and enslaved Black people were brought, sold, and exploited in colonial Canada. The enslaved Black population accounted for 1,200 of the overall enslaved population. Surprisingly, given the request for mining and agricultural labor, only 22% of the enslaved Black male population worked in these industries. More typically, they were servants in a household in a city (Trudel, 2013; Winks, 2021). In addition, mortality rates between the enslaved Black and Indigenous populations were markedly different. For example, the average age of death for the Pawnees or closely related peoples was 17.7, and for Negros, 25.2. Moreover, several Negros lived to age 80 and beyond, while no Pawnee male lived to 70 (Winks, 2021). One of the contributing factors to this disparity was the differing levels of susceptibility to European diseases such as smallpox (Winks, 2021). Even when the colonies fell under British rule, the French still accounted for the largest share of slaveholders. A full 25% of enslaved people belonged to merchant class members. The gentry (doctors, governors, notaries, and the military) enslaved people, as did some of the clergy. Few families had more than two or three, and only 29 owners held as many as 10 slaves (Trudel, 2013; Winks, 2021). Winks (2021) suggests that enslaved Black people in New France seemed to have not been poorly treated relative to the experiences of enslaved Black people in Britain’s North American colonies. Winks posits this difference was not altogether surprising, as enslaved people in New France were expensive and intimately connected to households as domestics.

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Privileges Enslaved Black people there also enjoyed certain privileges customarily reserved for free people; for example, they could serve as a witness at a religious ceremony. Moreover, enslaved people who petitioned the courts for their freedom had recourse in all conventional processes. Moreover, when the English/British arrived, enslaved people secured the rights of habeas corpus and trial by jury. Finally, evidence suggests that for a conviction of a crime, violent or otherwise, punishment for an enslaved person and a free person were not different in severity or application (Trudel, 2013; Winks, 2021). Moreover, although no laws required enslaved people in Canada to be baptized, four-fifths of enslaved people were baptized, primarily as Roman Catholics, with a smaller number as Protestants (Trudel, 2013; Winks, 2021). It was also customary after the baptism that the baptized enslaved people took the name of their master’s family. Furthermore, when enslaved Christians died, they were buried as Christians. However, neither enslaved persons nor free Blacks could take Holy Orders or become a priest (Winks, 2021). Lastly, marriage between enslaved people was permitted with their master’s permission. However, for all seemingly humane and familial practices toward enslaved people in New France, it would be erroneous to believe that enslaved Blacks were in agreement or comfortable with their condition. Indeed, there were numerous incidents of enslaved Blacks running away from their enslaver (Trudel, 2013; Winks, 2021). After all, slavery in any form accentuates who is master and subordinate.

The 1763 Treaty of Paris On paper, the 1763 Treaty of Paris, which saw France cede all her mainland North American empire east of the Mississippi to Britain, made the lot of Canada’s enslaved population worse. British law, for example, saw any enslaved person within Canada as mere property, unlike French Law, which generally recognized enslaved people as humans with diminished

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rights (Hooper, 2021). For example, offenses such as rape, murder, and assault did apply to enslaved people, who were not considered human in the eyes of the law (Hooper, 2021).

The Offer of Freedom and the Promise of Land The American revolutionary war with Britain between 1775 and 1783 would set in motion events that would significantly increase the Black presence in colonial Canada. It began with the British offering freedom and the promise of land to any enslaved African in America willing to join the British side in the war (The Canadian Encyclopedia, 2022). The appeal saw thousands of enslaved Africans fighting with other loyalists on the side of the British against America. Indeed, it is estimated that as many as 100,000 enslaved persons eventually took asylum behind British lines (Oyeniran, 2019).

Freedom After the American revolutionary war, thousands of White and enslaved Black loyalists left for other territories owned by the British throughout the Caribbean, such as the Bahamas and Jamaica (Oyeniran, 2019). Moreover, all enslaved persons who escaped and fought for the British before November 30, 1782, were set free. Those enslaved Africans who were eligible to receive their freedom under this arrangement were recorded in The Book of Negros and given certificates of freedom. With this certificate, approximately 3,000 Black loyalists departed New York in 81 ships heading for Nova Scotia in 1783. They arrived as hired workers, indentured workers, apprenticed workers, or free people. Also arriving in Nova Scotia were some 1,200 enslaved Black people who came with their White loyalist owners (Oyeniran, 2019). These arrivals were the first significant influx of Black people to the Maritime areas, Nova Scotia, New Brunswick, and Prince Edward Island (Winks, 2021). This influx significantly increased the numbers of enslaved Black people, supplanting the Pawnee and other closely related tribes (Winks, 2021).

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Settling in Nova Scotia Once in Nova Scotia, Black loyalists and enslaved Blacks were sent to and settled in places such as Shelburne, Birchtown, Annapolis Royal, Preston, and Digby. Indeed, Birchtown soon became the most populated settlement of Black people (free and enslaved) in colonial Canada (Oyeniran, 2019). However, life for the Black loyalist in Nova Scotia was one of broken promises, challenges, struggles, and racism. For example, the promise of the land saw Black loyalists having to go to the back of the line behind White loyalists, also promised land when it came time to divide and allocate land (Oyeniran, 2019; Winks, 2021). Furthermore, when the land was allocated to Black loyalists, they were given significantly smaller plots and expected to work for lower wages (Oyeniran, 2019; Winks, 2021). Moreover, the promise of grants, seeds, and rations for 3 years was not forthcoming, leaving many Black loyalists unable to eke out a living on the barren and rocky land of Nova Scotia (Winks, 2021).

Segregation While enjoying some freedoms, save the right to vote, Black loyalist settlers were segregated from their White counterparts in nearly every case. Thus, in many respects, their everyday experiences were not too different from their enslaved counterparts regarding racial subordination. Indeed, many were on the brink of starvation and/or destitution. In response, a substantial number of Black loyalists (approximately 1,200) took up the offer of the Sierra Leone Company (a British antislavery organization) to resettle in Sierra Leone on the Atlantic coast of West Africa in 1790 and 1800 (Government of Canada, 2022).

Ending Slavery in Canada Relatedly, one of the urgencies for the Black community in Canada and a growing number of antislavery advocates was the abolition of slavery in the Canadian colonies. It was a call that saw the passing of a law

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entitled An Act to Prevent the Further Introduction of Slaves and to limit the Term of Contracts for Servitude in 1793. The law freed enslaved people aged 25 and over and made it illegal to bring enslaved people into Upper Canada. In 1833, the Act on the Abolition of the Slave Trade in the British Empire received royal assent and became law throughout the British Empire (Government of Canada, 2022). The end of slavery in Canada made it a haven and destination for those enslaved people in the U.S. seeking freedom. Indeed, the famed underground railroad from the U.S. transported between 30,000 and 40,000 enslaved fugitives to two British North American colonies— Upper and Lower Canada—between 1850 and 1860. The enslaved fugitives settled in Ontario, New Brunswick, Quebec, and Nova Scotia, helping to build strong Black communities and contribute to the province’s development (Henry, 2006).

Migration and the Growth of the Black Population Over the past 150 years, migration, primarily from the Caribbean, and a smaller number from Africa, has grown the Black population to 1.2 million as of 2016. It is a population accounting for 3.5% of the overall population. Of this 1.2 million, 500,000 migrated to Canada within the past 20 years.

The Black Experience in Canada The Black experience in Canada has seen progress but also discrimination and marginalization. The early settlers had to contend with segregation and exclusion daily. One of the many illustrations of this exclusion and segregation included Black people initially being prevented from serving in the army in World War I because of the racial climate of the day. The decision was not overturned until Blacks lobbied for the right to serve. Even then, the volunteers had to serve in a specially formed segregated unit, No. 2 Construction Battalion of 1049 (Walker, 1985; Winks, 2021). In World War II, the Canadian military similarly initially rejected

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Black volunteers, only to later reverse this decision. The Black volunteers who served in the semi-segregated army did so with distinction (Walker, 1985; Winks, 2021). Throughout the 1940s and 50s, Black people in provinces such as Ontario and Nova Scotia experienced open discrimination through racially segregated theaters, refusal of service and restaurants, and the denial of accommodation. Furthermore, at one point, Nova Scotia was named “The Mississippi of the North” because of the Jim Crow-like relationships between Black and White residents (Walker, 1985). This is not to say that efforts were not made to lessen discrimination, á la a plethora of legislation in most provinces and municipalities prohibiting discrimination in employment, accommodations, and public facilities. The passing of legislation has lessened the more overt forms of racism and paved the way for several notable Black Canadians to reach important positions within various forms of government. However, with the second wave of Black migration to Canada from 1996 onward, there is evidence that more subtle and not-so-subtle forms of racism persist (Etoroma, 2020).

Final Thoughts As this chapter indicates, the presence of Black people in Great Britain, the U.S., and Canada have their genesis directly or indirectly in the transatlantic slave trade. In all cases, Black people in these nations have had to endure othering, exclusion, discrimination, and a narrative steeped in Black social and cultural inferiority. No surprise, then, that despite the massive strides made for some Black people in these nations, many still are the victims of structural and systemic inequality.

References Allen, T. W. (1994). The invention of the White race, Vol.1: Racial oppression and social control . Verso.

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BBC.co.uk. (n.d). Short history of immigration. http://news.bbc.co.uk/hi/ english/static/in_depth/uk/2002/race/short_history_of_immigration.stm# 1800s Bill of Rights Institute.org. (n.d). Slavery and the Constitution. https://billofrig htsinstitute.org/essays/slavery-and-the-constitution Blair, T. L. (2013). Black Britannia: From slavery to freedom in the18th century. The Black London eMonograph Series. https://www.bl.uk/britishlibrary/~/ media/bl/global/social-welfare/pdfs/non-secure/b/l/a/black-britannia-rootsin-18th-century-london.pdf Blake, F., & Blake, K. (2020). Black presence in Britain through the sixteenth and seventeenth centuries—Teacher handbook. Austin Macauley. Bourne, S. (2020). How Black soldiers helped Britain in first world war. BIM2022. https://www.blackhistorymonth.org.uk/article/section/bhm-her oes/how-black-soldiers-helped-britain-in-first-world-war/ Buckingham, K. (2011). Slavery in the French colonies: Le Code Noir (the Black Code) of 1685. Library of Congress. https://blogs.loc.gov/law/2011/01/sla very-in-the-french-colonies/ Campbell, S. W. (1970). The slave catchers: Enforcement of the Fugitive Slave Law, 1850–1860. University of North Carolina Press. Caribbean Elections. (2019). Caribbean participants in the two world wars. http://www.caribbeanelections.com/knowledge/biography/bios/caribb ean_soldiers.asp Christian, M. (1998). An African-centered approach to the Black British experience: With special reference to Liverpool. Journal of Black Studies, 28(3), 290–308. Conlin, P. (2018). Victorian racism: An explication of scientific knowledge, its social character, and its relation to Victorian popular culture. Inquires Journal, 10 (1), 1. Elliott, M. (2006). Color-blind justice: Albion Tourgée and the quest for racial equality from the Civil War to Plessy v. Ferguson. Oxford University Press. http://www.fhcmichigan.org/images/Arcus_web1.pdf Equal Justice Initiative. (2015). Lynching in America: Confronting the legacy of racial terror. Report summary. https://time.com/wp-content/uploads/2015/ 02/eji_lynching_in_america_summary.pdf Etoroma, E. (2020). The deep roots of anti-Black institutional racism in Canada. Social Science Sustainability Research, 1(2), 65–74. Finkelman, P. (2007). Scott v. Sanford: The court’s most dreadful case and how it changed history. Chicago-Kent Law Review, 82(1), 1–48.

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Foner, N., & Fredrickson, G. M. (2004). Not just black and white: Historical and contemporary perspectives on immigration, race, and ethnicity in the United States. Russell Sage Foundation. Fryer, P. (2018). Staying power: The history of Black people in Britain. Pluto Press. Galenson, D. (1984). The rise and fall of indentured servitude in the Americas. The Journal of Economic History, 44 (1), 1–26. Government of Canada. (2022). Significant events in Black Canadian history. https://www.canada.ca/en/canadian-heritage/campaigns/blackhistory-month/historic-black-communities.html Gruber, K. E. (n.d.). Slavery in colonial America. American Battlefield Trust. https://www.battlefields.org/learn/articles/slavery-colonial-america Henry, N. (2006). Underground railroad. The Canadian Encyclopedia. https:// www.thecanadianencyclopedia.ca/en/article/underground-railroad History. Com Editors. (2009). Slavery in America. https://www.history.com/top ics/black-history/slavery Hooper, T. (2021, February 26). What slavery looked like in Canada. National Post. https://nationalpost.com/news/canada/what-slavery-lookedlike-in-canada Horton, J. O., & Horton, L. E. (2006). Slavery and the making of America. Oxford University Press. H.R.40, Naturalization Bill, March 4. (1790). A bill to establish a uniform rule of naturalization. https://www.visitthecapitol.gov/exhibitions/artifact/h-r-40naturalization-bill-march-4-1790 Hunt, J. (1864). On the Negro’s place. Journal of Anthropological Society of London, 2, xv–vi. https://www.jstor.org/stable/pdf/3025197.pdf?refreqid= excelsior%3A7cad06b24af466214d21b30703ba61ec&ab_segments=&ori gin=&acceptTC=1 Hunter, V. (2018). Britain’s 1919 race riot. Black Past. https://www.blackpast. org/global-african-history/events-global-african-history/britain-s-1919-raceriots/ Jefferson, T. (1785). Notes on the state of Virginia. Google Books. https://www. google.com/books/edition/Notes_on_the_State_of_Virginia/NgKidsPa_ QoC?hl=en&gbpv=1&printsec=frontcover Library of Congress. (n.d.). Africans in America: Life in slave society. https:// www.loc.gov/classroom-materials/immigration/african/africans-in-america/ Losh, J. (2019, February 13). Africans who fought for British army paid less than White soldiers. The Guardian.com. https://www.theguardian.com/ world/2019/feb/13/african-british-army-paid-less-than-white-soldiers

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Mark, J. J. (2021). Bacon’s Rebellion. World History Encyclopedia. https://www. worldhistory.org/Bacon%27s_Rebellion/ Oldfield, J. (2021). Abolition of the slave trade and slavery in Britain. British Library. https://www.bl.uk/restoration-18th-century-literature/articles/abolit ion-of-the-slave-trade-and-slavery-in-britain Oyeniran, C. (2019). Black loyalists in British North America. The Canadian Encyclopedia. https://www.thecanadianencyclopedia.ca/en/article/blackloyalists-in-british-north-america Oyeniran, C. (2022). Anti-Black racism in Canada. The Canadian Encyclopedia. https://www.thecanadianencyclopedia.ca/en/article/anti-black-racismin-canada Smith, J. M. (1995). The republic of letters: The correspondence between Thomas Jefferson and Kames Madison, 1776–1826. W. W. Norton. Syracuse University London. (2019). A partial timeline of Black British history. https://sulondon.syr.edu/wp-content/uploads/2020/05/British-Black-His tory-Timeline-Syracuse-London.pdf Tabili, L. (1994). The construction of racial differences in twentieth-century Britain: The special restriction (Colored Alien Seamen) Order, 1925. Journal of British Studies, 33(1), 54–98. The Canadian Encyclopedia. (2022). Timeline—Black history. https://www.the canadianencyclopedia.ca/en/timeline/black-history Trudel, M. (2013). Canada’s forgotten slaves: Two hundred years of bondage (Dossier Quebec). Véhicule Press. United States Bureau of the Census. (1975). Historical statistics of the United States: Colonial times to 1970. https://fraser.stlouisfed.org/title/historical-sta tistics-united-states-237?browse=1970s Vann, W. C. (1974). The strange career of Jim Crow (3rd rev. ed.). Oxford University Press. Vaughn, A. T. (1989). The origins debate: Slavery and racism in seventeenthcentury Virginia. The Virginia Magazine of History and Biography, 97 (3), 311–354. Walker, J. W. (1985). Racial discrimination in Canada: The Black experience. The Canadian Historical Society. https://cha-shc.ca/_uploads/5c38ab 83f3bcd.pdf Winks, R. W. (2021). Blacks in Canada: A history (2nd ed.). McGill Queen’s University Press. Wright, R. (1902). Negro companions of the Spanish explorers. Forgotten Books.

5 The Political, Legal, and Criminal Justice Systems of the UK, the U.S., Canada, and Australia

England and Wales Political System Unlike the states its settler colonialism birthed, Britain does not have a written, codified constitution. Instead, it has what is known as an uncodified constitution, composed of Acts of Parliament, court judgments, precedents, and traditions dating back to the reign of King Henry I (1100–1135; Phillips et al., 1993). The Magna Carta (1215), the Bill of Rights (1689), and the Act of Settlement (1701) represent the three major statutes that define British legal and political history (Phillips et al., 1993).

Magna Carta Of the aforementioned statutes, the Magna Carta or Great Charter of Liberties of England, which rebel barons forced King John of England to sign at Runnymede in 1215, is considered the foundational document of the British constitution, political life, and common law systems © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Warde, Colorblind, Critical Criminological Perspectives, https://doi.org/10.1007/978-3-031-38157-7_5

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(The British Library, 2014). Although only three of the 63 clauses of the Magna Carta remain in force today, clauses 39 and 43, granting the right to trial by jury, are considered the most potent symbol of the rule of law. As written in the Magna Carta, clauses 39 and 43 state the following: No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. (BBC News, 2012) To no one will we sell, to no one deny or delay right or justice. No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, nor will we proceed with force against him, except by the lawful judgement of his equals or by the law of the land. (BBC News, 2012)

Bill of Rights The Bill of Rights of 1689 is an Act of Parliament, signed into law in 1689 by co-monarchs William III and Mary II, declaring the Rights and Liberties of the Subject and settling the Succession of the Crown (Legislation.gov.uk, n.d.). Simply put, the bill created a constitutional monarchy in England in which the king or queen had the largely ceremonial role of head of state. As well as limiting the monarchy’s power, the bill elevated the status of Parliament as the supreme legislative body of England. The two houses of Parliament work on behalf of citizens, overseeing and shaping governmental laws and policy and debating and making decisions on the grand challenges of the day (UK Parliament, n.d.). Just as importantly, the bill laid out fundamental civil liberties. These liberties include: • Freedom to elect members of Parliament without the king or queen’s interference. • Freedom of speech in Parliament. • Freedom of royal interference in the law. • Freedom to bear arms for self-defense.

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• Freedom from cruel and unusual punishment and excessive bail. • Freedom from taxation by royal prerogative, without the agreement of Parliament. • Freedom of fines and forfeitures without a trial (History.com editors, 2018). • Such is the impact of the bill that it has influenced laws, documents, and ideologies in the U.S., Canada, and Australia (History.com editors, 2018).

Act of Settlement The Act of Settlement is an Act of Parliament passed in 1701 to settle the succession to the English and Irish crowns as Protestants. It also contained some critical constitutional provisions. Most notable among these provisions is that (a) all future monarchs must be Protestant; (b) judges hold office during good behavior rather than at the sovereign’s pleasure, and (c) impeachments by the House of Common are not subject to pardon by the sovereign (Editors of the Encyclopedia Britannica, 2022).

Legal System Reflecting its historical origin, Great Britain has three separate legal systems: England and Wales, Scotland, and Northern Ireland. The legal system of England and Wales is adversarial, as opposed to inquisitorial, in all courts, including the juvenile courts. While the prosecution has to disclose relevant information to the defense, the reverse is not true for the defense (Phillips et al., 1993). Common law, also known as case law, is the framework for the England and Wales legal system, which is based on legal precedents established by the courts rather than on written laws made by Parliament (Chen, 2022). Common law originated with the legal reforms of King Henry II in the twelfth century and was called common because it was applied across the country. The common law includes substantive rules, such as for the offense of murder, and procedure rules derived from the inherent jurisdiction (ICLR, n.d.).

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Criminal Justice System The key actors in the England and Wales criminal justice system are: • Police forces, overseen by elected Police and Crime Commissioners (PCCs). • The Crown Prosecution Service (CPS). • His Majesty’s Courts and Tribunal Services (HMCTS). • Magistrates’ courts and the crown court. • The court of appeals. • The sentencing council (Ryan, 2022).

Police Forces The police forces, 43 in England and Wales, are primarily responsible for crime prevention, detection, and investigation. Consequently, they are the first point of contact for anyone who is a victim of a crime or wants to report a crime. During a criminal investigation, police officers have various common law and statutory powers that help them gather evidence, interview people, and detain suspects (Ryan, 2022). In lower-level cases, police officers have the discretion to make charging decisions directly. These lower-level charges include criminal damage with a value of less than 500 pounds, retail theft (shoplifting), or attempted retail theft that can be sentenced in a magistrates’ court. Also included are any two-way offenses when the defendant is likely to plead guilty and is suitable for sentence in a magistrates’ court (Ryan, 2022). Once arrested and placed in custody by a police officer, the suspect/ accused has certain rights. The custody officer at the police station must explain these rights, which are as follow: • Free legal advice. • Tell someone where you are. • Have medical help if you’re feeling ill.

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• See the rules the police must follow (Code of Practice). • See written notice telling you about your rights, for example, regular breaks for food and use of a restroom and use of an interpreter to explain written notice (Gov.UK, n.d.). Young people under 18 and vulnerable adults who are placed in custody also have rights that the custody officer must explain, which are as follows: • The police must attempt to contact a parent, guardian, or carer. • They must find an appropriate adult to come to the police station to help the suspect/accused and be present during questioning and searching. An appropriate adult can be a parent, guardian, carer, social worker, volunteer, or family member over the age of 18 (Gov.UK, n.d.). When being questioned by the police, the interviewing police must notify the suspect/accused that the interview will be audio recorded. Additionally, they must advise the suspect/accused by way of the police caution that they do not have to answer questions, but there could be consequences if they do not do so. The police caution is as follows: You do not have to say anything. But it may harm your defense if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence. (Gov.UK, n.d.). Last police officers and the police forces are obligated to treat victims, perpetrators, and witnesses according to their rights (Ryan, 2022).

CPS (Crown Prosecution Office) CPS, an independent body, is the criminal prosecuting authority in England and Wales. Toward this end, CPS is responsible for prosecuting criminal cases investigated by the police and other investigative organizations. Criminal solicitors employed by the CPS provide legal advice to the police and are responsible for deciding to charge a suspect (Ryan, 2022). Note that CPS must follow the Code for Crown Prosecutors, issued by the Director of Public Prosecutions. To continue a

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public prosecution, prosecutors must ensure that (a) there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge, and (b) prosecution is in the public interest. Factors that determine public interest include seriousness of the offense, suspect’s culpability, and level of harm caused (Ryan, 2022). A victim of crime can seek a review of certain decisions by the prosecutor not to pursue a prosecution or to stop a prosecution (Ryan, 2022). Moreover, if a victim objects to a CPS decision not to pursue a prosecution or to stop a prosecution, they have the right to ask for that decision to be reviewed (Ryan, 2022).

HMCTS (His Majesty’s Courts and Tribunals Service) HMCTS is the executive agency responsible for administering courts and tribunals in England and Wales (Ryan, 2022).

Magistrates’ and Crown Court The Magistrates’ and Crown Court are where defendants will have their cases heard in first. All cases begin at a magistrate’s court, but serious offenses are immediately sent to the Crown Court for sentencing or trial. Note that a jury trial will take place only when a defendant pleads not guilty in the Crown Court. Moreover, a defendant appealing a decision from a magistrate’s court will typically do so in the Crown Court (Ryan, 2022).

The Court of Appeal The criminal division of the Court of Appeal hears appeals of decisions from the Crown Court if the defense can establish grounds for appeal. For example, the attorney general can appeal a sentence if they perceive it as unduly lenient. Depending on whether the appellant is appealing the conviction or sentence, the Court of Appeal can amend or overturn the conviction or change the sentence as they judge necessary. The

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judgments of the Court of Appeal Criminal Division are binding on the Crown Courts and magistrates’ courts (Ryan, 2022).

The Sentencing Council The Sentencing Council is a non-departmental, independent body that issues guidelines on sentencing in England and Wales. Its primary goal is to promote greater transparency and consistency in sentencing while maintaining the judiciary’s independence (Ryan, 2022).

The U.S. Political System The U.S. is a federal constitutional republic and a presidential system with three distinct branches that share powers (Founding Fathers, 2020a). These branches are the executive (the president, who serves as the country’s head of state and government), legislative (Congress, comprising the Senate and House of Representatives), and judicial (the Supreme Court and lower federal courts; Founding Fathers, 2020a). As per the U.S. Constitution, the federal government shares sovereignty with the state governments, each of which has the power to make laws within their jurisdiction that are not granted to the federal government nor denied to the states by the U.S. Constitution (Founding Fathers, 2020a). Moreover, each state has its constitution and three branches of government, headed by a governor, a legislative body, and a judicial branch. States are further divided into local counties or equivalents, such as municipalities, townships, and school districts.

U.S. Constitution Although there are relatively few constitutional laws, they are essential in that they set the legal parameters for the jurisdiction of the federal and state governments and outline the fundamental rights of the nation’s

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citizens and residents. As relates to certain fundamental rights, these include: • • • • • • • • •

Freedom of speech. Freedom of religion. The right to bear arms. Protection from government trespass without a warrant issued by a court. Freedom from unreasonable search and seizure. Protection from self-incrimination. The right to legal counsel Due process of law and the right to a trial by jury for criminal charges. Equal protection of the laws (Corbett, 2021).

Statutes In the federal and state legal systems, the legislative branch of government creates laws by enacting statutes that govern the rights and duties of the people.

Common Law These laws evolve solely from a court decision. Although statutes have largely replaced much of common law, the common law remains the primary means by which lawyers evaluate cases and predict what the law might say about a client’s case.

Criminal Justice System The key actors in the U.S. criminal justice system are: • • • •

Law enforcement. The prosecution. The courts. Corrections.

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Law Enforcement The U.S. criminal justice system’s law enforcement comprises numerous federal, state, city, and local police forces. Although state, city, and local jurisdictions might differ in some areas, common duties of law enforcement officers include investigation, apprehension, and detention of individuals suspected of criminal offenses (Bureau of Justice Statistics, 2021). In all jurisdictions, law enforcement officers have the power to arrest and detain an individual suspected of a crime. However, the extent of the law enforcement officers’ powers is regulated by state statutes and the U.S. Constitution, which broadly protect the civil liberty and rights of the individual, with the strong presumption of innocence until proven guilty (Marcus & Waye, 2004).

The Prosecution Prosecutors are arguably the most powerful officials in the U.S. criminal justice system. They are chief law enforcement officers for their jurisdiction and gatekeepers of the criminal justice system and control the direction and outcome of a criminal case through their charging and plea-bargaining decisions (Davis, 2005). Prosecutors decide whether to prosecute or what to charge regarding a criminal offense. They can also offer clemency and plea bargains, an arrangement between the prosecutor and defendant whereby a defendant pleads guilty to a lesser charge in exchange for a more lenient sentence or an agreement to drop other charges (Canon, 2022). The prosecutor’s charging and plea-bargaining decisions are discretionary (Davis, 2005). In addition, prosecutors are the only attorneys allowed to participate in grand jury deliberations. At the federal level, prosecutors are known as U.S. attorneys. This is an appointed position chosen by the president. At the state level, where most crimes are prosecuted, most, if not all, prosecutors are elected officials. Their titles are district attorney, county attorney, state’s attorney, prosecuting attorney, and commonwealth attorney.

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The Courts The U.S. court system is tiered, with the Supreme Court having the final jurisdiction on court appeals. Underneath the Supreme Court are two levels of federal courts: the U.S. district courts, 94 throughout the nation, and the U.S. circuit court of appeals. District judges sit individually to hear cases. Under the supervision of the district, judges are bankruptcy judges and magistrate judges (USembassy.Gov, n.d.). The U.S. circuit courts of appeals, of which there are 12 located in different parts of the country, hear appeals from the district courts. This three-judge court also hears appeals from decisions of federal administrative agencies (USembassy.Gov, n.d.). Underneath the U.S. circuit courts is the state court system. Each system has unique features, but commonalities include limited jurisdiction by a single judge who hears minor civil and criminal cases. The trial courts are usually called circuit courts or superior courts that hear major civil and criminal cases. Some states also have courts that hear only family and traffic cases. Finally, all states have the highest court, typically called the state supreme court, serving as an appellant court of appeals (USembassy.Gov, n.d.). The court system is an adversarial process, and as such, lawyers are essential to the process. First, they are responsible for presenting their clients’ evidence and legal arguments to the court. Then, based on the presentation, a trial judge or jury determines the facts and applies the law to decide before judgment is rendered (USembassy.Gov, n.d.).

Corrections U.S. corrections are the network of federal, state, and local agencies that supervise individuals in a state of incarceration, rehabilitation, parole, or probation. In a state of incarceration, individuals are confined in jail if awaiting trial or sentencing, even though they are not necessarily guilty of a crime (CorrectionalOfficer.org, 2022). If confined to prison, the individual has been convicted and sentenced. Prison ranges from high, low, and medium in terms of security classification, corresponding to an

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assessed evaluation of the seriousness of the crime and the likelihood of the offender harming others (CorrectionalOfficer.org, 2022). Community service is either a post-incarceration phase or an alternative to incarceration. Terms related to community are parole or probation. A parole is a conditional release based on adherence to good behavior and reporting to a parole officer. Probation offers a sentenced offender an opportunity to serve their sentence outside the state of incarceration under a particular stipulation and for a specified period (CorrectionalOfficer.org, 2022).

Tribal Justice System In addition to the nation’s criminal justice system, there are approximately 400 Tribal justice systems throughout the U.S. These courts are partially funded through Public Law 638 Tribal Priority Allocations. The criminal cases handled by the Tribal justice system include misdemeanor cases involving Indians (Native Americans) within Tribal jurisdiction. Tribal jurisdiction includes land within the Indian reservation boundaries in the state, dependent Indian communities, and Indian allotments. Felonies involving Indians within Indian countries that are federal crimes must be heard in federal court. Criminal punishments include confinement in prison, and/or payment of court costs. Public defenders are available for indigent defendants, and individuals appearing in court are entitled to a trial by jury (U.S. Department of the Interior Indian Affairs, n.d.).

Canada Political System As per the British North America Act of 1867, Canada is a federalist country with a Parliamentary democracy and Constitution heavily influenced by the Westminster model of Parliamentary democracy and Anglo-Saxon political traditions, such as the Magna Carta and the Bill

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of Rights 1687 (Founding Fathers, 2020b). As well as being a federalist and parliamentary democracy, the British North American Act of 1867, which forms the basis of Canada’s first written Constitution, gave executive authority to the British monarch, resulting in Canada being a limited constitutional monarchy (Bosc & Gagnon, 2017). Within the framework of being a federalist country with a parliamentary democracy and a limited constitutional monarchy, there is one Parliament of Canada, consisting of three distinct elements: The crown, the Senate, and the House of Commons, with the Prime Minister as the Head of Government and the King the Head of State, represented by a Governor-General at the federal level and lieutenant governors in the provinces (Bosc & Gagnon, 2017; Harris, 2019; McConnell, 2006). Furthermore, responsibility for lawmaking in Canada is shared among one federal, 10 provincial, and three territorial governments (Bosc & Gagnon, 2017). The Parliamentary nature of Canada’s government means that there is a fusing of these powers rather than a strict separation of executive and legislative powers (Constitutional Law of Canada, n.d.). In 1982, the Constitution of Canada was patriated to untether Canada completely from British Parliamentary control by way of the Constitution Act, 1982. The Constitution Act 1982 allows the Parliament of Canada and the provincial legislature to amend the Constitution without the British Parliament’s approval (McIntosh & Azzi, 2012). Furthermore, it introduced a Canadian Charter of Rights and Freedoms, and Section 35 of the Act explicitly recognizes and affirms the existing treaty rights of the Aboriginal peoples of Canada (McIntosh & Azzi, 2012). Section 35 also indicates that the term Aboriginal peoples of Canada, which includes the First Nation, Inuit, and Métis people of Canada. Additionally, the British North American Act of 1867 was renamed the Constitution Act of 1982 (Government of Canada, 2021a).

Legal System Canada’s legal system has a strong English and French influence and combines common and civil law. Though now completely independent

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from Britain, English common law, a collection of precedents that judges in Canada often have to clarify in uniquely complicated cases, still defines many of the legal concepts in Canada (Canada Guide, 2022). In contrast, the civil law system, which the province of Quebec, colonized by the French, follows and interprets laws in a strictly literal way that only considers the circumstances of the particular case (Canada Guide, 2022).

Charter of Freedom The Charter of Rights and Freedoms, a section of the Constitution Act of 1982, sets out those rights and freedoms Canadians believe are necessary for a free and democratic system. These legal rights are protected by a written constitution and the Charter of Rights and Freedoms. These rights cover a wide swath. For example, they include fundamental freedoms, democratic rights, mobility rights, legal rights, equality rights, Aboriginal Peoples rights, and the official languages of Canada, English, and French. Some examples of these freedoms are: • Freedom of conscience and religion. • Freedom of thought, belief, opinion, and expression, including freedom of the press and other media communication. • Freedom of peaceful assembly. • Freedom of association (Canada Justice Laws Website, 2022). • The right to life, liberty, and security of the person and the right not to be deprived therefore except in accordance with the principles of fundamental justice. • The right to be secure against unreasonable search and seizure. • The right not to be arbitrarily detained. • The right to have the validity of a detention after an arrest be determined by way of habeas corpus and be released if the detention is not lawful. • The right to retain and instruct counsel if arrested or detained. • The right to be tried within a reasonable time in criminal proceedings or penal matters. • The right not to be subjected to cruel and unusual punishment.

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• Every individual is equal before and under the law and has the right to equal protection and benefit of the law without discrimination based on race, national or ethnic origin, color, religion, sex, age, or mental or physical disability (Canada Justice Laws Website, 2022).

Canadian Federal, Provincial, and Municipal Governments Only the Canadian federal government can make criminal laws, meaning almost all of Canada’s most serious laws are national and apply to the country. For other forms of law, Canada’s federal, provincial, and municipal governments divide responsibilities (Canada Guide, 2022). Federal laws and acts passed by the Parliament of Canada regulate or control those areas of constitutional authority, such as the military, currency, airports, and national security (Canada Guide, 2022). Provincial laws or acts regulate or control matters under provincial constitutional authority, including property rights, natural resources, education, social services, housing, health law, and family law. In addition, municipal or city governments have bylaws that regulate minor matters such as garbage collection or pet licenses (Canada Guide, 2022).

Criminal Justice System The key actors in the Canadian criminal justice system are:

• • • •

Law enforcement. The courts.. The prosecution. Corrections..

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Law Enforcement Policing in Canada is run by either the federal government, provincial government, or city government, depending on the part of the country (Polis.Osce.org, n.d.). The Royal Canadian Mounted Police (RCMP) serves as the national police force. They are divided into four regions of the country (Polis.Osce.org, n.d). Their primary functions and missions are to enforce laws made under the authority of the Canadian Parliament. The RCMP has policing agreements with all the provinces except Ontario and Quebec, which have their own police forces, and three territories covering approximately 200 municipalities and 600 Aboriginal communities (Polis.Osce.org, n.d). In addition to the RCMP and the Ontario and Quebec police forces, there is a scattering of municipal police forces (Polis.Osce.org, n.d).

Courts There are four levels of courts in Canada. The first of these courts are the provincial/territorial courts. They handle the vast majority of cases that come into the system. The second provincial/territorial courts are superior courts that deal with serious crimes and hear appeals from the provincial/territorial courts. On the same level but dealing with different issues is the federal court. The next level is the provincial/territorial courts of appeal and the federal court of appeal, with the highest level occupied by the Supreme Court of Canada (Polis.Osce.org, n.d). In addition to Canada’s criminal justice system, the Indigenous Justice Program supports Indigenous community-based justice programs that offer alternatives to mainstream justice processes in appropriate circumstances. The primary objectives of the program are to reflect and include Indigenous values within the justice system and help decrease the rate of victimization, crime, and incarceration among Indigenous peoples (Government of Canada, 2021b).

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First Nations/Indigenous Courts The First Nations/Indigenous Courts are criminal sentencing courts for Indigenous peoples who plead guilty or are found guilty. Their goal is to restore balance and create pathways for healing. The essential elements of this healing are Indigenous knowledge and traditions, restorative justice practices, and elders in the court process (Legal Aid BC, 2022). Additionally, the defendant must take responsibility for their action. The judge will then look at things such as harm caused to the victim, the offender’s background, strengths and resilience, and a healing plan that can be made with the community (Legal Aid BC, 2022). The First Nations/Indigenous Court team include: • • • • • • • •

Elders. Defendant’s lawyer. Judge and Crown counsel. Indigenous community members. Social workers. Native court workers. Probation officers. Victim service workers (Legal Aid, 2022).

Prosecution Prosecutors play a pivotal role in the Canadian criminal justice system. The Public Prosecution Services of Canada (PPSC), a national, independent, and accountable prosecuting authority with regional and local offices across Canada, prosecute federal offenses and provide legal advice and assistance to law enforcement (Public Prosecution Services of Canada, 2022). The typical role of the prosecutor, regardless of jurisdiction, is quasi-judicial, requiring that they be objective, independent, and dispassionate. While they must be advocates, the prosecutor’s role is not to seek conviction at any cost. Instead, they must put before the court all the relevant and admissible evidence necessary to enable the courts

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to determine the guilt or innocence of the accused (Public Prosecution Services of Canada, 2022). In addition to the PPSC, every province employs a politician known as the attorney general. The head of the provincial government selects the attorney general. The attorney general leads a team of Crown attorneys tasked with representing the interest of the government and the public and working with the police to determine how an arrested person should be charged and punished for breaking the law (Canada Guide, 2022). For summary offenses and minor crimes, the Crown will require the accused to face a short hearing before a judge and, if found guilty, face minor punishment (Canada Guide, 2022). For more severe or complicated crimes, known as indictable offenses, the Crown will demand a full trial involving the Crown’s attorney, the accused, and the accused’s lawyer. Finally, guilt will be determined by a judge and, most often, a jury of 12 randomly selected citizens (Canada Guide, 2022).

Corrections Like the rest of its criminal justice system, Canada’s corrections systems are managed jointly by the federal and provincial governments. If convicted of a crime and sentenced to less than two years in prison, an offender goes to a provincially run jail. Then, for more than two years, one goes to a federally run jail and falls under the purview of the Parole Board of Canada (Canadian Guide, 2022). Also part of corrections in Canada is parole, a conditioned release from a correctional institution that permits an offender to serve the remainder of their sentence in the community under the supervision of a parole officer. Parole is only granted if the Parole Board is satisfied that the offender will not present an undue risk to society before the expiration of the sentence (Canadian Guide, 2022). There is also probation, which is ordered by courts and allows the offender to serve their sentence in the community, subject to conditions prescribed in a probation order (Canadian Guide, 2022). As judicial punishment is mainly operated on an escalating scale, with first-time offenders tending to receive lighter sentences, a custodial sentence is generally reserved for repeat offenders. Moreover, only

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more severe crimes, such as murder, have long mandatory sentences, with life imprisonment being the longest sentence a Canadian can receive (Canada Guide, 2022).

Australia Political System Created by the Commonwealth of Australia Constitution Act of 1900, the Commonwealth of Australia, as Australia is officially known, is a federation of six self-governing states, all former British colonies, established on January 1, 1901, under a single federal government (Founding Fathers, 2020c). The Australian Constitution is federal and is the supreme law and framework for the federal government and its relationship with the states and territories of Australia (Gordan et al., n.d.). For example, Section 107 of the Constitution preserves the states’ rights to maintain their constitutions and self-governance. Two other sources of constitutional law in Australia are The Statute of Westminster 1931 and the Australian Act 1986. The former, an Act of the UK Parliament, prohibited the UK Parliament from making laws for Australia other than by consent (Gordan et al., n.d.). The latter, joint statutes between the UK and Australian Parliaments, untethered the legal ties between the UK and Australian Parliaments, effectively making Australia an independent nation-state (Founding Fathers, 2020c).

Constitutional Monarchy Despite the legal untethering, Australia is not just a federation and representative democracy. It is also a constitutional monarchy, per Section 2 of the Commonwealth of Australia Constitution Act of 1900 (Founding Fathers, 2020c; Gordan et al., n.d). As of September 8, 2022, Charles III is the official head of state of the Commonwealth of Australia. His powers are exercised by the Governor-General, His Majesty’s representative in the Commonwealth (per Section 2 of the Constitution).

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One of the critical powers exercised by the Governor-General includes dissolving Parliament and assenting to legislation (Founding Fathers, 2020b; Gordan et al., n.d).

The Westminster System Australia’s federal government is modeled on the Westminster system, deriving from British tradition. The Constitution provides for a threepart federal parliament comprised of the King and two Houses of Parliament, that is, the Senate and the House of Representatives. The Senate reflects the concerns of each state, while the House of Representatives reflects the will of the citizens (Gordan et al., n.d). Although the Constitution divides the institutions of government into three groups, the legislative, executive, and judicial, Australia does not have a complete separation of powers because some of the roles of the Parliament, the Executive, and the judiciary overlap. For example, the prime minister and ministers are part of the Executive and Parliament. Moreover, High Court judges, the prime minister, and ministers are officially appointed by the Governor-General, who is part of the Parliament and Executive (Parliamentary Education Office, n.d.). Finally, five rights and two implied rights are included in the Constitution, as follows: • Section 42—The right to vote. • Section 52—The acquisition of property by the Australian government must be on just terms. • Section 80—Trial by jury for some offenses. • Section 116—The freedom to practice any religion. • Section 117—State parliaments cannot discriminate against nonresidents of the states. • Implied Right—Only courts have the power to find people guilty of an offense; the Australian Parliament cannot pass a law that would impose a criminal conviction.

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• Implied Right—Freedom of political communication because the Constitution created a system of government based on representative democracy (Parliamentary Education Office, n.d.).

Legal System The Australian legal system is a combination of inherited laws from Britain, (English common law), and statutes enacted by the federal government and states since federation. As a result, there is only one common law of Australia, which Australia and all its states and territories follow (Gordan et al., n.d). Defining the legal system is the Commonwealth of Australia Constitution (Barnes et al., n.d.). The Constitution establishes the legal demarcation between the six states, two territories, and the federal government. Because of the federal nature of the government, state, and territory governments have a good deal of autonomy over the laws in each jurisdiction (Barnes et al., n.d.). In order of hierarchy, the sources of law are as follows: • The Commonwealth of Australia Constitution. • Commonwealth (federal) legislation. • Decisions of the High Court and Federal Courts of Australia interpreting the Constitution and Commonwealth legislation. • State constitutions. • State legislation and decisions of the state courts interpreting state legislation (Gordan et al., n.d). The four main principles observed in the Australian legal system, which is adversarial in nature and places a high value on the presumption of innocence, are: • • • •

Equality before the law. Fairness. The right to be represented. Transparency (Barnes et al., n.d.).

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Criminal Justice System The key actors in the Australian criminal justice system are as follows:

• • • • • • •

Police forces. The Court System. Legal representation. Juries. Judges. Corrective services. Prisons.

Police Forces The police forces, one Federal, six states, and two territorial, are responsible for preventing and detecting crime, protecting life and property, and enforcing the law to maintain peace and good order. Police officers may perform various other duties in the service of their state authority. Moreover, although under the control of the respective state governments and the Northern Territory government, police officers perform certain functions for the federal government (Australian Bureau of Statistics, 1997). Although there are some variations by jurisdiction, such as when an officer can use force, commonly, police officers have common law and statutory powers to guide them in criminal procedures, which include gathering evidence, interviewing people, and detaining suspects. Police, on reasonable and probable grounds, can exercise a great deal of discretionary power, including arrest, searches, requests for identity, and investigating terrorist activity. The meta-themes of the criminal procedure include: • The right to due process. • The right to legal counsel.

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• The right to equal treatment under the law. • Immunity from involuntary detention without trial. • Immunity from the retrospective operation of criminal laws (Marcus & Waye, 2004).

The Court System The Australian court system is tiered, with the High Court of Australia having the final jurisdiction and court of appeal for all state courts, the federal court, and the family court of Australia. Underneath the High Court are state and territory courts, with higher and lower courts for cases of varying seriousness. State and territory courts have original jurisdiction in all matters brought under state and territory laws. Most criminal matters, whether they arise from commonwealth, state, or territory law, are handled by state and territory courts (Australian Bureau of Statistics, 1997). Each of the state and territory courts operates independently. All states have Supreme Courts; some also have a Court of Criminal Appeal, the highest court of appeal in a state. The Supreme Court hears cases of the most severe nature or appeals from lower courts (Australian Bureau of Statistics, 1997). District or county courts hear severe cases. In these courts, a judge presides over the court to determine the law. In turn, a jury determines the guilt or innocence of a defendant. However, most cases are heard by the Local or Magistrates’ Courts or Courts of Petty Session. These courts have no jury, and the magistrates are the arbiter of the guilt or innocence of the accused. They also refer more severe cases to the higher courts (Australian Bureau of Statistics, 1997). Children’s courts or juvenile courts hear cases for defendants under the age of 18, or 17 in some jurisdictions (Australian Bureau of Statistics, 1997).

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Indigenous Sentencing Courts As well as the former, there are Indigenous sentencing courts, which operate in all Australian states and territories, except Tasmania. These courts have been established according to protocols and practices. The first of these courts was established in Port Adelaide on June 1, 1999. The courts do not adopt or practice Indigenous customary laws. Rather, they use Australian criminal laws and sentencing procedures to sentence Indigenous offenders who have either pleaded guilty or have been found guilty but permit elders and respected persons to participate in the process, and in doing so, create a culturally appropriate system for sentencing Indigenous offenders (Marchetti, 2009). Indigenous sentencing courts are now part of the youth courts and county courts. Despite their legitimization, the number of offenders sentenced in these courts was relatively low as of 2009 (Marchetti, 2009).

Legal Representation The two principal sources of legal representation in an adversarial legal system are barristers, lawyers representing the state and the defendant in court, and solicitors. These lawyers advise clients and instruct barristers. Solicitors cannot represent clients except in some lower courts (Australian Bureau of Statistics, 1997).

Juries A jury is called to try a criminal case depending on the type and seriousness of a crime. However, if a crime is indictable, the defendant has the right to trial by jury in a higher court. A jury comprises 12 people with no previous connection to the case. In most states and territories, a guilt or innocence decision must be unanimous. However, in some states, with at least 10 members, a majority decision is sufficient where a unanimous decision cannot be reached within a specified time (Australian Bureau of Statistics, 1997).

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Judges Judges and magistrates oversee and arbitrate the functions of the court. As such, they make critical decisions about the evidence and information the jury will get and must use that information in their decision-making (Australian Bureau of Statistics, 1997).

Corrective Services Upon conviction of a defendant, there are three categories of correctional action available to the court: 1. A fine or a bond. 2. Supervision in the community for a specified period of time. 3. Detention in a prison, another institution, or at home (Australian Bureau of Statistics, 1997).

Prison All States and the Northern Territory operate prisons and other correctional facilities. Separate provisions are provided for juvenile offenders in each state and territory (Australian Bureau of Statistics, 1997).

References Australian Bureau of Statistics. (1997). Australian social trends—Crime and justice: The criminal justice system. https://www.abs.gov.au/ausstats/[email protected]/ 2f76 Barnes, Thompson & Brown. (n.d.). Types of laws—Australia legal system. https://legal-translations.com.au/australian-legal-system/ BBC News. (2012). Magna Carta unpicked. https://www.bbc.com/news/mag azine-19761919

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Bosc, M., & Gagnon, A. (2017). House of commons procedure and practice (3rd ed.) https://www.ourcommons.ca/procedure/procedure-and-practice-3/ index-e.html Bureau of Justice Statistics. (2021). The justice system—What is the sequence of events in the criminal justice system? https://bjs.ojp.gov/justice-system Canon, D. (2022). Pleading out: How plea bargaining creates a permanent criminal class. Basic Books. Canada Justice Laws Website. (2022). Constitution Act, 1982—Part 1 Canadian Charter of Rights and Freedoms. https://laws-lois.justice.gc.ca/eng/Const/ page-12.html#h-41 Canada Guide. (2022). The Canadian legal system. https://thecanadaguide.com/ basics/legal-system Chen, J. (2022). Common law: What is it, how it’s used, and how it differs from civil law. Investopedia. https://www.investopedia.com/terms/c/com mon-law.asp Constitutional Law of Canada. (n.d.). Separation of powers in Canada. https:/ /www.constitutional-law.net/index.php?option=com_content&view=art icle&id=24&Itemid=38 Corbett, J. (2021). Constitutional laws. Legal Match. https://www.legalmatch. com/law-library/article/constitutional-laws.html CorrectionalOfficer.org. (2022). U.S. correctional system. https://www.correctio nalofficer.org/us-correctional-system Davis, A. (2005). The power and discretion of the American prosecutor. Droit et Cultures, 49 (1). https://journals.openedition.org/droitcultures/1580?lan g=en Editors of the Encyclopedia Britannica. (2022). Act of Settlement Great Britain [1701]. Encyclopedia Britannica. https://www.britannica.com/print/article/ 536314 Founding Fathers. (2020a). The Constitution of the United States of America: The declaration of independence, the bill of rights. East India Publishing Company. Founding Fathers. (2020b). The Constitution of Canada. East India Publishing Company. Founding Fathers. (2020c). The Constitution of Australia. East India Publishing Company. Gordan, D., Senadheera & Gordon Lawyers. (n.d.). Legal systems in Australia. Thomas Reuters Practical Law. https://uk.practicallaw.thomsonreuters.com/ 0–6 Gov.UK. (n.d.). Being arrested: Your rights. https://www.gov.uk/arrested-yourrights

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Government of Canada. (2021a). INAN -Section 35 of the Constitutional Act 1982– Background– Jan 28, 2021a. https://www.canada.ca/en/immigrationrefugees-citizenship/corporate/transparency/committees/inan-jan-28-2021a/ inan-section-35-consitution-act-1982-background-jan-28-2021.html Government of Canada. (2021b). Indigenous Justice Program. https://www.jus tice.gc.ca/eng/fund-fina/acf-fca/ajs-sja/index.html Harris, C. (2019). Constitutional monarchy. The Canadian Encyclopedia. https://www.thecanadianencyclopedia.ca/en/article/constitutional-mon archy History.com editors. (2018). English Bill of Rights. https://www.history.com/top ics/british-history/english-bill-of-rights ICLR. (n.d.). The English legal system. https://www.iclr.co.uk/knowledge/topics/ the-english-legal-system/ Legal Information Institute. (n.d.). Article VI. Cornell Law School. https:// www.law.cornell.edu/constitution/articlevi Legal Aid BC. (2022). What are First Nations/Indigenous courts? https://pubsdb. lss.bc.ca/pdfs/pubs/What-Are-First-NationsIndigenous-Courts-eng.pdf Legislation.gov.uk. (n.d.). Bill of Rights 1688. https://www.legislation.gov.uk/ aep/WillandMarSess2/1/2/introduction Marchetti, E. (2009). Indigenous sentencing court (Brief 5, December). Faculty of Law, Humanities and the Arts—Papers. 914. https://ro.uow.edu.au/cgi/vie wcontent.cgi?article=1919&context=lhapapers Marcus, P., & Waye, V. (2004). Australia and United States: Two common criminal justice systems uncommonly at odds. Faculty Publications, 224. https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1245&con text=facpubs McConnell, W. H. (2006). Constitutional history of Canada. The Canadian Encyclopedia. https://www.thecanadianencyclopedia.ca/en/article/consti tutional-monarchy. McIntosh, A., & Azzi, S. (2021). Constitution Act, 1982. The Canadian Encyclopedia. https://www.thecanadianencyclopedia.ca/en/article/consti tution-act-1982 Parliamentary Education Office. (n.d). Separation of powers: Parliament, executive and judiciary. https://peo.gov.au/understand-our-parliament/how-parlia ment-works/system-of-government/separation-of-powers/ Phillips, C., Cox, G., & Pease, K. (1993). World fact book of criminal justice systems: England and Wales. Bureau of Justice Statistics. https://bjs.ojp.gov/ content/pub/pdf/wfbcjsa.pdf Polis.Osce.org. (n.d). Canada. https://polis.osce.org/country-profiles/canada

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Public Prosecution Services of Canada. (2022). About the PPSC . https://www. ppsc-sppc.gc.ca/eng/bas/index.html Ryan, J. (2022). A short guide to the criminal justice system. House of Commons Library. https://researchbriefings.files.parliament.uk/documents/CBP-9331/ CBP-9331.pdf The British library. (2014). Timeline of Magna Carta and its legacy. https:// www.bl.uk/magna-carta/articles/timeline-of-magna-car UK Parliament. (n.d.). UK Parliament. https://www.parliament.uk U.S. Department of the Interior Indian Affairs. (n.d). Tribal court systems. https://www.bia.gov/CFRCourts/tribal-justice-support-directorate USembassy.Gov. (n.d.). The U.S. legal system: A short description. https://ar.use mbassy.gov/wp-content/uploads/sites/26/2

Part II Contemporary and Historical Analysis

6 Law Enforcement and Indigenous and Black People: The UK and U.S.

Law enforcement, as represented by police officers, are the gatekeepers of the criminal justice system. They hold almost exclusive authority to enforce and regulate the law through discretion, citations, arrests, and physical, sometimes deadly force. Indeed, they have tremendous latitude and power to decide who does and does not come to the attention of the criminal justice system. Without exception, the relationships between many people in the Indigenous and Black populations and the law enforcement agencies of Britain, the U.S., Canada, and Australia have been, and continue to be, mired in acrimony and mistrust (Dwyer et al., 2020). This acrimony and mistrust stems from decades of perceived over-policing, ethnic and racial profiling, police-involved killings of unarmed indigenous and Black people, excessive force, and disproportionality in stops, searches, and arrests (Cotter, 2022; Palmer, 2012). As noted earlier in this book, these actions have had a profound bearing on the disproportionate representation of the Indigenous and Black populations of Britain, the U.S., Canada, and Australia at every level of the respective nations’ criminal justice systems. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Warde, Colorblind, Critical Criminological Perspectives, https://doi.org/10.1007/978-3-031-38157-7_6

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This chapter, and Chapter 7, provide a historical and contemporary examination of the relationship between the police forces of these four countries and their respective Indigenous and Black populations.

The UK The Demand for Ending Racial Discrimination in the UK Criminal Justice System Sparked by the police-involved killing of George Floyd in Minnesota in the U.S., the summer of 2020 saw thousands of British people of all races and ethnicities join a series of Black Lives Matter (BLM) protests over several weeks across the UK. In the wake of the protests, All Black Lives UK called on the UK government to stand with the Black community in the U.S. and end systemic racism in the UK. The most pressing of the four demands for ending systemic racism was ending racial discrimination in the UK criminal justice system (All Black Lives UK, 2020). More specifically, the demand was for scrapping the Sect. 60 Stop and Search regulations that disproportionately target Black people, and ending the racialized war on gangs, including abolishing the Metropolitan Police gang violence matrix (All Black Lives UK, 2020).

The Police Involved Fatal Shooting of Mark Duggan That the police-involved killing of the unarmed George Floyd in the U.S. would have such resonance in the UK is not surprising. The 2010s had been a decade of intense scrutiny of the disproportionate use of police powers, as regards force and stop and search, on young, urban Black males aged between 15 and 34. The catalysts for the increased scrutiny were two-fold: 1. The 2011 police-involved fatal shooting of a Black British man, Mark Duggan, 29, by Metropolitan police officers in Tottenham, North London (Siddique, 2020).

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2. The protests in north London and across England that occurred almost immediately after the fatal shooting. These protests were the largest in modern English history and questioned the police version of the shooting and how the police used force and their stop and search powers (Riots et al., 2012). In the events leading up to the Duggan fatal shooting, 11 officers from SCD11, Trident, and the SCO19 firearms unit had trailed Duggan from north London to Leyton, east London, where he collected a gun before returning to north London. Upon his return, he was stopped, during which he was shot twice and died from his wounds. The police version of events was that Duggan had a gun in his hands when one of the officers, known as V53, decided to shoot in self-defense (Siddique, 2020). Even though a 2014 inquest jury and an Independent Police Complaints Commission’s (IPCC) investigation found the killing lawful, both concluded that Duggan did not have a gun in his hands at the time of the shooting (BBC News, 2014; Inquest, 2014; National Archives, 2015). Moreover, the inquest jury also unanimously agreed that there were failures in the planning and gathering of intelligence prior to the shooting (Inquest, 2014; National Archives, 2015). The Independent Police Complaints Commission’s (IPCC) investigation expressed concerns about the police officers involved in the shooting. For example, the officers’ refusal to be interviewed in person by the IPCC was of significant concern. That refusal delayed the investigation by a year. There was also concern about the conferring between the officers when writing up the shooting notes (BBC News, 2014). A deeper analysis of the police use of stop and search after the Duggan fatal shooting revealed some worrying trends. Most notable of these trends was that the police use of stop and search powers were, in many cases, illegal, discriminatory, and disproportionately used against members of the Black community. Moreover, they were too often ineffective in tackling crime and were procedurally incorrect, threatening the legitimacy of the police (Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services, 2013). The Home Secretary Theresa May articulated these sentiments to Members of Parliament (MPs) in 2014. May posited that nobody wins

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with the misapplication of stop and search. Not only was it a waste of police time, but it was also unfair, especially to young Black men, and it was bad for public confidence in the police (Home Office, 2014a).

The Best Use of Stop and Search Scheme On April 30, 2014, Home Secretary May announced that in the summer of 2014, the Home Office and College of Policing would launch the Best Use of Stop and Search scheme with the backing of the Metropolitan Police, the biggest user of stop and search in the country (Home Office, 2014b). The scheme’s principal aim was to reduce Sect. 60 no-suspicion stops and searches, a power granted to police officers under the Criminal Justice and Public Order Act 1994 (Home Office, 2014b). It was a power that allowed police officers to stop and search anyone without needing to have reasonable grounds (Lancashire Constabulary, 2022). The Best Use of Stop and Search scheme sought to reduce the power of Sect. 60 through a set of voluntary guidelines (Home Office, 2014b). Primary among these guidelines was stop and search to be used only where it was deemed necessary. Furthermore, in anticipation of serious violence, the authorizing officer must reasonably believe that an incident involving serious violence will occur rather than may occur (Home Office, 2014a). Ultimately, the hope was that if stop and search were being used, it was the result of robust intelligence, information, transparency, and community cooperation. Due to the Best Use of Stop and Search scheme, there was a precipitous decline in stop and search, from over one million in 2010/11 to a low of 270,000 in 2017/18 (Nickolls & Allen, 2022). No group benefited more from these declines than the Black population, dropping from 117.5 stops and searches per 1,000 people in 2009/10 to 37.9 per 1,000 people in 2018/19 (Gov.UK, 2022). Nevertheless, the Black population still remained disproportionately represented in stop and searches. For example, in 2018/19, members of the White population represented 3.7 of stops and searches, compared to 37.9 per every 1,000 people for the Black population (Gov.UK, 2022).

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Stop and Search Resumes By the end of the 2010s and the early 2020s, there was a shift in the thinking about stop and search. More specifically, the conservative government and police leaders argued for the increased use of stop and search as a part of the response to violent crime (Nickolls & Allen, 2022). In keeping with this argument, the Home Office removed the voluntary guidance introduced in the Best Use of Stop and Search to restrict suspicion-less searches and encouraged police forces to use their stop and search powers more (Nickolls & Allen, 2022). As a result of the removal of the guidelines to restrict suspicion-less stop and search, the 2020s have seen a dramatic rise in the number of stops and searches, particularly in the Metropolitan Police force area in London, where almost half of all stops and searches occurred between April 2020 and March 2021 (Nickolls & Allen, 2022). Moreover, London had the highest stop and search rates for all ethnic groups, with Black people accounting for 52.6 stop and searches for every 1,000 people, compared to 7.5 for White people (Gov.UK, 2022). Indeed, in 2020/21, the number of stops and searches numbered 700,000, more than double the 279,000 in 2017/18 (Nickolls & Allen, 2022).

Disproportionate Policing of Young Urban Black Males Regardless of the numbers, one consistent factor has been the continued disproportionate policing of young Black urban males, creating acrimony and mistrust between many in the Black British community and the police. This acrimony and mistrust are not a recent phenomenon for the Black British community. Instead, it is the latest incarnation of a phenomenon that has its genesis in the mass migration of Black people from the West Indies and Africa to post-World War II Britain by way of the British Nationality Act of 1948. This Act deemed that the populations of its colonies and Commonwealth countries were British citizens with the right to entry and settlement in Britain (Miles, 1989).

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The British Nationality Act of 1948 An unintended consequence of the British Nationality Act of 1948 was the mass migration of West Indians to post-war Britain, starting with a few hundred in 1948, to some 250,000 by 1970. While a significant migration number, it was the Irish, not West Indians, who constituted the largest immigration population in post-war Britain. Moreover, it was never the intent of the British Nationality Act 1948 to encourage any kind of migration of West Indians to Britain, even in the midst of postwar labor shortages. The preference was for the existing Irish labor and the Polish population who settled in England through the Polish Resettlement Act 1947 and recruited refugees from displaced persons camps in Germany and Austria (Miles, 1989). In Parliament, the argument from some MPs for this preference was that they were from similar stock and race and therefore able to assimilate. Conversely, West Indians, though British subjects with the right to entry and settlement in Britain, were not considered good stock because their race prevented intermarriage with the host population and assimilation. Consequently, West Indian migrants were not considered as a practical or desired solution to the post-war labor shortages. When 417 British subjects from Jamaica arrived in Britain in 1948, the Colonial secretary found himself under attack within the government for allowing it to happen (Miles, 1989). Although he had no legal grounds to prevent the migration, feverish attempts were made to discourage further West Indian migration. These attempts were ultimately unsuccessful until the passing of legislation by Parliament in 1962 (Miles, 1989). For West Indian migrants and their British-born children in postwar Britain, claims of British citizenship would not be rooted in the criteria established by the legal system to determine nationality. Instead, their Britishness, by virtue of race alone, would be contested, denied, and delegitimized (Hammond, 2016). From 1948 onward, this has been played out in all areas of public life, arguably nowhere more than in the interactions between the Black British population and the police. These interactions have created some seminal flashpoints that over seven

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decades illustrate the level of enmity that continues to exist in the relationship between many Black British people and the police.

Mangrove Nine Protest One of the earliest illustrations of this enmity was the Mangrove Nine protest on August 9, 1970. Led by a group of Black Power activists, 150 Black British protesters marched against police harassment of the Black community in Notting Hill, London, in particular, at the Mangrove Restaurant, a West Indian eatery where the Notting Hill Black community came together to eat and socialize (National Archives, n.d.a). Between January 1969 and July 1970, the local police raided the Mangrove 12 times. No evidence of illegal activity was found during these raids; however, the local police constable, Frank Pulley, remained convinced that the restaurant was a den of iniquity frequented by pimps, prostitutes, and criminals (National Archives, n.d.a). At the 1970 march in defense of the Mangrove, violence broke out between the police and protesters. In 1971, nine of the male and female protesters were put on trial at the Old Bailey for causing a riot at the march. All nine were acquitted of the most serious charges after the 55day trial (National Archives, n.d.a).

The 1980s Rebellions Against the backdrop of anti-immigrant, White nationalist activism, a declining economy, and public concern about street robberies and muggings in the 1970s, inner-city Black British-born youth were viewed as outsiders who were troublesome and potentially criminal. Indeed, street crimes and muggings came to be seen as almost exclusively Black crimes (Hall et al., 1978; Jefferson, 2011). As a result, the Metropolitan Police notably utilized aggressive policing tactics against young Black males to combat this perceived Black criminality. Ancient stop and search powers framed these aggressive tactics that were derived from the Vagrancy Act of 1824, more commonly known as the SUS (Suspected Person) Law (Jefferson & Grimshaw, 1984). The SUS law permitted

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police officers to stop and search and potentially arrest people and secure a conviction solely on suspicion of impending illegality. SUS quickly became the fault line between inner-city Black youth and police, with the justification for the police being that Black male youth were overrepresented in offenses of robbery and other violent crimes. The police so ubiquitously used SUS that the level of resentment among young Black males, in particular, reached a breaking point in the 1980s. This breaking point manifested in several violent rebellions against the police in cities such as St. Paul’s, Bristol in 1980, and Brixton, London, Toxteth, Liverpool, Handsworth, Birmingham, and Chapel Town, Leeds in 1981 (Jefferson, 2011). The year 1985 also saw the Broadwater Farm riot in Tottenham and another in Brixton after the police-involved shooting of Cherry Grose, a Black mother. Of these rebellions, Brixton 1981, described as the first serious riot of the twentieth century in England, the first since the founding of the Metropolitan Police and the first large-scale confrontation between predominantly British-born Black youth and the police, would take center stage. In what was already a powder keg in Brixton because of high unemployment, poor housing, and ongoing tensions between the police and the Black community, the accelerant for the rebellion was the Metropolitan Police’s use of Operation Swamp. Allegedly named after Prime Minister Margret Thatcher’s 1978 assertion that people of a different culture might swamp the UK, the purpose of Operation Swamp was to reduce street crime in Brixton. Toward this end, between April 6 and a planned end date of April 11, 100 police officers were sent to patrol in plain clothes in certain areas of Brixton between 2 and 11 PM. The directive was that if it moves, stop it and search it. The indiscriminate stopping of some 1,000 Black youth resulted in 100 arrests for various offenses, of which only a few were for robbery or burglary (Mohdin, 2021). On April 10, in what was already a tense situation, a false rumor that the police had prevented a young man from getting treatment, resulting in his death, set off a confrontation between the police and several Black youths, eventually growing into a full-fledged rebellion. The rebellion lasted two days (April 10 and 11), involving an estimated 5,000 people. As a result, hundreds of civilians and 350 police officers were injured,

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282 people, mostly Black, were arrested, and two dozen buildings were set ablaze, resulting in an estimated £7.5 million worth of damage (Brenton, 2010; Mohdin, 2021). Such was the size and ferocity of the rebellion, which involved the use of broken slabs of concrete, bottles, and petrol bombs as projectiles, that the police deployed dogs and brought in significant reinforcements, using some 7,000 police officers to quell the disturbance (Brenton, 2010).

The Scarman Report In the aftermath of the rebellion, Prime Minister Thatcher ordered an investigation, which came in the form of the Scarman Report (The Scarman Report, 1981). In the report presented to Parliament, Lord Leslie George Scarman rejected the allegation that the Metropolitan Police was racist. He said: The direction and policies of the Metropolitan Police are not racist. I totally and unequivocally reject that attack made upon the integrity and impartiality of the senior directors of the force. The criticism lies elsewhere—in errors of judgment, in a lack of imagination and flexibility, but not deliberate bias or prejudice. (Para 4.62, p. 64)

Scarman acknowledged that some police officers below the senior rank were guilty of what he described as “ill-considered immature and prejudice actions in their dealings on the street with young Black people” (Para 4.63, p. 64). Moreover, he referred specifically to the dangers of stereotyping, manifesting in the behavior of a few officers who lapse into an unthinking assumption that all young Black people are potential criminals in the face of rising crime. For Scarman, the causes of the disturbance, which he acknowledged were spontaneous and not planned, were a breakdown in confidence between the police and the colored community against a background of urban deprivation, racial disadvantage, and a rising level of street crime as the primary contributors to the disorder. Scarman blamed the police for the escalating tension and recommended police training with a new

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emphasis on the problem of policing a multicultural society and greater collaboration with the community (The Scarman Report, 1981). In later years, Lord Scarman later acknowledged he could have been “more outspoken about the necessity of affirmative action to overcome racial disadvantage” (BBC News, 2004). On August 27, 1981, the SUS law was repealed by the Criminal Attempts Act of 1981 on the advice of the 1979 Royal Commission of Criminal Procedure (Legislation.gov.uk. n.d.).

Macpherson Report 1999 On April 22, 1993, Stephen Lawrence, an 18-year Black British teenager, was murdered in a racially motivated attack by a group of White youths while waiting for a bus in Well Hall Road, Eltham. The murder may have quickly become old news had it not been for the extraordinary activism of Stephen’s parents, Doreen and Neville Lawrence, in response to the poor handling of the case by the Metropolitan Police (Macpherson, 1999). The activism resulted in the eventual conviction of those involved in the murder. It also helped produce the groundbreaking Macpherson Report (1999). The report documented numerous police failings in the investigation of the murder. These included: 1. Not offering adequate first aid and failure to take proper investigative steps at the crime scene. 2. Patronizing liaisons with the Lawrence family. 3. Racist stereotyping of Stephen Lawrence’s companion, also a key witness, on the night of the murder. 4. Failure to make early arrests of the suspects and adequate searches of their residences despite the availability of sufficient evidence to justify the actions. 5. Mishandling of a key informer. 6. Bungled surveillance, identity parades, and searches.

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These failures were attributed to police incompetence, corruption, and institutional racism. Indeed racism, institutional and personal, was seen as significant factors in the failure of the Metropolitan Police investigation into the murder of Stephen Lawrence (WWW.parliment.uk, 2021). Among the 70 recommendations was that racist incidents must be understood to include crime and noncrimes and should be reported and investigated with equal commitment. Further, there should be a review and revision of racism awareness training, and nonstatutory or so-called “voluntary” stops must also be recorded. The record is to include the reason for the stop, the outcome, and the self-defined ethnic identity of the person stopped. A copy of the record shall be given to the person stopped by Police (Macpherson, 1999). Forty-plus years after the Scarman Report and the repeal of SUS, stop and search remains a problem for a new generation of Black British youth, whose origins are now not just from the West Indies but also Africa. Indeed, even as systemic changes have been made in policing, race factors remain disproportionally in stop and search, continuing the legacy of mistrust and acrimony between the police and many Black youths that began with their grandparents and great-grandparents.

The U.S. Indigenous and Black Americans’ Uneasy Relationship with the Police Indigenous and Black Americans continue, as in the past, to widely report discrimination and harassment by police officers and other law enforcement agents (American Enterprise Institute for Public Policy Research, 2015; Cokerham & Forslund, 1975; Findling et al., 2022; Lakota People’s Law Project, 2015; Perry, 2008; Redner-Vera & Galeste, 2015; Redner-Vera & Wallace, 2022; Stannard, 1992; Tyler, 2005; Weitzer & Tuch, 1999). Consequently, for significant numbers of Indigenous and Black Americans, the relationship with the police and other law enforcement agents is one of ongoing mistrust, tension, and acrimony,

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spanning across generations and decades. At the core of this uneasy relationship is their disproportionate harmful contact with police officers, be it through stop and search, police use of excessive force, and in the most extreme cases police-induced killings of unarmed Indigenous and Black Americans (Baumgartner et al., 2018; Buch & Borkholder, 2019; Lakota People’s Law Project, 2017; Schwartz, 2020).

Coming into Focus Though a daily and ongoing reality for many Indigenous and Black Americans, the uneasy relationship with the police typically comes into focus for the nation only when there is a highly publicized egregious use of excessive force or a police-induced killing of an African American male. The most telling illustration of this was the Rodney King beating by LAPD police officers in 1991 and the George Floyd police-induced killing in 2020. Decades apart, both were the catalyst for social unrest, the former being the LA riots in 1992 after the acquittal of the officers involved in the beating and the latter a 2020 summer of anti-police demonstrations calling for justice across the U.S. and many parts of the world. However, Rodney King and George Floyd were arguably exceptional—exceptional in that both were involved in incidents captured on video, unlike the many reported excessive force complaints and policeinduced killings of other Black Americans over the decades. At least momentarily, the videos offered the public insight into law enforcement’s unfair treatment of Black Americans.

Shedding a Light on Fatal Encounters Between 2014 and 2022, ongoing activism and vigilance by groups such as Black Lives Matter shed light on other questionable police-induced killings of Black Americans. The most notable of these were Eric Garner, 44; Michael Brown, 18; Tamir Rice, 12; Eric Harris, 43; Walter Scott, 50; Freddie Gray, 25; Alton Sterling, 37; Philando Castile, 32; Stephon

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Clark, 22; Botham Jean, 26; Breonna Taylor, 26; Daunte Wright, 20 and Patrick Lyoya, 26 (Lyn, 2022). However, these highly publicized police-induced killings do not tell the whole story. Largely missing from the narrative and experiences with police are Black American women and Indigenous people. For example, between 2015 and 2012, the police shot and killed at least 50 Black American women identified in police reports and by news outlets (Dzhanova et al., 2021). These include Nina Adams, 47; LaShanda Anderson, 36; Geraldine Townsend, 72; Deborah Danner, 66; Alexia Christian, 25; Pamela Shantay Turner, 45; and Janet Wilson, 31, to name just a few. In none of the 50 cases was a police officer convicted of the killing (Dzhanova et al., 2021). Moreover, for all the focus on Black American males, it is, in fact, Indigenous people, followed by Black Americans, who have the highest population-adjusted rates of fatal encounters with law enforcement of any racial and ethnic group (Hansen, 2017). Indeed, Center for Disease Control (CDC) data, spanning 1999 to 2015, revealed that for every 1 million Indigenous people, an average of 2.9 were killed annually due to legal intervention by law enforcement (CDC, 2015, in Hansen, 2017). Furthermore, most of these deaths were police-induced fatal shootings, with other causes, including excessive force and unexplained death in custody (Hansen, 2017). Between 2000 and 2020, these included Joseph Finley Jr, 20; Corey Kanosh, 35; Jeanetta Riley, 34; Rexdale Henry, 53; Sarah Lee Circle Bear, 24; Ma-hi-vist Goodblanket, 18; Christina Tahhahwah, 37; Paul Castway, 35; Jason Pero, 14; Loreal Tsingine, 27; Zachary Bearheels, 29; Jacqueline Salyers, 32; Raymond Eacret, 34; Phillip Quinn, 30; Marcus Lee, 28; and Larry Kobuk, 33 (Equal Justice Initiative, 2016; Lakota People’s Law Project, 2017; Woodward, 2016).

A Relationship Burdened by Historical Mistreatment In response to the elevated rates of Indigenous fatal encounters with law enforcement officers in the 2010s and a wish to bring these encounters

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to the public’s attention, Indigenous activists have founded Native Lives Matter and Native Lives Taken by Police (Hansen, 2017). As indicated earlier, the problematic relationship between Indigenous people, Black Americans, and law enforcement officers is not simply a twenty-first-century phenomenon. Instead, it is a relationship heavily burdened by acts of historical mistreatment rooted in settler colonialism. In its forced appropriation of Indigenous land and extraction of free slave labor, U.S. settler colonialism required and designed laws and mechanisms for racializing, corralling, subordinating, and controlling Indigenous and Black bodies (Alexander, 2010; Tauri & Porou, 2014). These mechanisms and their undergirding laws include forced removals, the reservation system, forced assimilation, slavery, Black codes, vagrancy laws, peonage, convict leasing, and Jim Crow. Essential to these mechanisms and their undergirding laws was law enforcement, which maintained the various processes of subordination of racialized others (Alexander, 2010; Tauri & Porou, 2014).

Forced Removals Central to the forced removals was the Indian Removal Act of 1830. The act authorized, by negotiation and treaty, the relocation of Indigenous peoples and tribal nations from their homelands to land beyond White settlements. For those tribes and nations who did not acquiesce, federal soldiers, the law enforcement arm of the government, removed them forcibly, most notably and tragically, the Cherokee Nation and its citizens. On May 10, 1838, an army of approximately 7,000 federal soldiers, supported by the Georgia Militia, forced Cherokee families from their homes at bayonet point and into stockades before those who did not die were forced to begin their journey west, the infamous Trail of Tears. As Reverend Daniel S. Butrick, who ran a mission and was an eyewitness to the removal, observed: Thus in two or three days about 8,000 people, many of whom were in good circumstances, and some rich were rendered homeless, houseless, and penniless, while the soldiers, it is said, would often use the same language as if driving hog and goad them forward with their bayonets.

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(Butrick, n.d., as cited in Smithsonian National Museum of the American Indian, n.d.)

Butrick would add witnessing one man who, seeing his children being goaded on, picked up a stone and struck a soldier. For this action, the man was handcuffed and, on arriving at the fort, was punished and, on starting again, was whipped a hundred lashes (Butrick, n.d., as cited in Smithsonian National Museum of the American Indian, n.d.). The experience of the Cherokee was not an anomaly by any means and illustrated some of the ways enforcement of government policies would be visited on Indigenous people by federal soldiers and militia. Indigenous people were treated as little more than savages. Indeed, President Andrew Jackson described the Indian Removal Act of 1830 as a benevolent government policy. In justification, Jackson argued, “What good man would prefer a country covered with forests and ranged by a few thousand savages to our extensive Republic?” (National Archives, n.d.b).

The Reservation System With the establishment of the reservation system in the early 1800s, federal troops primarily provided law enforcement. The responsibility of the federal troops was to broadly represent the interest of the U.S. government in thwarting any opportunity for Indigenous tribes and nations to interfere with the economic pursuits of colonial settlers (Wakeling et al., 2001). For example, troops were responsible for restricting tribes from moving off the reservation and preventing cultural expressions and traditional activities viewed as immoral or criminal. Moreover, they were to ensure that any criminal behavior was contained within the reservation and to ration food and supplies (Redner-Vera & Galeste, 2015; Wakeling et al., 2001). In keeping with settler colonialism aims, Indigenous people were aggressively policed in the earliest years (Redner-Vera & Galeste, 2015).

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Tribal Policing It was not until 1860 that Indigenous tribes and nations were able to participate in the policing of reservations. Over the next three decades, a variety of Indigenous policing arrangements evolved. For example, a third of reservation police were tribal members, others from other reservations, and non-Indigenous. This arrangement, however, did not denote a sign of tribes having control of their affairs. Instead, the U.S. government retained the supervision of most tribal police forces, who continued to act in the government’s interest (Wakeling et al., 2001). Moreover, tribal police officers were required to emulate White cultural ideals in attire, cutting hair, practicing monogamy, and taking an allotment. They were also put in the unenviable position of determining whether a fellow tribesperson was working hard enough to merit the award of things such as sugar, coffee, and tobacco rations (Wakeling et al., 2001). Indeed, as Hagan (1980) reported, tribal police were often looked upon by the tribes as a common foe (pp. 49, 50). In the twentieth century, Indigenous policing on the reservations would be reshaped with tribes enjoying greater autonomy (Wakeling et al., 2001).

Forced Assimilation During the late nineteenth century, with most Indigenous tribes and nations confined to reservations, the federal government waged a campaign of cultural assimilation by forcing thousands of Indigenous children to attend boarding schools. One of the earliest proponents of boarding schools and the founder of the Carlisle Indian Industrial School in Pennsylvania was Richard Pratt. Pratt believed that Indigenous people would not succeed unless their traditions, habits, and beliefs were eradicated (Official Report of the Nineteenth Annual Conference of Charities and Corrections, 1892). Pratt’s philosophy of “kill the Indian in him and save the man” would guide the Carlisle school’s mission and become a national model for other boarding schools.

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By 1902, some 60,000 Indigenous children were forcibly placed in more than 350 boarding schools run by religious and nonreligious organizations in 30 states. In these schools, the children were forced to cut their hair, forbidden to speak their native language, converted to Christianity, and given Anglo names. The discipline at these boarding schools was severe by any standard; it included privilege restrictions, diet restrictions, threats of corporal punishment, and even confinement (Mejia, n.d.). Parents who resisted their children’s removal to boarding schools were imprisoned and had their children forcibly taken from them (Equal Justice Initiative, 2014). For example, in 1894, Chief Lomahongyoma and 18 other Hopi were imprisoned on Alcatraz Island for refusing to send their children to the boarding schools and resisting the Bureau of Indian Affair’s efforts to force them to adopt farming practices inconsistent with their cultural values (National Park Service, n.d.). Indeed, the U.S. government most frequently resorted to force when met with Indigenous resistance to assimilation (National Park Service, n.d.).

Slavery For enslaved Africans and their U.S. born offspring, slavery was the ultimate form of social control. Essential to the day-to-day operation of slavery was the overseer. Most commonly White and from the laboring class, the overseer was responsible for directing the activities and living conditions of the enslaved, the backbone of the region’s workforce, in accordance with the enslaver’s rule (Scarborough, 1984). The goal was always to ensure the timely production of cash crops. Toward this end, the enslaved could be punished for any number of offenses, including not working fast enough, being late getting to the fields, defying authority, and running away, to name a few (Allen, 2012). In addition, slave states and Congress passed statutes and legislation that made it illegal for the enslaved to gather in groups, earn money, learn to read and write, or raise food. Moreover, the Fugitive Slave Acts of 1793 and 1850 kept the enslaved bound to their enslavers by mandating

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the seizing and returning of enslaved runaways from one state to another to their enslaver (Allen, 2012). Punishment for the enslaved included whipping, mutilation, branding, smoking alive, the hogs head, suspended beneath a cooking pot, demotion or sale, public burnings, long-term chaining, and forced reproduction. Moreover, enslavers had the right to kill the rebellious enslaved (Morgan, 2001).

Black Codes, Vagrancy Laws, Peonage, and Convict Leasing, 1865 to 1900 With the end of slavery, the former enslaved-holding Confederate states and some Midwestern states moved swiftly to restore control and the subjugation of Black bodies. This control began with the enactment of Black codes, a comprehensive body of laws, statutes, and rules whose express purpose was to wholly regulate the lives of Black people (Bardolph, 1970). For example, on specific days of the week, Black Americans had to prove to the county police or sheriff that they were gainfully employed. Moreover, they were not permitted to terminate employment before the terms of their service expired. Failure to do so resulted in the police and civil officers arresting and bringing them back to their employer (Bardolph, 1970).

Peonage Central to the Black codes was the vagrancy law, which stipulated that Black Americans who were not gainfully employed and found congregating together in groups of more than three should be arrested and fined by the sheriff. Any White person willing to pay the fine was entitled to take the person or persons as unpaid labor until the cost of the fine was repaid through labor, a practice known as peonage. It was one of the principal ways to force Black Americans back into unpaid labor (Alexander, 2010; Blackmon, 2008).

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Jim Crow Other infractions that fed peonage were keeping or carrying firearms, ammunition, or a Bowie knife; committing riots; cruel treatment to animals; disturbance of the peace; foul language; vending intoxicating liquor; and making an insulting gesture (Blackmon, 2008). Although it was the responsibility of police officers or civil officers to make the arrests for these infractions, the Black codes gave all White citizens the right to act as police officers for the detection and apprehension of offenders, to be handed over to the proper officials (Blackmon, 2008).

Convict Leasing Paralleling peonage was convict leasing, simply put, a system of leasing penal labor. It was practiced exclusively in the South and was manned primarily by Black Americans, often arrested, charged, convicted, and incarcerated on the most arbitrary of charges (Blackmon, 2008). The industries using convicts included coal mines, railroads, farms, plantations, quarries, and lumber camps (Blackmon, 2008). The work was backbreaking, and the rates of death were high. Indeed, it is estimated that at least 9,000 convict workers were murdered or died of natural causes over the decades of the system (Blackmon, 2008).

Jim Crow and Law Enforcement Peonage and convict leasing were eventually outlawed, but the Black Codes would morph into Jim Crow legislation for the former slavery states. From 1877 to 1964, Jim Crow legislation enforced racial segregation in all facets of daily life. By the early1900s, local southern municipalities began establishing police departments to enforce Jim Crow. Indeed, throughout the Jim Crow era, southern police departments played a vital role in maintaining White supremacy. The police and sheriffs would target Black Americans through various actions, including violence, unjust arrests, and the enforcement of segregation laws and customs (Jett, 2021). Like other law enforcement agencies

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around the nation, they built on the strategies and tactics of the colonialera slave patrols and vagrancy laws, which in their modern incarnation are stop and search and police sweeps rounding up dozens of young Black people on suspicion of a crime. Aiding and abetting law enforcement were terrorist organizations such as the Ku Klux Klan, which used violence with impunity and tacit support from local police departments and sheriffs to intimidate any Black Americans perceived to be challenging White supremacy. During the Jim Crow era, an estimated 4,000 Black Americans were lynched (NAACP, n.d.).

The Twentieth Century and Onward For both Indigenous peoples and Black Americans, the 1960s was a renewal of the ongoing battle for freedom from oppression and segregation. Unfortunately, this battle would bring both into the crosshairs of law enforcement. For Indigenous peoples, this apex was the American Indian Movement (AIM), founded in Minneapolis, Minnesota, in 1968 by Dennis Banks, Clyde Bellecourt, Eddie Benton, and George Mitchell. Its original purpose was to serve Indigenous people in urban ghettos displaced by government programs. However, this purpose was soon expanded to include a full spectrum of demands, specifically, economic independence, revitalization of traditional culture, greater autonomy over tribal areas, land restoration, and opposition to police brutality (The Editors of Encyclopedia Britannica, n.d.). From the late 1960s through the 70s and 80s, clashes between AIM and law enforcement at highly publicized demonstrations, occupations, and takeovers saw charges of police brutality, as law enforcement always sought to protect government and business interests (The Editors of Encyclopedia Britannica, n.d.). Later and more contemporary examples include the Standing Rock reservation pipeline access demonstrations in North Dakota in 2016 onward. These demonstrations saw heavily armed North Dakota law enforcement and national guard demonstrate an aggressive show of force against Indigenous protesters and others from around the country and

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the world, creating a blockade (Levin, 2017). The show of force included using batons, tear gas, rubber bullets, and sonic cannons against peaceful and unarmed protesters in defense of oil and government interests (Green, 2022; Levin, 2017). For Black Americans, the 1960s saw the inner-city tensions between Black urban youth and the police explode in many significant civil disturbances across the country. These disturbances occurred in Birmingham, Alabama, in 1963; Harlem, New York, in 1964; Watts, Los Angeles, in 1965, and Chicago, Illinois, in 1966. Tampa, Florida; Cincinnati, Ohio; and Atlanta, Georgia, also experienced civil disobedience in 1967. Added to this was civil disobedience in Detroit, Michigan, and Newark, NJ., which dramatically changed these cities (Encyclopedia.com). In the 2010s and 2020s, Black Lives Matter demonstrations in places such as Ferguson, Missouri, and Washington, DC, saw what are now militarized police forces, reinforced by the National Guard, utilize tear gas and rubber bullets to quell and push back crowds of demonstrators (Davey & Bosman, 2014; Gittleson & Phelps, 2020). Whether in the 1960s or the 2000s, a commonality is law enforcement heavy handedness that has historically typified law enforcement’s treatment of the black body. For Indigenous and Black Americans, the relationship with the police and law enforcement, in general, remains one still mired in the settler colonial project. In its contemporary manifestation, Indigenous and Black people in America are racially profiled disproportionally, resulting in disproportionate representation, compared with Whites and Asians, in areas such as traffic stops, stop and searches, and arrests (Buch, 2019). No surprise, then, that they are disproportionally represented at all levels of the juvenile and adult criminal justice system in the U.S.

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Cokerham, W. C., & Forslund, M. A. (1975). Attitudes toward the police among White and Native American youth. American Indian Law Review, 3(2), 419–428. Cotter, A. (2022). Perceptions and experiences with police and the justice system among the Black and Indigenous populations in Canada. Statistics Canada. https://www150.statcan.gc.ca/n1/pub/85-002-x/2022001/art icle/00003-eng.htm Davey, M., & Bosman, J. (2014, November 24). Protests flare after Ferguson police officer not indicted. The New York Times. https://www.nytimes.com/ 2014/11/25/us/ferguson-darren-wilson-shooting-michael-brown-grand-jury. html?action=click&contentCollection=U.S.®ion=Footer&module=Wha tsNext&version=WhatsNext&contentID=WhatsNext&moduleDetail=und efined&pgtype=Multimedia Dwyer, A., Scott, J., & Staines, Z. (2020). Strangers in a strange land: Police perceptions of working in discrete Indigenous communities in Queensland. Australia. Police Practice and Research, 22(1), 208–224. Dzhanova, Y., Taylor, A., Cranley, E., Beckler, H., & Grant, B. (2021). 50 Black women have been killed by US police since 2015. Insider. https://www. insider.com/black-women-killed-by-police-database-2021-6 Encyclopedia.com. (n.d.). Race riots of the 1960s. https://www.encyclopedia. com/history/encyclopedias-almanacs-transcripts-and-maps/race-riots-1960s: Equal Justice Initiative. (2014). Cultural genocide and Native American children. https://eji.org/news/history-racial-injustice-cultural-genocide/ Equal Justice Initiative. (2016). Police killings of Native Americans off the radar. https://eji.org/news/native-americans-killed-by-police-at-highest-ratein-country/ Findling, M. T. G., Blendon, R. J., Benson, J. M., & Miller, C. (2022). The unseen picture: Issues with health care, discrimination, police and safety, and housing experienced by Native American populations in rural America. The Journal of Rural Health, 38, 180–186. Gittleson, B., & Phelps, J. (2020, June 2). Police use munitions to forcibly push back peaceful protesters for Trump church visit. ABC News. https://abcnews. go.com/Politics/national-guard-troops-deployed-white-house-trump-calls/ story?id=71004151 Gov.UK. (2022). Ethnicity facts and figures. Stop and search. https://www.eth nicity-facts-figures.service.gov.uk/crime-justice-and-the-law/policing/stopand-search/latest#by-ethnicity-over-time-to-2019 Green, G. (2022, May 4). A Native American faces teargas, baton charges and rubber bullets—Camille Seaman’s vest photograph. The Guardian.

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https://www.theguardian.com/artanddesign/2022/may/04/standing-rockpipeline-protest-native-american-tear-gas-batons-rubber-bullets-camille-sea mans-best-photograph Hagan, W. T. (1980). Indian police and judges. University of Nebraska Press. Hall, S., Critcher, C., Jefferson, T., Clarke, J., & Roberts, B. (1978). Policing the crisis: Mugging, the state and law and order. Palgrave Macmillan. Hammond-Perry, K. (2016). London is the place for me: Black Britons, citizenship and the politics of race. Oxford University Press. Hansen, E. (2017, November 13). The forgotten minority in police shootings. CNN.com. https://www.cnn.com/2017/11/10/us/native-lives-matter/index. html Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services. (2013). Stop and search powers: Are the police using them effectively and fairly. https://www.justiceinspectorates.gov.uk/hmicfrs/publicati ons/stop-and-search-powers-20130709/ Home Office. (2014a). Stop and search: Theresa May announces reform of police stop and search. https://www.gov.uk/government/news/stop-and-search-the resa-may-announces-reform-of-police-stop-and-search Home Office. (2014b). Best use of stop and search scheme. https://assets.publis hing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/346922/Best_Use_of_Stop_and_Search_Scheme_v3.0_v2.pdf Inquest. (2014). Jury in the Mark Duggan inquest concludes he did not have a gun in his hands when he was shot. Inquest.org.uk. https://www.inquest.org.uk/ jury-in-mark-duggan-inquest-concludes-he-did-not-have-a-gun-in-his-hand Jefferson, T. (2011). Policing the riots: From Bristol, and Brixton to Tottenham, via Toxteth, Handsworth, etc. Center for Crime and Justice Studies, 8–9. Jefferson, T., & Grimshaw, R. (1984). Controlling the constable: Police accountability in England and Wales. Fredrick Muller. Jett, B. T. (2021). Race, crime, and policing in the Jim Crow South: African Americans and law enforcement in Birmingham, Memphis, and New Orleans, 1920–1945. LSU Press. Lancashire Constabulary. (2022). Section 60 – without suspicion searches. https:/ /www.lancashire.police.uk/help-advice/stop-and-search/section-60-withoutsuspicion-searches/ Lakota People’s Law Project. (2017). Native lives matter: The overlooked police brutality against Native Americans. https://lakotalaw.org/news/2017-11-21/ native-lives-matter-the-overlooked-police-brutality-against-native-americans Lakota People’s Law Project. (2015). Native lives matter. https://s3.us-west-2. amazonaws.com/romeroac-stage/uploads/Native-Lives-Matter-PDF.pdf

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Legislation.gov.uk. (n.d.). Criminal Attempts Act 1981. https://www.legislation. gov.uk/ukpga/1981/47 Levin, S. (2017, January 18). Dakota access pipeline activists police used excessive force. The Guardian. https://www.theguardian.com/us-news/2017/jan/ 18/dakota-access-pipeline-protesters-police-used-excessive-force Lyn, D. (2022). Timeline of Black Americans killed by police: 2014–2022. Anadolu Agency. https://www.aa.com.tr/en/americas/timeline-of-black-ame ricans-killed-by-police-2014-2022/2596913 Macpherson, W. (1999). The Stephen Lawrence inquiry, report of an inquiry by Sir William Macpherson of CLUNY. https://assets.publishing.service.gov.uk/ government/uploads/system/uploads/attachment_data/file/277111/4262. pdf Mejia, M. (n.d). The U.S. history of native American boarding schools. The Indigenous Foundation. https://www.theindigenousfoundation.org/articles/ us-residential-schools Miles, R. (1989). Nationality, citizenship, and migration to Britain, 1945– 1951. Journal of Law and Society, 16 (4), 426–442. Mohdin, A. (2021, April 11). The Brixton riots 40 years on: A watershed moment for race relations. The Guardian. https://www.theguardian.com/ world/2021/apr/11/brixton-riots-40-years-on-a-watershed-moment-forrace-relations Morgan, K. (2001). Slavery and servitude in colonial North America. New York University Press. NAACP. (n.d.). History of lynching in America. https://naacp.org/find-resources/ history-explained/history-lynching-america National Archives. (2015). Inquest touching upon the death of Mark Duggan. https://webarchive.nationalarchives.gov.uk/ukgwa/20151002140003/http:// dugganinquest.independent.gov.uk/docs/Jurys_Determination_and_Conclu sion.pdf National Archives. (n.d.a). Mangrove nine protest. https://www.nationalarchives. gov.uk/education/resources/mangrove-nine-protest/ National Archives (n.d.b). Milestone documents: President Andrew Jackson’s message to Congress on Indian removal (1830). https://www.archives.gov/mil estone-documents/jacksons-message-to-congress-on-indian-removal National Park Service. (n.d.). Hopi prisoners on the rock. https://www.nps.gov/ articles/hopi-prisoners-on-the-rock.htm Nickolls, L., & Allen, G. (2022). Research briefing. Police powers: Stop and search. House of Commons Library. https://researchbriefings.files.parlia ment.uk/documents/SN03878/SN03878.pdf

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Official Report of the Nineteenth Annual Conference of Charities and Corrections (1892), 46–59. Reprinted in Richard H. Pratt. (1973). The advantages of mingling Indians and Whites. In Americanizing the American Indians: Writings by the friends of the Indian 1880–1900. Harvard University Press, 260–271. Palmer, S. (2012). Dutty Babylon: Policing Black communities and the politics of resistance. Center for Crime and Justice Studies, 26–27. Perry, B. (2008). Impacts of disparate policing in Indian country. Policing and Society, 19 (3), 263–281. Redner-Vera, E., & Galeste, M. A. (2015). Attitudes and marginalization: Examining American Indian perceptions of law enforcement among adolescents. Journal of Ethnicity in Criminal Justice, 13, 283–308. Redner-Vera, E., & Wallace, D. (2022). American Indians’ attitudes toward the appropriateness of use of force by the police. Crime & Delinquency, 127. Riots, Communities and Victims Panel. (2012). After the riots: The final report of Riots, Communities and Victims Panel. https://www.bl.uk/collection-items/ after-the-riots-the-final-report-of-the-riots-communities-and-victims-panel Scarborough, W. K. (1984). The overseer: Plantation management in the old South. University of Georgia Press. Schwartz, S. A. (2020). Police brutality and racism in America. Explore (new York, n.y.), 16 (5), 280–282. Siddique, H. (2020, June 10). Mark Duggan police shooting: Can forensic tech cast doubt on official report? The Guardian. https://www.theguardian. com/uk-news/ng-interactive/2020/jun/10/mark-duggan-shooting-can-for ensic-tech-cast-doubt-on-official-report Smithsonian National Museum of the American Indian. (n.d.). A story of Cherokee removal. https://americanindian.si.edu/nk360/removal-cherokee/ forced-removal.html#section-1 Stannard, D. (1992). American holocaust. Tauri, J. M., & Porou, N. (2014). Criminal justice as a colonial project in settler-colonialism. Faculty of Social Sciences–Papers 3196 . https://ro.uow. edu.au/cgi/viewcontent.cgi?referer=&httpsredir=1&article=4202&context= sspapers The Editors of Encyclopedia Britannica. (n.d.). American Indian movement. https://www.britannica.com/topic/American-Indian-Movement The Scarman Report. (1981). Parliament UK. https://api.parliament.uk/his toric-hansard/lords/1981/nov/25/the-scarman-report Tyler, T. R. (2005). Policing in black and white: Ethnic group differences in trust and confidence in the police. Police Quarterly, 8(3), 322–342.

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Wakeling, S., Jorgensen, M., Michaelson, S., & Begay, M. (2001). Policing on American Indian reservations. U.S. Department of Justice, Office of Justice Programs. https://www.ojp.gov/pdffiles1/nij/188095.pdf Weitzer, R., & Tuch, S. A. (1999). Race, class and perceptions of discrimination by the police. Crime & Delinquency, 45 (4), 494–507. Woodward, S. (2016). The police killings no one is talking about. In These Times. https://inthesetimes.com/features/native_american_police_kil lings_native_lives_matter.html WWW.parliment.uk. (2021). The Macpherson Report: Twenty-two years https://publications.parliament.uk/pa/cm5802/cmselect/cmhaff/139/ on. 13914.htm

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Canada The 2020 Report of the Standing Committee on Public Safety and National Security on Systemic Racism in Policing in Canada The Canadian Charter of Rights and Freedoms (Canada Act 1982) states that all individuals in Canada, regardless of their race, national or ethnic origin, color, religion, sex, age, or mental or physical disability, are afforded equal protection and benefit of the law without discrimination. However, there is overwhelming evidence that Indigenous and Black people in Canada are ongoing victims of systemic racism in Canadian policing. Indeed, the 2020 Report of the Standing Committee on Public Safety and National Security on Systemic Racism in Policing in Canada, presented to the Canadian House of Parliament in June of 2021, acknowledged this as a continuing problem. For example, contributing witnesses to the report, which included racialized and minoritized community representatives, Indigenous peoples, academics, © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Warde, Colorblind, Critical Criminological Perspectives, https://doi.org/10.1007/978-3-031-38157-7_7

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and leaders of Canadian police services, described decades of Indigenous and Black over-policing, racial profiling, and discriminatory and excessive use of force by Canadian police. Also highlighted were the particular experiences of Indigenous women, girls, and LGBTQ2S + people, who experience both over-policing and under-policing—a lack of police assistance when they are victims of crime.

The 2020 General Social Survey (GSS) on Social Identity Indigenous and Black people have also been increasingly vocal about their perceptions and problematic experiences with the police and criminal justice system from the 2000s onward. For example, the 2020 General Society Survey on Social Identity, published in 2022, found that the everyday experience and perceptions of Indigenous peoples and Black people in Canada differ significantly from Whites as it relates to interactions with the police. As evidence, one in five Indigenous (22%) and Black (21%) people reported having little to no confidence in the police, double that of those in the survey population who were neither Indigenous nor a visible minority (11%; General Social Survey on Social Identity, 2020, as cited in Statistics Canada, 2022).

The 2019 General Social Survey (GSS) on Canadians’ Safety (Victimization) Moreover, based on data from the 2019 GSS on Canadians’ Safety (Victimization), Indigenous and Black Canadian-born people, as opposed to foreign-born Blacks, are more likely to rate police performance poorly. For example, one in three Canadian-born Black (30%) and Indigenous (32%) people said that police performed poorly in at least one part of their job, a higher proportion than non-Indigenous, non-visible minorities (19%; General Social Survey on Social Identity, 2019, as cited in Statistics Canada, 2022). For Indigenous peoples, the police were doing a particularly poor job at the following: enforcing the laws, promptly responding to calls,

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providing information on crime prevention, ensuring the safety of citizens, and treating people fairly (General Social Survey on Social Identity, 2020, as cited in Statistics Canada, 2022). Indigenous peoples were twice as likely to hold these views in each area compared with Whites and other non-visible minority people. As regards discrimination, of all Black people 15 years of age and older in Canada, 7% indicated having been discriminated against by police, which is the same rate for Indigenous people (7%). Moreover, these rates were significantly higher than for other visible minorities (2%) or nonIndigenous, non-visible minority people (0.6%; General Social Survey on Social Identity, 2019, as cited in Statistics Canada, 2022).

Canadian Broadcasting Corporation’s (CBC) Deadly Force Database That these perceptions exist for Indigenous and Black people is grounded in decades of problematic relationships with the police. Much like the UK and the U.S., at the heart of this problematic relationship is disproportionate negative contact with the police, be it through street checks, use of excessive force, and/or fatal encounters (Graham, 2020; Singh, 2020). To put this in some context, CBC’s Deadly Force database, created in 2018, shows that from 2000 to 2020, Indigenous people and Black people were consistently disproportionately represented among victims compared with their share of the overall population, numbers that have grown each year (Singh, 2020). The database also shows that in most of these fatal encounters, the victim had mental health and substance abuse issues (Singh, 2020).

Indigenous and Black Peoples’ Fatal Encounters with the Police Indeed, fatal encounters have been much in the news in the past decades as Indigenous and Black people and others advocate for greater police accountability. In the decade spanning 2007 to 2017, for example, Indigenous people accounted for more than a third of people shot by the

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Royal Canadian Mounted Police (RCMP) officers, despite accounting for just 5% of the population (Graham, 2020; Stelkia, 2020). Moreover, the Ontario Human Rights Commission found that a Black person in Canada was 20 times more likely to be shot and killed by the police than a White person (Ontario Human Rights Commission, 2018 as cited in Stelkia, 2020).

Chantel Moore Going into the 2020s, the years between 2017 and 2020 saw 25 Indigenous people shot and killed by the RCMP. Among the Indigenous people killed in these fatal encounters, the 2020 shooting of Chantel Moore, a 26-year-old Tla-o-qui-aht First Nation member from British Columbia, was arguably the most illustrative, and certainly one of the most publicized, of the fatal encounters. In the early hours of June 4, 2020, New Brunswick police responded to a call from Chantel Moore’s boyfriend, who lived 600 miles away, requesting a wellness check. As reported by the police, Chantel walked out of her apartment with a knife, threatening the officer on the scene, who then shot her (Graham, 2020; Morin, 2021a). Chantel’s death and the subsequent demand for an investigation of the killing by her family, fiancé, and Tla-o-qui-aht First Nation raised questions about the Canadian police’s ability to de-escalate incidents involving mental health crises with Indigenous and Black people, an ability some suggest is hampered by systemic racism in police interactions with Indigenous and Black people (Lamoureux & Zoledziowski, 2020). Indeed, the Tla-o-qui-aht First Nation further called for body cameras to be mandatory for all police officers and that there be a national inquiry into the root causes of police brutality against Indigenous people (Morin, 2021a). As was the case with George Floyd in the U.S., Chantel Moore’s death was the catalyst for rallies, protests, and healing walks across Canada, calling for justice for Chantel and the end of racism in policing (McKeen, 2020). However, as noted earlier, Chantel Moore’s death was just one of the number of fatal encounters between the police and Indigenous

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people in 2020. Others included Rodney Levi, 48, a Metepenagiag Mi’kmaq man; Eishia Hudson, 16; and Stewart Andrews, 22, to name just a few (Morin, 2021a).

The Royal Canadian Mounted Police An exploration of the data on fatal encounters by police services shows that the Royal Canadian Mounted Police (RCMP), who provide policing to a large part of rural Canada outside of Ontario and Quebec as well as many towns and cities, were responsible for the highest lethal encounters. The next highest in responsibility was the Toronto Police Service (Singh, 2020). For reasons to do with jurisdiction and size, it is not at all surprising that RCMP is responsible for the largest number of fatal encounters, particularly with Indigenous peoples. Indeed, the current tense—and many would say oppressive—relationship between law enforcement and Indigenous peoples has its origins in the founding of the North-West Mounted Police, the original name of the RCMP, as a paramilitary colonial force, in 1873 (Couldhawke, 2020). Modeled on the British Empire’s Royal Irish Constabulary and founded just 6 years after the establishment of Canada as a nation, the stated purpose of the RCMP was to keep peace between White settlers and the Indigenous nations (Couldhawke, 2020). In practice, however, the overarching purpose of the RCMP was to protect the colonial interests of the newly formed nation and crown by enforcing their federal policies and legislation around the dispossession and European resettlement on Indigenous land (Couldhawke, 2020; Royal Canadian Mounted Police, 2022a, 2022b). Central to this were the Dominion Land Act of 1872, encouraging mass European immigration and settlement on the Canadian prairies (Indigenous land) to prevent the area from being claimed by the U.S., and the Indian Act of 1876, designed to control Indigenous people and redistribute their land to European settlers, in violation of the Numbered Treaties (Couldhawke, 2020). RCMP police officers, who were considered agents of the crown, would become an ongoing oppressive force in the life of Indigenous

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peoples. For example, they enforced an illegal pass system on the prairies that restricted the movements of Indigenous people on and off the reserve. They helped to clear the plains, the Prairies of the Indigenous people, and moved the people onto reserves whether they were willing or not. They suppressed the expression of Indigenous cultural traditions, such as the Sun Dance. And on the Prairies and in Inuit territory in the north, the RCMP occupied repressive functions that required them to take on functions typically belonging to other branches of government. Consequently, in some cases, the RCMP was a judge, jury, and executioner (Couldhawke, 2020). Moreover, they provided help to Indian Agents in the apprehension of Indigenous children to be forced into residential schools as part of Canada’s assimilation policy (LeBeuf, 2011). Indeed, in 1933, they were officially appointed as truant officers to enforce attendance and return truant children to residential schools, something they had been doing since the late 1800s (Royal Canadian Mounted Police, 2022a, 2022b). The role of the RCMP in the residential school system would court controversy as the decades of sexual and physical abuse and deaths of thousands of Indigenous children in these schools would come to light in the 2000s. It was a role that the RCMP commissioner Giuliano Zaccardlli apologized for in 2004 (Royal Canadian Mounted Police, 2022a, 2022b). Moreover, a 2013 Human Rights Watch report, titled Those Who Take us Away, illuminated the RCMP’s abusive policing and failure to protect Indigenous women and girls in northern British Columbia (Human Rights Watch, 2013, as cited by Morin, 2021b). Among the allegations against RCMP officers was that of rape and sexual assault (Human Rights Watch, 2013, as cited by Morin, 2021b). Just as troubling was the seeming indifference and negligence of the RMCP toward the reporting and dealing with the missing and murdered Indigenous girls and women along an infamous stretch of highway in British Columbia, often labeling them as drug addicts, prostitutes, and runways. The labels were made even when the girls and women had called family members to tell them their whereabouts before they went missing (Morin, 2021b).

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From 1999 through 2020, the RCMP were involved in violently suppressing Indigenous protest, for example, the violent suppression of the fishing rights of Mi’kmaq people, attacking anti-fracking Mi’kmaq land defenders, and arresting the Inuit and Innu people blocking the Muskrat Falls hydroelectric project Labrador (Couldhawke, 2020). There was also the launching of the cross-Canada surveillance entitled Project Sitka. The project built profiles of Indigenous protesters and monitored all forms of Indigenous dissent, including calls for a National Inquiry into Missing and Murdered Indigenous Women and Girls (Couldhawke, 2020). As the history demonstrates, the RCMP continues to be a colonial presence in the lives of Indigenous peoples.

The Toronto Police Force If the RCMP has been the adversary of Indigenous peoples, the same could be said of the Toronto police and Black Canadians. In 2002, the Toronto Star ’s Singled out Series used crime data from 1996– 2002 to uncover differential treatment of Black people by the Toronto police department (Rankin et al., 2002). Among these differential treatments was the phenomenon of driving while Black, when Black persons were disproportionality charged for out-of-sight driving offenses (Rankin et al., 2002). It was also found that Black persons were treated more harshly on drug arrests and more poorly characterized in police reports to Crown attorneys (Rankin et al., 2002). In 2017, the Ontario Human Rights Commission (2017) noted numerous fatal and near fatal encounters between the Toronto police and Black people from 1978 to 2017. To name a few, these included Andrew “Buddy” Evans, 24, killed in 1978; Lester Donaldson, 44, killed in 1985; Raymond Lawrence, 22, killed in 1992; Tommy Anthony Barnette, 22, shot and killed in 1996 and Michael Eligon, 29, killed in 2012. Moreover, in 2017, Andrew Henry, 43, was tasered twice and repeatedly stomped by Toronto police officers after he allegedly assaulted the officers (Ontario Human Rights Commission, 2017). In 2020, the 119-page report Race and Identity-Based Data Collection Strategy Understanding: Use of Force and Strip Searches in

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2020 found that Black, Indigenous, and racialized people were overrepresented in enforcement actions by Toronto police (Toronto Police, 2022a, 2022b). For example, Black people made up 10% of Toronto’s population, but composed 22.6% of law enforcement actions such as arrests, tickets, and cautions (Toronto Police, 2022a, 2022b). Furthermore, Toronto officers used force on Black people about four times more often than their share of the population, five times more likely than for Whites. And when force was used, an officer was more than twice as likely to draw a firearm on a Black person they thought was unarmed than a White person they thought was unarmed (Toronto Police, 2022a, 2022b). In short, Toronto police officers use more force against Black people, more often, with no clear explanation why—except for race (Gillis, 2022). In response to the report, James Ramer, the interim Toronto Police chief said, “Our own analysis of the data from 2020 discloses that there is systemic discrimination in our policing. That is, there is a disproportionate impact experienced by racialized people, particularly those of Black communities” (Gillis, 2022). For this, and the decades of systemic racism, Ramer apologized unreservedly to the city’s Black community (Gillis, 2022). The data proves that decades of the Toronto police actions against Black people were not accidents or the work of a few rogue police officers. Rather, they reflect decades of conscious and unconscious decisions to use force when dealing with Black, Indigenous, and other non-visible minorities (The Conversation, 2022).

Australia The Mistreatment of Aboriginal People by the Police On July 12, 2018, Western Australia’s Police Commissioner Chris Dawson formally apologized for the mistreatment of Aboriginal people at the hands of the police, acknowledging the significant role the police played in the dispossession of Australia’s First Nations people. In doing so, Dawson further admitted that violence, racism, incarceration, and

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deaths in custody have occurred throughout a history of conflict with Aboriginal people and police. Dawson put the conflictual relationship between Aboriginal peoples and police in a contemporary context when he said that as the legislated protectors of Aboriginal people, police played an important and significant role in contributing to a traumatic history, which continues to reverberate today. Indeed, Dawson acknowledged that these historical events have led to mistrust in law enforcement and the damaging of the relationship between Aboriginal people and the police. (Henriques-Gomes, 2018).

A Tense and Mistrustful Relationship In its contemporary incarnation, the tense and mistrustful relationship between Aboriginal and Torres Strait Islander people and the police manifests in several ways. Primary among them are the police’s use of selective targeting, heavy handedness, disrespect, excessive force, and deaths in custody (Australian Law Reform Commission, 2018; Koff, 2022). To put this in context, in New South Wales (NSW), Aboriginal people, who compose just 3.4% of the state’s population, represented 10.8% of all strip searches made by NSW police in the field between 2016 and 2017 and 9.8% between 2017 and 2018. However, the numbers were much higher for strip searches made in police stations, with Aboriginal and Torres Strait Islander peoples representing 22.6% from 2016 to 2017, 22.1% from 2017 to 2018, and 23.1% from 2018 to 2019 (Grewcock & Sentas, 2019). Along with the overrepresentation, what makes the strip-searching of Aboriginal and Torres Strait Islander people in New South Wales troubling is that only 1.5% of the strip searches resulted in a charge for possession or use of a weapon (Grewcock & Sentas, 2019). Despite this, the NSW government and police consistently defend strip searches, claiming that if it were discontinued, knife crime would increase (McGowan, 2020). Indeed, even during the height of the COVID pandemic in 2020, the number of Aboriginal and Torres Strait Islander people being stripped-searched did not abate, with that group composing

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9% of all searches between 2020 and 2021 and 11% between July 2021 and May 2022 (Thorpe, 2022). Moreover, equally troubling, Aboriginal and Torres Strait children were overrepresented among the strip searches. Indeed, between 2016 and 2019, Aboriginal and Torres Strait children made up 11% of strip searches despite making up only 6% of the population under 18. In several cases, the children were as young as 10 and 11 (Grewcock & Sentas, 2019). Not surprisingly, the NSW police force’s disproportionate use of stripsearching has resulted in a public scandal. The scandal highlighted not only the extent of selective targeting, racism, and heavy handedness but also a high level of disregard for the personhood of Aboriginal and Torres Strait Islander peoples. Being strip-searched is a profoundly intrusive, disempowering, and humiliating experience for a disproportionate number of Aboriginal and Torres Strait Islander people (Grewcock & Sentas, 2019). However, it is not just in strip searches that police show disrespect and heavy handedness toward Aboriginal and Torres Strait Islander people. Elizabeth Murray, an Australian freelance journalist, and researcher, has spent over a decade reporting on Aboriginal and Torres Strait Islander peoples’ affairs. She has collected and archived dozens of reports from 2005 to 2014, highlighting police use of excessive force and restraints on Aboriginal and Torres Strait Islander people when detained in lockups (Elizabeth Murray Media, 2018). Also highlighted is the high arrest of Aboriginal and Torres Strait Islander people for antisocial behavior surrounding family disputes, for example, shouting at a family member (Elizabeth Murray Media, 2018). There are also numerous anecdotal reports of police using coarse language toward Aboriginal and Torres Strait Islander youth. This is an offense that would likely see a citation being issued to Aboriginal and Torres Strait Islander youth or adults if they were to do the same toward a police officer (Koff, 2022). Indeed, a Northern Territory police officer was filmed telling five Aboriginal teenagers, who had been arrested for allegedly driving a stolen car in 2018, the following:

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Anyone else want to be fucking smart? I’m right in the mood to fucking lose my job tonight, and I don’t mind losing it over belting the fuck out of one of you little cunts. Do you understand me? Good. When you’re given an instruction, you follow it and that’s it. (as reported by Wahlquist, 2020)

When ABC published the footage following a freedom request in 2020, the response of the Northern Territory’s top police officer, Jamie Chalker, was dismissive. He said it was sad to see something that had happened 2 years prior get more prominence than domestic violence toward Aboriginals, which was a more significant concern to him. Chalker said: I think the footage speaks for itself. The language speaks for itself. And I think anyone who views that with a level of sympathy and empathy and who is prepared to walk in the footsteps of police who have been there and done that will have a greater level of understanding that at some point in time, things just get too full. And that is a really sad outcome. (as reported by Wahlquist, 2020)

The 1991 Royal Commission into Aboriginal Deaths in Custody However, if there is anything that reveals how deep the fissure is in the relationship between Aboriginal and Torres Strait Islanders and the police, it is the current and sordid history of this group’s deaths in police custody. On August 10, 1987, Australian Prime Minister Robert Hawkins announced the formation of The Royal Commission into Aboriginal Deaths in Custody. The commission’s goal was to investigate the causes of deaths of Aboriginal people held in state and territory jails. The catalyst for the commission was Aboriginal activists’ concern that the deaths of Aboriginal people in custody were too common and poorly explained (National Archives of Australia, 1991). The concern began with a campaign by Aboriginal activists after 16-year-old John Pat died in a police cell in 1983 (Grabosky, 1989). The campaign grew when several other Aboriginal detainees were found dead in their cells, in what their families believed to be suspicious

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circumstances (Marchetti, 2005). When Helen Corbett, a Yinggarda and Bibbulman woman, and representatives of the National Committee to Defend Black Rights (CDBR) took the families’ cases to the United Nations, the international attention prompted Prime Minster Robert Hawkins to form the Royal Commission (Corbett, 1989). The commission initially began with the investigation of 44 deaths. However, it was soon discovered that a much larger number of deaths needed to be investigated. It was a realization that grew the number to 99, with 32 in Western Australia, 27 in Queensland, 21 in South Australia and the Northern Territory, and 19 across NSW, Victoria, and Tasmania (Royal Commission into Aboriginal Deaths in Custody, 1991). Among the deaths investigated were rugby player Eddie Murray in 1981 and the earlier mentioned John Pat. Published in April 1991, the investigation findings concluded that none of the 99 deaths were due to police violence (National Archives of Australia, 1991). Instead, a third (37) were the result of disease; 30 were self-inflicted hangings; 23 were other forms of external trauma, most notably head injuries, and nine were the result of dangerous alcohol and drug use (National Archives of Australia, 1991). The commission also found that Aboriginal people in custody died at the same rate as non-Aboriginal prisoners. However, because of a range of more significant social and economic factors, they were far more likely to be in prison than non-Aboriginal people. These social and economic factors included higher rates of alcoholism, larger families, and lowerthan-average education. However, the commission did acknowledge that some of those who died in custody may have survived had custodial authorities not been negligent or uncaring or had followed procedures adequately. Moreover, others were avoidable because they should not have been in custody at all (National Archives of Australia, 1991). In all, the commission made 339 recommendations. Among them was that imprisonment should be utilized only as a last resort (#92), police and prison officers should seek medical attention immediately if any doubt arises as to a detainee’s condition (#161) and initiate a formal process of reconciliation between Aboriginal people and the wider community (#339; National Archives of Australia, 1991).

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The Exponential Growth in Aboriginal and Torres Strait Islander Deaths in Police Custody However, 30 years after the 1991 commission, there has been an exponential growth in Aboriginal and Torres Strait Islander deaths in police custody. For instance, the 2020–2021 figures from the Deaths in Custody report by the Australian Institute of Criminology show that there were 489 Aboriginal and Torres Strait Islander deaths in custody from the end of the 1991 Royal Commission to June 2021 (Doherty, 2021). As tragic as these numbers are, they are not surprising given that Australian states have enacted only a fraction of the recommendations made by the 1991 commission (Australian Indigenous Law Review in 2009, as cited in Koff, 2022). These deaths, however, have energized Aboriginal activists in their ongoing quest to seek justice regarding the continuing problem of Aboriginal deaths at the hands of law enforcement. Indeed, one of the more contemporary illustrations is the 2015 death of 26-year-old Dunghutti man named David Dungay, who died in an NSW prison after five guards restrained him after he refused to stop eating a packet of cookies. Although security footage showed Dungay saying he could not breathe 12 times before he lost consciousness and died, the state coroner found that the guards should not face any disciplinary actions, let alone criminal charges (Cuneen, 2020).

Settler Colonialism The harassment, violence, and fatal encounters that characterize the relationship between Aboriginal and Torres Strait Islander people and the police originate in Australia’s settler colonial beginnings. Contributing factors in those beginnings are the following: White settler dispossession of Aboriginal and Torres Strait Islander land; genocidal frontier violence, first by White settlers and then by officially sanctioned Native Police; and racist paternalism grounded in the belief that Aboriginal and Torres Strait Islander people are culturally and socially inferior to Europeans and

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thus should be physically eliminated, exiled, or culturally assimilated. See Chapter 3 for a more detailed discussion. The above-described dynamics continue to be played out in the contemporary relationship between Aboriginal and Torres Strait Islanders and the police. As such, it is no surprise that even though there is ample evidence to the contrary, Aboriginal and Torres Strait Islanders people’s deaths in custody are attributed not to settler colonialism, violence, and paternalism but to the social and economic issues facing Aboriginal and Torres Strait Islanders. In doing so, the abnormal is normalized and accepted as a matter of course.

References Australian Law Reform Commission. (2018). P athways to justice inquiry into the incarceration rate of Aboriginal and Torres Strait Islander peoples. https:// www.alrc.gov.au/publication/pathways-to-justice-inquiry-into-the-incarcera tion-rate-of-aboriginal-and-torres-strait-islander-peoples-alrc-report-133/14police-accountability/background-34/ Corbett, H. (1989). H elen Corbett addresses the UN: A presentation by Helen Corbett, National Chairperson to the Committee to Defend Black Rights. United Nations Working Group of Indigenous Peoples Conference, Geneva, August 1989. Couldhawke, M. (2020). A condensed history of Canada’s colonial cops. The New Inquiry. https://thenewinquiry.com/a-condensed-history-of-canadas-col onial-cops/ Cunneen, C. (2020). The torrent of our powerlessness: Police violence against Aboriginal people in Australia. Harvard International Review. https://hir.har vard.edu/police-violence-australia-aboriginals Doherty, L. (2021). Deaths in custody in Australia 2020–21. Statistical Report no. 37. Canberra: Australian Institute of Criminology. https://www.aic.gov. au/publications/sr/sr37 Elizabeth Murray Media. (2018). Law courts, legislation, policy justice, Indigenous affairs, OHS and industry news archives from 2005 to 2014 based in Australia. https://elizabethsarchives.blogspot.com Gillis, W. (2022, June 15). There is systemic discrimination in our policing: New Toronto police data confirms officers use more force against Black

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people. Toronto Star. https://www.thestar.com/news/gta/2022/06/15/off icers-use-more-force-against-black-people-with-no-good-explanation-whytoronto-police-data.html Grabosky, P. N. (1989). Aboriginal deaths in custody: The case of John Pat. Race & Class, 29 (3), 87–95. Graham, J. (2020). Canada confronts racism in police wake of Indigenous deaths. Reuters.com. https://www.reuters.com/article/us-canada-indigenous-policetrfn/canada-confronts-racism-in-police-in-wake-of-indigenous-deaths-idU SKBN23W00F Grewcock, M., & Sentas, V. (2019). Rethinking strip searches. UNSW Sydney. https://rlc.org.au/sites/default/files/attachments/Rethinking-strip-searchesby-NSW-Police-web.pdf Henriques-Gomes, L. (2018, July 12). Deeply sorry: Western Australia police chief apologizes to Indigenous people. The Guardian. https://www.thegua rdian.com/australia-news/2018/jul/12/deeply-sorry-western-australia-policechief-apologises-to-indigenous-people Koff, J. (2022). Aboriginal-police relations. https://www.creativespirits.info/abo riginalculture/law/aboriginal-police-relations Lamoureux, M., & Zoledziowski, A. (2020, June 5). Indigenous leaders demand investigation into police killing of Chantel Moore. Vice.com. https://www. vice.com/en/article/m7jvxx/indigenous-leaders-demand-investigation-intopolice-killing-of-chantel-moore LeBeuf, M. E. (2011). The role of the Royal Canadian Mounted Police during the Indian residential school system. Royal Canadian Mounted Police. https://nctr.ca/wp-content/uploads/2021/01/RCMP-rolein-residential-school-system-Oct-4-2011.pdf Marchetti, E. (2005). Critical reflections upon Australia’s Royal Commission into Aboriginal Deaths in Custody. Maquarie Law Journal, 5, 103–122. McGowan, M. (2020, June 20). NSW police disproportionately target Indigenous people in strip searches. The Guardian. https://www.thegua rdian.com/australia-news/2020/jun/16/nsw-police-disproportionately-tar get-indigenous-people-in-strip-searches McKeen, A. (2020, June 12). Chantel Moore’s death deserves ‘same kind of reaction as George Floyd.’ Indigenous leaders. Toronto Star. https://www. thestar.com/news/canada/2020/06/12/chantel-moores-death-deserves-samekind-of-reaction-as-george-floyd-indigenous-leader-says.html Morin, B. (2021a). The Indigenous people killed by Canada’s police. Aljazeera.com. https://www.aljazeera.com/features/2021a/3/24/the-ind igenous-people-killed-by-canadas-police

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Morin, B. (2021b, December 29). No one is going to believe you: When the RCMP abuses Indigenous women and children. https://www.aljazeera.com/fea tures/longform/2021b/12/29/no-one-will-believe-you-when-the-rcmp-abu ses-indigenous-girls National Archives of Australia. (1991). Royal Commission into Aboriginal Death in Custody. https://www.naa.gov.au/explore-collection/first-australians/royalcommission-aboriginal-deaths-custody#about Ontario Human Rights Commission. (2017). Timeline of racial discrimination and racial profiling of Black persons by Toronto Police Services and OHRC initiatives related to the Toronto police. https://www.ohrc.on.ca/en/ timeline-tps Rankin, J., Quinn, J., & Shephard, M. (2002, October 19). Singled out. Toronto Star. https://www.thestar.com/news/gta/knowntopolice/2002/ 10/19/singled-out.html Royal Canadian Mounted Police. (2022a). Historical events in RCMPIndigenous relations. https://www.rcmp-grc.gc.ca/en/historical-events-rcmpindigenous-relations Singh, I. (2020). 2020 already a particularly deadly year for people killed in police encounters, CBC research shows. CBCNEWS. https://newsinteractives.cbc.ca/ fatalpoliceencounters/ Statistics Canada. (2022). Black and Indigenous people’s confidence in police and experience of discrimination in their daily lives. https://www150.statcan.gc.ca/ n1/daily-quotidien/220216/dq220216e-eng.htm Stelkia, K. (2020). Police brutality in Canada: A symptom of structural racism and colonial violence. Yellowhead Institute. https://yellowheadinstitute.org/ 2020/07/15/police-brutality-in-canada-a-symptom-of-structural-racismand-colonial-violence/ The Conversation. (2022, June 19). The Toronto police apologize for its treatment of racialized people is meaningless without action. https://theconversation. com/the-toronto-police-apology-for-its-treatment-of-racialized-people-ismeaningless-without-action-185262 Thorpe, N. (2022, August 22). More than 4,500 strip searches were carried out during the pandemic. ABC News. https://www.abc.net.au/news/2022-08-23/ 4500-strip-searches-pandemic-nsw/101359456

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Toronto Police. (2022b). Race and identity based data collection strategy understanding: Use of force and strip searches. https://embed.documentcloud.org/ documents/22060566-98ccfdad-fe36-4ea5-a54c-d610a1c5a5a1/?embed=1 Wahlquist, C. (2020, December 14). NT police commissioner asks for sympathy for officer filmed threatening detained Aboriginal boy. The Guardian. https://www.theguardian.com/australia-news/2020/dec/14/ntpolice-commissioner-asks-for-sympathy-for-officer-filmed-threatening-det ained-aboriginal-boy

8 The Influence of Neoconservatism on the Criminal Justice System

Statistically or otherwise, there is no argument about the disproportionate representation of Indigenous and Black people at all levels of the UK, U.S., Canadian, and Australian criminal justice systems (Beaver et al., 2013; Brennan et al., 2020; Clinks.org., 2021; Hinton, 2018). However, there is no uniformity in the view that this disproportionately is rooted in structural racism that serves settler colonialism ideals. Indeed, it is more accurate to say that there is a relatively wide range of explanations for the disproportion. For example, there is the argument that the real culprit is not structural racism but the dynamic interplay between a cluster of underlying social, economic, and political factors and the criminal justice system (Blagg et al., 2005). These factors include high victimization rates, family violence, drug and alcohol abuse, and adverse childhood experience and deprivation in Indigenous and Black communities (Social Metrics Commission, 2022). They also include economic disadvantage, homelessness, unemployment, poor health outcomes, dispossession, and alienation from traditional land and culture (Blagg et al., 2005; Macdonald, 2020; Nkansah-Amankra et al., 2013). © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Warde, Colorblind, Critical Criminological Perspectives, https://doi.org/10.1007/978-3-031-38157-7_8

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The Neoconservative Framing of Criminal Justice However, most at odds with the theory of structural racism is the neoconservative ideological framing of crime and punishment. This framing vehemently rebuts charges of racism in criminal justice and, instead, sees crime as a matter of choice and a course of action freely chosen by amoral individuals with no self-control who threaten the social order and the moral fabric of society (Campesi, 2009; Larkin & Canaparo, 2022; McDonald, 2008a, 2008b; Muncie, 2009, p. 140; Wilbanks, 1987). For neoconservatives, social order, public morality, respect for authority, tradition, free markets, personal responsibility, and individualism, absent government paternalism in the form of social welfare, are the cornerstones of a society in which the individual can thrive and prosper (Ball & Dagger, n.d.; Campesi, 2009). Within this framework, the criminalization of activities that in any way threaten or attack the social order, public morality, and respect for authority is paramount (Campesi, 2009; Emerson, 2011). Moreover, because individuals are solely responsible for their crimes, causal explanations of crime that point to racial, political, social, or economic inequalities in society are dismissed as irrelevant to evaluating the fairness and effectiveness of the criminal justice system (Emerson, 2011, p. 65). Consequently, the primary criminal justice discourse and policy initiatives are around the need for a significant and empowered law enforcement presence, harsh punishment for criminal behavior, public safety, personal responsibility, and victim restitution, to name a few.

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Neoconservative Ideology and the Shaping of the Criminal Justice Discourse Since the late 1960s, neoconservative ideology has been the dominant conceptual framework shaping criminal justice discourse and policy in the UK, the U.S., Canada, and Australia. In doing so, each of these countries has experienced exponential growth in their penal system and racial disproportionality in those systems. The rest of this chapter examines the development of this ideology and its impact on the UK, U.S., Canadian, and Australian criminal justice systems.

The UK Margaret Thatcher A Free Market Economy Adherent In 1975, Margaret Thatcher was elected as the Conservative Party leader. Thatcher, an ardent neoconservative, argued for and put into action upon her election as prime minister in 1979 the dismantling and restructuring of the UK’s post-World War II bipartisan, liberal, collectivist, social welfare state model of government into one that revived the individualistic values of the liberal free market environment that had prevailed for much of the 19th and early twentieth centuries (Terrill, 1989; Williams, 2021). Thatcher envisioned a privatized, deregulated, free market state in which economic opportunities for all would be created. Within this paradigm, wealth would be created by free market enterprise, with the wealthiest and the employer/business class spreading the wealth downward by trickle-down economics. Just as importantly, citizens would be free of the shackles of the welfare state (Williams, 2021). To this end, there was the privatization of British industry, deregulation of markets, and the sale of council homes, as one of the early attacks on the post-war British welfare state (Williams, 2021).

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Law and Order Law and order were critical to Thatcher’s broader neoconservative economic agenda. It was a law-and-order agenda energized by the social unrest engulfing the UK during the late 1970s and early1980s—the winter of discontent—striking public workers, football hooliganism, inner city rebellions, and the moral panic over muggings. Thatcher, an outspoken supporter of corporal punishment and the death penalty, saw the social unrest as a blatant disregard of the rule of law and law enforcement by collective groups who had little concern for the individual’s right to go about their business without the fear of crime (Terrill, 1989).

The Law-And-Order Speech Thatcher clarified her law-and-order position in a speech to the American Bar Association on July 15, 1985, concerning what she described as some fashionable heresies. Thatcher stated, Justice requires those in public life to repudiate a number of fashionable heresies. The first heresy is that if only a determined minority gather together in large enough numbers to bully or to intimidate others the law either will not, or cannot, be enforced against them. The inference is not only that there is safety in numbers but that this brings with it some kind of collective immunity from legal process. It does not. And it must not. No matter whether those numbers are mobilized by football hooligans, political agitators, or industrial pickets: crime is no less crime just because it is committed on masse. A second fashionable heresy is that if you feel sufficiently strong about some particular issue, you are entitled to claim superiority of the law and therefore absolved. This is arrogant nonsense and deserves to be treated as such. It brings me to a third heresy, namely that the law can be obeyed selectively. Those groups who would pick and choose among our laws, obeying some and breaking others, imperil liberty itself. The law must stand as a whole and be obeyed as a whole. (Thatcher, 1985)

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Thatcher went on to say, If we are to obtain the justice for our generation which is the theme of your meeting, we must find more effective ways of protecting our citizens from crime. This is not just a matter of giving the police more men and equipment, important as that is. The police cannot do the job on their own. They deserve—and need—our active support. Those who refuse to speak up for them when their support is needed are little better than the carping critics whose voice is so often heard today. Every one of us has to accept our responsibility as a citizen. No-one can opt out. (Thatcher, 1985)

Law-And-Order Policies Consistent with her law-and-order rhetoric, the Thatcher government passed a series of law-and-order policies that had detectible trends of punitiveness with unbridled support for law enforcement and the courts. It is beyond the scope of this chapter to discuss these policies; suffice to say that they were the foundation on which the New Right punitive lawand-order platform of the UK criminal justice system would be built and remains to this day (Taylor, 1987). The policies included The Criminal Justice Act, 1982; the Police and Criminal Evidence Act (PACE),1984; the Prosecution of Offenses Act, 1985; the Drug Trafficking Offences Act, 1986; and The Criminal Justice Act, 1988 (Terrill, 1989). Some suggest that Thatcher’s law-and-order agenda and policies were more effective as rhetoric than they were in terms of being particularly punitive or effective in lowering crime. However, even if this is true, this rhetoric that Thatcher brought to the fore would, as suggested above, be mainstreamed into the political discourse as both the Conservative and Labor parties jockeyed to be the party of law and order after Thatcher left office.

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Neoliberal Tony Blair and Law and Order Indeed, the New Labor leader (1994–2007) and neoliberal Tony Blair would prove much more punitive as a prime minister (1997–2007) in terms of law-and-order policy than Thatcher ever was (Hay et al., 2016). Blair would adopt a new tougher law-and-order rhetoric than expected for a Labor leader. Blair’s rhetoric, which included achieving more convictions and speedier trials, would manifest in creating more than 3,000 new criminal offenses during his 9-year tenure (Walker, 2006). In fact, under Blair’s law-and-order policies, there was a relentless attack on civil liberties, an expansion of new police powers, the introduction of new offenses, and harsher penalties, with longer custodial sentences, growing the prison population (Teacher Law, 2013).

The Law-And-Order Platform Continues Running on a law-and-order platform, Boris Johnson (2019–2022) promised to extend sentences for serious offenders, deport foreign offenders, add 20,000 more police officers, create 10,000 prison places, expand stop and search, and provide extra money for the Crown Prosecution Services (CPS; Reality Check, 2019). In 2022, the UK was in the middle of its biggest prison expansion in more than a century. The new Prime Minister, Rishi Sunak, pledged to prioritize crime and called for new powers to veto Parole Board decisions (Bradley, 2022). It is a pledge that comes even as there is ample evidence of systemic racism in the UK criminal justice system. The net results of the New Right’s influence on criminal justice policies are that since 1980 to its peak in 2010, the prison population of England and Wales has increased by 250%, with a flattening and slight decline in 2020 because of the Covid pandemic. Moreover, government projections predict that England and Wales’s prison population will likely increase significantly by 2026 (Sturge & Tunnicliffe, 2022). As of 2020, the UK prison population is the highest in Northern Europe and third highest in the whole of Europe, behind Russia and Turkey (Robinson, 2021).

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Indeed, there was little to no acknowledgment of disproportionally or structural racism in the UK criminal justice system. This is hardly surprising, though, as it is a position antithetical to the presentday neoconservative and neoliberal conception of law and order. These conceptions are hardly distinguishable, at least in rhetoric, in the belief that crime is a moral and cultural problem. The only way to resolve this problem is by restoring strong authority, most notably by the police.

The U.S. Richard Nixon Richard Nixon was the first president to bring neoconservative ideology and policy to the U.S. criminal justice system. Unlike Thatcher, Nixon was not an ideologue or necessarily right wing as a conservative. However, he was politically astute or cynical enough to respond to the social and political turmoil that engulfed the U.S. between 1961 and 1968 by framing it as a law-and-order issue (Shapiro, 2020). It was a law-and-order issue pitting what Nixon argued was the great majority of Americans, the forgotten Americans—the non-shouters, the nondemonstrators, against those who were part of the social and political turmoil (Nixon, 1968). As Nixon saw it, those who were part of the turmoil included civil rights and anti-war protestors, urban Black rioters and criminals, and anti-government agitators. The Republican Party’s 1968 platform, as related to crime, stated, Lawlessness is crumbling the foundations of American society. Republicans believe that respect for the law is the cornerstone of a free and well-ordered society. We must re-establish the principle that men are accountable for what they do, that criminals are responsible for their crimes, that while the youth’s environment may help to explain the man’s crime, it does excuse that crime. (Republican Party Platform, 1968)

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The Southern Strategy and Coded Racial Messaging Nixon’s law-and-order platform would be unabashed in its use of raceneutral language with coded racial meaning to appeal to socially conservative White southern Democrats who had the most to lose politically with the passing of the Civil Rights Act of 1964 and the Voting Rights Act of 1965 (Phillips, 1969). Using this strategy, which became known as the southern strategy, Nixon built a durable winning coalition with socially conservative White southern Democrats that hitherto had been impossible for previous Republican candidates (Phillips, 1969; Shapiro, 2020). Buttressing the southern strategy was the Nixon campaign’s artful use of TV advertisements that depended far more on pictures and music than words. Typical of all of the advertisements used was a series of pictures of civil unrest in an urban setting, a setting that looked almost dystopian. In addition, the advertisement would end with a stark voiceover. For example, one voiceover stated, “The first civil right of every American is to be free of domestic violence, so I pledge to you we shall have order in the U.S.“ (Congressional Archives Carl Albert Center, n.d.).

The Law-And-Order Template Nixon’s law-and-order platform, cynical as it might have been, was successful in winning him the presidency, albeit by a slim margin. Moreover, the platform, now tinged with a punitive edge and coded language, would become the template for all future Republican and Democratic presidents, none of whom wanted to be seen as soft on crime by White suburban voters come election time. Most notable of the presidents to take on this platform was Ronald Reagan, whose political ideology was very much aligned with that of Margaret Thatcher, the neoliberal Bill Clinton, and nominally conservative Donald Trump.

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Ronald Reagan Ronald Reagan, a close ally of Margaret Thatcher, framed the neoconservative perspective on criminal justice perfectly in his remarks at the Annual Meeting of the International Association of Chiefs of Police in New Orleans, Louisiana, in 1981. Among his many comments, Reagan said: Controlling crime in American society is not simply a question of more money, more police, more courts, more prosecutors; it’s ultimately a moral dilemma, one that calls for a moral or, if you will, a spiritual solution. But in the end, the war on crime will only be won when an attitude of mind and a change of heart takes place in America, when certain truths take hold again and plant their roots deep in our national consciousness, truths like: Right and wrong matters; Individuals are responsible for their actions; Retribution should be swift and sure for those who prey on the innocent. We must understand that basic moral principles lie at the heart of our criminal justice system, that our system of law acts as the collective moral voice of society. There’s nothing wrong with these values, nor should we be hesitant or feel guilty about furnishing [punishing] those who violate the elementary rules of civilized existence. Theft is not a form of political or cultural expression; it is theft, and it is wrong. Murder is not forbidden as a matter of subjective opinion; it is objectively evil, and we must prohibit it. And no one but the thief and murderer benefits when we think and act otherwise. It’s time, too, that we acknowledge the solution to the crime problem will not be found in the social worker’s files, the psychiatrist’s notes, or the bureaucrats’ budgets. It’s a problem of the human heart, and it’s there we must look for the answer. We can begin by acknowledging some of those permanent things, those absolute truths I mentioned before. Two of those truths are that men are basically good but prone to evil, and society has a right to be protected from them.

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Again, I commend you for manning the thin blue line that holds back a jungle which threatens to reclaim this clearing we call civilization. No bands play when a cop is shooting it out in a dark alley. (Reagan, 1981)

Bill Clinton the Neoliberal Violent Crime and Control and Law Enforcement Act of 1994 Ironically, though, for all of Reagan’s law-and-order rhetoric, it would be the neoliberal Bill Clinton who would pass the most draconian and far-reaching federal law-and-order policy in U.S. history to date. Clinton’s Violent Crime and Control and Law Enforcement Act of 1994, commonly referred to as the crime bill, which had the support of progressives such as Sen. Bernie Sanders and Joe Biden, has a complicated legacy (Eisen, 2019). On the one hand, it offered crime prevention by banning assault weapons, promoting the expansion of community policing and drug courts as alternatives to incarceration, and protecting women in abusive relationships. On the other hand, however, it authorized the death penalty for dozens of existing and new federal crimes, mandated life imprisonment at the federal level for a third violent felony, also known as three strikes and you are out, and authorized incentive grants for states that had adopted tough truth-in-sentencing laws to build or expand prisons to incarcerate people convicted of violent crimes (Eisen, 2019). The authorization of incentive grants helped to fuel and accelerate a prison construction boom. It also incentivized those states that had not already adopted tough-on-crime sentencing to do so (Eisen, 2019). To put this in context, from 1990 to 2005, the number of state and federal prisons increased by 43%. Moreover, for a period during the 1990s, a new prison opened every 15 days on average (Eisen, 2019).

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The Rush to Incarcerate In the rush to incarcerate, beginning slowly with Nixon in 1970, rising steadily under Presidents Ford, Carter, Reagan, and Bush, and accelerating under Clinton to the present day, the U.S. incarcerated population has increased by 500%. As of 2023, there were 2 million people in jail or prison, far outpacing population growth and crime between 1970 and 2023 (ACLU, 2023). Indigenous, Black, and Hispanic bodies have been disproportionately ensnared in this mass incarceration boom over the past 50-plus years. However, the pushback against the argument that this is because of systemic racism within the U.S. criminal justice is active among neoconservative think tank scholars, political analysts, and state and federal policymakers.

Neoconservative Push Back It is beyond the scope of this chapter to examine all opinions on why they believe the U.S. criminal justice system is not systemically racist. However, it would be true to say that alternative explanations range between nuanced, sometimes blaming the victim, or outright rejecting the notion of systemic racism in the U.S. criminal justice system (McDonald, 2008a, 2008b; Muncie, 2009, p. 140; Wilbanks, 1987). One such example of this rejection was articulated in September 2020 by the highest-ranking law enforcement officer in the U.S., the thenU.S. Attorney General William Barr. In an interview with CNN’s Wolf Blitzer, Barr rejected the notion that systemic racism exists in the criminal justice system but acknowledged that there are some situations where statistics would suggest that people of color were treated differently. Barr said that this had more to do with stereotyping than a system. He further argued that a police officer’s use of force, excessive or otherwise, is less motivated by race than it is an officer being scared for his or her life and having to make a split-second decision. Barr decried the demonization of the police and asserted that there are not two justice systems but one that is not inherently racist (Polantz et al., 2020).

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Canada Brian Mulroney Declares a War on Drugs In 1984, Brian Mulroney and the Progressive Conservative Party (PC) won a massive electoral victory in Canada. The win was the first time in 26 years that the party had obtained a majority of the popular vote in every province (Jenson & Gerber, 1993). In coming to power, the Mulroney government introduced several political and economic initiatives consistent with a neoconservative agenda, including privatization, deregulation, and a Free Trade Deal with the U.S. (Hatt et al., 1992). However, unlike Thatcher in the UK and Nixon and others in the U.S., Prime Minister Mulroney did not come to the office with a discernable neoconservative law-and-order, get-tough-on-crime agenda. Indeed, initially, Hatt et al. (1992) state that there was little evidence of the type of moralistic posturing on criminal justice issues that characterized neoconservative politics in the UK or the U.S. (p. 246). However, this changed very quickly with the dramatic decline in the popularity of Mulroney’s government, which went from a 60% public approval rating following the election, slipping to 45% in May 1985, 40% in July 1985 to 37% in January 1986 (Jenson & Gerber, 1993). Conversely, there was a 40% increase in public support for the Liberals, seeing the Conservatives losing nearly half of their post-election support in less than 2 years (Jenson & Gerber, 1993). With the Conservatives in free fall, Mulroney’s response was to unexpectedly add to an already prepared speech an announcement of a declaration of a war on drugs in Canada. It was a declaration 2 days after Ronald Reagan declared a new war on drugs in the U.S. (Jenson & Gerber, 1993). In his unexpected announcement, Mulroney said, “Drug abuse has become an epidemic that undermines our economic as well as our social fabric” (cited in Denton, 1986). It was an announcement met with skepticism by the opposition party and the Canadian public. It became more so when Mulroney said that it was a coincidence that his announcement came 2 days after Ronald Reagan and that it was prompted by a Canadian Broadcasting Corp. radio documentary that morning on drug abuse in Canada (Denton, 1986).

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Moving Criminal Justice Policy in a Neoconservative Direction Mulroney failed to win public support for his so-called war on drugs; however, what did happen was moving criminal justice policy in a neoconservative direction with the beginning of an American-style national war on drugs strategy and legislation that took a distinctly punitive turn (Hatt et al., 1992). There was a greater emphasis on law enforcement than treatment, embodied in the Controlled Drugs and Substance Act 1996, passed under Prime Minister Jean Chrétien’s Liberal government. The Act enabled sweeping new powers of arrest, search, and seizure and the harsh new maximum sentence for drug offenses (Justice Laws Website, 2023). In doing so, disproportionate numbers of Black people in Canada would become ensnared in the Canadian criminal justice system, much the same as in the U.S. (Khenti, 2014). Three terms of Liberal governments followed Mulroney with no further shift to the right in terms of a law-and-order agenda. However, this changed dramatically with Stephen Harper, the Conservative party leader, who was elected as prime minister in 2006 and served until 2015 (Encyclopedia Britannica, n.d.).

Stephen Harper Stephen Harper ran for office on an unabashed tough-on-crime agenda very much informed by neoconservative principles. The agenda, labeled Stand Up For Security, used catchy rhetoric, such as “serious crime means serious time,” and promised more police on the streets, getting tough with young offenders, establishing a National Victims’ Ombudsman Office, and enacting a national drug strategy (Stand up for Canada, 2006). In introducing specific measures, the Conservative platform stated, A Conservative government will protect our communities from crime, insisting on tougher sentences for serious and repeat crime by tightening parole. We will ensure truth in sentencing and put an end to the liberal revolving door justice system. The drug gang and gang-related crimes

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plaguing our communities must be met by clear mandatory minimum sentence and an end to sentences being served at home. Parole must be a privilege to be earned, not a right to be demanded. (as cited in Mallea, 2011, p. 13)

Ironically or cynically, the Liberal platform did not want to be seen as soft on crime and had a similarly punitive platform in its promises. For example, they promised fewer conditional sentences, more law enforcement, and in outdoing the Conservatives, promised to double mandatory minimums for gun-related crimes (Mallea, 2011). The New Democrats were equally conscious about not being perceived as soft on crime and produced a lengthy criminal justice platform. It was a platform that promised harsher sentences for gun crime and funding for more law enforcement and preventive programs for youth (Mallea, 2011). Nevertheless, the Harper government was elected, and the Conservatives preoccupation with crime was played out over Harper’s three terms as prime minister. Between 2006 and 2011, the Conservative government introduced 61 crime bills, 20 of which made it to law (Comack et al., 2015). In doing so, Canada’s criminal justice system and policies lurched significantly to the right and became decidedly punitive.

Harper’s Law-And-Order Agenda and Policies It is impossible to discuss here all 20 bills and those that followed, but there can be some description of five ways in which Harper’s law-and-order agenda changed the Canadian criminal justice system. First, Protecting Canadians by Ending Sentence Discounts for Multiple Murders, effective December 2, 2011, guaranteed that for each firstdegree murder, the perpetrator could wait as long as 25 years for a parole hearing, abolishing the previous faint hope clause, which gave a perpetrator the possibility to apply for parole after 15 years (Fine, 2014). Second, the Safe Streets and Communities Act, which received royal assent on March 3, 2012, made Canada an incarceration nation by adopting dozens of new mandatory minimum sentences. In doing so,

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it reduced the previous powers of judges in sentencing and asserting Parliament’s views on fit sentences (Fine, 2014). Third, the Safe Streets and Communities Act also ended the least restrictive measures for prisoners, which diminished prisoners’ rights by allowing corrections officers to use necessary and proportionate measures for disciplining prisoners or protecting correctional staff. In doing so, what constituted restrictive was left entirely to the discretion of correctional authorities (Fine, 2014). Fourth, An Act to Amend the Criminal Code, Conditional Sentence of Imprisonment, took effect December 1, 2007, and Ending House Arrest for Property and Other Serious Crimes, took effect November 6, 2012, ended house arrest for violent and some nonviolent crimes (Fine, 2014). Fifth, the Abolition of Early Parole Act, Bill-C59, effective March 2011, ended accelerated parole review for nonviolent offenders. Previously, nonviolent, first-time offenders were allowed to apply for parole at one-sixth of their sentence. All other offenders became eligible six months before the one-third point (Fine, 2014).

The Net Results The net results of the Harper government’s neoconservative get-toughon-criminal-justice policies was an increase in the prison population with a disproportionate impact on Indigenous and Black people. As troubling is that Harper’s punitive law-and-order agenda and policies came at a time when crime rates continued downward. When Prime Minister Justin Trudeau and his Liberal Party swept to power in 2015, they promised reform of the criminal justice system while acknowledging that the Tory (Conservatives Party) tough-on-crime rhetoric was only tough on Indigenous and Black Canadians (Connolly, 2022).

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Australia The Shift to a Tough-On-Crime Approach Like the U.S. and Canada, the workings of the Australian criminal justice system are not solely in the hands of the federal government. More specifically, Australia is divided among six states, two self-governing territories, and the federal government (Freiberg, 1995). Consequently, there is variation in the penal cultures and levels of incarceration across the eight independent jurisdictions (Freiberg, 1995; Tubex et al., 2015). However, in the most macro-level comparison, in the late 1980s and early 1990s, changing political conditions saw these jurisdictions’ governments shift from the post-Royal Commission into Aboriginal Deaths in Custody Report criminal justice reform efforts toward a law-and-order approach very much in line with the tough on crime, punitive trend adopted by the UK, U.S., and Canada during the same period (Cunneen, 2016).

Lock More People Away As Cunneen (2016) notes, by the late 1980s and 1990s, state and territory governments no longer spoke of reducing prison numbers but of the need to lock more people away. The irony of the shift is that it happened when property crime rates were on a downward trajectory (Tubex et al., 2015). However, media-fueled public alarm over particular crimes, such as the kidnapping, rape, and murder of beauty queen Anita Cobby in 1986 by a group of young men in Prospect, New South Wales (NSW), saw the Conservative, Liberal Party (LP) shadow minister of corrective services Michal Yabsle painting the Australian Labor Party (ALP) government as soft on crime in the run-up to the 1988 state elections (Brown, 2015; Tubex et al., 2015). It was rhetoric that won the LP the state election and ushered in their tough-on-crime legislation, most notably the Sentencing Act 1989 (Sentencing Act, 1989).

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The Sentencing Act 1989 The objectives of the Sentencing Act 1989, described as revolutionary, were to promote truth in sentencing by requiring convicted offenders to serve in prison (without any reduction) the minimum or fixed term of imprisonment set by the court (Sentencing Act 1989). Toward this end, the act abolished all forms of remission, established a 1:3 ratio of the additional term to the minimum term, and removed the presumption in favor of parole for certain prisoners (Gorta, 2018). The immediate result of the Act was that in the first 2 years of the government, there was an increase in sentence lengths by 19% for adults and a 30% increase in the prison population of NSW (Brown, 2015; Potas, 2018). Moreover, not wanting to be outflanked in the law-andorder auction, the APL introduced a standard non-parole period scheme, which significantly increased sentencing tariffs across a range of serious offenses (Brown, 2015).

Legislative Hyperactivity Between 1992 and 2008, Brown (2015) notes that legislative hyperactivity produced 23 punitive changes to the Bail Act in NSW, doubling the number of bail refusals and increasing the number of NSW prisoners remanded to custody. So problematic was this situation that it led to the introduction of a reform-oriented bail act to decrease the number of people remanded into custody (Brown, 2015). However, it was soon trashed as opposition pushback conflated the presumption of innocence with accusation, guilt, and public safety. However, as noted earlier, NSW was not alone in its tough-oncrime, punitive turn. All state, commonwealth, and territory governments have some form of mandatory minimum sentences (Alba, 2022; Australian Law Reform Commission, 2017; Queensland Sentencing Advisory Council, 2022). There are also other manifestations, such as: – Increased police powers, most especially for public order offenses. – Zero tolerance style laws. – Control over judicial discretion (Cunneen, 2016).

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Neoconservative Tough-On-Crime Rhetoric and Legislation Neoconservative tough-on-crime rhetoric and legislation are now an established part of Australia’s criminal justice discourse and policies, paralleling the UK, U.S., and Canada. Unfortunately, this punitive turn in Australia has most victimized Indigenous peoples as their numbers in the criminal justice system have swollen with the passing of ever more punitive criminal justice laws. This is particularly true in Western Australia (WA) and the Northern Territory (NT), which have high Aboriginal and Torres Strait Islander populations, coupled with extensive mandatory sentencing laws (Australian Law Reform Commission, 2017). Indeed, the Australian Law Reform Commission (2017) has identified both jurisdictions as having mandatory or presumptive sentencing provisions that significantly affect Aboriginal and Torres Strait Islander populations.

Examining Neoconservative Tough-On-Crime Rhetoric and Its Influence In examining the emergence of the neoconservative tough-on-crime rhetoric and its impact on shifting the criminal justice systems of the UK, U.S., Canada, and Australia solidly toward a punitive stance, it is clear that it moved beyond the neoconservative and neoliberal ideological frame into penal populism. Simply put, penal populism is the process by which the major political parties compete with each other to be “tough on crime.” It is typically associated with a public perception and fear, not quantifiable indicators, fueled by media coverage, that crime is out of control (European Center for Populism Studies, n.d.). Most commonly, it manifests at general elections when politicians tap into the collective sentiments of fear and demands for punitive politics by promising hard-line policies that would ensure things such as imprisonment, longer sentences, and bail revocation.

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Curato (2016) argues that public fear and anxiety are not the only driving forces for penal populism. Also of influence is a populist dichotomy between virtuous citizens and hardened criminals who are seen as being beyond redemption and deserving of the harshest treatment from the criminal justice system (Curato, 2016). In liberal democracies, penal populism creates the legacy of exclusion and divisiveness, relegating those perceived as wrongdoers as unworthy and a threat to an ordered society. It also rejects penal elitism, which privileges the knowledge of experts and professionals in shaping criminal justice. These dynamics are clear in the neoconservative criminal justice discourse of the UK, U.S., Canada, and Australia where the politics of expedience construct crime as a social control problem rather than a structural issue. The core issue became that of street crime and neoconservative rhetoric, which became hegemonic in the political debate (Emerson, 2011; European Center for Populism Studies, n.d.).

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Khenti, K. (2014). The Canadian war on drugs: Structural violence and unequal treatment of Black Canadians. International Journal of Drug Policy, 190–195. Larkin, P. J., & Canaparo, G. (2022). The fallacy of systemic racism in the American criminal justice system. Liberty University Law Review (forthcoming). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4186360 MacDonald, H. (2008a). High incarceration rates of Blacks is function of crime, not racism. Manhattan Institute. https://www.manhattan-institute. org/html/high-incarceration-rate-blacks-function-crime-not-racism-1479. html MacDonald, H. (2008b). Is the criminal justice system racist? No: The high percentage of blacks behind bars reflects crime, not bigotry. City Journal . https://www.city-journal.org/html/criminal-justice-system-rac ist-13078.html MacDonald, H. (2020). A grim and ignored body count—The problem in the American inner city is not racism but drive-by-shootings of blacks by other blacks. City Journal. https://www.city-journal.org/media-silence-onblack-on-black-violence Mallea, P. (2011). Fearmonger: Will Stephen Harper’s billions on the tough on crime agenda make our streets any safer? James Lorimer & Company. Muncie, J. (2009). Youth and crime (3rd ed.). Sage. Nixon, R. M. (1968). Presidential nomination acceptance speech. Pamphlet published by Nixon/Agnew campaign committee. http://www.4president. org/speeches/nixon1968acceptance.htm Nkansah-Amankra, S., Agbanu, S. K., & Miller, R. J. (2013). Disparities in health, poverty, incarceration, and social justice among racial groups in the United States: A critical review of evidence of close links with neoliberalism. International Journal of Health Services, 43(2), 217–240. Phillips, K. (1969). The emerging Republican majority. Princeton University Press. Polantz, K., Kelly, C., & Carrega, C. (2020, September 2). Attorney General William Barr: I don’t think there are two justice systems. https://www.cnn. com/2020/09/02/politics/william-barr-cnn-interview/index.html Potas, I. (2018). The Sentencing Act 1989: Impact and review. Current Issues in Criminal Justice, 3(3), 318–328. Queensland Sentencing Advisory Council. (2022). Mandatory sentences. https:/ /www.sentencingcouncil.qld.gov.au/about-sentencing/types-of-penalties/ mandatory-penalties2

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Reagan, R. (1981, September 28). Remarks in New Orleans, at the Annual Meeting of the International Association of Chiefs of Police. The American Presidency Project. https://www.presidency.ucsb.edu/documents/remarks-neworleans-louisiana-the-annual-meeting-the-international-association-chiefs Reality Check. (2019, October 14). Crime: What has Boris Johnson promised on law and order. BBC.com. https://www.bbc.com/news/uk-49318400 Robinson, N. (2021). UK prison population third largest in Europe and suicide rate twice the average. The Justice Gap. https://www.thejusticegap. com/uk-prison-population-third-highest-in-europe-and-suicide-rate-twicethe-average/ Sentencing Act 1989 No. 87. (1989). https://legislation.nsw.gov.au/view/pdf/ asmade/act-1989-87 Shapiro, W. (2020). The flawed politics of a law and order campaign. Newrepublic.com. https://newrepublic.com/article/157939/flawed-politicslaw-and-order-campaign Social Metrics Commission. (2022). Measuring poverty 2020. https://socialmet ricscommission.org.uk/wp-content/uploads/2020/06/Measuring-Poverty2020-Web.pdf Stand Up for Canada. (2006). Conservative party of Canada federal election platform. https://www.poltext.org/sites/poltext.org/files/plateformesV2/Canada/ CAN_PL_2006_PC_en.pdf Sturge, G., & Tunnicliffe, R. (2022). UK prison population statistics. House of Commons Library. https://commonslibrary.parliament.uk/research-briefi ngs/sn04334/ Taylor, I. (1987). Law and order, moral order: The changing rhetorics of the Thatcher government. The Socialist Register, 279–331. Teacher, Law. (2013, November). The erosion of civil liberties under Tony Blair. https://www.lawteacher.net/free-law-essays/civil-law/civil-libert ies-tony-blair.php Terrill, R. J. (1989). Margaret Thatcher’s law and order agenda. The American Journal of Comparative Law, 37 (3), 429–456. Thatcher, M. (1985, July 15). Speech to the American Bar Association. Margret Thatcher Foundation. https://www.margaretthatcher.org/document/106096 The American Presidency Project. (1968). Republican Party platform. https:// www.presidency.ucsb.edu/documents/republican-party-platform-1968 Tubex, H., Brown, D., Freiberg, A., Gelb, K., & Sarre, R. (2015). Penal diversity within Australia. Punishment & Society, 17 (3), 345–373.

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Walker, K. (2006, August 16). 3,000 new criminal offenses created since Tony Blair came to power. Daily Mail.com. https://www.dailymail.co.uk/news/art icle-400939/3-000-new-criminal-offences-created-Tony-Blair-came-power. html Wilbanks, W. (1987). Myth of racist criminal justice system. Brooks/Cole Publishing. Williams, B. (2021). The new right and its legacy for British conservatism. Journal of Political Ideology, 1–24. https://www.tandfonline.com/doi/full/10. 1080/13569317.2021.1979139

9 Settler Colonialism, Race, and Indigenous and Black Criminal Justice Disproportionality

Pushing Back Against Neoconservative and Neoliberal Conceptualizations of Law-And-Order To deconstruct the reasons for Indigenous and Black disproportionality in the criminal justice systems of the settler colonial jurisdictions of the U.S., Canada, and Australia, all progeny of the Great Britain settler colonial project, this chapter utilizes settler colonialism, CRT, and TribalCrit conceptual frameworks. These conceptual frameworks (see Chapter 1 for details) offer insights into the aims and structure of settler colonialism, the thinking that informed it, and how it and the racial hierarchy it created inform present-day criminal justice system racial disproportionality in Western liberal democracies. This examination pushes back against the theoretical and conceptual frameworks of neoconservatism and neoliberalism and the resulting penal populism, which for the last 50-plus years has had a powerful influence on shaping criminal justice racial disproportionality in the UK, the U.S., Canada, and Australia (see Chapter 8). Within the criminal justice context, neoconservatism and neoliberalism, and their resulting penal populism, are unapologetic in © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Warde, Colorblind, Critical Criminological Perspectives, https://doi.org/10.1007/978-3-031-38157-7_9

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their pathologizing and problematizing of Indigenous and Black people ensnared in the criminal justice system. In this pathologizing and problematizing, neoconservatism and neoliberalism offer no examination of how societal structures influence who does and does not come to the attention of the criminal justice system and why. Indeed, they outright reject any talk about society’s structures having any bearing on so-called criminal behavior. Instead, they focus solely on individual culpability, the rule of law, personal responsibility, and the need to keep society safe from wrongdoers through a strong law enforcement presence and punitive laws that punish, not rehabilitate, offenders. As discussed in Chapter 8, the persuasive nature of the neoconservative and neoliberal individual culpability and punitive punishment argument, which infuses coded language combining a powerful appeal to the intertwined racial and class identities of working and middle-class Whites, has not been lost on politicians, particularly at election time. It is an argument that plays on media-driven, White majority anxiety about crime and perceptions associated with Indigenous peoples, Black people, immigrants of color, and others considered outsiders. Doing so encourages a good-versus-evil, us-against-them framing of criminal justice. Through penal populism, the criminal justice system is weaponized under the guise of law-and-order, encouraging and normalizing the militarization of law enforcement (Lieblich & Shinar, 2018; McCulloch, 2022; Nolan, 2020; Taylor, 2022), punitive sentencing, and the hyper-incarceration of large swaths of Indigenous and Black people (Anthony & Blagg, 2020; Brookman et al., 2022; Enns, 2014; Karandinos & Bourgois, 2019).

Penal Populism as a Continuing Thread in Settler Colonialism’s Subjugating Strategies Although the neoconservative and neoliberal conceptualization of criminal justice and the resulting penal populism first emerged in the U.S. during the late 1960s, subsequently spreading to the UK, Canada, and

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Australia, it would be incorrect to view it simply as a phenomenon of modernity. From settler colonialism, CRT, and TribalCrit perspective, this penal populism is better understood as a thread in continuing settler colonial subjugating strategies that corral and control Indigenous and Black bodies. Note, these perspectives soundly reject the notion of settler colonialism as a historically concluded event in the U.S., Canada, and Australia. Rather, as Wolfe (2006) and other settler colonialism theorists and scholars argue, and this book concurs with, settler colonialism in the U.S., Canada, and Australia is not a concluded event relegated to some darker historical past. Rather, it is an ongoing process continuously employing new subjugating strategies and technologies to preserve the objectives of settler colonialism and maintain White supremacy ideals in terms of primary access to society’s resources, rewards, and privileges (Bosworth & Flavin, 2006; Cox, 2017; Cunneen & Tauri, 2017; Glen, 2015; Issar, 2021; Kauanui, 2016; Tauri & Porou, 2014; Wolfe, 2006). As settler colonialism and CRT contend, in the contemporary liberal democracies of the U.S., Canada, and Australia, all of which profess colorblindness and meritocracy ideals, the new subjugating strategies and technologies have none of the outward barbarity of land expropriation, involuntary assimilation, genocide, slavery, Jim Crow, and lynching. Instead, it manifests as tough-on-crime rhetoric, stop and search, punitive sentencing, and hyper-incarceration, all of which allow for the corralling and controlling of Indigenous and Black bodies every bit as effectively as settler colonialism.

The Interconnected Nature of Settler Colonialism, Race, and Criminal Justice System Disproportionality This chapter, which synthesizes the critical elements of the previous chapters, is constructed around several key assertions. First is that centuries of settler colonization and its subjugating strategies, among the most influential being the racialization and homogenizing of Indigenous and

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Black peoples, have left Indigenous peoples in the U.S., Canada, and Australia, and Black people in the UK, the U.S., and Canada in a position of social, economic, and political marginalization compared with their White counterparts. In addition, this marginalization plays a significant role in the contemporary disproportionate representation of Indigenous and Black peoples in these countries’ criminal justice systems. Consequently, this chapter asserts that settler colonialism, race, and criminal justice are inextricably linked and that the contemporary Indigenous and Black disproportionality in these criminal justice systems continues settler colonial strategies rather than being a distinct phase. Utilizing settler colonialism, CRT, and TribalCrit lenses, the rest of this chapter will revisit and synthesize critical elements of the previous chapters to illustrate the interconnected nature of settler colonialism, race, and Indigenous and Black criminal justice disproportionality in the UK, the U.S., Canada, and Australia (Hinton & Cook, 2021).

Settler Colonialism As discussed in Chapter 2, Great Britain’s settler colonialism project differed from classic colonialism in that the British settlers did not come just to exploit, extract, and transfer natural resources back to the motherland for profit while governing from afar through local representatives. Instead, they came to stay permanently, and in the process, eliminate and replace Indigenous peoples on the expropriated land, making it and its resources entirely their own (Veracini, 2013; Wolfe, 2006). In the face of fierce Indigenous opposition, the settler states used a panoply of subjugating strategies in the process of elimination, replacement, and land expropriation. These strategies included but were not limited to genocidal violence, treaties, enslavement, assimilation, proselytizing, English common law property rights, reservations, and White population growth through labor recruitment, settlement, and later citizenship and immigration policy—all to create a nation-state in the White settlers’ image.

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From the outset, inherent in Great Britain’s colonial project was a dismissal of any cultural knowledge, beliefs, or societal or sociopolitical structures and practices that they did not understand. Instead, there was an intractable belief in White religious, cultural, biological, intellectual, social, and moral superiority and Indigenous and Black inferiority. Hence, as Indigenous scholar and tribal critical race theorist Brayboy (2005) notes, White settler colonialism dismissed Indigenous cultural knowledge, beliefs, customs, and sociopolitical structures and practices as inherently inferior. It was a belief that justified, with impunity, the expropriation of Indigenous land and the enslavement of Africans and their offspring. Moreover, in doing so, they systematically dispossessed Indigenous societies of their territories and established a state structure institutionalizing a racist legal system and policies that secured and reproduced White land, property ownership, and wealth at the expense of other racialized groups (McKay et al., 2020). Brayboy (2005) asserts that on the expropriated land and territories of Indigenous peoples, these policies are rooted in imperialism, White supremacy, and the desire for material gain (pp. 429–430).

Racialization and the Creation of Racial Hierarchies Othering through racialization and creating racial hierarchies were critical to dismissing Indigenous and Black people as inferior. From a CRT and anthropological perspective, racialization and racial hierarchies are nothing more than a contrived system of stratification categorizing people according to observable physical attributes. It has no correspondence to genetic or biological reality (Bell, 1995; Delgado & Stefancic, 2012). However, within the White supremacist settler colonial state, they are essential in that they confer to Whites while denying non-Whites superior status, rights, and unfretted access to all of that state’s valuable resources and privileges. To protect this access, and Whiteness, legal classifications of race were made to determine who was and was not White and who was and who was not Indigenous or Black.

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For example, as described in Chapter 4, the enslaved-holding colonies in what would become the U.S. classified Negro (using the vocabulary of the day) as anyone who was phenotypically Black, regardless of national origin, ancestry, or religion. Moreover, the first census in 1790 had three categories: free Whites, all other free persons, and enslaved people, Negros. By 1850, mulatto (one-half African ancestry, one-half European descent), which included quadroons (one-quarter African ancestry and three-quarters European descent), and octoroons (one-eight African ancestry) were added to the census (Parker et al., 2015). This distinction would lead to the one-drop rule in the early twentieth century, which would categorize anyone with African ancestry, regardless of phenotype, as Black (Parker et al., 2015). Although there was some recognition of tribal affiliation, Indigenous people were generally categorized simply as Indian in the parlance of the day. Moreover, although they were not included in the early U.S. census, an Indian category was added in 1860. However, enumerators counted only those Indians considered assimilated—those settled near White communities (Parker et al., 2015). In Canada, the earliest legal statute on record passed for Lower Canada, included four categories of Individuals who could be defined as Indian, itself something that denotes difference from White. These categories included (a) persons of Indian blood, reputed to belong to a particular tribe, and their descendants; (b) persons intermarried with any such Indians and residing among them and their descendants; (c) persons residing among such Indians, whose parents on either side were or are Indians, or entitled to be considered as such; and (d) persons adopted in infancy by any such Indians, and residing in the village or upon the lands of such tribe or body of Indians (cited in Backhouse, 1999, p. 21). In Australia, the classification of race, specifically the term Aboriginal , was used in legal documents dealing with Indigenous matters from the time of the earliest settlements to the current day. Distinctions between Aboriginal peoples and White people were made based on phenotype and blood. For example, as cited in Ellinghaus (2003, p. 10), a distinction based on blood first appeared in the Sugar Bounty Act of 1905, providing a bounty for sugar cane or beet produced by White and not colored labor.

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Colored labor was defined to include half-caste and full-blood Aboriginal labor. Racial categorization, except for Indigenous and Black people, showed remarkable mutability in the settler colonies to include non-English Europeans into Whiteness through settlement and later immigration (Backhouse, 1999). So while the definition of who can be White on the racial hierarchy constantly shifts, there is historical consistency of racism for Indigenous and Black. As CRT contends, dominant social discourse and people in power can racialize groups differently at different times, depending on historical, social, or economic needs (Carbado & Roithmayr, 2014).

Dehumanizing Narratives and Descriptors of Indigenous and Black People Accompanying the racialization were dehumanizing narratives and descriptors emphasizing the supposed inferiority of Indigenous and Black peoples. Thus, despite a myriad of social structures and cultural practices spread among a plethora of sovereign nations and tribes, Indigenous peoples, often more different than similar, whether in the U.S., Canada, or Australia, are recast as one (homogenized) people. In this recasting, they are primitive, savage, amoral heathens with no conception of a civilized and ordered society (Heller, 2017). So powerful are these narratives that luminaries such as celebrated and widely read English author Charles Dickens, famous for his support of the White working class but contemptuous of Indigenous people, wrote in an 1853 essay, “The Noble Savage.” the following: To come to the point at once, I beg to say that I have not the least belief in the noble savage. I consider him a prodigious nuisance and an enormous superstition. His calling rum firewater, and me a pale face, wholly fail to reconcile me to him. I don’t care what he calls me. I call him a savage, and I call a savage a something highly desirable to be civilized off the face of the earth. He is a savage–cruel, false, thievish, murderous, addicted more or less to grease entrails and beastly customs.

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A wild animal with the questionable gift of boasting; a conceited, tiresome, blood-thirsty, monotonous humbug. (Cited in Facing History & Ourselves, 2019)

Dickens perfectly articulated the narrative and belief of the settler colonial project regarding Indigenous people. Thus, he justified the expropriation of Indigenous land as right and proper in the name of civilization and placing the owners of that land on the bottom of the racial hierarchy with White settlers, regardless of their station at the top of that hierarchy. Indeed, as shared in Chapter 2, another widely read English author and poet, Rudyard Kipling, shared in his poem “White Man’s Burden” that it was the obligation of the White race to civilize the non-Whites of the planet (see Chapter 2 for the full quote; Kipling, 1899). Andrew Jackson, as the U.S. president, articulated the following: My original convictions upon this subject have been confirmed by the course of events for several years, and experiences in every day adding to their strength, That those tribes cannot exist surrounded by our settlements and in continual contact with our citizens is certain. They have neither the intelligence, the industry, the moral habits, nor the desire for improvement, which are essential to any favorable change in their condition. Established in the midst of another superior race, and without appreciating the cause of their inferiority or seeking to control them, they must necessarily yield to the force of circumstances and ere long disappear. (cited in Rickert, 2023)

Theodore Roosevelt would say: I don’t go as far as to say that the only good Indians are dead Indians, but I believe nine out of ten are, and I would not inquire too closely into the case of the tenth. (cited in Rickert, 2023)

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The Complex Web of Settler Colonialism’s Subjugating Strategies As discussed in Chapter 1, the process of racializing and othering of Indigenous peoples involved what Tauri and Porou (2014) describe as a “complex web of subjugating strategies across a range of social and economic policy platforms” (p. 22). These subjugating strategies for Indigenous peoples were remarkably similar in the U.S., Canada, and Australia. Land expropriation aside, it included codifying laws and practices restricting movement and where Indigenous peoples could live (see Chapters 2 and 3), in essence, corralling and then controlling Indigenous bodies, making them wards of the state, and in effect, creating the first instance of Europeans’ hyper-incarceration of Indigenous peoples. Central to this strategy was some kind of federal or state governmental agency regulating the lives of Indigenous peoples. In the U.S., it was the Bureau of Indian Affairs (BIA). In Canada, it was the Crown-Indigenous Relations and Northern Affairs Canada. It was the Aborigines Protection Board (APB) in NSW, Australia. Among the most heinous of these regulations was moving large swaths of Indigenous peoples off their land and onto reservations. It also involved racial classification and forced assimilation of children through Indian boarding schools and for adults, inducements to give up their culture and take on a European lifestyle and customs (see Chapters 2 and 3).

Colonial Modes of Law Enforcement Underpinning the racialization and subjugation strategies were colonial modes of law enforcement. These modes, which included federal and state troops, frontier militias, slave patrols, and early law enforcement agencies such as the North-West Mounted Police (NWMP) and the NSW police force were created in the image of settler colonialism (Bell & Schreiner, 2018; Gouldhawke, 2020; Green, 2020; Lithopoulos, 2022). For example, under the auspices of the BIA, the U.S. Army was tasked with policing reservations with the overall policy aim of subjugating and assimilating Indians (Lithopoulos, 2022). In Canada, the North-West

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Mounted Police (NWMP) was founded as a paramilitary police organization whose express purpose was to enforce oppressive land laws, such as the Dominion Land Acts of 1872 and Gradual Enfranchisement Act of 1869, later updated as the Indian Act in 1876, which were designed to control Indigenous peoples and redistribute their lands to White settlers (Gouldhawke, 2020). The NWMP also had extraordinary powers regarding the social control of the lives of Indigenous peoples, which were patriarchal and included removing Indigenous children and controlling rations (Green, 2020). In Australia, the NSW Border Police, the Mounted Police, and Native Police were all charged with extending the colonial frontier and quelling Aboriginal resistance to settler expansionism (Gregoire, 2020). Frontier militias were also significant in the subjugating strategies of settler colonialism. Typically, they were groups of local conscripted men organized to defend their communities against threats. In the U.S. colonies, they suppressed local Indigenous uprisings, fought for territories against Indigenous peoples, and participated in the French and Indian War. They sought to expand territories in Australia and were in ongoing frontier wars with Indigenous peoples resisting that expansion.

Genocidal Violence as a Function of Settler Colonialism Law Enforcement Genocidal violence was integral to the functioning of settler colonialism law enforcement and was not spared when met by resistance from Indigenous peoples, nations, or tribes. One of many examples was the Australian frontier wars between 1788 and 1934; an estimated 100,000 Indigenous peoples and between 2,000 and 2,500 settlers died in the conflicts (Reynolds, 1982). In addition, the genocidal violence toward Indigenous people was ubiquitous and was administered with brutality and near impunity. As a result, indigenous peoples, nations, and tribes who resisted settler colonialism were not seen as the rightful owners of the land, protecting their culture and way of life. Instead, they were viewed as savage lawbreakers preventing White dominance over access

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to the most valued resources of the land, access granted by governmental policy informed by English common law and private property rights. Thomas Jefferson thought of the use of violence against Indigenous peoples in the U.S. as this: If ever we are constrained to lift the hatchet against any tribe, we will never lay it down till that tribe is exterminated or driven beyond the Mississippi. In War, they will kill some of us; we shall destroy them all. (cited in Rickert, 2023)

Racialized law enforcement created in the image of colonialism would be one of the pillars of settler colonialism, protecting the interests of White settlers and the settler colonial state and maintaining a racial hierarchy of White supremacy and Indigenous subjugation. In doing so, racism and the view of Indigenous peoples as problematic others to be corralled and controlled would be woven into the organizing grammar of law enforcement.

Settler Colonialism’s Subjugating Strategies for Enslaved Africans and Their Offspring Like Indigenous peoples, enslaved Africans, specifically in the 13 colonies, were viewed as inferior to White settlers in every sense and were socially constructed as a near subhuman species—physically strong and imposing but lacking in intellect. As described in Chapter 4, some common descriptors included childlike, docile, primitive, backward, and sexually promiscuous (Allen, 1994; Horton & Horton, 2006). The social construction of enslaved Africans linked their dark skin with moral and mental inferiority, stripping the enslaved Africans, and later, their American-born offspring of their humanity. The stripping of their humanity allowed settler colonial enslavers to see enslaved Africans as discernably different from and inferior to Whites. As noted in Chapter 4, no less than Thomas Jefferson would muse in Notes on the State of Virginia in 1785 that “Blacks, whenever originally a distinct race, or

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made distinct by time and circumstances, are inferior to Whites in the endowments both of the body and mind” (Jefferson, 1832). The racialization of enslaved Africans helped to justify their lifetime enslavement and cast a culturally and socially diverse population from different regions of the African continent into a homogenized, single group. In doing so, they were recast as property devoid of any rights or recognition as human beings. Of course, within the colonies, the primary subjugating strategy for Africans and their offspring was enslavement, arguably the first instance of the hyper-incarceration of Black people in the U.S., buttressed by a plethora of slave codes in each of the slaveholding colonies. These codes included the following: – All servants imported and brought into the country who were not Christians in their native country shall be accounted for and be slaves. – Negro, mulatto, and Indian slaves within this dominion shall be held to be real estate. – If any slave resists his master, correcting such slave, and shall happen to be killed in such correction, the master shall be free of all punishment, as if such accident never happened (General Assembly, 1705). As noted in Chapters 1 and 4, accompanying these and other codes were numerous restrictions denying enslaved people political rights, property ownership, education, assembly without a White person’s presence, and freedom of movement without their owner’s permission (Higginbotham, Jr., 1996). There were also laws specifically for runaways and enslaved conspiracies and insurrections against their enslavers. Enforcing the slave codes were colonial law enforcement agents, which included overseers, slave patrols, and local and colonial militia. Slave patrols were essential before Congress passed the Fugitive Slave Act of 1850, which required that enslaved persons be returned to their enslaver even if they were in a free state (Henry, 2014). Slave patrols, which arose in the early 1700s in South Carolina, were made up of squads of White volunteers empowered to use vigilante tactics to enforce slavery-related laws. Toward this end, they located and returned escaped enslaved persons, crushed enslaved-led insurrections,

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and punished enslaved workers found or believed to be violating plantation rules. Slave patrol members were empowered to forcibly enter anyone’s home, regardless of race, based on suspicions that they were sheltering escaped enslaved persons (Hassett-Walker, 2019). Runaway enslaved persons who were captured and returned to their enslavers could receive a punishment that ranged from branding and maiming to death. Moreover, the situation was exacerbated by the passing of the Fugitive Act of 1850, which not only required that escaped enslaved persons be returned to their enslaver but also levied significant fines against anyone who interfered with an enslaver in the process of recapturing runaways (Britannica, 2014).

Post-Slavery Subjugating Strategies The end of enslavement, emancipation, and the years following the gains of reconstruction saw a level of Black subjugation that was no less draconian than enslavement. Indeed, it was worse in many respects as the Black body, no longer property, threatened White supremacy. To roll back the gains of reconstruction and ensure near-total subjugation of Black people, the former slaveholding states passed a series of Black codes, all intended to secure a steady supply of cheap, exploitable Black labor (Cohen, 1976). They also passed Vagrancy Laws, which allowed local sheriffs and ordinary White citizens to arrest Black people in groups of three or more who were unemployed and for them to be fined and held in jail until that fine was paid. The enforcement of these vagrancy laws was a common practice as law enforcement officers and White citizens would make sweeps of Black communities just in time for harvest or at times of labor shortages (Cohen, 1976). The vagrancy laws, sweeps, and arrests were a coercive tool to recruit involuntary, cheap Black labor or discourage Blacks from leaving low-paid and exploitative labor (Cohen, 1976). The practice introduced peonage, also called debt slavery, which had Black people held to labor against their will (Cohen, 1976). Indeed, even though outlawed, it was a practice that held Black people in near-slavery conditions for years (Cohen, 1976).

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The most draconian system for subjecting Black people was Jim Crow legislation, which became the legal apparatus segregating Black and White people in all public and social spaces. Under this legislation, Black people were denied fair and equal access to quality housing, health care, education, employment, equal pay, and government benefits. Moreover, they were denied voting rights (Alexander, 2010; Wilson, 1965). Law enforcement and militia groups, specifically the Ku Klux Klan, often working hand in hand, used racial terror and violence with near impunity to punish and discourage any Black resistance to Jim Crow legislation. Indeed, between 1882 and 1968, four years after the passing of the Civil Rights Act of 1964, at least 4,743 lynchings occurred in the U.S. Seventy-two percent of the victims, 3,446, were Black people, primarily, but not exclusively, in the Jim Crow states. Moreover, White victims of lynching were often those who helped Black people and immigrants from Mexico and China (NAACP, 2023).

Settler Colonialism’s Subjugating Strategies as the Foundations of Contemporary Law Enforcement The description of settler colonialism, the process of racialization, and the use of different modes of law enforcement to subjugate Indigenous and Black peoples illustrates the foundations of contemporary law enforcement in the U.S., Canada, and Australia. One may think that as these settler colonies untethered themselves from Great Britain and transformed into liberal democracies characterized by representative democratic government, free and fair elections, separation of power, the rule of law, a market economy with private property, and equal protection of human rights, civil rights, and political freedom for all people, the law enforcement subjugation of Ingenious peoples and Black people would have gradually become a thing of the past.

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Expendable, Criminalized Indigenous and Black Bodies, Neoconservatism, Globalization, and the Criminal Justice System Certainty, modern thinkers in settler nation states stress their liberalism and inclusivity, disavowing settler colonialism and its subjugating strategies as a thing of the past. Yet this is far from the truth. Instead, what has happened is that the subjugating strategies have morphed into a complex web of intersecting systems of racial oppression, which include education, health care, housing, the labor market, and the now formalized criminal justice system. Within these systems, racism and White supremacy permeates, not in ways that are as overt as land expropriation or genocidal violence, but rather in ways that are in keeping with liberal democracy. These emanate from the socially entrenched racial divisions that date back to the respective colonial era and include racialized patterns of residential and income stratification that impact access to quality education, health care, housing, and the labor market. Consequently, within these systems, Indigenous peoples and Black people occupy the lowest rung of the access ladder and are framed as problematic and culpable for poor outcomes in these areas compared with their White counterparts. The UK, the U.S., Canadian, and Australian criminal justice systems today serve neoconservative and neoliberal political philosophies that presuppose open markets and free trade as the most rational means to attain economic prosperity by allowing for the expansion of capitalist markets and by reducing labor costs through the globalization of production (Potter, n.d., p. 3). Intrinsic to these philosophies is the notion that the welfare state, which provided educated and healthy workers, is a tax drain and a crutch obstructing neo-Social Darwinism from eliminating the unfit and elevating those with ambition and potential for work (Potter, n.d., pp. 3–4). As described earlier, when translated to crime control, neoconservatism and neoliberalism take the view that social and legal order is paramount to justice and restraining human nature’s instinct to destroy the veneer of civilization. Crime is seen as individually motivated and

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thus law-and-order, a strong law enforcement presence, and punitiveness in punishment are essential for order (Potter, n.d.). Marked as problematic within this framework, which racializes deviance, are Indigenous peoples and Black people, particularly if from lower socioeconomic communities, who are viewed as unworthy and dangerous and whose labor is deemed surplus to the globalization of production. Thus, the Indigenous and black bodies within the neoconservative and neoliberal construction become that of the dangerous racialized other whose wanton behavior threatens the very fabric of society. In the UK, it was the inner-city Black youth who mugged elderly women or were part of civil disobedience (Brake & Shank, 1983). In the U.S., it was the Black super predator, who was a crack-dealing killer (Huang, 2021). In Canada, it is the racial stereotyping of Indigenous communities as drunk, lazy, helpless, and perpetually dependent on government aid (Burns & Shor, 2021). Similarly, in Australia, negative stereotypes about Indigenous peoples abound, which include laziness, welfare abuse, substance abuse, and criminality (Queensland Mental Health Commission, 2023). What this has meant for Indigenous and Black people, particularly the young, underemployed or unemployed, and undereducated, is being socially constructed as problematic and in need of punitive social control by law enforcement, informed by neoconservative- and neoliberal-inspired criminal justice policy. As a consequence, in the liberal democracies of the UK, the U.S., Canada, and Australia, the subjugating strategies of the settler colonel era have morphed into the modern-day war on crime, war on drugs, stop and search, deaths in police custody, police-involved shootings of unarmed Indigenous and Black people, mandatory minimum sentencing, and hyper-incarceration.

Summary To summarize, this is not new, just ostensibly different. As illustrated in this and previous chapters, the settler colonial states of the U.S., Canada, and Australia, through the reservation system, enslavement, and a legal framework informed by British common law (see Chapter 5), have had hundreds of years of practice in the hyper-incarceration of Indigenous

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and Black bodies. At no time has this been true for White people in the respective histories of these settler states. As such, the current Indigenous and Black disproportionality in the respective criminal justice systems is not aberrational but normal, revealing the link between historical and contemporary racialized social relations and practices in these countries (McKay et al., 2020). These are the relations and practices that CRT contends are ingrained in the history, law, and social structures of White liberal democracies, privileging White population dominance in all areas of society by shaping law and other practices that protect the racial status quo (Brewer & Heitzeg, 2008; Delgado & Stefancic, 2012; Jefferies, 2019).

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Gouldhawke, M. (2020). A condensed history of Canada’s colonial cops. The New Inquiry. https://thenewinquiry.com/a-condensed-history-of-can adas-colonial-cops/ Green, J. (2020). The impacts of control, racism, and colonialism on contemporary Aboriginal-police relations. Emerging Scholars in Australian Indigenous Studies, 1–9. Gregoire, P. (2020). Australian police: The history of systemic brutality continues to this day. Sydney Criminal Lawyers. https://www.sydneycriminallawyers. com.au/blog/australian-police-the-history-of-systemic-brutality-continuesto-this-day/ Hassett-Walker, C. (2019, June 4). The racist roots of American policing: From slave patrols to traffic stops. The Conversation. https://theconversat ion.com/the-racist-roots-of-american-policing-from-slave-patrols-to-trafficstops-112816 Heller, S. (2017). Victims of the image: Ignobility for the noble savage. Design Observer. https://designobserver.com/feature/victims-of-the-imageignobility-for-the-noble-savage/39654 Henry, N. (2014). Fugitive Slave Act 1850. The Canadian Encyclopedia. https:/ /www.thecanadianencyclopedia.ca/en/article/fugitive-slave-act-of-1850 Higginbotham, A. L. Jr., (1996). Shades of freedom: Racial politics and presumptions of the American legal process. Oxford University Press. Hinton, E., & Cook, D. (2021). The mass criminalization of Black Americans: An historical overview. Annual Review of Criminology, 4, 261–286. Horton, J. O., & Horton, L. E. (2006). Slavery and the making of America. Oxford University Press. Huang, A. (2021, August 25). The “superpredator” myth: How moral panics destroy criminal justice reform. Dialogue & Discourse. https://medium.com/ discourse/the-superpredator-myth-how-moral-panics-destroy-criminal-jus tice-reform-dee13580c1ea Issar, S. (2021). Theorizing racial/colonial primitive accumulation: Settler colonialism, slavery, and racial capitalism. Race and Class, 63(1), 23–50. Jefferies, J. L. (2019). Justice is not blind: Disproportionate incarceration rate of people of color. Social Work in Public Health, 34 (1), 113–121. Jefferson, T. (1832). Notes on the state of Virginia. Lilly and Wait. https:// books.google.com/books/about/Notes_on_the_State_of_Virginia.html?id= NgKidsPa_QoC Karandinos, G., & Bourgois, P. (2019). The structural violence of hyper incarceration—A 44 year old man with back pain. New England Journal of Medicine, 380 (3), 205–209.

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Kauanui, J. J. (2016). “A structure, not an event”: Settler colonialism and enduring indigeneity. Emergent Critical Analytics for Alternative Humanities Issue, 5 (1). Kipling, R. (1899). The white man’s burden. Fordham University. https://source books.fordham.edu/mod/kipling.asp Lieblich, E., & Shinar, A. (2018). The case against police militarization. Michigan Journal of Race and Law, 23(1&2), 105–153. https://repository. law.umich.edu/cgi/viewcontent.cgi?article=1280&context=mjrl Lithopoulos, S. (2022). International comparison of Indigenous policing models. Government of Canada. https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ cmprsn-ndgns-plcng/index-en.aspx McCulloch, J. (2022, September 23). Police, militarization, racism and colonialism. Australian Institute of International Affairs. https://www.intern ationalaffairs.org.au/australianoutlook/police-militarisation-racism-and-col onialism/ McKay, D. L., Vinyeta, K., Norgaard, K. M. (2020). Theorizing race and settler colonialism within U.S. sociology. Sociology Compass, 14 (2), 1–14. NAACP. (2023). History of lynching in America. https://naacp.org/find-resour ces/history-explained/history-lynching-america Nolan, T. (2020, June 3). How militarizing the police sets up protesters as the enemy. The Tyee. https://thetyee.ca/Analysis/2020/06/03/MilitarizingPolice-Protesters-As-Enemy/ Parker, K., Horowitz, J. M., Morin, R., & Lopez, M. H. (2015). Chapter 1: Race and multicultural Americans in the U.S. census. Pew Research Center. https://www.pewresearch.org/social-trends/2015/06/11/cha pter-1-race-and-multiracial-americans-in-the-u-s-census/ Potter, G. (n.d.). The criminal justice system in late modernity. Eastern Kentucky University, 1–15. https://justicestudies.eku.edu/sites/justicestudies. eku.edu/files/the_criminal_justice_system_in_late_modernity.pdf Queensland Mental Health Commission. (2023). Impact on Indigenous Australians. https://www.qmhc.qld.gov.au/research-review/stigma-discrimin ation/impact-on-indigenous-australians Reynolds, H. (1982). The other side of the frontier: Aboriginal resistance to the European invasion of Australia. Penguin Books. Rickert, L. (2023, February 20). U.S presidents in their own words concerning American Indians. Native News Online. https://nativenewsonline.net/cur rents/us-presidents-in-their-own-words-concerning-american-indians/

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Tauri, J. M., & Porou, N. (2014). Criminal justice as a colonial project in settler-colonialism. African Journal of Criminology and Justice Studies, 8(1), 20–37. Taylor, D. (2022, August 4). UK policing and border control infiltrated by war mentality, says report. The Guardian. https://www.theguardian.com/uknews/2022/aug/04/uk-policing-and-border-control-infiltrated-by-war-men tality-says-report Veracini, L. (2013). ‘Settler colonialism’: Career of a concept. The Journal of Imperial and Commonwealth History, 41(2), 313–333. Wilson, T. B. (1965). The black codes of the south. University of Alabama Press. Wolfe, P. (2006). Settler colonialism and the elimination of the native. Journal of Genocide Research, 8(4), 387–409.

10 Where the Criminal Justice Systems of the UK, the U.S., Canada, and Australia Converge

Three Critical Areas of Convergence in the Criminal Justice Systems of the UK, the U.S., Canada, and Australia Although they are all derived from English common law, the U.S., Canadian, and Australian criminal justice systems differ from the UK’s in that they function within a federalist structure in which power is distributed between the national government and state governments (see Chapter 5 for a more detailed discussion). However, critical areas of convergence significantly contribute to Indigenous and Black disproportionality in the respective criminal justice systems. These areas of convergence include punitive neoconservative and neoliberal law-and-order, tough-on-crime rhetoric, emphasizing incarceration for more offenders for more extended periods, law enforcement’s use of various iterations of stop and search policy, and an accusatorial model approach to the criminal procedure that uses plea bargaining. This chapter examines the convergences and their impact on the disproportionately in the respective criminal justice systems. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Warde, Colorblind, Critical Criminological Perspectives, https://doi.org/10.1007/978-3-031-38157-7_10

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Law-And-Order, Getting Tough-On-Crime, and the War on Drugs The punitive neoconservative and neoliberal law-and-order, tough-oncrime rhetoric, emphasizing the use of incarceration for more offenders for more extended periods, and its influence on the shaping of the modern criminal justice systems of the UK, the U.S., Canada, and Australia were discussed in detail in Chapter 8. However, one aspect of this agenda that needs more attention is the war on drugs that, to varying extents, undergirded much of the hyper-incarceration experienced in the respective nations between the 1980s and 2015 (Khenti, 2014).

Historical Background to the War on Drugs: It Has Always Been About Race Opium, Anti-Chinese Sentiment, and a Racial War on Drugs in the U.S., Canada, and Australia Concern about substance abuse and its impact on society is far from new in the UK, the U.S., Canada, and Australia. Opium and/or morphine, for example, were in everyday use, both for medicinal and recreational purposes, during the mid- to late-1800s, going into the early twentieth century in the UK, the U.S., Canada, and Australia (Agnew, 2010; Berridge, 1980; Canadian Drug Policy Coalition, n.d.; Realuyo, 2019; Rowe, 2001). In the UK, working-class families used opium for all maladies and injuries, including tuberculosis or pneumonia-related coughs and insomnia (Agnew, 2010). In the U.S., morphine (opium derivative and cousin of heroin) was the drug of choice to alleviate the terrible pain of soldiers injured or recovering from amputations during the Civil War (Agnew, 2010). Moreover, opium was commonly used as a recreational drug on the west coast of the U.S. (Agnew, 2010). In Canada, opium was sold as medicine, taken orally, or in teas and elixirs. Furthermore, products like wine and cough drops containing opium were commonplace (Canadian Drug Policy Coalition, n.d.).

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Similarly, in Australia, opiates were used in medicinal concoctions with catchy brand names advertised as miracle cures for every ailment possible (Rowe, 2001). Recreationally, the smoking of opium was imported into Australia by Chinese immigrants and was accepted widely because of the revenue derived from taxation duties (Rowe, 2001). At least initially, there was very little regulation of opium, morphine, and other drugs, despite widespread use and overdoses, death, and addiction were not at all uncommon. Moreover, it would be accurate to say that the attitude toward addiction was not particularly punitive as regards criminalization and incarceration. However, this would change with the arrival and settling of Chinese immigrants in the respective settler states. At the epicenter of this change was the fear that Chinese immigration elicited in White Europeans, who saw the Chinese as not just culturally different and inferior but also a threat to White working and middleclass purity and unwanted competition in the job market, particularly in railroad construction in the U.S. and Canada. Indeed, the enmity toward Chinese immigrants was certainly on par with that of Indigenous and Black people in the respective countries. Moreover, the anti-Chinese sentiment and White anxiety that grew out of the enmity were projected into a moral panic about opium, as the Chinese became characterized as mysterious and immoral purveyors of opium dens and prostitution (Ahmad, 2008; Canadian Drug Policy Coalition, n.d; Carstairs, 1999; Manderson, 1999; Rowe, 2001). In this characterization, the Chinese, and opium, would be linked to the moral corruption of White women and the sexual mixing of the races (White, 2014). In H. H. Kane’s study, “Opium-Smoking in America and China,” published in 1882, the year of the Chinese Exclusion Act, Kane wrote: Many females are so much excited sexually by the smoking of opium during the first few weeks that old smokers with the sole object of ruining them have taught them how to smoke. Many innocent and over-curious girls have been thus seduced. (Kane, 1882, p. 8)

In short order, the Chinese would be inextricably and erroneously linked with the first publicly perceived drug epidemic in the U.S., Canada, and Australia—a White epidemic, not Chinese (White, 2014). Each country

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passed anti-narcotics legislation in response to the anti-Chinese agitation and the erroneous link to the perceived drug epidemic. In the U.S., on November 22, 1875, the Board of Supervisors of the City and County of San Francisco passed the first anti-narcotics ordinances in the United States. The ordinances were designed to reduce the growing number of opium dens in the city, levying a fine of between $50 and $500 and up to 6 months in jail for operating or visiting an opium den. Twenty more states, beginning with Nevada in 1877, would pass anti-opium ordinances (Baumohl, 1992). In Canada, the Opium Act of 1908 was passed, punishing men who imported, manufactured, or sold opium for nonmedical purposes. The criminal and monetary penalties were disproportionately exorbitant, targeting Chinese Canadian men. In 1911, Parliament passed the Opium and Drug Act, which added cocaine and morphine to the list of prohibited substances. Moreover, police powers were expanded, with law enforcement more vicariously targeting Chinese men and drug-related convictions beginning to rise (Canadian Drug Policy Coalition, n.d.). In Australia, the inflammatory rhetoric about the presence of European women in overwhelmingly male Chinese communities had Victorian parliamentarian John Wood declare: I would not be inconsolable if through opium they [the Chinese] suffered the fate which fell on the first-born of Egypt’, he was concerned at, ‘the rapid increase of the use of opium amongst the white population, more especially among young girls who were systematically decoyed into dens occupied by filthy Chinese. (cited in Rowe, 2001, p. 126)

In 1905, the Federation of Australia passed the Opium Proclamation, which prohibited the importation of opium for nonmedical purposes. The racial intent of the proclamation was made clear by General Order 956 of the Department of Trade and Customs, which referred to the illegal possession of opium by Chinese or others (Manderson, 1987, p. 9). Victoria was the first state to pass complementary legislation outlawing the sale, manufacture, possession, and use of smoking opium in 1905 (Rowe, 2001). In passing the legislation, which was seen as protecting White people, it was noted that “ it would be a devilish good

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thing to let the Chinese smoke opium until they were wiped out of existence” (Victorian Parliamentary Debates, Legislative Assembly, 1905, p. 2124).

Peyote, Indigenous People, and a Racialized War on Drugs Foreshadowing their leading role in the war on drugs in the late 1960s, the U.S. did not stop at opium in their racialized war on drugs in the nineteenth century. Also, very much a feature of the late nineteenthcentury racialized war on drugs in the U.S. was peyote, a mild hallucinogenic derived from the top of a small cactus found on the banks of the Rio Grande and in scattered places across Mexico (Barnett, 2016). It was called peyote, from the Aztec word peyotl and was used as physical and spiritual medicine by the Indigenous peoples of the Americas for thousands of years (Jones, 2007; Stewart, 1987; Swan, n.d.) As early as 1620, peyote was outlawed by the Spanish Inquisition, marking the boundary between the Indigenous and the West (Dawson, 2018). As Dawson (2018) notes, for nearly four centuries, ecclesiastical, legal, scientific, and scholarly community authorities worked to police the boundary and ensure that while Indigenous subjects might consume peyote, non-Indigenous could not. However, a tipping point was reached when a new Indigenous religion based on the ritual consumption of peyote formed on the reservations of the southwestern Indian Territory (present-day Oklahoma) in the 1870s. The structure and content of Peyotism drew upon earlier ceremonies from northern Mexico and traditional theologies from the southern Plains cultures (Swan, n.d.). By 1907, the religion had spread to the majority of other tribes within the Indian territory (Barnet, 2016; Dawson, 2018; Swan, n.d.). Furthermore, on October 10, 1918, with the work of individuals such as Quanah Parker (Comanche), Chivato (Lipan), Jim Aton (Kiowa), John Wilson (Caddo-Delaware), and Jonathan Koshiway (Oto), Peyotists were able to achieve the legal definition of their religion through the

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incorporation of the Native American Church of Oklahoma (Swan, n.d.). This development caused alarm among White missionaries and U.S. government officials. At the core of their alarm was the belief that Peyotism directly threatened their efforts to assimilate Indigenous peoples through Christianization (Barnet, 2016; Dawson, 2018; Swan, n.d.). However, Peyotist saw no conflict in practicing religion, including Christianity, with the aid of peyote. Indeed, they argued that the First Amendment guaranteed them a right to religious freedom (Swan, n.d.). However, much like what happened to the Chinese and opium, White officials, with the aid of print media, brought pressure to bear on the use of peyote by first recasting it as dangerous and then refiguring its users, Indigenous peoples, as socially marginal and willful and in need of the punitive intervention of criminal law (Swan, n.d.) In an era of increased public concern about the use of narcotics and the passing of the 1906 Pure Food and Drug Act and the 1914 Harrison Narcotics Act, a series of newspaper articles in the late 1910s and early 1920s issued a warning that the sacred peyote was an evil addicting substance with the same potency as opium, cocaine, and marijuana. Therefore, it caused irrational and violent behavior, leading to physical and moral debauchery and economic ruin (Swan, n.d.). Moreover, it endangered White settlements, destroyed marriages, and threatened morality. To illustrate, Herbert Welsh’s (1918) Peyote—An Insidious Evil and the articles “Peyote Bean Causes Frenzy” (”Peyote Bean Causes Frenzy,” 1919) and “Peyote Used as Drug in Indians’ ‘Cult of Death’” (“Peyote Used As Drug,” 1923) made exaggerated and baseless claims that peyote was evil and was the most powerful drug known to man. Similarly, Welsh (1918) opined that peyote caused more damage than whiskey, gambling, and all other substances. Indeed, the general characterization of peyote was that such was its potency, only a small dose would last for days and bring on a state of drunkenness and inebriation that would force Native Americans to rest in bed for days to recover (“Peyote Used As Drug,” 1923). Indeed, it was painted as a vice plaguing Native Americans (“Peyote Used As Drug,” 1923; Welsh, 1918).

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Despite the numerous organized efforts to prevent the use of peyote, the Native American church was able to weather the storm of persecution at the local, state, and federal level by evoking their First Amendment protections and the use of peyote as a religious sacrament (Swan, n.d.). Ironically, it was not until the Nixon administration and their war on drugs did peyote get listed by the 1970 Controlled Substance Act as a Schedule I hallucinogenic substance to be heavily regulated even for religious use (Barnett, 2016).

Black Americans, Mexican Immigrants, and a Racialized War on Marijuana Use, 1920s to 1930s Similarly, historically racialized around drug use, specifically marijuana, in the U.S. were Black Americans and Mexican immigrants in the 1920s and 1930s. The marijuana use of Black jazz musicians in the 1920s onwards was seen as a moral threat to the White population, and jazz musicians such as Louis Armstrong and Billy Holiday became highprofile targets of Harry Anslinger, the country’s first commissioner of the Federal Bureau of Narcotics, who was pushing hard to make cannabis illegal. Indeed, he went so far as to argue that jazz musicians were creating “Satanic” music, all thanks to the influence of marijuana (Adams, 2016). He further claimed that marijuana encouraged interracial mixing and relationships (Adams, 2016). During the Great Depression, Mexican immigrants were similarly othered and associated with marijuana use and the supposed crime and debauchery that came with excessive use. Black Americans and Mexican immigrants soon became most associated with marijuana even though there was no evidence they used it at rates higher than their White counterparts. In 1937, The Marijuana Tax Act was passed, with Anslinger and his team justifying the act on the perpetrated lie that Black men would use cannabis to seduce and rape White women and that it would encourage Mexicans to kill their neighbors (Watson, 2020).

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The Drug War Has Always Been About Race As posited by Manderson (1999), beginning with the earliest drug laws in the Anglo-settler colonies, drug laws are about symbolism rather than the pharmacology of the drugs themselves; drug laws are an expression of racism and fears of differences. Williams (2021) contends that in the case of the U.S., its first war on drugs reflected four themes that will be repeatedly recycled within the history of U.S. drug control policies: 1. The public often believes that particular groups of people are the primary users of a particular drug when, in reality, other groups with quite different images are the heaviest users. 2. Public sentiment is always shaped by their feelings about the people with whom the drug is most visibly linked. 3. Race, gender, and social class play important roles in shaping drug control policies and influencing their enforcement. 4. Efforts to stamp out drugs are often part of a broader and sometimes undeclared effort to control or stamp out certain groups of people (p. 8). Indeed, we see the moral panic reappear with a vengeance in the toughon-crime legislation of modernity in which a war on drugs is the centerpiece. However, this time, Indigenous and Black peoples have become inextricably and erroneously linked with the ills of drugs.

The Modern War on Drugs The UK In the UK, a concentered war on drugs can arguably be traced to the passing of the Controlled Drugs (penalties) Act of 1985, which increased the maximum penalty for trafficking Class A drugs to life imprisonment. However, it was passed during a period when drug trafficking became racialized and was portrayed within the context of Black people and deprived inner cities (Kalunta-Crumpton, 2004, p. 200). The central

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casting villains were the Jamaican Yardies, whose involvement in the illegal drug trade, most notably marijuana and crack cocaine, and gun crime were projected onto all Black inner-city youth. During the late 1980s and early 1990s, media reports of their ruthless violence and drug dealing were ubiquitous, none more so when they were blamed for the murder of PC Patrick Dunne in 1993 and countless rival Black drug dealers. As a result, inner-city Black communities and Black youth soon became viewed as dangerous drug dealing, gun-toting war zones. Indeed, this view became the catalyst for the formation of Operation Trident in 1998, a Metropolitan Police Service unit specifically tackling Black-onBlack gun crime in inner-city Black communities. In 2012, the unit’s remit was expanded into the Trident Gang Crime Command, incorporating the responsibility for tackling wider Black gang crime. In 2013, fatal shootings were taken over by the Homicide and Serious Crime Command. In the interim, 24 get-tough-on-drugs laws were passed between 1986 and 2021. Moreover, low-level policing, which involved street-level surveillance and stop and search tactics concentrated in certain inner-city community areas, was given the highest priority as the strategy for drug law enforcement (Kalunta-Crumpton, 2004). In doing so, though, stop and search concentrated on suspected drug offenses, most of which are low-level possession of class C or B, depending on the years, drugs, such as marijuana. To illustrate, between 2006 and 2017, Black people were stopped and searched for drugs at almost nine times the rate of White people, even though the find rate for drugs was lower for Black people than White people, suggesting that such searches are carried out based on weaker grounds for Black people (Shiner et al., n.d., p. 15). Moreover, there were significant variations in the locations of stops and searches, with the highest in economically deprived boroughs with high levels of racial inequality. In contrast, affluent White boroughs had the lowest rate of drug stops and searches (cited in Shiner, n.d., p. 28). Other findings between 2006 and 2017 were that Black people in 2017 were prosecuted for drug offenses at eight times the rate of White people. Moreover, more Black people were prosecuted for cannabis (a Class C drug) than for supplying A and B substances combined. The

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balance was reversed for White people. As well as prosecuted, Blacks and Asians were convicted of cannabis possession at 11.8 and 2.4 times the rate of White people despite their lower rates of self-reported use (cited in Shiner, n.d., p. viii). Indeed, Black people composed 25% of those convicted of cannabis possession, despite composing 4% of the population. Moreover, they were sentenced to immediate custody for drug offenses at 9.1 times the rate of White people but given suspended sentences at 5.6 times the rate of White people (cited in Shiner, n.d., p. viii). The net result of the UK’s war on drugs has been to criminalize and disproportionately incarcerate young Black people from lower socioeconomic inner-city communities, most notably in London. Given that so many of these young people come into the criminal justice system for what has historically been seen and now has been decriminalized, a low drug such as marijuana, what was the purpose of the war on drugs? As waged, it is more a war on inner-city Black youth than on drugs. In fairness, there has been growing recognition of this predicament and a call to abandon the war on drugs as currently waged in the UK.

The U.S. The emergence of crack, a highly addictive, smokable form of cocaine, in the 1980s was the catalyst for accelerating a race-tinged war on drugs that had begun on Black and Puerto Rican inner-city youth under the Richard Nixon administration that had declared drug abuse to be public enemy number one (Encyclopedia Britannica, 2023). Under the Presidency of Ronald Regan, the drug war, which had been a relatively small component of federal law enforcement even under Nixon, was greatly expanded in response to the proliferation of media coverage of the crack epidemic, almost all focused on Black inner-city communities. Indeed, in their study, The Social Construction of the Crack Epidemic in the Print Media, Hartman and Golub (1999) found that between 1985 and 1999, with coverage peaking between 1989 and 1990, myths about U.S. crack cocaine were regularly perpetrated, particularly during the peak coverage year. While fewer myths were perpetrated and some

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were even dispelled after the peak coverage years, what did not happen was the correction of previous exaggerations (Hartman & Golub, 1999). The most prevalent myths were that crack was more dangerous than other drugs, that crack use caused individuals to display violent behavior, and that crack sellers were becoming fabulously wealthy. Another clear bias was the overwhelming focus on inner cities, despite the broader use of crack (Hartman & Golub, 1999). Coupled with nightly news coverage of warring inner-city crack gangs and murder, heightened public concern over illicit drugs helped drive public support for Reagan’s hard-line stance on drugs. As a result, in 1986, the U.S. Congress passed the Anti-Drug Abuse Act. The Act allocated $1.7 billion to the war on drugs and established a series of mandatory minimum prison sentences for various drug offenses (Encyclopedia Britannica, 2023). One of the most striking features of the Act was the massive difference between the amounts of crack (which was associated with inner-city Black users) and powdered cocaine (which was associated with White users) that resulted in the same minimum sentence. To illustrate, five grams of crack led to an automatic 5-year sentence. In comparison, it took the possession of 500 grams of powder cocaine to trigger the same sentence (Encyclopedia Britannica, 2023). These mandatory minimums led to an unequal increase in federal incarceration rates for nonviolent Black drug offenders and the beginning of racial disproportionality in incarceration fueled by drug convictions. However, it was not just the federal system in which mandatory minimum drug sentences would be at the center of the war on drugs and the exponential growth in the rates of racial disproportionality in incarceration. By the end of the 1980s, all 50 states had enacted mandatory minimum drug sentences, with New York leading the way with the Rockefeller Drug Laws, passed in 1973 in the Nixon era (Siegler, 2021). Under the Rockefeller Drug Laws, the penalty for selling two ounces (57 g) or more of heroin, morphine, raw or prepared opium, cocaine, or cannabis or possessing four ounces (113 g) or more of the same substance was a minimum of 15 years to life in prison, and a maximum 25 years to life in prison. The section of the laws applying to marijuana was repealed in 1977 (Williams, 2021).

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Among the most striking features of mandatory minimum drug sentencing is the degree to which it was used against Black people. In fact, at the federal level, prosecutors bring mandatory minimum sentences against Black people 65% more than White people (Rehavi & Starr, 2014). The net result of the racialized war on drugs, which has slowed from its frenetic pace in the 1980s and 1990s, is that generations of Black and Hispanic people were and still are disproportionality represented in incarceration both at the state and federal level, even as all the available data indicate that White people use illicit drugs at a much higher level than Black and Hispanic people. Another net result that has yet to receive the attention it deserves is the collateral consequences of a drug conviction. These are postincarceration penalties, disability, and disadvantages imposed by law due to an individual’s conviction for a felony, misdemeanor, or other offenses. They are not part of the court’s judgment and do not include imprisonment, probation, parole, supervised release, fine, forfeiture, restitution, or the cost of the prosecution that attaches to a drug conviction (American Bar Association, 2018). In essence, a felony drug conviction and other convictions can disqualify a person from a range of benefits, resources, and activities even after they have served their time and all other requirements of release. Depending on the state, a felony drug conviction can render one ineligible for public benefits such as SNAP, government-sponsored student loans, grants, and public housing, and can restrict obtaining particular employment and occupational licenses (American Bar Association, 2018). There is also civil exclusion, which includes, depending on the state, temporary loss of voting rights and disqualification from serving on a jury (United States Commission on Human Rights, 2019). It is also important to note that while Indigenous people are disproportionately overrepresented in the incarceration rates, the war drugs and its impact in terms of sentencing is little known because the focus of studies and government data has overwhelmingly been presented in the Black/White binary, with some on Hispanic peoples. As such, it is difficult to ascertain the impact of the decades-long war on drugs on Indigenous peoples.

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We can say that the U.S. war on drugs was waged almost exclusively on low-income urban Black and, to a lesser extent, Hispanic communities. It did not target the people importing drugs into the country, but rather users and low-level street dealers, while painting them as dangerous super predators who had to be taken off the streets and locked away for extended periods.

Canada As noted in Chapter 8, Canada’s modern-day war on drugs arguably began tentatively in 1986, when Prime Minister Brian Mulroney unexpectedly, and in lockstep with the U.S.’s war on drugs stance, declared that drug abuse had become an epidemic that undermined the economic and social fabric in Canada (Erikson, 1992). Despite the rhetoric and the launching of a two-phase national drug strategy over 10 years, i.e., from 1987 to 1992 and from 1992 to 1997, Prime Minister Mulroney did not pass any drug laws that could be considered punitive. This did not happen until 1996, under Prime Minister Jean Chrétien’s (1993–2003) liberal government, which passed the Controlled Drugs and Substances Acts of 1996, its long name being An Act Respecting the Control of Certain Drugs, their Precursors and Other Substances and to Amend Certain other Acts and Repeal the Narcotic Control Act (Can LII, 2023; House of Commons, Canada, 2002). The Controlled Drugs and Substances Acts of 1996 contained stiff penalties related to possession, trafficking, and possession for distribution, smuggling, and production. For example, the possession of Schedule I drugs, including opium, and Schedule II drugs, such as synthetic cannabinoids, if indicted, tried, and found guilty, had a maximum sentence of seven and five years of imprisonment, respectively (Can LII, 2023). Moreover, for trafficking and possession to distribute Schedule I and II drugs, there was a maximum sentence of life imprisonment (Can LII, 2023). However, as discussed in Chapter 8, the election of Stephen Harper of the Conservative Party of Canada as Prime Minister (2006–2015) signaled a more muscular and punitive stance toward substance abuse

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and crime in general. Harper’s Conservative Party of Canada came to power on an election platform that vowed to protect communities from crime by putting more police officers on the street, insisting on harsher sentences for serious and repeat crimes, tightening parole, ensuring truth-in-sentencing, and putting an end to the liberal revolving door. Moreover, the election platform insisted that the drug, gang, and gunrelated crimes plaguing communities must be met by clear mandatory minimum sentences, an end to in-home sentencing, and parole being a privilege to be earned, not demanded as a right (Conservative Party of Canada, 2004). In 2007, in a Winnipeg press conference, Prime Minister Harper bemoaned the lack of mandatory minimum sentencing for drug offenses, noting that drug crimes are serious, and he would introduce mandatory minimum sentences for serious drug offenses as part of a $63.8 million, 2-year drug strategy that would help addicts and punish dealers (CBC, 2007). Harper was unrelenting in his belief that the harm reduction approach to drug abuse was not an appropriate policy response to the harm caused by drug abuse, production, and distribution (CBC, 2007). On March 2012, the Federal Conservative government of Stephen Harper enacted arguably Canada’s toughest ever law-and-order legislation—Bill C-10, An Act to Enact the Justice For Victims of Terrorism Act and to Amend the State Immunity Act, the Criminal Code, the Controlled Drugs Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Act, and other Acts (Justice Laws Website, 2023). More commonly known as the Safe Streets and Communities Act, among the bill’s nine measures were amendments to the Controlled Drugs and Substance Act of 1996. These amendments included minimum penalties for serious drug offenses, an increase in the maximum penalty for marijuana production, and an increase in prison sentences for marijuana offenses (Justice Laws Website, 2023). As part of Harper’s more extensive law-and-order, get tough-on-crime agenda, the amendments, Khenti (2014) argues, intensified legal consequences for minor drug offenses and further criminalized nonhabitual drug use (p. 190). Indeed, in effect, it expanded and toughened what

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was, until that point, the Canadian government’s long-standing lowlevel war on drugs that Khenti (2014) contends previously targeted the poorest segments of Canadian society (p. 190). Because of the inaccessibility of racially disaggregated criminal justice data within the criminal justice context in Canada, Owusu-Bempah and Luscombe (2021) argue that answering the questions of how race influences drug law enforcement there has been much more complex than in the U.S. However, over the past few years, various sources have been able to use freedom of information law to get access to police arrest records and shed light on the ways race and drug law enforcement interact, particularly given the disproportionate rates of incarceration for Indigenous and Black people in Canada. One such source was the Toronto Star, which in 2017 reported on marijuana arrests in Toronto. Analysis of the collected data found that between 2003 and 2013, the Toronto police arrested 11,299 whose skin color was noted—and had no prior convictions—for possessing up to 30 grams of marijuana. These individuals were not on parole or probation when arrested. While most of the 11,299 people without prior convictions were released at the scene when caught with small amounts of marijuana, 15.2% of Black people—the highest rate among racial groups—were detained for a bail hearing. In comparison, only 6.4% of Whites were detained (Rankin & Contenta, 2017). The disparity was even more remarkable for young people, ages 12 to 18, who accounted for 22% of arrests for possession between 2003 and 2013. In this cohort, 15% of Black young people were detained, compared with 3.2% of White young people (Rankin & Contenta, 2017). In short, between 2003 and 2013, Black people in Toronto with no history of criminal convictions were three times more likely to be arrested by Toronto police for possessing small amounts of marijuana than White people with similar backgrounds. In addition, they were more likely to be detained for bail, depending on discretionary factors such as at least one other criminal charge, no identification, no fixed address, previous stop, and attitude (Rankin & Contenta, 2017). Another source shedding light was Vice World News, which used freedom of information law to compile national noncannibals drug possession arrests broken down by race, something that, as of 2022, did

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not exist in Canada (Brown, 2022). For review and analysis, findings from the data set shared with the University of Toronto criminologists Akwasi Owusu-Bempah and Alex Luscombe revealed stark racial disparities in drug arrests, specifically for cannabis possession, in Canada. More specifically, even with the decline in the number of drug possession charges and arrests since the legalization of cannibals in 2018, Indigenous and Black people are still more likely to be arrested for drug possession— with Indigenous people eight times more likely to be arrested than White people in one major city (Brown, 2022). Similarly, using freedom of information, Owusu-Bempah and Luscombe, criminologists at the University of Toronto (2021), conducted a 2015 study examining the relationship between cannabis and the Canadian war on drugs. Examining cannabis arrests data by race in five major cities in five Canadian provinces—Vancouver, Calgary, Regina, Ottawa, and Halifax—using a racial disproportionality index methodology, they found that with one exception, Indigenous and Black people were overrepresented in each city’s logs of arrests when compared with their representation in the general population (2021, p. 1). In Vancouver, for example, Indigenous people compose 2.5% of the population but accounted for 15.6% of those arrested for cannabis possession in 2015 (Owusu-Bempah & Luscombe, 2021, p. 5). Indigenous and Black people in Calgary were similarly overrepresented in cannabis arrests, compared with Whites, who were neither underrepresented nor overrepresented (Owusu-Bempah & Luscombe, 2001, p. 5). In Regina, Indigenous and Black people were seven and five times more likely than their White counterparts to be arrested for cannabis possession. Disproportionality by race was also true in Ottawa (Owusu-Bempah & Luscombe, 2001, p. 5). Lastly, in Halifax, where the overall number of cannabis arrests is low compared with the other four jurisdictions, Black people faced the most significant disparities in cannabis arrests, where they were arrested for simple possession 8.5 times greater than their representation in the population, compared with White and Indigenous people who were underrepresented (Owusu-Bempah & Luscombe, 2001, p. 5). Much like the UK and the U.S., Canada’s drug war has little to do with drugs and more to do with race. It is waged almost entirely on

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Indigenous and Black bodies, even though there is no evidence to suggest that Indigenous and Black people use drugs more than their White counterparts.

Australia During the 1990s, Australia had one of the highest levels of drug consumption globally. In response, Australia implemented the National Illicit Drugs Strategy “Tough on Drugs” (1997). Further, In 1998, following the United Nations Member States Special Session of the General Assembly, where an agreement was made to take tougher action to reduce both the illicit supply of and the demand for drugs, Australia implemented the National Drug Strategic Framework (1998/99–2002/ 03) and the subsequent National Drug Strategy—Australia’s Integrated Framework (2004–2009: United Nations Office of Drugs & Crime, 2008). Paralleling these strategies was the establishment of the Australian National Council on Drugs (ANCD) in 1998, which helped to incorporate the know-how of the community of experts working in the various fields of drug control at the federal level and in the various states. Furthermore, in 2004, there was the establishment of the National Indigenous Drug and Alcohol Committee (NIADA) by the ANCD specifically to provide the most appropriate and efficient solution for the ANCD to solve the problems of Indigenous drugs and alcohol in Australia. The NIADA was defunded in 2014 (Australian Indigenous Health Info Net, n.d.). At the core of these strategies was harm reduction, more so than punishing users of illicit substances. However, the federal government does not solely govern drug-related offenses in Australia. Instead, it works in conjunction with each state and territory’s legislation, and the approach is not uniform (United Nations Office of Drugs & Crime, 2008). Moreover, Booker (2021) argues that the trend has not been harm reduction but criminalization and prohibition of drugs. He further states that this has done immeasurable harm to individuals and society, noting that Australia spends $1.7 billion per year fighting illicit drugs, the bulk of which funds law enforcement instead of harm reduction.

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Furthermore, some have argued that a drug war is being waged, but it is on Indigenous people, and it is punitive (Korff, 2022; McGowan & Knaus, 2020; Stockman, 2021). Indeed, Stockman (2021) argues that Australian politicians have leveraged the war on drugs to criminalize and oppress minority groups, most particularly Indigenous people while turning a blind eye to others in a similar way that Nixon did in the U.S. As one piece of evidence of this leveraging, the Guardian newspaper, using data compiled by the NSW Bureau of Crime Statistics and Research, looked at cannabis arrests between 2013 and 2017 in New South Wales, which has the highest proportion of Indigenous people in Australia (cited by McGowan & Knaus, 2020). The analysis revealed that between 2013 and 2017, the police disproportionately used the criminal justice system to prosecute Indigenous people. This was despite a specific cautioning scheme to keep minor drug offenses out of court. Moreover, during the 5 years, 82.5% of all Indigenous people found with a non-indictable quantity of cannabis were pursued through the courts, compared with only 52.29% for the non-Indigenous population (cited by McGowan & Knaus, 2020). Lastly, the police were four times more likely to issue cautions to non-Indigenous people. For example, in the 5 years to 2017, only 11.41% of Indigenous people caught by police with small amounts of cannabis were issued cautions, compared with 40.03% of the non-Indigenous population (cited in McGowan & Knaus, 2020). The snapshot provided by the study is certainly in keeping with the trend identified throughout this chapter that the criminal justice systems of the UK, the U.S., Canada, and Australia converge around a war on drugs that has been waged primarily on Indigenous and Black people despite little evidence that they use at higher rates than their White counterparts. It has also been waged around low-level drugs, such as cannabis, as opposed to importers and distributors of class-A drugs. Ironically, after decades of the drug war, there has been a growing call to decriminalize cannabis. Indeed, as of January 2023, 19 states and two territories in the U.S. have answered the call (Hartman, 2022), as has Canada (Government of Canada, 2022) and Australia, where the ACT Cannabis rules that went into effect on January 31, 2020, have removed penalties for

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adults who possess or use small amounts of cannabis (ACT Government, n.d.). The acknowledged failure of the war on drugs in the respective countries has left in its wake a devastating trail of trauma, pain, and suffering for Indigenous and Black families and communities, as they have faced the harshest impact (Daniels et al., 2021).

Law Enforcement Practices (Stop and Search, Stop and Frisk, Street Checks, Personal Search) Stop and search (UK), stop and frisk (U.S.), street checks (Canada), and personal searches (Australia) are the law enforcement practices most responsible for bringing Indigenous and Black people into contact with law enforcement officers. They are practices used extensively by law enforcement officers in the UK, the U.S., Canada, and Australia. It enables police forces to exercise their powers not based on reliable intelligence or reasonable suspicion but on stereotypical assumptions or bias. As discussed in Chapters 6 and 7, they have been disproportionally used against Indigenous and Black people in those countries. Indeed, mainly when discussing the war on drugs, it was the primary law enforcement practice for corralling cannabis users (see earlier discussion). It is beyond the scope of this chapter to examine all of the data on their use in the respective settler states; suffice as to say that previous chapters have discussed how they have been disproportionally used against Indigenous and Black people.

Accusatorial Model Approach to Criminal Procedure (Plea Bargaining) A third and critical convergence in the criminal justice systems of the UK, the U.S., Canada, and Australia is around the accusatorial approach to the criminal procedure, namely, plea bargaining. Simply put, plea

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bargaining, in law, is the practice of negotiating an agreement between the prosecution and the defense where the defendant pleads guilty to a lesser offense in exchange for a more lenient sentencing, dismissal of other charges, or agreement for a specific sentence (Meyer, 2022). Plea bargaining is not officially part of the criminal justice system in the UK except in complex fraud cases. However, judicial sentencing guidelines suggest that those who plead guilty at the earliest hearing over crimes may be reduced by up to a third of their sentence. In England and Wales, approximately 90% of convictions result from guilty pleas (cited in The Week, 2017). In the U.S., which is most associated with plea bargaining, 97% of federal convictions were obtained through plea bargaining in 2018. Not far behind, 94% of state convictions resulted from plea bargaining (cited in Neily, 2019); note that these numbers were not arbitrational but in keeping with trends over recent decades. In Canada, 90% of criminal cases are resolved through the acceptance of guilty pleas, many of which are the direct outcome of successful negotiations between the Crown and the defense council (Government of Canada, 2021). In Australia, plea bargaining is a central element of the criminal justice process. Indeed across all jurisdictions, it is the most frequent method of case finalization. To illustrate, Flynn and Friberg’s empirical analysis of plea negotiations in Victoria revealed that between 87 and 100% of guilty pleas at all levels of Victorian courts resulted from a negotiated agreement between the prosecutor and the defense (p. 4). The ubiquitous use of plea bargaining is particularly problematic for Indigenous and Black defendants because of their disproportionate representation in the criminal justice system. Most troubling, though, whether guilty or not, few are equipped to match prosecutors, whom Neily (2019) describes as having a fearsome array of tools they can use to discourage defendants from exercising their right to a jury trial. Among these tools are a whole legal department, investigators, and mandatory minimum sentences, which Siegler (2021) argues provide prosecutors with weapons to bludgeon defendants into effectively coerced

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plea bargains. In contrast, the defendant must make do with a courtappointed attorney or public defender, who will have few of the investigative resources of the prosecution (Fennell et al., 1995). Indeed, it is an excellent tool for corralling Indigenous and Black bodies without having a day in court. This chapter has provided an overview of converging criminal justice system practices in the UK, the U.S., Canada, and Australia that uphold colonial power structures by way of creating the pathways to the disproportionate incarceration of Indigenous and Black people in the respective system.

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Government of Canada. (2022). Taking stock of progress: Cannabis legalization and regulation in Canada. https://www.canada.ca/en/health-canada/pro grams/engaging-cannabis-legalization-regulation-canada-taking-stock-pro gress/document.html Hartman, N. (2022). Cannabis overview, legalization. National Conference of State Legislatures. https://www.ncsl.org/civil-and-criminal-justice/cannabisoverview Hartman, D. M., & Golub, A. (1999). The social construction of the crack epidemic in the print media. Journal of Psychoactive Drugs, 31(4), 423–433. House of Commons, Canada. (2002). SNUD Committee report. Parliament of Canada. https://www.ourcommons.ca/DocumentViewer/en/37-2/ SNUD/report-2/page-72 Jones, P. N. (2007). The Native American church, peyote and health: Expanding consciousness for healing purposes. Contemporary Justice Review, 10, 411–425. Justice Laws Website. (2023). Safe streets and Communities Act (S.C. 2012, c.1). Government of Canada. https://laws-lois.justice.gc.ca/eng/annualsta tutes/2012_1/ Kalunta-Crumpton, A. (2004). A community without a drug problem? Black drug use in Britain. Social Justice, 31(1/2), 200–216. Kane, H. H. (1882). Opium smoking in America and China: A study of its prevalence and effects, immediate and remote, on the individual and the nation. G. P. Putman & Sons. Khenti, A. (2014). The Canadian war on drugs: Structural violence and unequal treatment of Black Canadians. International Journal of Drug Policy, 23, 190–195. Korff, J. (2022, October 24). Aboriginal prison rates. Creative Spirits. https:/ /www.creativespirits.info/aboriginalculture/law/aboriginal-prison-rates#pol ice-pursue-aboriginal-people-more Manderson, D. (1987). Proscription and prescription: Commonwealth government opiate policy 1905–1937 . Australian Government Publishing Service. Manderson, D. (1999). Symbolism and racism in drug history and policy. Drugs and Alcohol Review, 18(2), 179–186. Meyer, J. F. (2022, June 5). Plea bargaining. Encyclopedia Britannica. https:// www.britannica.com/topic/plea-bargaining McGowan, M., & Knaus, C. (2020, June 9). NSW police pursue 80% of Indigenous people caught with cannabis through courts. The Guardian. https:/ /www.theguardian.com/australia-news/2020/jun/10/nsw-police-pursue-80of-indigenous-people-caught-with-cannabis-through-courts

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11 Untethering the Respective Criminal Justice Systems from Their Settler Colonial Roots

As demonstrated throughout this book, settler colonialism imperatives, including land exportation, European settlement, racial hierarchy, involuntary assimilation, genocide, the reservation system, and enslavement, to name a few, have profoundly shaped the criminal justice systems of the U.S., Canada, and Australia. In doing so, thousands of years of indigenous knowledge, values, and ancestral wisdom related to justice practice have been purposely erased and marginalized as culturally inferior to European, Western thinking, values, culture, and wisdom (Borrows, 2005; Cunneen & Tauri, 2019; Jacobs, 2021; McGuire & Palys, 2020). Moreover, although differently situated, as involuntary and then assimilated occupiers rather than rightful landowners, enslaved Black people and their descendants have similarly been marginalized in shaping the criminal justice system, which from its inception exists to maintain Indigenous and racial order. Consequently, Indigenous and Black people in the respective settler colonial states have been perennially victimized since the inception of the so-called impartial systems of law-and-order, that is, the British common law-based criminal justice systems of the U.S., Canada, and Australia. Consequently, whether acknowledged or not, the criminal justice systems © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Warde, Colorblind, Critical Criminological Perspectives, https://doi.org/10.1007/978-3-031-38157-7_11

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of the UK, the U.S., Canada, and Australia do not command the trust of large swaths of Indigenous and Black people, mainly low-income and living in urban and rural communities, and therefore are in crisis. Indeed, it is not hyperbole to say that because of this, and the historical and ongoing marginalization, there is an urgent need for social justice and Indigenous and racial healing through the untethering of the respective criminal justice systems from their settler colonialism roots in favor of a criminal justice system that not only disentangles itself from the hegemony of modern Western thought but also, and just as importantly, centers the knowledge, values, ancestral wisdom, voices and lived experiences of those people who have been purposely erased and marginalized as culturally inferior (McGuire & Palys, 2020). In the context of this book, these people are Indigenous and Black. However, it should also include others who, in modernity, have been victimized by the criminal justice system by the patriarchy, heterosexism, ableism, racism, and xenophobia inherent in the system (Agozino, 1997; Garcia-Hallett et al., 2022; Steven, 2022). Of course, this is not a new call for action. Over the decades, although not in mainstream Eurocentric criminology, there has been an increasing call for decolonizing the criminal justice systems of settler colonial nations, which involves recognizing and understanding the colonialism embedded in a state’s policies and infrastructures, challenging colonialinduced manifestations, and reclaiming Indigenous identity and lands (McGuire & Palys, 2020). As described in Chapter 5, some existing and ongoing efforts include the tribal justice system in the U.S., the Indigenous justice program and the First Nations/Indigenous courts in Canada, and Indigenous sentencing courts in Australia.

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Existing and Ongoing Efforts to Decolonize the Respective Criminal Justice Systems Tribal/Indigenous Courts The U.S. In the U.S., under the auspices of the U.S. Department of the Interior, Bureau of Indian Affairs, the 400 Tribal Justice and court systems throughout the country have jurisdiction over criminal cases involving Indians that occur within land defined as Indian country under the 18 U.S. Code, Section 1511 (US Department of the Interior, 2017). Indian country includes land within the reservation boundaries in the state, dependent Indian communities, and Indian allotments. Cases heard by the Tribal courts include misdemeanors and lower-level felonies, such as minor assaults, impaired driving, user-level drug possessions, and thefts. Criminal punishments may include labor, placement in prison, and/or the payment of court costs and fines. However, felonies involving Indians within Indian countries that are federal crimes must be heard in federal court (U.S. Department of the Interior, 2017). Moreover, criminal cases involving non-Indians in Indian countries are typically brought to state court (U.S. Department of the Interior, 2017). One of the features of the Tribal Justice and Court system most linked to decolonization is Peacemaking. Established in 1982, Peacemaking is a conflict resolution rooted in Navajo culture and practice that considers present-day issues and resources. It is the framework for the practices of the Navajo Justice and Court system (Neilson & Zion, 2005).

Canada The First Nations/Indigenous Courts in Canada are criminal sentencing courts focusing on balancing, rehabilitation, accountability, and healing. The judge, lawyers, Crown counsel, Elders, the defendant’s community, and family work together to create a healing plan to help restore the

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defendant’s mental, physical, spiritual, and emotional health (Aboriginal Legal Aid in BC, 2023; Harvard International Review, 2023). The courts are available to Aboriginal or Indigenous defendants who plead guilty to a crime or are found guilty through a referral from a judge, defense lawyer, or Crown lawyer. An Aboriginal or Indigenous defendant can also request to go to a First Nations/Indigenous Court (Aboriginal Legal Aid in BC, 2023). Undergirding the First Nations/Indigenous Courts is Bill C-41, which amended the Criminal Code regarding sentencing. Passed in 1995 and enacted into law in 1996, the specific purpose of the legislation was to reduce the overrepresentation of Indigenous offenders (Clark, 2019). Specifically, Sect. 718.2 addressed the issue as follows: A court that imposes a sentence shall take into consideration the following principles: “All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders” (cited in Clark, 2019, p. 3). This means incarceration is meant to serve only as a last resort, especially for First Nations offenders with “fundamentally different world views” regarding justice (cited in Harvard International Review, 2023).

Australia In Australia, Indigenous sentencing courts, first established in Port Adelaide on June 1, 1999, operate in all Australian states and territories except Tasmania. The courts do not practice or adopt Indigenous customary laws (Marchetti, 2009). Instead, they use Australian criminal laws and procedures to sentence Indigenous offenders who have pleaded or been found guilty. However, they allow Indigenous Elders and Respected Persons to participate, creating a more culturally appropriate and sensitive forum for sentencing Indigenous offenders (Auty, 2004). Examples include Queensland Muri Courts, the Victoria Koori Courts, and the Western Australia Kalgoorlie Court (Cunneen, 2005; Marchetti, 2017).

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Restorative Justice In its various forms, the Indigenous criminal justice system is not inclusive of Black people, similarly negatively impacted by the criminal justice system. Likely, the nearest equivalent is restorative justice, which arguably began as a movement with a 1974 case in Kitchener, Ontario, when the Kitchener experiment required two teenagers to meet and pay restitution to every one of the 22 people whose property they vandalized (Maryfield et al., 2020). Informed by many of the values and principles of Indigenous cultures, restorative justice practices in criminal justice are based on the notion that crime violates people and interpersonal relationships; therefore, it is essential to remedy the harm caused by the criminal act, not as a matter of retribution or punishment, as is the case in a Western way, but as a matter of healing and being fully accountable through acknowledgment of behavior, harm caused, and action to remedy the harm. There is also a peacemaking process to restore dignity and worthiness (Yazzie in Mirsky, 2004, p. 3). The mechanisms for restorative justice include but are not limited to the following: – – – – – – –

Victim–offender mediation Victim–offender dialogue Restorative justice conferencing Reparative boards Victim impact panels Peacemaking circles Apology banks (Maryfield et al., 2020).

Restorative practices in criminal justice have grown in popularity and are used worldwide, specifically in the UK, the U.S., Canada, and Australia (Gavrielides, 2014). However, despite its widespread use, little is known about the frequency of use in institutions, such as prisons, although widely used in the education system and juvenile justice (Hurley, 2009).

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The UK In the UK, restorative justice became part of criminal justice in the late 1990s when Sir Charles Pollard introduced it as an effective policing tool when he was chief constable of Thames Valley Police (Green, 2013). Shortly after, the UK government invested £7 m into a 7-year research program examining the impact of restorative justice on adult offenders convicted of serious crimes, highlighting the benefits to both victim satisfaction and reducing reoffending rates (Green, 2013). Finally, with proof of its success, in 2010, the Minister of Justice (MOJ) committed to integrating restorative justice across the criminal justice system in its paper “Breaking the Cycle.” In 2013, the passing of the Crime and Courts Act gave Crown Court judges, district judges, and magistrates the power to defer passing sentences for restorative justice to take place, specifically, bringing together those harmed by a crime and those responsible for the harm into communication, enabling everyone affected by a particular incident to play a part in repairing the harm and finding a positive way forward. The restorative justice process can occur at all criminal justice system stages, including out of court and post-sentencing. However, it is a voluntary process that can be requested and is contingent on both those harmed by a crime and those responsible for the harm being willing to participate in the process (Ministry of Justice, 2014). The Restorative Justice Council (RJC), an independent third-sector membership body for the field of restorative practice, and the Criminal Justice Alliance (CJA), an advocacy membership group of over 180 nonprofit organizations with expertise across the whole criminal justice system that lobbies for sensible changes to make the criminal justice system work better, have provided the ethical principles underpinnings and roadmap for the use of restorative justice. As per the RJC, these ethical principles include: – Restoration: The primary aim of restorative is to address and repair harm. – Voluntarism: Participation in restorative processes is voluntary and based on informed choice.

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– Neutrality: Restorative processes are fair and unbiased toward participants. – Safety: Processes and practice aim to ensure the safety of all participants and create a safe space for expressing feelings and views about the harm that has been caused. – Accessibility: Restorative processes are nondiscriminatory and available to all those affected by conflict and harm. – Respect: Restorative processes are respectful to the dignity of all participants and those affected by the harm caused (The Parole Board, 2021; The Restorative Justice Council, 2016). With some areas of overlap, CJA adds that restorative justice is a voluntary process that brings together victims and offenders to help repair the harm caused by a crime. It provides victims, should they wish, an opportunity to meet in person or communicate with the person who committed the offense, ask questions, and explain the harm the offense has had upon them. In this way, they may receive human engagement and answers and sometimes a meaningful apology (Criminal Justice Alliance, n.d.; The Parole Board, 2021). A range of organizations across England and Wales provide various restorative justice services. These include prisons, probation services, police, youth offending teams, local authorities, and housing associations (The Parole Board, 2021). Within criminal justice, the Police and Crime Commissioners are the main commissioners of restorative justice services, most administered by third-party organizations (The Parole Board, 2021).

The U.S. In the U.S., restorative justice is ubiquitous in its widespread use across several areas, including juvenile justice and education (Fronius et al., 2019; National Council of State Legislators, 2022). It is beyond the scope of this chapter to speak in detail about the range of programs; suffice as to say that in practice and principle, they essentially follow the credo of repairing harm.

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However, within the criminal justice systems of the U.S., restorative practices have increasingly been incorporated into state legislation. Indeed, as of 2019, 45 states across the U.S. have statutory support for using RJ (Gonzales, 2020; Maryfield et al., 2020). The legislation ranges from general statements of support for restorative justice to structured use of restorative practices in at least some instances and for some offenders (Silva & Lambert, 2015, p. 77). In keeping with the multitude of state jurisdictions and criminal justice systems, there was little in the way of uniformity regarding a definition of restorative justice and when it is used in criminal proceedings (Silva & Lambert, 2015). In some states, restorative justice describes available or desirable practices and programs, while others reference a specific practice. These include victim–offender mediation, sentencing circles, victim–offender conferencing, victim–offender dialog, victim-impact panels and classes, community boards, and the most frequently referenced victim–offender meeting (Silva & Lambert, 2015, p. 87). When and for whom is the principal difference in using restorative justice across states? In 66% of the 32 states, restorative justice is used for diversionary or pre-trial process, while for others, it is for an intermediate sanction, post-sentencing, or it would have no bearing on sentencing (Silver & Lambert, 2015, p. 87). Regarding the who, 72% of restorative justice statutes were located in the juvenile criminal codes. Seventy-two percent of state statutes also made restorative justice available for adult and juvenile offenders, with a much smaller number specifying restorative justice for school settings. Some provided limits on who could receive restorative justice. For example, California, Montana, and Minnesota expressly restricted RJ to first-time offenders (Silva & Lambert, 2015, p. 87).

Canada Restorative practices have been present in Canada since 1974. However, the impetus for the less-than-vibrant restorative justice movement in Canada emerged with the proclamation of Bill C-41, the first statutory recognition of the importance of alternatives to incarceration. Two other

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contributing factors included the Supreme Court of Canada’s assertion in R. v Glaude that the unique needs of Aboriginal offenders and reducing reliance on incarceration needed addressing, and the 1999 federal speech from the Throne, which made explicit acknowledgment of the importance of restorative justice in Canadian society (Government of Canada, n.d.). This realization has created entry points for restorative justice in Canada’s criminal justice system. These entry points are with law enforcement/police (pre-charge), the Crown (post-charge/preconviction), courts (pre-conviction/pre-sentence), and corrections (postsentence/pre-reintegration; Government of Canada, n.d.). At any of these entry points, offenders can be referred to a restorative justice program (Government of Canada, n.d.). This restorative justice process is not an alternative system but rather a model of integrating the principles of restorative justice into the existing criminal justice system. The more serious the offense, the more likely the case will be referred later in the process (Government of Canada, n.d.). Within the Canadian criminal justice system, restorative justice models are informed by several overarching principles. Primary among them is that crime is primarily a conflict between individuals, harming victims, communities, and offenders. It is only secondarily a transgression against the state (Government of Canada, n.d.).

Australia Beginning at the start of the 2000s, restorative justice was predominately used in the juvenile justice systems across all jurisdictions of Australia, if used at all. In 2004, the Australian Capital Territory (ACT) signed the Crimes (Restorative Justice) Act 2004. The objectives of this Act are as follows: – To enhance the rights of victims of offenses by providing restorative justice to empower victims to decide how to repair the harm done by offenses.

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– To set up a restorative justice system that brings together victims, offenders, and their supporters in a carefully managed, safe environment. – To ensure that the interests of victims of offenses are given high priority in the administration of restorative justice under this Act. – To enable access to restorative justice at every stage of the criminal justice process without substituting for the criminal justice system or changing the normal criminal justice process. – To enable agencies that have a role in the criminal justice system to refer offenses for restorative justice (Australian Capital Territory, 2021). The legislation by ACT was not the first attempt at restorative justice in the criminal justice system, which, as mentioned above, had been mainstreamed in Australian juvenile justice since 2001 (Larson, 2014). What the ACT’s legislation did do, though, was broaden restorative justice to adult offenders and, more importantly, given its objectives, victims of a crime (Australian Capital Territory, 2021). However, despite the broadening, from 2004 to 2016, the ACT’s restorative justice unit received only youth justice cases referred by the police or Children’s Court. It was not until the final legislative barriers preventing victims of crimes from having access to restorative justice, simply because they were survivors of particular offense types, that the ACT’s R.J. unit could fully serve adults. Although ACT leads other Australian jurisdictions in making restorative justice available across the youth and adult justice system, it is not alone in implementing some form of restorative justice. For example, the Department of Justice and Attorney General provide adult restorative justice conferencing from offices in four major centers in Queensland. Moreover, police, prosecutors, courts, or corrective services can, with the consent of key parties, refer cases to the program (Australian Association for Restorative Justice, n.d.). Since the early 2000s, New South Wales’s restorative justice unit has pioneered post-sentencing group conferencing. Western Australia has a Victim– offender Mediation Unit within the Department of Corrective Services throughout the metropolitan and regional areas (Australian Association for Restorative Justice, n.d.).

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Still not Decolonized Tribal/Indigenous Courts There is no argument that Tribal/Indigenous courts and restorative justice practices, as described in this chapter, have moved the dial somewhat in recognition that the respective criminal justice systems have and continue to harm Indigenous and Black people, hence, the need to adjust the criminal justice system to rectify this harm. However, these adjustments go nowhere far enough in terms of genuinely untethering the respective criminal justice systems from their settler colonial roots. Without exception, Tribal/Indigenous courts are under the jurisdiction or auspices of the existing settler colonial criminal justice system with, at best, only partial autonomy under particular conditions. Indeed, in several recent U.S. Supreme Court rulings, the precarious nature of tribal court sovereignty has been laid bare. For example, in the Merle Denzezpi v. United States, 20–7622, the Supreme Court ruled on June 13, 2022, that Native Americans prosecuted in certain tribal courts can also be prosecuted based on the same incident in federal court, which can result in a longer sentence (Denzezpi v. United States, n.d.). In addition, on June 29, 2021, the U.S. Supreme Court ruled in the case of Oklahoma v. Castro-Huerta that state governments have the legal jurisdiction to prosecute non-Native citizens for crimes committed against Native citizens on sovereign tribal lands (Oklahoma v. Castro-Huerta, n.d.). In doing so, they broke with centuries of established federal Indian law. Until this decision, state law enforcement agencies could intervene in Indian Country crimes only by an act of Congress (Martin, 2022). As posited by Leeds (2017), tribal courts in the United States are referred to as the third branch of the third sovereign, placing them, by stature, at the bottom of the hierarchy of judicial systems within our federal union. They are barely visible as part of the American judicial fraternity, with the role of tribal judiciary often misunderstood, undervalued, or simply unknown within mainstream legal circles. Similarly, in Canada, the 2016 effort of the Akwesasne band council (Mohawk) to operate its own legal system outside of a federal framework was the first of its kind (Gall, 2016; Valliante, 2016). It is a legal system

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that mixes Mohawk and Canadian Law elements, covering various civil matters, including sanitation, tobacco, regulations, and wildlife conservation (Gall, 2016). However, one major issue is whether Akwesasne law will be recognized by provincial and federal courts, which speaks to the lack of full autonomy for Ingenious tribal courts and legal systems (Valliante, 2016). Moreover, in Australia, Cunneen (2005) makes the argument that while accommodations have been made toward Indigenous values in Indigenous sentencing courts, they are essentially peripheral to the workings of the mainstream criminal justice system, with comparatively few Indigenous people actually appearing before the specialist sentencing courts (p. 13). Furthermore, they cannot satisfy the broader demands by Indigenous people for greater autonomy and control over criminal justice more generally (Cunneen, 2005, p. 13).

Restorative Justice Despite the popularity and wide-ranging use of restorative justice, there are legitimate concerns about the usefulness of restorative justice as a mechanism for actually transforming the foundation of the criminal justice system—specifically, having space within a White settler supremacist settler society deeply invested in the status quo to incorporate restorative practices into the criminal justice system at all levels and building partnerships with all justice participants, including criminologists, policymakers, law enforcement officials, and judges (Hurley, 2009). It is a concern that runs through Valandra and Hokšila’s (2008) book, Colorizing Restorative Justice: Voicing Our Realities, in which 20 authors of color raise problematic issues about restorative justice and restorative practices. Primary among these issues is what they see as the contradiction between restorative practices and the Western, White settler supremacist settler societies that sustain deep roots in European invasion and colonizing in which the practice is being facilitated (Valandra & Hokšila, 2008). Indeed, the argument is that whereas one might presume

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that the restorative justice movement would be a guiding light in championing racial and social justice, the movement in practice has been silent, afraid, and conforming, complicit with institutional and structural harms (Valandra & Hokšila, 2008). Rather than reforming systems, they are summoned to patch up the harms that racist and colonizing structures and institutions cause as a matter of course ((Valandra & Hokšila, 2008). As Davis posits, if the restorative justice movement does not address racism and colonization, it will function in racist and colonizing ways because that is the default, thus losing its relevance (Davis, 2019).

Policy Recommendations for Untethering the Respective Criminal Justice Systems from Their Settler Colonial Roots Because Indigenous criminal justice systems and restorative justice practices are still largely under the auspices of White settler structures, there needs to be a conceptualization of how to untether, which I much prefer to decolonize, the respective criminal justice system from their colonial roots. The rest of this chapter will offer several models with policy recommendations for doing so. Envisioning what an untethered criminal justice system would be like is not idle speculation but rather an essential discussion topic for reimagining the functioning of the criminal justice systems of the respective nations. It is from reimagining new and different scenarios that all progressive social change has happened. As such, it is essential to confront the harm caused by these systems to Indigenous and Black people and champion a new, socially just, untethered criminal justice system.

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Truth Commission I contend that any attempt to untether the criminal justice system from its settler colonial roots must begin with each nation instituting truth commission hearings. The purpose of the commission and hearings is to acknowledge and recognize the deleterious historical, contemporary, and ongoing impact of the criminal justice systems on the lives of Indigenous peoples and Black people, to reimagine a criminal justice system that is untethered from its settler colonial roots. Note that although I will discuss models for a truth commission, commonly known as Truth and Reconciliation Commissions, I have envisaged a truth commission absent the reconciliation. My rationale stems from McGuire and Palys’ (2020) persuasive argument, which is that “the rhetoric of reconciliation and apology mask the continual genocidal assimilative goals of the state” (p. 59). Additionally, although differently situated, Black people in settler colonial states are all the product of enslavement and settler colonial practices that continue to shape their present-day systemic inequities (Kashyap, 2020).

Truth and Reconciliation First formed in Uganda in 1974, a Truth and Reconciliation Commission is a fact-finding body tasked with investigating past wrongdoings by a government or nonstate actors in the hope of resolving conflict left over from the past. The commission’s investigation is set out in a final report containing findings of fact and recommendations. Since 1974, Truth and Reconciliation Commissions have been used in more than 30 nations, including Peru, Ghana, East Timor, Chile, Sierra Leon, Argentina, El Salvador, Canada, and arguably most prominently in Rwanda and South Africa (Amnesty International, 2006; Dalhousie University, 2023; Department of Public Information, 2012). Because each nation is different, the commissions and outcomes are somewhat different. However, all strive toward healing, so those victimized can move forward and participate in a more just system.

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In South Africa, a country with a 300-year legacy of settler colonialism and apartheid, the new post-apartheid government of Nelson Mandela established a Truth and Reconciliation Commission in 1995. The commission’s purpose was to help heal the country and bring reconciliation by uncovering the truth about human rights violations during apartheid. Toward this end, the emphasis was not on prosecuting individuals for past crimes but on collecting evidence from both victims and perpetrators (Tutu, 2022). Born of a spirit of public participation, the new post-apartheid government solicited the opinions of South Africans and the international community regarding issues such as granting amnesty and accountability for past violations and reparations for victims (Tutu, 2022). Moreover, a coalition of more than 50 organizations, composed of human rights lawyers, members of the religious community, and victims, participated in a public dialog on the merits of a truth commission, a process that lasted a year, culminating in the legislation (Promotion of National Unity and Reconciliation Act of 1995) that established the Truth and Reconciliation Commission (Tutu, 2022).

Truth Commission Structure As imagined within the context of the criminal justice systems of the UK, the U.S., Canada, and Australia, a truth committee would be composed of the following: – – – – –

Government officials Indigenous tribal leaders Black leaders Indigenous and Black historians and academics Indigenous and Black witnesses testifying to their experiences with the criminal justice system – Indigenous and Black elders – Indigenous and Black religious leaders – Indigenous and Black advocacy groups

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– Key players in the criminal justice system, including policymakers from across the political spectrum, law enforcement officers, lawyers, and judges. Evidence to be considered would include not just testimony but also historical documents and policy and statistical data, both qualitative and quantitative. The express purpose of the commission would be to give voice to the many ways the criminal justice systems deleteriously impacted Indigenous and Black people historically and today, with recommendations for how the criminal justice system can be remade as to not perpetuate further harm to Indigenous and Black people.

Groundwork Examples from the UK, the U.S., Canada, and Australia At a time of today’s political polarization, the notion of a criminal justice truth commission might seem fanciful. However, this is not the case, as the groundwork has been set, albeit not in as compressive a manner as I am proposing. For example, the UK, the U.S., Canadian, and Australian governments and states have at one time, or another convened a commission or ordered a governmental report related to Indigenous and Black people in the criminal justice system, almost exclusively in response to a worrying trend or a rebellion. In the UK, we can point to the Scarman and McPherson report, which both came out of commissions related to the relationship between the Black British community and the Metropolitan Police (see Chapter 6 for details). In the U.S., with much narrower mandates, there have been attempts at truth and reconciliation at the state level. In 2004, the Greensboro Truth and Reconciliation Commission investigated the death of five protesters during an anti-Ku Klux Klan rally in 1979. Unfortunately, though the commission gave a platform to survivors to share their stories, it did not get the support of the city of Greensboro. Moreover, the predominantly White City Council rejected the TRC process and the commission’s 500-page report, offering only a statement of regret (cited

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by Souli, 2020). There is also the ongoing Maryland Lynching Truth and Reconciliation Commission, established in 2019 with bipartisan support in the state legislature. The commission researches cases of racially motivated lynchings and holds public meetings and regional hearings about them (Souli, 2020). As part of the process, individuals speak about their ancestral connection to lynching from both victims’ and perpetrators’ perspectives (Lu, 2021; Souli, 2020). Furthermore, in 2020, Rep. Barbara Lee introduced a bill to establish a Commission on Truth, Racial Healing, and Transformation. The bill aims to help understand racial discrimination imbalance in this country and explain its roots and modern-day impact. Lastly, on May 25, 2022, President Joe Biden signed Executive Order Advancing Effective, Accountable Policing, and Criminal Justice Practices to Enhance Public Trust and Public Safety. Among the observations made, the executive order shared the following statement from Biden: To heal as a Nation, we must acknowledge that those fatal encounters have disparately impacted Black and Brown people and other people of color. The pain of the families of those who have been killed is magnified when expectations for accountability go unmet, and the echoes of their losses reverberate across generations. More broadly, numerous aspects of our criminal justice system are still shaped by race or ethnicity. It is time that we acknowledge the legacy of systemic racism in our criminal justice system and work together to eliminate the racial disparities that endure to this day. Doing so serves all Americans. (Biden, 2022)

In Canada, as one of the conditions of the Indian Residential Schools class-action settlement agreement, the government of Canada implemented a Truth and Reconciliation Commission in 2007 (Government of Canada, 2022). Its purpose, which was convened from 2007 to 2015, was to facilitate reconciliation among former students, their families, their communities, and all Canadians (Government of Canada, 2022). In the 6 years of traveling to all parts of Canada, the commission heard from more than 6,500 witnesses. As part of the Indian Residential Schools Settlement Agreement, Prime Minister Justin Trudeau accepted the final report. In addition, Trudeau vowed that the Canadian government would work with leaders of First Nations, the Métis Nation, Inuit,

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provinces and territories, parties to the Indian Residential School Settlement Agreement, and other key partners to design a national engagement strategy for developing and implementing a national reconciliation framework, informed by the Truth and Reconciliation Commission’s recommendations (Government of Canada, 2022). In Australia in 2021, Victoria set up the nation’s first truth and justice commission, looking into past and ongoing injustices experienced by Traditional Owners and First Peoples in Victoria in all areas of life since colonization (Wahlquist, 2021). The Yoorrook Justice Commission, named after the Wemba Wemba/Wamba Wamba word for truth, is part of a long-running treaty process and runs until 2025. Compared with South Africa’s Truth and Reconciliation Commission, The Yoorrook Justice Commission has the power of a royal commission, meaning it can compel evidence under oath. Moreover, it has the remit to investigate historical and ongoing injustices against Aboriginals (Yoorrook Justice Commission, 2023).

After the Truth Commission What tangible actions can be taken after a truth commission’ work to untether the respective criminal justice systems? I will first describe some immediate actions, followed by a case for considering legal pluralism. The immediate actions address the law enforcement practice of stop and search, racial profiling, and the legal system practice of plea bargaining and mandatory minimum sentencing.

Law and Enforcement Practices Stop and Search, Stop and Frisk, Street Checks, Personal Searches, and Racial Profiling Few crime prevention strategies are as ubiquitous and deleterious to police and Indigenous and Black relationships as the police-initiated stop and search (the UK), stop and frisk (the U.S.), street checks (Canada),

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and personal searches (Australia), be it pedestrian or traffic. It is socially invisible and is one of the first and most frequent contacts between police and Indigenous and Black people. In the worst-case scenario, it can represent an entry point into the criminal justice system or a fatal encounter. Moreover, it is a practice that is disproportionality used against Indigenous and Black people in the UK, the U.S., Canada, and Australia (Buch, 2019; Gov.UK, 2022; House of Commons Canada, 2021; Lofstrom et al., 2021; Thorpe, 2022). Lastly, it is a practice deeply rooted in settler colonialism and the surveillance, regulation, and corralling of Indigenous and Black movements and bodies. To the degree that one can generalize across countries, there is a consensus among law enforcement and stop and search advocates that it is a vital tool in crime prevention and deterrence. Therefore, it can be justified on the grounds of crime prevention and deterrence, even if the practice makes only a negligible contribution to detection and prevention (D’Onfrio, 2019; Terkel, 2013). Indeed, in the UK and the U.S., it is an assertion supported by a legal apparatus that allows for the practice as long as it is not arbitrary and there is reasonable suspicion (Peterson et al., 2023). However, in actuality, stop and search is a practice of discretion based on little to no scientific or reliable on the ground intelligence, but instead on a hunch or, as many arguments and studies have found, racial profiling (Delsol, 2018; Grewcock & Sentas, 2019; McKay, 2021; Pierson et al., 2020). Most galling, though, is that the evidence of its effectiveness in crime prevention and deterrence is negligible for how ubiquitously used (Full Fact, 2019; Huey, 2019; Huq & McAdams, 2022). Moreover, as Bowling and Marks (2017) assert, while it may be a fleeting encounter for the police officer, constituting little more than a moment’s inconvenience, for Indigenous and Black people, it can, for some, be a somewhat different experience, unsettling and profoundly disturbing (see Chapters 6 and 7 on police and Indigenous and Black people’s relationship). Indeed, individuals stopped by police are associated with significantly less desirable mental and physical health outcomes, attitudes toward police, and self-reported crime/delinquency (Geller et al., 2014; Peterson et al., 2023; Sewell et al., 2016). Furthermore, the unfair targeting and ineffective deployment of stop and search

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have a hugely negative impact on police legitimacy and community trust in law enforcement agencies (Tyler et al., 2014). Consequently, though the goal of pedestrian stops may or may not produce a general deterrent effect, the intervention likely produces more harm than good (Peterson et al., 2023).

Recommendation Given its settler colonial roots, negligible success in deterrence, and the dehumanizing impact on Indigenous and Black people, stop and search, stop and frisk, street checks, and personal searches should be discontinued as a crime prevention strategy in all jurisdictions and replaced with community policing characterized by a partnership between law enforcement and community representatives and collaborative problem solving, which will be discussed in more detail later (Drum & Baldino, 2012).

Legal System Plea Bargaining As described in Chapter 9, plea bargaining or some form of the practice is utilized, if not always acknowledged as such, to varying degrees, by the legal systems of the UK, the U.S., Canada, and Australia. In the U.S., its use is particularly pernicious and ubiquitous, fast-tracking Indigenous and Black bodies into the carceral system with no trial. Though not used as perniciously or as regularly as in the U.S., the fact that the UK, Canadian, and Australian criminal justice systems use it at all is problematic because it denies defendants their day in court. Consequently, as in the U.S., it is a state weapon of coercion to garner convictions without ever having to establish and prove guilt.

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Recommendation Plea bargaining in any form should be discontinued as part of the criminal justice process and replaced with community courts, which will be discussed in detail later in the chapter as one of the solutions for untethering the respective criminal justice systems from their settler colonial roots.

Mandatory Minimum Sentencing The UK, the U.S., Canada, and Australia all have criminal justice systems that use mandatory minimum sentencing. Depending on the country, the sentencing is informed by parliament, federal, state, or territory criminal legislation, specifying a fixed or minimum penalty upon conviction for specified offenses. As described in Chapter 10, the exponential growth of mandatory minimum sentencing over a 40-plus-year period reflected the desire for get-tough-on-crime, war on drugs policymakers to have tougher sentences and dissatisfaction with the traditional sentencing system (Law Council of Australia, 2014). As described in Chapter 6, the upshot of mandatory minimum sentencing has been the massive growth in the prison population and hyper-incarceration, particularly for Indigenous, Black people, and other visible minorities, depending on the country. Racial disproportionality aside, arguably the most problematic about mandatory minimum sentencing is that it displaces the discretion of a judge and jury who have considered the facts of a case to other parts of the criminal justice system, most notably law enforcement and prosecutors, and thereby fails to eliminate inconsistency in sentencing. Moreover, often the statutes result in ineffective, cruel, and unfair forms of punishment that force many low-level, nonviolent offenders to serve a prison sentence, even for nonviolent crimes. Thus, it does not satisfy the intended purpose of targeting violent offenders the legislation was meant to (LaMance, 2022). Indeed, this recognition has seen a very vocalized call for ending mandatory minimum sentencing in the UK, the U.S., and Australia from advocacy groups and judges, in particular.

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In the U.S., for example, several states have sought to revoke mandatory minimums, and in the federal government, there has also been the introduction of legislation such as the Mandatory Minimum Sentence Reform Act of 2017, which would have repealed all mandatory minimums for federal drug crimes. Also, the bipartisan Smarter Sentencing Act of 2021 would enact a narrower reform, reducing mandatory minimums for certain nonviolent drug offenses and making other reforms retroactive (Siegler, 2021).

Recommendation Mandatory minimum sentences must be eliminated immediately and allow judges and community liaisons to make individualized decisions and consider mitigating circumstances.

Legal Pluralism Beyond the immediate modifications described above, to untether the respective criminal justice systems genuinely would be the adoption of legal pluralism. Legal pluralism is the "co-existence of multiple legal systems within a community or social-political space" (Sage & Woodcock, 2012, p. 1). It is not a novel idea, as all of the settler colonial states already practice a form of legal pluralism in which there are federal and state/territorial legal systems, that in most cases, have an enormous amount of autonomy, answerable only to the Supreme Court. Indeed, ostensibly, the Tribal and Indigenous Justice Systems and courts in the U.S., Canada, and Australia demonstrate legal pluralism at work. However, in practice, the Tribal and Indigenous Justice Systems have no authority to be truly autonomous from the respective settler colonial criminal justice systems under whose auspices they fall. These legal systems, under whose auspices the Tribal and Indigenous Justice System exist, remain deeply embedded in their settler colonel roots and practices. Even with the system’s concessions, Indigenous bodies are still disproportionately represented at all system levels.

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Moreover, for Indigenous peoples, the settler colonial criminal justice system is utterly antithetical to their long history of justice practices and ways of knowing (EagleWomen, 2019). No amount of tinkering, be it a semi-autonomous Tribal and Indigenous Criminal Justice system or incorporating culturally appropriated restorative justice practices into the existing legal system, can obfuscate that these practices allow the settler colonial state to accommodate without overhauling the existing systems (McGuire & Palys, 2020, p. 64). As observed by Tauri (2005), indigenization and accommodation serve as an inexpensive and politically expedient strategy that allows the government to be seen as doing something about the indigenous crime problem, without significantly altering state control of the justice portfolio. As such, it is not based on empowering Indigenous peoples but rather on appropriating their justice philosophies and practices within state-controlled arenas, thus continuing the settler colonial process and furthering the judicial disempowerment of Indigenous peoples (p. 129). Consequently, the existing settler colonial criminal justice system and its programs cannot meet Indigenous peoples’ complex and diverse justice needs. Therefore, there is a need to restore and revitalize Indigenous knowledge and legal traditions (Cunneen & Tauri, 2019; McGuire & Palys, 2020), specifically, a fully autonomous sovereign Tribal and Indigenous justice system, free of what McGuire and Palys (2020) describe as the colonial straight jacket. Such a development is a more robust form of legal pluralism than is currently practiced in the settler colonial states. That is, it challenges the state’s claim to a monopoly on the legitimate resolution of legal disputes and the ideal of uniform application of the law (Swenson, 2018, p. 440). Moreover, it enables Indigenous peoples to be free of state interference or oversight in selecting justice resolutions based on legitimacy, ancestral wisdom, and ways of knowing related to justice practices. Rather than be incorporated into the orbit of existing state and federal criminal justice systems, a fully autonomous sovereign Tribal and Indigenous justice system would run parallel to these systems and have legal jurisdiction over all affiliated members within Tribal and Indigenous lands.

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Community Courts Because Black people are differently situated within settler colonial states, as racialized and marginalized assimilated occupiers, the notion of an autonomous justice system based on thousands of years of existing wisdom and knowledge regarding criminal justice is not available. However, what is feasible is remaking the existing settler colonial criminal justice system in ways that eliminate those settler colonial practices that manifest in policy, law enforcement, and legal actions toward Black people that fast-track them in disproportionate numbers into the criminal justice system. Central to this remake are the previously mentioned community courts. Simply put, community courts are neighborhood-focused court programs that combine the power of the community and the justice system to address local problems (Bureau of Justice Assistance, 2019). Generally speaking, the primary purpose of community courts is to reduce local crime and unnecessary incarceration. The community court is not a new idea. Indeed, these courts already exist and house various nontraditional programs for nonviolent offenders. They can include community mediation, job training and placement, drug rehabilitation, mentoring, mental health, community service, and services that address the underlying cause of the offending. In addition, they allow for faster dispositions and alternative sanctioning options. Lastly, they can strengthen the court’s relationship with the community and, in turn, increase the community’s relationship with the criminal justice system. Since the first community court, established in the Midtown Manhattan neighborhood of New York City in 1993, and as of 2017, community courts have been piloted or planned in nearly three dozen U.S. cities and several countries, including South Africa, Canada, Australia, and the United Kingdom (NYCourts.Gov, n.d). As I envisage community courts, they are the comprehensive integration of a justice system in which all matters of criminal justice are dealt with collaboratively among relevant stakeholders within the local community. These stakeholders include community members, advocates, policymakers, law enforcement, local business, health care services, educational services, lawyers, judges, and, as mentioned earlier, any other

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community service that addresses the underlying causes of offending. Within this universe, the stakeholders work in partnership at all levels of the criminal justice system. The community court is more a diversion service than punishment and sanctions. Furthermore, when punishment occurs, it must be done around the central organizing ethos of rehabilitation, reconciliation, and restitution. What distinguishes the community as envisaged is that it replaces the existing model of the court system, which is centralized and, in most respects, has little to no interaction or involvement with the communities from which defendants are drawn. Its organizing grammar is punishment, not rehabilitation. Moreover, it is a model in which the defendants, particularly Indigenous and Black people, have no voice or opportunity to counter a system that brings all its might to bear in dispensing punishment without considering more suitable options and factors such as systemic racism. Lastly, I think of community courts as autonomous bodies that are not answerable to the state or federal system, a real sign of legal pluralism and a departure from the existing system.

Ending Incarceration for Non-violent Offenders My final suggestion for untethering the respective criminal justice systems is ending incarceration for all but individuals convicted of a violent crime. Again, this is a suggestion that would require a monumental shift in the settler colonial criminal justice system, which has long been predicated on monitoring, controlling, and corralling the Indigenous and Black body. However, one of the things we learned from COVID-19 is that it is possible to reduce the prison population if there is a will. In the U.S., for example, between the end of February 2020 and the end of February 2021, the prison population declined by 157,000 during the first 6 months of COVID. Moreover, 24 states released 37,770 persons from prison on an expedited basis (earlier than scheduled) during COVID-19 (Carson et al., 2022). Likewise, the Canadian courts and correctional systems took steps to reduce the size of the correctional institutions’ population during the COVID-19 pandemic while balancing public safety concerns, such as

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measures included temporary and early releases for low-risk prisoners (Statistics Canada, 2021). Australia also experienced a dramatic decline in its prison population during the COVID-19 pandemic, so much so that lawyers argued it was an opportunity to reinvent the criminal justice system (Gleeson, 2020). The justice systems described and proposed for untethering the existing settler colonial criminal justice systems are all perfectly possible with the willingness to acknowledge that the criminal system as is, does not, and has never, worked for Indigenous and Black people by design. The time is now for a new system.

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Index

A

Aboriginal 57, 69, 170–176 Assimilation 59–62, 69–72, 74 Australia 63–65, 67, 69–74

B

Black people 4–8, 10, 12, 13, 19, 21, 163–166, 169, 170 British Empire 4

Constitution 105, 111, 113, 115–117, 122–124 Convergence 227, 245 Corrections 114, 118, 121 Courts 107, 110, 111, 114, 115, 118–121, 123, 126, 127 Crack 235–237 Criminal justice 108, 112, 113, 115, 118–121, 125

D C

Checks 245 Civilizing mission 59, 60, 69 Colonizing project 29–33, 43, 44 Common law 105, 107, 108, 112, 117, 124, 125 Community courts 273, 276, 277

Deadly 135 Deaths in custody 171, 173, 175, 176 Decolonize 255, 265 Dehumanizing 211 Doctrine of discovery 31, 37, 38, 47 Dominion of Canada 60

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Warde, Colorblind, Critical Criminological Perspectives, https://doi.org/10.1007/978-3-031-38157-7

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Index

E

Eastern Seaboard 34

F

Fatal 136, 137, 147 Federal 111–116, 118, 122, 125 Force 164, 165, 167, 169–172 Forced removals 148 Foundations 218 Frisk 245

G

Genocidal violence 31, 37–41, 68, 69, 73, 74 Great Britain 29–35, 37, 43, 45

Law enforcement 167, 170, 171, 175, 261, 270–273, 276 Law enforcement practices 245 Legal 107, 111, 116, 117, 120, 124, 127 Legal pluralism 270, 274, 275, 277

M

Mandatory minimum sentencing 270, 273 Marijuana 232, 233, 235–237, 240, 241 Mercantilism 31, 35, 67 Mistreatment 170 Mistrustful 171 Moore, Chantel 166 Municipal 118, 119

H

Historical 136, 147, 148, 155

N

I

Neoconservatism 182–184, 187, 189, 191–193, 195, 198, 199 Neoliberalism 186–188, 190, 198 New France 54–56 New South Wales 63–67

Indigenous and Black disproportionality 3, 9, 10, 19 Indigenous land 58, 59, 61, 62, 73 Indigenous people 3–5, 7, 8, 11, 12, 17–19, 21, 163–170

J

O

Opium 228–232, 237, 239 Order 182, 184–188, 190, 192–197 Othering 89, 100

Jim Crow 92, 100, 148, 153, 154 P L

Land dispossession 36–38, 45, 59, 61, 62, 67, 68, 72, 73 Law 182, 184–188, 190–196

Penal populism 198, 199, 205–207 Peonage 92, 148, 152, 153 Personal 245 Peyote 231–233

Index

Plea bargaining 227, 245, 246, 270, 272, 273 Police 164–167, 169–174, 176 Political 105, 111, 115, 122, 124 Powhatan Confederacy 41–43 Prison 114, 115, 121, 125, 128

287

Street 235, 239, 240, 245 Strip search 169, 171, 172 Subjugating strategies 5, 7, 8, 206–208, 213, 214, 216–220 Systemic 163, 166, 170

R

T

Racial hierarchies 209 Racialization 207, 209, 211, 213, 216, 218, 220 Racism 163, 166, 170, 172 Reconciliation 266–270, 277 Reservations 148–150, 154 Reservation system 58, 61, 69, 70 Resistance 42, 45, 62, 66–68 Restorative justice 257–265, 275 Royal Canadian Mounted Police (RCMP) 166–169

Territory 124, 126, 128 Toronto Police 167, 169, 170 Torres Strait Islanders 173, 176 Tough-on-crime 196, 198, 227, 228, 234, 240 Treaties 57, 58, 61, 62, 73, 74 Tribal/Indigenous courts 115, 255, 263 Truth commission 266–268, 270

U S

Scientific racism 83 Segregation 87, 92, 98, 99 Settler colonialism 205, 207–209, 213–215, 218, 219 Slave codes 88, 89 Slavery 31, 39, 40, 46, 82, 83, 88, 91, 92, 94–96, 98, 99 Stop and search 135–139, 142, 145, 146, 155, 227, 235, 245

UK, U.S., Canadian, and Australian criminal justice systems 3, 8–10, 18, 19 United States 33, 34, 37, 45

W

War on drugs 228, 231, 233, 234, 236–239, 241, 242, 244, 245 White settler-colonialism 4, 5, 12