"Finance and Foreclosure in the Colonial Present"

Radical History Review Issue 118 (Winter 2014) doi 10.1215/01636545-2349095© 2014 by MARHO: The Radical Historians’ Organization, Inc.

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Finance and Foreclosure

in the Colonial Present

Alyosha Goldstein

Long before the collapse of Lehman Brothers caught the attention of journalists and policy makers in the fall of 2008, an event now emblematic of the financial crisis that momentarily unsettled neoliberal common sense, that crisis was gather-ing its momentum through “subprime” markets that targeted low- income nonwhite borrowers.1 Any historical resonances that echoed in this predatory and racialized expropriation were quickly disavowed, however, as the government sought to ame-liorate what it perceived to be the most egregious excesses of financial speculation and the disintegration of the derivatives markets. In trying to contain the crisis in this way, governmental triage aimed to safeguard financialization as a disciplinary mechanism and asymmetrical social relation that cultivates permanent indebtedness as a mode of continuous profit.2 Financialization and “primitive accumulation” have been complementary rather than chronologically distinct, and even as housing mar-kets foundered, this reciprocity continued apace as corporate agribusiness, extractive industries, and biofuels producers orchestrated vast “land grabs,” which reached an all- time annual high of 139.9 million acres (56.6 million hectares) globally in 2009.3 A much longer history nevertheless attends the correlation between profit derived from financial transactions and profit from territorial seizure. Exploring the present- day constellations of financialization in the United States, this essay traces their genealogies, revealing how they begin within and continue to work through social relations already configured by racialized subordination and settler colonialism.

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In 2010 the Claims Resolution Act (CRA) funded a series of historic US civil rights and Native American class- action lawsuit settlements. Included in this legisla-tion were Cobell v. Salazar and In re Black Farmers Discrimination Litigation (also known as Pigford II because of its connection to the Pigford v. Glickman settle-ment of 1999). Cobell brought suit against the Interior and Treasury Departments for the mismanagement of American Indian trust accounts, which had been created by the General Allotment Act of 1887, and its final settlement awarded plaintiffs $3.4 billion. A suit against the United States Department of Agriculture (USDA) for discriminating in its loan programs against black farmers, Pigford II was the single largest civil rights settlement in US history. The CRA also ratified funding for a series of monumental water rights cases and an extension of the Temporary Assistance to Needy Families block grants.

This essay uses the CRA as a lens through which to examine legal debates over accountability, debt, and reconciliation and to clarify how the contemporary crisis of global finance capitalism has helped shape contemporary efforts to fore-close the lineages of historical injustice. The essay’s first section explains the specific history of racialization, property, and continental conquest at stake in the CRA’s class- action suits, and it analyzes the legislative debates over the CRA, in which pol-icy makers’ concerns over the financial crisis of 2008 articulate with the extended historical circumstances addressed in the legal cases themselves. The essay’s second and third sections dwell, respectively, on the Cobell and Pigford II settlements. Given the CRA’s context within the current social frictions of finance and economic crisis, the conclusion considers further how it frames and forecloses racialized dis-possession and settler colonialism and, moreover, what escapes the conciliatory imperative of liberal jurisprudence.

Overcoming the PresentIn the broadest terms, modern colonialism refers to the techniques and institutions that maintain foreign control over a people and territory, depriving those sub jugated of autonomy and self- governance, and justifying this imposition in terms of the reli-gious, moral, cultural, or racial superiority of the foreign power. As a particular iteration of this larger formation, settler colonialism is especially significant in the United States, where settlers have sought to eliminate indigenous peoples by force and assimilation rather than extract resources and revenue on behalf of a distant colonial metropole.4 In North America, slavery, settler colonialism, and racial sub-jection are among the primary conditions of possibility for global financial institu-tions and market speculators to produce as well as to profit from the unpayable debts of impoverished peoples and countries. Settler colonialism in the United States is a perpetually incomplete project. It is a logic of possession and inevitability predi-cated on the disavowal of its own violent displacements and denial of their ongo-ing contestation. Such collisions and confrontations haven’t diminished; they con-

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tinue unabated in the colonial present.5 These conditions of continental conquest also operate in tandem with the extended constellation of US overseas colonialism and imperialism.6 Nineteenth- century wars against indigenous peoples and Mexico directly contributed to the tactics, technologies, and purpose of US overseas expan-sion at the turn of the twentieth century. Present- day examples of such dynamics include, as one instance, the US framing of indigenous opposition to the US mili-tary in Guam as “terrorism” and, as another, pending federal legislation that would render Native Hawaiians legally equivalent to American Indians so that the United States might circumvent its violations of international law.7

Slavery and colonialism — property claims to both persons and land — remained explicitly and inextricably entwined from the early national period until the end of the Civil War. The territorial provisions of the Dred Scott v. Sanford decision reveal, for example, how slavery’s economic logic of property, speculation, and value has been indispensible to US colonial expansion.8 Foundational for the United States, the racial terms of property, possession, and belonging are evident as well in the mid- nineteenth- century seizure of northern Mexico, the Chinese Exclu-sion Act of 1882, and the history of US immigration policy. As Cheryl Harris argues, “The origins of whiteness as property lie in the parallel systems of domination of Black and Native American peoples out of which were created racially contingent forms of property and property rights.”9 Understanding the historical constitution of private property, resource extraction, and speculative investment in and through colonialism and slavery (as well as the “indebted servitude” of African American peonage and sharecropping that formed slavery’s afterlife) is crucial for address-ing the present- day displacement of risk, accountability, and culpability from the wealthy to everyone else.10 This displacement ensures that the cost of economic crisis and collapse is paid for by poor and working- class people and has served as yet another mechanism for the accelerated privatization and concentration of wealth.11 The CRA provides an especially evocative lens through which to address how current juridical, political, and economic projects acknowledge these histori-cally fraught social relations while aiming, simultaneously, to disavow and foreclose their enduring salience.

The CRA and the settlements it funds show how jurisprudence as an insti-tutional practice that strives to govern and discipline the past, and monetary com-pensation as an ostensible means of historical closure, is relevant for understanding colonialism and racialization today. Law’s role in the inscription and mediation of social norms is accentuated by the efforts of neoliberal policy making to reduce the state to a mechanism for administering coercion (such as policing, punishment, and military operations) and enforcing contracts. In this context, the normative adju-dication of conflict and the legal grounding of civil society take on a reinvigorated significance as the state is further devolved and dispersed. Whereas under Keynes-ianism the welfare- warfare state conveyed a more capacious sense of political pur-

Goldstein | Finance and Foreclosure in the Colonial Present 45

pose, jurisprudence in the neoliberal era assumes a greater burden as the suppos-edly neutral and dispassionate arbiter of right, even as calls to deregulate markets and to eliminate social and environmental protections increasingly circumscribe the rule of law.12 Describing how the law functions “as an archive or mode of record keeping,” Chandan Reddy argues that “historical and social differences (of gender, race, and sexuality, among others) are subjugated by the law as a precondition for their entrance into the national record, and forced to preserve the liberal narrative of universality on which the legal sphere bases its notion of justice and on which the nation is said to be founded.”13 Law serves as an archive for this essay not because of the justice it claims to confer but rather because it stages and registers political and social antagonisms — antagonisms that are in excess of its regimes of precedent and judgment. Against the limits of legal argument, this essay examines how the CRA highlights various histories of colonial and racialized dispossession in the United States but reveals that it does so — amid an ongoing moment of economic volatility and social instability — only to situate these histories within an overarching teleology of national progress and improvement.

Debated in the wake of the midterm elections of 2010, congressional delib-eration on the CRA clearly registered both the insecurities of the economic crisis and the recent Republican electoral victories. The legislation’s Democratic support-ers framed their arguments in terms of debt and the moral imperatives of fiscal responsibility. Congresswoman Sheila Jackson Lee (D- TX): “America is a place of equality. . . . Legitimate issues addressing native lands have now been resolved. This is not a handout. . . . This legislation is paid for.”14 Representative Ed Perlmutter (D- CO): “America needs to pay its debts and not allow this kind of discrimination to go forward. . . . This country pays its bills.”15 Representative Nick Rahall (D- WV): “I am proud to say that we have been able to resolve these longstanding litigation mat-ters without adding to the Federal deficit.”16 Reiterating the racially inflected and paternalistic language of “handouts” and “responsibility,” Democrats emphasized the correlation between legitimacy and solvency as a national imperative.

But, chiding the Democrats sponsoring the bill, Congressman Doc Hast-ings (R- WA) claimed that “the message from the voters in November’s election was unmistakable: It’s very clear the American people do care about Congress acting in a transparent, open, and fiscally responsible manner.” He contended, “At a time of record deficit spending and record Federal debt, it is the duty of Congress to ask questions to ensure that these settlements are in the best interest of the taxpayers.”17 Not surprisingly, neither the taxpayer nor the interest Hastings invokes coincides with the CRA’s Native American or African American claimants. Representative Steve King (R- IA) dismissively characterized the Pigford II settlement in particular as “modern- day reparations” and, along with Congresswoman Michele Bachmann (R- MN), argued that its claims process was rife with fraud. King bemoaned “spend-ing money that we don’t have for causes that don’t have the support of the Ameri-


can people.” Suggesting that between 75 and 90 percent of the Pigford applicants were fraudulent, he declared, “We can’t be paying modern- day slavery reparations thinking we compensate what took place in the past. We have the future to worry about.”18 Regrettable as aspects of this past may have been, according to King, racial opportunists now threatened the vitality of the United States by making duplicitous claims that neither served nor had the endorsement of the “American people.” Con-gresswoman Virginia Foxx (R- NC) stated: “The growing deficits under the Demo-crats’ leadership will ultimately lead to a lower standard of living and less opportu-nity for future generations of Americans. As spending by the Federal Government grows to unsustainable levels, the U.S. will sacrifice its sovereignty by becoming dependent on debt borrowed from foreign countries.”19

But unlike the National Defense Authorization Act that appropriated $680 billion for the Department of Defense in 2010 and the Federal Reserve’s purchase of approximately $2.3 trillion of failing mortgage- backed securities and Treasury bonds between September 2008 and November 2010, the CRA would not add to the federal deficit.20 Sponsors of the legislation had anticipated that its opponents would claim that funding the settlements would be a further drain on US taxpay-ers. To thwart this line of argument, sponsors proposed to appropriate the money from an unlikely source: duties collected under the terms of the Continued Dump-ing and Subsidy Offset Act (CDSOA).21 Passed in 2000, the CDSOA was a protec-tionist measure that levied fines on goods imported to the United States that were beneath market value (a measure challenged by members of the World Trade Orga-nization [WTO], for being out of compliance with the terms of WTO agreements). Duties collected under CDSOA were meant to be distributed to US producers who had been adversely affected by such imports, and while the CDSOA was formally repealed in October 2005, a provision remained in place for distributing those col-lected duties. By diverting a portion of these duties to fund its settlements, the CRA stitches together disparate historical geographies of the global economy. Articulated with this protectionist trade mechanism, which is symptomatic of the global eco-nomic contraction and the precarity of US industry, the CRA emerges, in part, as a means to seek redress for the aftermath of both US allotment policy and the failures of Reconstruction.

Here, in the aftermath of the 2008 crisis, moral deficit, economic debt, and historical injustice combine to threaten the semblance of national integrity and sov-ereign authority. During the signing ceremony, President Barack Obama declared that the legislation was not “simply a matter of making amends. It’s about reaffirm-ing our values on which this nation was founded — principles of fairness and equal-ity and opportunity. It’s about helping families who suffered through no fault of their own get back on their feet. It’s about restoring a sense of trust between the American people and the government that plays such an important role in their lives.”22 Congressman James Clyburn (D- SC) likewise affirmed that with the CRA


“we removed this stain on our country’s history. What happened to our nation’s African American farmers and Native Americans was wrong, and we have made it right.”23 Congressional debate and presidential decree were symptomatic in this instance of current anxieties not only over insolvency but also over the incapacities of the US nation- state and the persistent failures of the settler colonial project. At the very moment when the neoliberal fantasy of market- based salvation defaults and the Keynesian model of regulatory remediation appears equally untenable, the foundational violence, territorial seizure, and social obliteration upon which settler colonial expansion has been based once again potentially comes into view, in the form of new appeals to “restoring a sense of trust” with Native peoples and Afri-can American farmers. That the federal government in fact has specific and legally mandated terms of trusteeship based on treaty agreements with American Indian nations that it has regularly disregarded remains unacknowledged in this more intangible appeal to the virtues of restoring trust. During an era of mass eviction and foreclosure, when the national fiction of upward mobility and greater wealth across the generations appears ever more scandalously unattainable for most every-one, their systemic historical dispossession takes on new significance because their assimilation and disappearance have been the very conditions upon which national progress has been predicated.

Extinguishing Future ClaimsIn 1996 Elouise Cobell and four other plaintiffs filed a class- action lawsuit against the federal government on behalf of individual Indian owners of trust lands, lands that were a result of the General Allotment Act of 1887, also known as the Dawes Severalty Act. Following two decades of escalating military and extralegal violence toward indigenous peoples in North America, the Dawes Act sought to replace the elimination of natives physically with their assimilation juridically and economi-cally.24 From the perspective of many non- Indian reformers who considered them-selves advocates for Native Americans, allotment amounted to a bulwark against genocide, ensuring indigenous survival through assimilation to liberal personhood and property norms.25 At the time, despite its own military campaigns, the federal government decried settler brutality and lawlessness. The commissioner of Indian Affairs, Ezra A. Hayt, for instance, contended that the government was “impotent to protect the Indians on their reservation, especially when held in common, from the encroachments of its own people.”26 Legislation such as the Major Crimes Act of 1885, which diminished tribal jurisdiction over non- Indian perpetrators, and Public Law 280 in 1953, which mandated the transfer of federal law enforcement jurisdic-tion over designated tribes in six states to state governments, ensured that settler violence would continue with impunity.27

Yet allotment allowed the federal government to sell off Indian lands that were ostensibly “surplus” to the parcels allocated to Indian individuals in fee- simple


title and precipitated widespread land loss of indigenous peoples through tax fore-closure and fraud once the land was divided and privatized. Moreover, Joanne Barker argues that the Bureau of Indian Affairs’ (BIA) “regulations of competency and land title by blood marks the constitutive role of race in Native dispossession.” Barker points out that allotment- generated census rolls supplied a “federal record of tribal members’ blood and lineality,” which were then used as the administrative basis for “the institutionalization of the identification of tribal members by blood as a not- so- subtle proxy for race.”28 As David A. Chang puts it, allotment “reinforced a tendency in the United States to think that it is race, rather than political differ-ence, that defines Indian people and Indian nations.”29 Focusing on the assimila-tion of individual Indians, allotment further dismantled sovereign nation- to- nation relations — already underway with the unilateral legislation in 1871 that ended US treaty making with tribes — and aimed to transform the “vanishing Indian” into a racial minority. The Dawes Act also stipulated that the United States would operate as the trustee for individual Indian’s lands and natural resources and for the mon-etary assets generated by leases to those lands and resources, as private industry extracted oil, coal, timber, and grazing rights. Those assets and lands — of which about 11 million acres remain individually owned — are managed through the Indi-vidual Indian Money (IIM) Trust Fund by the Interior and Treasury Departments.

The Cobell suit charged the United States government with gross neglect of its fiduciary obligations since 1887. Tried repeatedly from 1996 until 2009 in the United States District Court of the District of Columbia, Cobell entailed more than thirty- six hundred filings, eighty published opinions, and eleven appellate decisions.30 It is among the largest such suits ever filed against the federal govern-ment. Indeed, the government’s mismanagement has been so egregious that the Department of the Interior has testified that — in dereliction of its specific statutory mandate and obligation — it cannot render an accurate accounting of the money currently held in the IIM trust. This remarkable failure to account for the money it collected and disbursed was reaffirmed throughout the duration of the suit and in several congressional hearings. For instance, when asked in 2002 about the Interior Department’s capacity to provide an account of the IIM trust funds, Tom Slonaker, then the Interior Department’s special trustee for American Indians, replied that the agency “simply can’t produce a full accounting . . . a complete and full account-ing which the Trustee is obligated to provide to the beneficiaries.”31 Since the cre-ation of the trusts, the Interior Department has been notorious for leasing Indian lands below market rates and for flagrant mismanagement of funds collected and disbursed. A report by the Joint Commission to Investigate Indian Affairs in 1915 described the “great wealth in the form of Indian funds” derived from lands held in trust as “an inducement to fraud, corruption, and institutional incompetence almost beyond the possibility of comprehension.”32 And a study by the American Indian Policy Review Commission in 1977 declared, “Measured by international standards,


the leases negotiated on behalf of Indians are among the poorest agreements ever made.”33 Even at the outset of the Cobell suit, an operative distinction between the management of the accounts and the administration of the leases shielded the Interior Department from investigation into its longstanding collusion with private industry’s exploitation of Indian resources. Focused exclusively on the IIM trust accounts themselves, the terms of the suit entirely exempted the BIA’s leasing practices.

When brought to court, Cobell demanded two measures. First, it sought a full accounting of the money owed to about five hundred thousand Indian beneficia-ries upon whom the United States imposed the IIM trust accounts. Second, it called for a substantial reform of the Interior Department’s administration of the Indian trust funds. The settlement ignored both of these demands and instead substituted a monetary award to the class- action plaintiffs.34 The plaintiffs’ initial estimate of $137.2 billion in unpaid trust funds between 1887 and 2000 was calculated by cross- referencing the historical records of the oil, gas, coal, and other companies that leased from the BIA and adding the accrual of interest.35 Rejecting the plaintiff ’s estimate and supporting the Interior Department’s contention that an actual histori-cal accounting was too costly, the final settlement in 2009 was for a vastly reduced total of $3.4 billion, based instead on statistical sampling.36 Kimberly Craven argued that an underlying problem with the settlement was the way in which it expanded the class of plaintiffs: “If in the leasing of your land, it was damaged from overgraz-ing, minerals extracted without your permission, timber cut without payment, soil poisoned from agricultural chemicals or any other reason, you will be paid $500, plus a formula amount, to extinguish these potential claims.”37 And by accepting the settlement payout, plaintiffs relinquished any further recourse against the govern-ment for mismanagement. Cobell did not intend to extinguish these potential claims when it was first filed, but this was a result of the final settlement.

During its fourteen years of litigation the Cobell suit shifted course con-siderably. In 1998, Federal District Court judge Royce Lamberth ruled that in managing IIM accounts federal agencies would be held to the same standards as any other trustee (a bank, for example) rather than to the less strict governmental standards. The following year, and then again in 2002, Judge Lamberth held the secretary of the Interior, assistant secretary of the Interior, and secretary of the Treasury in contempt of court for withholding evidence and failing to cooperate with the inquiry. In 2002 the New York Times reported that the “physical records have fallen into disrepair, been lost, or, in some cases, been purposely destroyed,” which the Treasury Department acknowledged, admitting that it had destroyed 162 boxes of documents relevant to the trust accounts while the case was pend-ing.38 In 2003 Lamberth wrote: “The results of Interior’s failure to take its trust responsibilities seriously are plain today. Although they are citizens of the great-est and most prosperous nation in the world today, the beneficiaries of the IIM


trust live under conditions that would not be alien to citizens of the poorest Third World nations. Many of them live in abject poverty.”39 Notably, the exceptionalist terms of his statement maintained that the United States was the “greatest and most prosperous nation in the world” while also failing to note that Native peoples are often also citizens of their own tribal nations. Lamberth’s criticisms nevertheless resulted in a federal appeals panel, at the request of the Justice Department, remov-ing him from the case in 2006 because he “lacked objectivity.”40 In January 2008, Lamberth’s replacement, Judge James Robertson, ruled that the Interior Depart-ment could not “achieve an accounting that passes muster as a trust accounting” because Congress would not appropriate enough money to pay for a comprehensive audit. In August 2008, instead of a full accounting, Judge Robertson “awarded the plaintiffs $455.6 million in restitution.”41 One year later the United States Court of Appeals for the District of Columbia overturned Robertson’s ruling and sent the case back to the district court, but it did support the decision for what it described as “an administrative balancing of cost, time, and accuracy” — meaning simply that minimizing cost and time trumped accuracy. The appeals court concluded that “the unique nature of this trust requires the district court to exercise equitable pow-ers in resolving the paradox between classical accounting and limited government resources” and recommended “low- cost statistical methods of estimating benefits across class sub- groups” rather than a full accounting.42 In other words, rather than calculate the amounts owed based on the records themselves, a statistical sampling based on the discretion of the Interior Department would be used to estimate aver-age totals. On November 24, 2012, the Cobell settlement appeal period expired, and — the Supreme Court having dismissed the appeals petitions submitted for its consideration — two days later President Obama announced “the final approval of the Cobell settlement agreement, clearing the way for reconciliation between the trust beneficiaries and the federal government.”43

The settlement not only claimed to bring to resolution more than a century of theft and negligence without providing an accounting and without changing the administrative and juridical conditions that led to the situation, but it also used a considerably reduced payment ($3.4 billion rather than $137.2 billion) to preempt further claims by Indians whose land was mismanaged by the Interior and Trea-sury Departments. In effect, the Cobell settlement’s terms sustained and intensified the individuation and privatization of property that drove the Dawes Act in 1887, which parceled and allotted collective tribal land and thus broke up tribal nations, compelled assimilation, and opened Indian lands to non- Indian purchase and settle-ment. And the settlement ultimately relieved the United States of any obligation to provide an official record of the funds that it expropriated, or misappropriated, for its own unaccounted uses. It did not hold the government responsible for payment based on such an accurate accounting. It absolved the federal government of its vio-lations of the terms of its fiduciary obligations. Although a portion of the settlement


money is allocated toward the purchase of fractionated interests in allotments (the increasing subdivision of ownership of allotted land created as title is passed on to multiple heirs over generations) and transfers these purchases to tribal governments, it works to shift the burden of proof and accounting from the federal government and its agencies to individual Indian claimants. In doing so, it intensifies the calcula-tions of individuation — and hence diminishes tribal claims — rather than pluralize sovereign authority. In the wake of the final Cobell settlement, arguments that focus on the comparative disadvantage of Native Americans seeking mortgages due to the liminal status of reservations substitute for more far- reaching claims to tribal sover-eignty and the United States’ culpability.44 In other words, any reckoning with the political specificity of tribal sovereignty and the persistence of US treaty obligations is avoided, and that history is instead renarrated in terms of the illegibility of Indian reservations to real estate and commercial banking — an illegibility that errone-ously names tribal sovereignty as the source of poverty and as the obstacle to capital and credit.

Economies of Racial AttritionIf reconciliation in the Cobell settlement seems to have been purchased by remov-ing the historical evidence of theft and by abrogating future claims, then the terms of juridical closure and compensation in the case of Pigford II remain problematic as well. The president of the Black Farmers and Agriculturists Association, Gary Grant, was among those present at the CRA presidential signing ceremony on December 8, 2010. Decidedly less sanguine than others commenting on the event, Grant observed, “Seemingly forgotten in the process are those Black farmers who are in the Administrative Process or have outstanding court claims, like my parents, not to mention those who filed Civil Rights claims during the ‘Bush years’ who are now threatened with loss of their claims because of the Statutes of Limitations being used against them since the Bush Administration did pretty much as the Reagan Administration by stripping the office of Civil Rights and not following up on filed claims.”45 He noted that the settlement, as with so many of the federal government’s previous USDA discrimination inquiries, instituted no penalties for the agency or its representatives who were directly culpable for the racist practices identified in the suit. Furthermore, of the African American farmers who will be compensated through the Pigford and Pigford II settlements, many will pay the money toward costs related to their previous bankruptcy. The settlement also did not resolve the consequences of their past debts, nor did it provide substantially for future possibili-ties to resume farming. What the settlement affirmed — through a standardized and finite distribution of payments — was the progressive realization of justice presum-ably immanent to law, specifically that federally institutionalized racial inequality was now past, finished, and resolved.

As the United States District Court judge Paul L. Friedman observed in his


opinion for the original consent decree for Pigford I, which was filed in April 1999, the USDA was created on May 15, 1862, “as Congress was debating the issue of providing land for freed former slaves.”46 And through the 1999 settlement, what Friedman regarded as “a fair resolution of the claims brought in this case and a good first step towards assuring that the kind of discrimination that has been vis-ited on African American farmers since Reconstruction will not continue into the next century” had acquired the full force of historical conclusion.47 In his formal statement on the CRA, Secretary of Agriculture Tom Vilsack remarked that the leg-islation would “finally allow USDA to turn the page on past discrimination against black farmers. . . . The process has been long and often difficult, but we can’t wait any longer to close this sad chapter in USDA’s history.”48 That the legislation would “finally allow” Vilsack and the USDA to “close this sad chapter” implies, of course, a peculiar inversion: here, the USDA — rather than the African American farmers who initiated the lawsuit — was “waiting for justice” and hoping for some juridical end to its longstanding and institutionalized practices of racial discrimination.

Despite the failures of the Freedmen’s Bureau and the Southern Homestead Act of 1866 to redistribute property to emancipated African Americans, and in spite of concerted white hostility and violence, 20 percent of black farmers managed to purchase at least some arable land by 1880. (By comparison, 60 percent of all South-ern white farmers owned their land at this time, which on average was valued at twice as much as that of their black counterparts.)49 That former slaves were not the principal beneficiaries of such transfer of “public land” should not minimize the fact that all landownership by nonindigenous peoples operated in tandem with settler colonial expansion. Nevertheless, by 1910 African Americans held title to approxi-mately 16 million acres of farmland, and by 1920 there were 925,000 black- owned farms in the United States. During the economic crisis of the 1930s, the USDA cre-ated new loan programs that directly contributed to diminishing the hard- won gains of African Americans since Emancipation. And by 1997, the year the first Pigford class- action lawsuit was filed, black farmers owned and operated only 18,451 farms. Even though all small- scale farming declined significantly over the course of the twentieth century, due largely to the industrialization and corporatization of agri-business, there was considerable disparity between the loss of 98 percent for black farmers and 66 percent for whites.50

New Deal legislation — including the Agricultural Adjustment Act of 1933, the Soil Conservation and Domestic Allotment Act of 1936, and the Bankhead- Jones Farm Tenant Act of 1937 — established the USDA’s role as the “lender of last resort” and created local county committees to administer loans to select quali-fying farmers. The county committees had considerable influence on agricultural development and individual farm capacity. The committees made supervised long- term loans to farmers who were unable to find other financing, and they set limits for the maximum acreage on which farmers could raise their crops. In the South,


until as late as the mid- 1960s, these committees comprised only white farmers who used their fiscal and planning authority to systematically dispossess and eliminate black farmers in the South. Loans were especially crucial during the 1930s and after World War II, due to the increasing costs of new agricultural technologies — which were required for modernized production but also had the effect of decreasing farm labor — and to the increasing competition from corporate agribusiness. Historically, both public and private lenders have cast small farmers, as a group, as uncredit-worthy.51 The Farmers Home Administration Act of 1946 — which is the source of the USDA’s current loan programs — and the Consolidated Farmers Home Admin-istration Act of 1961 — which sought to address the increasing need for credit as a result of agricultural mechanization — continued to expand and refine the USDA’s function as a fiscal safety net, but once again they largely bypassed farmers of color.52

Mounting pressure from the civil rights movement compelled a certain degree of institutional adjustment and more public standards of accountability, yet at the USDA these changes manifested themselves for the most part in a bureau-cratic compulsion to conduct repeated evaluations and intermittent official investi-gations. In the wake of the Civil Rights Act of 1964, the United States Commission on Civil Rights initiated an inquiry into the discriminatory practices at the USDA. The commission’s report in 1965 found that despite the agency’s significant con-tributions to “raising the economic, educational, and social levels of thousands of farm and rural families,” African American farmers were “a glaring exception to this picture of progress.”53 The commission also reported that USDA assistance to black farmers was “consistently different from that furnished to whites.” In 1982 the commission published the results of another inquiry into the USDA, which con-cluded that since the report in 1965, the agency — apart from establishing a division for reviewing civil rights violations — had made little or no progress in eliminating discriminatory actions against African American farmers.54 The following year the Reagan administration’s response was simply to close the USDA’s Office of Civil Rights Enforcement and Adjudication.

In 1997, African American farmers brought two class- action suits contend-ing that the USDA’s local county committees, to which they had applied for farm loans and assistance, had denied or postponed their applications on the basis of race between 1983 and 1997 and, further, that the USDA had then failed to investigate their allegations of racial discrimination. These farmers filed complaints stating that they were facing foreclosure and bankruptcy because the USDA denied them timely loans and debt restructuring — a charge that a USDA- commissioned study in 1994 supported. Other findings from this study showed that the largest USDA loans went to corporations (65 percent) and white farmers (25 percent); loans to black farmers averaged 25 percent less than those given to whites; and 97 percent of disaster pay-ments went to white farmers, while less than 1 percent went to African Americans.55 The study reported that reasons for discrepancies in treatment between black and


white farmers could not be easily determined due to “gross deficiencies” in USDA data collection, which omitted applicant and demographic information necessary for comparison.56

In April 1999, the United States District Court for the District of Columbia approved a settlement agreement and consent decree (a judicial decree expressing a voluntary agreement between parties to a suit, in return for the withdrawal of a criminal charge) in Pigford v. Glickman. The deadline for submitting a claim as a class member was September 2000, but as of November 2010, only 69 percent of eligible class members had final adjudications approved. Many voiced concern about the structure of the settlement agreement, the large number of applicants who filed late, and reported insufficient representation by class counsel. A provision in the farm bill of 2008 permitted any late- filing Pigford claimants who had not yet obtained a determination on their claim’s merits to petition for such a determination in federal court. A maximum of $100 million was also made available for payment of the original Pigford claims. The multiple late- filed claims were then consoli-dated into a single case, In re Black Farmers Discrimination Litigation (commonly referred to as Pigford II), which was settled in February 2010 for $1.25 billion. How-ever, because only $100 million was made available in the farm bill of 2008, the Pigford II settlement was contingent upon congressional approval of the additional $1.15 billion in funding. After a series of failed attempts to appropriate funds for the settlement agreement, the CRA provided the full appropriation in 2010.

The framework of “discrimination” that structures Pig ford II operates through what Lawrie Balfour describes as “a political language of formal equality, which is premised on the erasure of the past.” Drawing on the work of W. E. B. Du Bois, Balfour argues that, unlike “discrimination” and the discourse of formal equal-ity, “a language of reparations” — as a language that affirms and refigures the past as a vehicle for social change — “might . . . enable a more democratic refiguration of political time.”57 An exclusive focus on “discrimination” deflects attention from the historical racialization of capitalism itself, from the ways that race and its depreda-tions are capitalism’s constitutive features. Pigford II expanded the opportunity for black farmers to be included in the plaintiff class, but it was, in the final instance, too late to counter the wrongs already done and lacked the means to challenge the ongoing dispossession of black farmers by global agribusiness and financial crisis. The average size of farm operations in the United States grew substantially between the 1920s and 1970s, as mechanization and capital- intensive agriculture dramati-cally reduced the number of farms and farmers. During the farm crisis of the 1980s, dependent on credit and severely indebted, small farmers faced massive foreclo-sures, while large- scale corporate agricultural production exponentially expanded.58 A focus on discrimination ultimately justifies and reaffirms the underlying system because it makes racism external to capitalism’s formation and its functioning, and, in this instance, that focus also exempts from consideration the historical inequities


of the (global) political economy of agriculture. Congressional efforts to cut funding for the Supplemental Nutrition Assistance Program (food stamps) from the 2013 farm bill are likewise symptomatic of this dichotomization of federal subsidy for corporate agribusiness and agricultural policy addressed to social inequality.59

The notion of discrimination central to both Pigford class- action suits works as a corollary to liberal conceptions of diversity and inclusion. Sara Ahmed in her study of the institutional discourses of diversity makes several incisive points that are directly relevant for understanding both the forms of closure that the CRA per-forms and the liberal ambivalence that accompanies contemporary calls for settling claims of racial injustice. Ahmed argues that the performative tolerance and social repair institutionally enacted by championing diversity and inclusion recenter white-ness, “whether as the subject of injury who must be protected or as the subject whose generosity is ‘behind’ our arrival [as people of color]. To show our gratitude, we must put racism behind us.”60 Addressing the diminution of racism as “bad feel-ing,” Ahmed contends that the “happy signs of diversity become legible as signs of overcoming racism,” and, in that respect, “antiracism becomes a matter of generat-ing a positive white identity that makes the white subject feel good” (168 – 69, 170). The very admission of guilt broadcast by the settlement of the class- action lawsuits recuperated prevailing norms that disavow racism as constitutive and systemic. As Ahmed points out, “Guilt can be a way of performing rather than undoing white-ness. Guilt certainly works as a ‘block’ to hearing the claims of others as it ‘returns’ to the white self” (169). Indeed, the very mention of racism or whiteness is taken as evidence of the “stubbornness, paranoia, or even melancholia” of those who are not white, “as if we,” writes Ahmed, “are holding onto something (whiteness) that our arrival shows has already gone. Our talk about whiteness is read as a sign of ingratitude, of failing to be grateful for the hospitality we have received by virtue of our arrival. This very structural position of being a guest, or the stranger, the one who receives hospitality, allows an act of inclusion to maintain the form of exclusion” (43). The CRA settlements do not change the underlying conditions or the institu-tional practices that prompted the lawsuits; instead, the settlements ostensibly serve as evidence of progress and intend to solicit gratitude for unexpectedly fulfilling a compensatory promise of justice.

The Debt This TimeThe resolution proposed by the CRA is similar in purpose to influential models of ethical and juridical reconciliation, even as it also evokes more mundane forms of reconciliation found in financial accounting. Legal theorist Brenna Bhandar argues, “The much vaunted social and political objective of reconciliation, prevalent in colonial settler societies which attempt to grapple with the injustices that accrued during the course of violent settlement, demands a settled, unified notion of what transpired, which in turn compresses history into a seamless, progressive narrative


of nation formation.”61 Acknowledgment and accommodation in this context serve as a means to justify and invigorate colonial sovereignty. In jurisprudence and legisla-tion, as Bhandar argues, “the injustices of the colonial past and its history of racist discriminatory laws” are acknowledged “only in order to close off and contain this past. The past is remembered only so that it may be forgotten in the push towards maintaining the foundation of the existing economic and social order.”62 The CRA presumes this aspiration to inclusion, and it aims to reaffirm the impartial value of prevailing social and economic norms.63

When Congressman King denounced the Pigford II decision as “modern- day reparations” he did so by claiming that “you cannot fix something that happened a century and a half ago. You can’t go back and put the blood back in people’s veins when they’ve paid in blood to put an end to slavery. And you can’t hold the genera-tions, six and seven generations hence, responsible for the sins of the great great great great great great grandfathers.”64 Whose blood King refers to here is perhaps deliberately ambiguous, but one connotation is that white people died to end slavery and thus have already paid their debt. As the corollary to such a perspective, Saidiya Hartman argues, “The very bestowal of freedom established the indebtedness of the freed through a calculus of blame and responsibility that mandated that the formerly enslaved both repay this investment of faith and prove their worthiness.”65 Despite the funding of the CRA through the CDSOA, which King refused to acknowledge, he objected to spending money that was “unbudgeted, unauthorized, unacceptable — and not just 41 cents out of every dollar borrowed, a lot of it from the Chinese and the Saudis — but all of this money, all of this unbudgeted funding is a hundred percent borrowed money.”66 One irony here is that although King blatantly mis-represented the specific terms of the lawsuit, his efforts to broadly denigrate and delegitimize the settlement by conflating it with what he believed to be the absur-dity of “modern- day reparations” for slavery nevertheless gestured toward the pos-sibilities of such far- reaching demands. Robert Westley suggests that the movement for reparations for slavery potentially conveys the “difference between the past as bygone and the past as prologue”; in other words, the difference between the past as something for which people today bear no responsibility or lived relation, and the past as the living conditions of future possibility.67 Against the ongoing “devaluation of people of African descent,” Westley contends that compensation “entails not mere abolition but a fundamental social revaluation of objects of commerce as subjects, a social transformation in which those same subjects are viewed as persons entitled to restitution and recognition of human rights and, not least of all, an appreciation of the exploitative dimension of slavery across time.”68 Redress in this sense demands a fundamental undoing of present- day racial economies of attrition and colonial dis-possession rather than simply making amends and offering recompense aimed at securing business as usual. Likewise, the affirmation of the self- owning possessive individual reinvigorates rather than challenges the terms of dispossession.69


Until 2008, as Greta R. Krippner and others have shown, financialization had offered capitalist institutions and governments a means to defer and depoliticize the consequences of economic decline since the 1960s.70 Credit and debt expanded dramatically during this period, as global capital markets were restructured and deregulated. If creditworthiness affirmed the deserving character of some, then for others, in highly uneven and racially overdetermined ways, the ensuing debt bore the pejorative mark of dependency. If jurisprudence and legal redress often stage forms of displacement and historical disavowal, then they also stage the inadequacy of their own forms of closure and resolution. The class- action lawsuits that consti-tute the CRA drew attention to these conditions, and they provided one possible way for claimants to mobilize politically. As Joanne Barker argues, “The question that lingers is not why Native peoples would use the law as a means of reformation but how, in those uses, they seek to rearticulate their relations to one another, the United States, and the international community.”71 It remains to be seen, in the case of the Cobell settlement, how and to what extent such a rearticulation may follow.

Far from being fixed or static, settler colonialism’s logic of elimination still shapes and is reconfigured by the current historical moment, propelling foreclosures and immiseration in the ever more austere climate of neoliberalism.72 Indeed, the etymological source of “foreclose” comes from the past participle of the Old French forclore (to exclude), as well as the combination of the Latin foris (“outside,” but also “foreign”) and clore (to shut), thus suggesting an exclusion or closure that defines inclusion against a foreign outside. Foreclosure’s subsequent definition as “to repos-sess a mortgaged property whose owner has failed to make the required payments” still implies a link between being shut out and being rendered foreign from what was once domestic space. To the degree that the joining of foris and clore can be inter-rupted, foreignness in this instance might convey the crisis of settler sovereignty rather than the elimination of the colonized. The CRA itself is politically useful to the extent that the closure it promises remains frustrated and unsettled. And to the extent that it does not and cannot fully redress racial capitalism’s expropriations, the CRA also remains a stark political lesson about the deficiencies that inhere in the law’s preemptive conclusion and symbolic consolations. More than anything else, the act fails in its efforts to mark off a bounded and finished past and to assert a present that is unencumbered, multicultural, postracial, and postcolonial. The CRA points to the uses of juridical action, but it also throws into relief the inadequacies of legal redress and colonial reconciliation. And by exposing those inadequacies, the CRA opens onto new and different possibilities for challenging the fictions of colo-nial sovereign power and for breaking liberal democracy’s drive toward an inclusion that amounts to containment. It only offers these possibilities, though, so long as the terms of foreclosure to which it aspires remain contested.


Notes1. On the racial valences of the “subprime,” Paula Chakravartty and Denise Ferreira da Silva

argue that current discussions of accumulation, dispossession, and debt in the so- called subprime crisis have largely failed to substantively consider “how these ‘new territories’ of consumption and investment have been mapped onto previous racial and colonial (imperial) discourses and practices.” Paula Chakravartty and Denise Ferreira da Silva, “Accumulation, Dispossession, and Debt: The Racial Logic of Global Capitalism — an Introduction,” American Quarterly 64, no. 3 (2012): 368.

2. Maurizio Lazzarato, The Making of Indebted Man: An Essay on the Neoliberal Condition (Los Angeles: Semiotext(e), 2012), 23, 24.

3. Philip McMichael, “The Land Grab and Corporate Food Regime Restructuring,” Journal of Peasant Studies 39, nos. 3 – 4 (2012): 681 – 701; Matias E. Margulis and Tony Porter, “Governing the Global Land Grab: Multipolarity, Ideas, and Complexity in Transnational Governance,” Globalizations 10, no. 1 (2013): 65 – 86.

4. Patrick Wolfe, “Settler Colonialism and the Elimination of the Native,” Journal of Genocide Research 8, no. 4 (2006): 387 – 409; Alyosha Goldstein, “Where the Nation Takes Place: Proprietary Regimes, Antistatism, and U.S. Settler Colonialism,” South Atlantic Quarterly 107, no. 4 (2008): 833 – 61; Audra Simpson, “Settlement’s Secret,” Cultural Anthropology 26, no. 2 (2011): 205 – 17; Robert Nichols, “Indigeneity and the Settler Contract Today,” Philosophy and Social Criticism 39, no. 2 (2013): 165 – 86.

5. By colonial present I mean the spectrum of forces that currently animate and derive from the fraught historical accumulation and shifting disposition of colonial processes, relations, and practices. As with Derek Gregory’s use of the term colonial present, I am interested in how “the capacities that inhere within the colonial past are routinely reaffirmed and reactivated in the colonial present.” Derek Gregory, The Colonial Present: Afghanistan, Palestine, and Iraq (Malden, MA: Blackwell, 2004), 7. My conception of the colonial present, in contrast to Gregory’s focus on imperial formation, emphasizes how forms of colonial administration, property form, and jurisprudence continue to impinge upon and be contested or negotiated by indigenous peoples today. I aim to highlight these contemporary conditions, as well as how they shape political, economic, and social formations more broadly and variously manifest the continuities between past and present. Ann Laura Stoler likewise usefully insists, “Understanding what constitutes the colonial present calls into question both the selective geographic and analytic space within which postcolonial studies has concentrated and what it has assumed characterizes a colonial situation.” Ann Laura Stoler, Carnal Knowledge and Imperial Power: Race and the Intimate in Colonial Rule (Berkeley: University of California Press, 2010), xviii.

6. As Jodi Byrd contends, “That the continued colonization of American Indian nations, peoples, and lands provides the United States the economic and material resources needed to cast its imperialist gaze globally is a fact that is simultaneously obvious within — and yet continually obscured by — what is essentially a settler colony’s national construction of itself as an ever more perfect multicultural, multiracial democracy.” Jodi Byrd, Transit of Empire: Indigenous Critiques of Colonialism (Minneapolis: University of Minnesota Press, 2011), 122 – 23.

7. Keith L. Camacho, “After 9/11: Militarized Borders and Social Movements in the Mariana Islands,” American Quarterly 64, no. 4 (2012): 685 – 713; J. Kehaulani Kauanui, “Hawaiian Nationhood, Self- Determination, and International Law,” in Decolonizing Native Histories: Collaboration, Knowledge, and Language in the Americas, ed. Florencia E. Mallon (Durham, NC: Duke University Press, 2012), 27 – 53.


8. Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (New York: Oxford University Press, 1978), 152 – 208.

9. Cheryl Harris, “Whiteness as Property,” Harvard Law Review 106, no. 8 (1993), 1714. See also Jenny Reardon and Kim TallBear, “ ‘Your DNA Is Our History’: Genomics, Anthropology, and the Construction of Whiteness as Property,” Current Anthropology 53, supplement 5 (2012): S233 – 45. On the historical reciprocities between colonial expansion, racialization, and property, see Jedediah Purdy, The Meaning of Property: Freedom, Community, and the Legal Imagination (New Haven, CT: Yale University Press, 2010); Aziz Rana, The Two Faces of American Freedom (Cambridge, MA: Harvard University Press, 2010); David A. Chang, The Color of the Land: Race, Nation, and the Politics of Landownership in Oklahoma, 1832 – 1929 (Chapel Hill: University of North Carolina Press, 2010); David Correia, Properties of Violence: Law and Land Grant Struggle in Northern New Mexico (Athens: University of Georgia Press, 2013); and Walter Johnson, River of Dark Dreams: Slavery and Empire in the Cotton Kingdom (Cambridge, MA: Belknap Press of Harvard University Press, 2013).

10. Saidiya Hartman, Scenes of Subjection: Terror, Slavery, and Self- Making in Nineteenth- Century America (New York: Oxford University Press, 1997), 125 – 63.

11. For instance, after the government bailout — $700 billion provided by the Troubled Asset Relief Program in 2008, followed by an additional $787 billion in tax cuts and government spending provided by the American Recovery and Reinvestment Act of 2009 — profits in the financial sector increased from $249 billion in 2009 to $369 billion in 2010. In excess of the emergency lending programs, the Federal Reserve also spent approximately $2.3 trillion between September 2008 and November 2010 purchasing failing mortgage- backed securities and Treasury bonds. During this same time, 4 million families lost their homes due to foreclosure and 4.5 million more entered or were close to entering the foreclosure process. Financial Crisis Inquiry Commission, The Financial Crisis Inquiry Report: Final Report of the National Commission on the Causes of the Financial and Economic Crisis in the United States (New York: Public Affairs, 2011), 400 – 403.

12. Chandan Reddy argues in this regard that “as the US state responds to late- modern economic globalization by repurposing itself as a competitive, neoliberal apparatus of contracts and enforcement, legal rationality gains a new purview in constituting the social meanings of civil society.” Chandan Reddy, Freedom with Violence: Race, Sexuality, and the US State (Durham, NC: Duke University Press, 2011), 50. At the same time, Alain Supiot points to emergent trends in “law shopping” as a way in which transnational capital renders the regulatory regimes of national legal orders instruments for comparative advantage. Alain Supiot, “A Legal Perspective on the Financial Crisis of 2008,” International Labour Review 149, no. 2 (2010): 151 – 62.

13. Reddy, Freedom with Violence, 165.14. 156 Cong. Rec. H7656 (daily ed. Nov. 30, 2010).15. 156 Cong. Rec. H7654, H7657 (daily ed. Nov. 30, 2010).16. 156 Cong. Rec. H7686 (daily ed. Nov. 30, 2010).17. 156 Cong. Rec. H7686 (daily ed. Nov. 30, 2010).18. 156 Cong. Rec. H7845, H7850 (daily ed. Dec. 1, 2010). King’s allegations were inspired by

Andrew Breitbart but have also subsequently been reiterated in Sharon LaFraniere, “U.S. Opens Spigot After Farmers Claim Discrimination,” New York Times, April 25, 2013.

19. 156 Cong. Rec. H7656 (daily ed. Nov. 30, 2010).20. Christopher Drew, “Victory for Obama over Military Lobby,” New York Times, October 29,

2009; Financial Crisis Inquiry Commission, Financial Crisis Inquiry Report, 400.


21. Chad P. Bown, The Global Resort to Antidumping, Safeguards, and Other Trade Remedies Amidst the Economic Crisis, Policy Research Working Paper 5051 (Washington, DC: World Bank, September 2009); Jeanne J. Grimmett, WTO Dispute Settlement: Status of U.S. Compliance in Pending Cases (Washington, DC: Congressional Research Service, March 11, 2011).

22. “Remarks by the President at Bill Signing for the Claims Resolution Act,” White House, December 8, 2010, www.whitehouse.gov/the- press- office/2010/12/08/remarks- president- bill - signing- claims- resolution- act.

23. Quoted in Ashley Southall, “Black Farmers Settlement Approved,” The Caucus (blog), New York Times, November 30, 2010, thecaucus.blogs.nytimes.com/2010/11/30/black- farmers- settlement- approved.

24. Patrick Wolfe, “Against the Intentional Fallacy: Logocentrism and Continuity in the Rhetoric of Indian Dispossession,” American Indian Culture and Research Journal 36, no. 1 (2012): 1 – 46.

25. Wilcomb E. Washburn, The Assault on Indian Tribalism: The General Allotment Law (Dawes Act) of 1887 (Philadelphia: J. B. Lippincott, 1975); Leonard A. Carlson, Indians, Bureaucrats, and Land: The Dawes Act and the Decline of Indian Farming (Westport, CT: Greenwood, 1981); Jessica A. Shoemaker, “Like Snow in the Spring Time: Allotment, Fractionation, and the Indian Land Tenure Problem,” Wisconsin Law Review, no. 4 (2003): 729 – 88; Kristin T. Ruppel, Unearthing Indian Land: Living with the Legacies of Allotment (Tucson: University of Arizona Press, 2008); C. Joseph Genetin- Pilawa, Crooked Paths to Allotment: The Fight over Federal Indian Policy after the Civil War (Chapel Hill: University of North Carolina Press, 2012).

26. Quoted in Washburn, Assault on Indian Tribalism, 7.27. See, for instance, Julie Evans, “Where Lawlessness Is Law: The Settler- Colonial Frontier

as a Legal Space of Violence,” Australian Feminist Law Journal 30 (June 2009): 3 – 22; and Kimberly Robertson, “Righting the Historical Record: Violence against Native Women and the South Dakota Coalition Against Domestic Violence and Sexual Assault,” Wicazo Sa Review 27, no. 2 (2012): 21 – 47.

28. Joanne Barker, Native Acts: Law, Recognition, and Cultural Authenticity (Durham, NC: Duke University Press, 2011), 90.

29. David A. Chang, “Enclosures of Land and Sovereignty: The Allotment of American Indian Lands,” Radical History Review, no. 109 (2011): 109.

30. Michelle Tirado, “Obama Signs Cobell Settlement,” American Indian Report, December 9, 2010, www.americanindianreport.com/wordpress/2010/12/obama- signs- cobell- settlement.

31. United States Senate Committee on Indian Affairs, Individual Indian Money Accounts: Hearing before the Committee on Indian Affairs, United States Senate, 107th Congress, Second Session on the July 2, 2002 Report of the Department of the Interior to the Congress on the Historical Accounting of Individual Indian Money Accounts, July 25, 2002 (Washington, DC: Government Printing Office [GPO], 2002), 11.

32. United States Joint Commission to Investigate Indian Affairs, Bureau of Municipal Research, Business and Accounting Methods, Indian Bureau: Report to the Joint Commission of the Congress of the United States, Sixty- Third Congress, Third Session, to Investigate Indian Affairs, Relative to Business and Accounting Methods Employed in the Administration of the Office of Indian Affairs (Washington, DC: GPO, 1915).

33. American Indian Policy Review Commission, Final Report (Washington, DC: GPO, 1977), 339.

34. J. Kehaulani Kauanui, “Episode #16: Is the Cobell Case a Scam?” (includes interviews with


Angelique EagleWoman and Richard Monette), Indigenous Politics: From Native New England and Beyond, WESU- FM, September 7, 2010, www.indigenouspolitics.com.

35. Lori Townsend, “Cobell Plaintiff Attorney’s Make Argument for $137 Billion,” News from Indian Country, February 10, 2003.

36. John Files, “One Banker’s Fight for a Half- Million Indians,” New York Times, April 20, 2004.

37. Kimberly Craven, “Cobell Lawsuit Not Good for All American Indians,” Billings Gazette, July 8, 2010, billingsgazette.com/news/opinion/guest/article_5330a9ee- 8a2d- 11df- 93f7 – 001cc4c03286.html.

38. “Contempt at Interior,” New York Times, September 19, 2002.39. Royce C. Lamberth, “Memorandum Opinion,” September 25, 2003, quoted in Jonathan

Stein, “Contempt from Court: The Blistering Eloquence of Judge Royce C. Lamberth,” Mother Jones, September 1, 2005.

40. John Files, “Appeals Panel Removes Judge Presiding over Indian Lawsuit,” New York Times, July 12, 2006.

41. Yule Kim, The Indian Trust Fund Litigation: An Overview of Cobell v. Salazar (Washington, DC: Congressional Research Service, April 9, 2010), 6. See also Thomas V. Panoff, “Legislative Reform of the Indian Trust Fund System,” Harvard Journal on Legislation 41, no. 2 (2004): 517 – 40; Christopher Barrett Bowman, “Indian Land Trust: Resolution and Proposed Reformation to the Problems Associated with the Individual Indian Money Accounts in Light of Cobell v. Norton,” Catholic University Law Review 53, no. 2 (2004): 543 – 76; and Armen H. Merjian, “An Unbroken Chain of Injustice: The Dawes Act, Native American Trusts, and Cobell v. Salazar,” Gonzaga Law Review 46, no. 3 (2011): 609 – 58.

42. United States Court of Appeals for the District of Columbia Circuit, Cobell v. Salazar, No. 08 – 5500, July 24, 2009, 4.

43. Rob Capriccioso, “Indians Pull Appeal to Cobell Settlement,” Indian Country Today, November 8, 2012, indiancountrytodaymedianetwork.com/article/indians- pull- appeal- to - cobell- settlement- government- says- payments- by- years- end- 144690; “Statement of the President on the Final Approval of the Cobell Settlement,” November 26, 2012, White House, www.whitehouse.gov/the- press- office/2012/11/26/statement- president- final- approval - cobell- settlement.

44. See, for instance, Elizabeth Laderman and Carolina Reid, “Mortgage Lending on Native American Reservations: Does a Guarantee Matter?,” Journal of Housing Economics 19, no. 3 (2010): 233 – 42.

45. Quoted in Earnest McBride, “Black and Indian Farmers Gain from Largest Civil Rights Settlement in History,” Jackson Advocate (Jackson, MS), December 16, 2010.

46. “Civil Actions, Nos. 97 – 1978, 98 – 1693 (1999): Opinion,” in Redress for Historical Injustices in the United States: On Reparations for Slavery, Jim Crow, and Their Legacies, ed. Michael T. Martin and Marilyn Yaquinto (Durham, NC: Duke University Press, 2007), 666.

47. Ibid., 667.48. Tom Vilsack, “Turning the Page on Discrimination at USDA,” November 30, 2010, USDA

Blog, blogs.usda.gov/2010/11/30/turning- the- page- on- discrimination- at- usda.49. Pete Daniel, The Shadow of Slavery: Peonage in the South, 1901 – 1969 (Urbana: University

of Illinois Press, 1972); M. Langley Biegert, “Legacy of Resistance: Uncovering the History of Collective Action by Black Agricultural Workers in Central East Arkansas from the 1860s to the 1930s,” Journal of Social History 32, no. 1 (1998): 73 – 99; Christopher Clark, “The Agrarian Context of American Capitalist Development,” in Capitalism Takes Command:


The Social Transformation of Nineteenth- Century America, ed. Michael Zakim and Gary J. Kornblith (Chicago: University of Chicago Press, 2012), 13 – 37.

50. Kristol Bradley Ginapp, “Jim ‘USDA’ Crow: Symptomatic Discrimination in Agriculture,” Drake Journal of Agricultural Law 8, no. 1 (2003): 237 – 49; Pete Daniel, Dispossession: Discrimination against African American Farmers in the Age of Civil Rights (Chapel Hill: University of North Carolina Press, 2013).

51. Cassandra Jones Havard, “African- American Farmers and Fair Lending: Racializing Rural Economic Space,” Stanford Law and Policy Review 12, no. 2 (2001): 333 – 60. On Southern agriculture more broadly, see Gilbert C. Fite, Cotton Fields No More: Southern Agriculture, 1865 – 1980 (Lexington: University of Kentucky Press, 1984); Bruce J. Schulman, From Cotton Belt to Sunbelt: Federal Policy, Economic Development, and the Transformation of the South 1938 – 1980 (Durham, NC: Duke University Press, 1994); R. Douglas Hurt, ed., African American Life in the Rural South, 1900 – 1950 (Columbia: University of Missouri Press, 2003); and Paul K. Conkin, A Revolution Down on the Farm: The Transformation of American Agriculture since 1929 (Lexington: University of Kentucky Press, 2008).

52. Valerie Grim, “The Politics of Inclusion: Black Farmers and the Quest for Agribusiness Participation, 1945 – 1990s,” Agricultural History 69, no. 2 (1995): 257 – 71; Grim, “Black Participation in the Farmers Home Administration and Agricultural Stabilization and Conservation Service, 1964 – 1990,” Agricultural History 70, no. 2 (1996): 321 – 36.

53. United States Commission on Civil Rights, Equal Opportunity in Farm Programs: An Appraisal of Services Rendered by Agencies of the United States Department of Agriculture (Washington, DC: GPO, 1965), 8.

54. United States Commission on Civil Rights, The Decline of Black Farming in America: A Report (Washington, DC: United States Commission on Civil Rights, 1982).

55. Tadlock Cowan and Jody Feder, The Pigford Cases: USDA Settlement of Discrimination Suits by Black Farmers (Washington, DC: Congressional Research Service, March 12, 2013), 3.

56. D. J. Miller & Associates, Inc., Producer Participation and EEO Complaint Process Study for the Farm Service Agency (FSA) of the US Department of Agriculture, Contract No. 35 – 3151 – 5 – 00001, March 4, 1996, sec. III- 15.

57. Lawrie Balfour, Democracy’s Reconstruction: Thinking Politically with W. E. B. Du Bois (New York: Oxford University Press, 2011), 26, 43.

58. Tony Weis, The Global Food Economy: The Battle for the Future of Farming (New York: Zed Books, 2007); Bill Winders, The Politics of Food Supply: U.S. Agricultural Policy in the World Economy (New Haven, CT: Yale University Press, 2009); John J. Green, Eleanor M. Green, and Anna M. Kleiner, “From the Past to the Present: Agricultural Development and Black Farmers in the American South,” in Cultivating Food Justice: Race, Class, and Sustainability, ed. Alison Hope Alkon and Julian Agyeman (Cambridge, MA: MIT Press, 2011), 47 – 64.

59. Cole Stangler, “Food Stamps on the Chopping Block,” In These Times, July 11, 2013, inthesetimes.com/article/15135/congress_prepares_to_slash_food_stamps1/.

60. Sara Ahmed, On Being Included: Racism and Diversity in Institutional Life (Durham, NC: Duke University Press, 2012), 168.

61. Brenna Bhandar, “ ‘Spatialising History’ and Opening Time: Resisting the Reproduction of the Proper Subject,” in Law and the Politics of Reconciliation, ed. Scott Veitch (Aldershot, Hampshire: Ashgate, 2007), 94. For further discussion on the politics of reconciliation, see Andrew Schaap, Political Reconciliation (New York: Routledge, 2005); Greg Grandin and Thomas Miller Klubock, eds., “Editors’ Introduction” in “Truth Commissions: State


Terror, History, and Memory,” special issue, Radical History Review, no. 97 (2007): 1 – 10; Claire Moon, Narrating Political Reconciliation: South Africa’s Truth and Reconciliation Commission (Lanham, MD: Lexington Books, 2009); Ernesto Verdeja, “Inherited Responsibility and the Challenge of Political Reconciliation,” in Inherited Responsibility and Historical Reconciliation in East Asia, ed. Jun- Hyeok Kwak and Melissa Nobles (New York: Routledge, 2013), 56 – 77.

62. Bhandar, “Spatialising History,” 95, 99.63. For an extended critique of the liberal politics of inclusion, see also Alyosha Goldstein,

Poverty in Common: The Politics of Community Action during the American Century (Durham, NC: Duke University Press, 2012).

64. 156 Cong. Rec. H7845 – 46 (daily ed. Dec. 1, 2010).65. Hartman, Scenes of Subjection, 131.66. 156 Cong. Rec. H7845 (daily ed. Dec. 1, 2010).67. Robert Westley, “The Accursed Share: Genealogy, Temporality, and the Problem of Value

in Black Reparations Discourse,” Representations 92, no. 1 (2005): 85. See also Robin D. G. Kelley, Freedom Dreams: The Black Radical Imagination (Boston: Beacon, 2002), 110 – 34; and Adjoa A. Aiyetoro and Adrienne D. Davis, “Historic and Modern Social Movements for Reparations: The National Coalition of Blacks for Reparations in America (N’COBRA) and Its Antecedents,” Texas Wesleyan Law Review 16, no. 4 (2010): 687 – 766.

68. Westley, “Accursed Share,” 84.69. Judith Butler and Athena Athanasiou, Dispossession: The Performative in the Political

(Malden, MA: Polity Press, 2013).70. Greta R. Krippner, Capitalizing on Crisis: The Political Origins of the Rise of Finance

(Cambridge, MA: Harvard University Press, 2011); Gérard Duménil and Dominique Lévy, The Crisis of Neoliberalism (Cambridge, MA: Harvard University Press, 2011); Jamie Peck, Constructions of Neoliberal Reason (New York: Oxford University Press, 2010).

71. Barker, Native Acts, 11.72. See, for example, Annie Lowrey, “Pain on the Reservation: US Budget Cuts Spare Some

Poor, but Not American Indians,” New York Times, July 13, 2013.

"Finance and Foreclosure in the Colonial Present"

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