There's no precedent in law for the way American jurists, beginning with Chief Justice of the Supreme Court John Marshall, have elected to assert their country's “right” to own territories in which the peoples native to this continent had resided since time immemorial. Marshall himself quite simply invented the “legal principles” upon which he based his doctrine of settler dominion, in the process standing a large portion of existing international law squarely on its head, and his successors have continued to treat these distortions as gospel right up to the present moment.
—Glenn T.Morris, 1990
AS ANYONE WHO HAS EVER DEBATED OR NEGOTIATED WITH U.S. OFFICIALS ON matters concerning American Indian land rights can attest, the federal government's first position is invariably that its title to/authority over its territoriality was acquired incrementally, mostly through provisions of cession contained in some 400 treaties with Indians ratified by the Senate between 1778 and 1871.1 When it is pointed out that the U.S. has violated the terms of every one of the treaties at issue, thus voiding whatever title might otherwise have accrued therefrom, there are usually a few moments of thundering silence.2 The official position, publicly framed by perennial “federal Indian expert” Leonard Garment as recently as 1999, is then shifted onto different grounds: “If you don’t accept the treaties as valid, we’ll have to fall back on the Doctrine of Discovery and Rights of Conquest.”3 This rejoinder, to all appearances, is meant to be crushing, forestalling further discussion of a topic so obviously inconvenient to the status quo.
While the idea that the U.S. obtained title to its “domestic sphere” by discovery and conquest has come to hold immense currency among North America's settler population, one finds that the international legal doctrines from which such notions derive are all but unknown, even among those holding degrees in law, history, or political philosophy. The small cadre of arguable exceptions to the rule have for the most part not bothered to become acquainted with the relevant doctrines in their original or customary formulations, instead contenting themselves with reviewing the belated and often transparently self-serving “interpretations” produced by nineteenth-century American jurists, most notably those of John Marshall, third Chief Justice of the Supreme Court.4 Overall, there seems not the least desire—or sense of obligation—to explore the matter further.
The situation is altogether curious, given Marshall's own bedrock enunciation of America's self-concept, the hallowed proposition that the U.S. should be viewed above all else as “a nation governed by laws, not men.”5 Knowledge of/compliance with the law is presupposed, of course, in any such construction of national image. This is especially true with respect to laws which, like those pertaining to discovery and conquest, form the core of America's oft and loudly proclaimed contention that its acquisition and consolidation of a transcontinental domain has all along been “right,” “just,” and therefore “legal.”6 Indeed, there can be no questions of law more basic than those of the integrity of the process by which the United States has asserted title to its landbase and thereby claims jurisdiction over it. The present essay addresses these questions, examining U.S. performance and the juridical logic attending it through the lens of contemporaneous international legal custom and convention, and drawing conclusions accordingly. The final section explores the conceptual and material conditions requisite to a reconciliation of rhetoric and reality within the paradigm of explicitly American legal (mis)understandings. It should be noted, however, that insofar as so much of this devolves upon international law, and with the recent emergence of the U.S. as “the world's only remaining super-power,”7 the implications are not so much national as global.
Although there are precursors dating back a further 200 years, the concepts which were eventually systematized as discovery doctrine for the most part originated in a series of Bulls promulgated by Pope Innocent IV during the late thirteenth century to elucidate material relations between Christian crusaders and Islamic “infidels.”8 While the pontiff's primary objective was to establish a legal framework compelling “Soldiers of the Cross” to deliver the fruits of their pillage abroad to such beneficiaries as the Vatican and Church-sanctioned heads of Europe's incipient states, the Innocentian Bulls embodied the first formal acknowledgment in Western law that rights of property ownership were enjoyed by non- Christians as well as Christians. “In Justice,” then, it followed that only those ordained to rule by a “Divine Right” conferred by the “One True God” were imbued with the prerogative to “rightly” dispossess lesser mortals of their lands and other worldly holdings.9
The law remained as it was until 1492, when the Columbian “discovery” of what proved to be an entire hemisphere, very much populated but of which most Europeans had been unaware, sparked a renewed focus upon questions of whether and to what extent Christian sovereigns might declare proprietary interest in the assets of Others.10 Actually, the first problem was whether the inhabitants of the “New World” were endowed with “souls,” the criterion of humanity necessary for us to be accorded any legal standing at all. This issue led to the famous 1550 debate in Valladolid between Frey Bartolomé de las Casas and Juan Ginés de Sepúlveda, the outcome of which was papal recognition that American Indians were human beings and therefore entitled to exercise at least rudimentary rights.11
As a corollary to the Valladolid proceedings, Spanish legal theorists such as Franciscus de Vitoria and Juan Matías de Paz were busily revising and expanding upon Innocent's canonical foundation as a means of delineating the property rights vested in those “discovered” by Christian (i.e., European) powers as well as those presumably obtained in the process by their “discoverers.”12 In the first instance, Vitoria in particular posited the principle that sovereigns acquired outright title to lands discovered by their subjects only when the territory involved was found to be literally unoccupied (terra nullius).13 Since almost none of the land European explorers ever came across genuinely met this description, the premise of territorium res nullius, as it was called, was essentially moot from the outset (albeit, as will become apparent, the English—and much more so their American offshoot—would later twist it to their own ends).
In places found to be inhabited, it was unequivocally acknowledged in law that native residents held inherent or “aboriginal” title to the land.14 What the discoverer obtained was a monopolistic right vis-à-vis other powers to acquire the property from its native owners, in the event they could be persuaded through peaceful means to alienate it. On balance, the formulation seems to have been devised more than anything as an attempt to order the relations between the European states in such a way as to prevent them from shredding one another in a mad scramble to glean the lion's share of the wealth all of them expected to flow from the Americas.15
Under the right of discovery, the first European nation to discover American [or other] lands previously unknown to Europe had what is similar to an exclusive European franchise to negotiate for Indian land within the discovered [area]. International law forbade European nations from interfering with the diplomatic affairs each carried on with the Indian nations within their respective “discovered” territories. The doctrine thus reduced friction and the possibility of warfare between the competing European nations.16
That this principle was well developed in international law and understood perfectly by America's “Founding Fathers” is confirmed in an observation by no less luminous a figure than Thomas Jefferson.
We consider it as established by the usage of different nations into a kind of Jus gentium for America, that a white nation settling down and declaring such and such are their limits, makes an invasion of those limits by any other white nation an act of war, but gives no right of soil against the native possessors… That is to say, [we hold simply] the sole and exclusive right of purchasing land from [indigenous peoples within our ostensible boundaries] whenever they should be willing to sell….17
The requirement that the consent of indigenous peoples was needed to legitimate cessions of their land was what prompted European states to begin entering into treaties with “the natives” soon after the invasion of North America had commenced in earnest.18 While thus comprising the fundamental “real estate documents” through which the disposition of land title on the continent must be assessed, treaties between European and indigenous nations also served to convey formal recognition by each party that the other was its equal in terms of legal stature (“sovereignty”).19 To quote Jefferson again, “the Indians [have] full, undivided and independent sovereignty as long as they choose to keep it, and…this might be forever.”20 Or, as U.S. Attorney General William Wirt would put it in 1828:
[Be it] once conceded, that the Indians are independent to the purpose of treating, their independence is to that purpose as absolute as any other nation… Nor can it be conceded that their independence as a nation is a limited independence. Like all other nations, they have the absolute power of war and peace. Like any other nation, their territories are inviolable by any other sovereignty… They are entirely self-governed, self-directed. They treat, or refuse to treat, at their pleasure; and there is no human power that can rightly control their discretion in this respect.21
From early on, the English had sought to create a loophole by which to exempt themselves in certain instances from the necessity of securing land title by treaty, and to undermine the discovery rights of France, whose New World settlement patterns were vastly different from those of England.22 Termed the “Norman Yoke,” the theory was that an individual—or an entire people—could rightly claim only such property as they’d converted from wilderness to a state of domestication (i.e., turned into town-sites, placed in cultivation, and so forth).23 Without regard for indigenous methods of land use, it was declared that any area found to be in an “undeveloped” condition could be declared terra nullius by its discoverer and clear title thus claimed.24 By extension, any discovering power such as France which failed to pursue development of the sort evident in the English colonial model forfeited its discovery rights accordingly.25
The Puritans of Plymouth Plantation and Massachusetts Bay Colony experimented with the idea during the early seventeenth century—arguing that while native property rights might well be vested in their towns and fields, the remainder of their territory, since it was uncultivated, should be considered unoccupied and thus unowned—but the precedent never evolved into a more generalized English practice.26 Indeed, the Puritans themselves abandoned such presumption in 1629.27
Whatever theoretical disagreements existed concerning the nature of the respective ownership rights of Indians and Europeans to land in America, practi cal realities shaped legal relations between the Indians and colonists. The necessity of getting along with powerful Indian [peoples], who outnumbered the European settlers for several decades, dictated that as a matter of prudence, the settlers buy lands that the Indians were willing to sell, rather than displace them by other methods. The result was that the English and Dutch colonial governments obtained most of their lands by purchase. For all practical purposes, the Indians were treated as sovereigns possessing full ownership of [all] the lands of America.28
So true was this that by 1750 England had dispatched a de facto ambassador to conduct regularized diplomatic relations with the Haudenosaunee (Iroquois Six Nations Confederacy)29 and, in 1763, in an effort to quell native unrest precipitated by his subjects’ encroachments upon unceded lands, King George III issued a proclamation prohibiting English settlement west of the Allegheny Mountains.30 This foreclosure of the speculative interests in “western lands” held by George Washington and other members of the settler élite—and the less grandiose aspirations to landed status of rank-and-file colonials—would prove a major cause of the American War of Independence.31
Although it is popularly believed in the U.S. that the 1783 Treaty of Paris through which England admitted defeat also conveyed title to all lands east of the Mississippi River to the victorious insurgents, the reality was rather different. England merely quitclaimed its interest in the territory at issue. All the newly established American republic thus acquired was title to such property as England actually owned—the area of the original thirteen colonies situated east of the 1763 demarcation line—plus an exclusive right to acquire such property as native owners might be convinced to cede by treaty as far westward as the Mississippi.32 The same principle pertained to the subsequent “territorial acquisitions” from European or euroderivative countries—the 1803 Louisiana Purchase and the 1848 impoundment of the northern half of Mexico through the Treaty of Guadelupe Hidalgo, to cite two prominent examples—through which the present territoriality of the forty-eight contiguous states was eventually consolidated.33
As a concomitant to independence, moreover, the Continental Congress found itself presiding over a pariah state, defiance—much less forcible revocation—of Crown authority being among the worst offenses imaginable under European law. Unable to obtain recognition of its legitimacy in other quarters,34 the federal government was compelled for nearly two decades to seek it through treaties of peace and friendship with indigenous nations along its western frontier—all of them recognized as sovereigns in prior treaties with the very European powers then shunning the U.S.—mean-while going to extravagant rhetorical lengths to demonstrate that, far from being an outlaw state, it was really the most legally oriented of all nations.35
The fledgling country could hardly peddle a strictly law-abiding image while openly trampling upon the rights of indigenous peoples. As a result, although George Washington had secretly and successfully recommended the opposite policy even before being sworn in as president,36 one of the earliest acts of Congress was to pass the Northwest Ordinance, in which it solemnly pledged that “the utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed.”37 For the most part, then, it was not until the U.S. had firmed up its diplomatic ties with France, and the demographic/military balance in the west had begun to shift decisively in its favor,38 that it started to make serious inroads on native lands.
The preliminary legal pretext for U.S. expansionism, set forth by John Marshall in his 1810 Fletcher v. Peck opinion,39 amounted to little more than a recitation of the Norman Yoke theory, quite popular at the time with Jefferson and other American leaders.40 The proposition that significant portions of Indian Country amounted to terra nullius, and was thus open to assertion of U.S. title without native agreement, was, however, contradicted by the country's policy of securing by treaty at least an appearance of indigenous consent to the relinquishment of each parcel brought under federal jurisdiction.41 The presumption of underlying native land title lodged in the Doctrine of Discovery thus remained the most vexing barrier to America's fulfillment of its territorial ambitions.
In the 1823 Johnson v. McIntosh case, Marshall therefore undertook a major (re) interpretation of the doctrine itself.42 While demonstrating a thorough mastery of the law as it had been previously articulated, and an undeniable ability to draw all the appropriate conclusions therefrom, the Chief Justice nonetheless managed to invert it completely. Although he readily conceded that title to the territories they occupied was vested in indigenous peoples, Marshall denied that this afforded them supremacy within their respective domains. Rather, he argued, the self-assigned authority of discoverers to constrain alienation of discovered lands implied that prepotency inhered in the discovering power, not only with respect to other potential buyers but vis-à-vis the native owners themselves.43
Since the sovereignty of discoverers—or derivatives like the U.S.—could in this sense be said to overarch that of those discovered, Marshall held that discovery also conveyed to the discoverer an “absolute title” or “eminent domain” underlying the aboriginal title possessed by indigenous peoples. The native “right of possession” was thereby reduced at the stroke of a pen to something enjoyed at the “sufferance” of the discovering (superior) sovereign.44
The principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments whose title might be consummated by possession. The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it… In the establishment of these relations, the rights of the original inhabi tants were, in no instance, entirely disregarded; but were, to a considerable extent, diminished… [T]heir rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil, at their own will, to whomever they pleased, was denied by the original fundamental principle, the discovery gave exclusive right to those who made it… [T]he Indian inhabitants are [thus] to be considered merely as occupants.45
“However extravagant [my logic] might appear,” Marshall summed up, “if the principle has been asserted in the first instance, and afterwards, sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it cannot be questioned.”46 In other words, violations of law themselves become law if committed by those wielding enough power to get away with them. For all the elegant sophistry embodied in its articulation, then, the Johnson v. McIntosh opinion reduces to the gutter cliché that “might makes right.” In this manner, Marshall not only integrated “the legacy of 1,000 years of European racism and colonialism directed against nonwestern peoples” into the canon of American law, but did so with a virulence unrivaled even by European jurists upon whose precedents he professed to base his own.47
There were of course loose ends to be tied up, and these Marshall addressed through opinions rendered in the “Cherokee Cases,” Cherokee v. Georgia (1831) and Worcester v. Georgia (1832).48 In his Cherokee opinion, the Chief Justice undertook to resolve questions concerning the precise standing to be accorded indigenous peoples. Since the U.S. had entered into numerous treaties with them, it was bound by both customary international law and Article 1 § 10 of its own constitution to treat them as coequal sovereigns. Marshall's verbiage in McIntosh had plainly cast them in a very different light. Hence, in Cherokee, he conjured a whole new classification of politicolegal entity “marked by peculiar and cardinal distinctions which nowhere else exist.”49
[I] t may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will… Their relation to the United States resembles that of a ward to his guardian [emphasis original].50
“The Indian territory is admitted to compose a part of the United States,” he continued. “In all our maps, geographical treatises, histories, and laws, it is so considered… [T]hey are [therefore] considered to be within the jurisdictional limits of the United States [and] acknowledge themselves to be under the protection of the United States.”51 What Marshall had described was a status virtually identical to that of a protectorate, yet as he himself would observe in Worcester a year later, “the settled doctrine of the law of nations is that a weaker power does not surrender its independence—its right of self-government —by associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state.”52 It follows that a protectorate would also retain its land rights, unimpaired by its relationship with a stronger country.53
At another level, the Chief Justice was describing a status similar to that of the states of the union (i.e., subordinate to federal authority, while retaining a residue of sovereign prerogative). Yet he, better than most, was aware that if this were so, the federal government would never have had a basis in either international or constitutional law to enter into treaties with indigenous peoples in the first place, a matter which would have invalidated any U.S. claim to land titles accruing therefrom. Small wonder, trapped as he was in the welter of his own contradictions, that Marshall eventually threw up his hands in frustration, unable or unwilling to further define Indians as either fish or fowl. In the end, he simply repeated his assertion that the U.S./Indian relationship was “unique…perhaps unlike [that of] any two peoples in existence.”54
Small wonder, too, all things considered, that the Chief Justice's Cherokee opinion was joined by only one other member of the high court.55 The majority took exception, Justices Henry Baldwin and William Johnson writing separate opinions,56 and Smith Thompson, together with Joseph Story, entering a strongly worded dissent which laid bare the only reasonable conclusions to be drawn from the facts (both legal and historical).57
It is [the Indians’] political condition which determines their foreign character, and in that sense must the term foreign be understood as used in the Constitution. It can have no relation to local, geographical, or territorial position. It cannot mean a country beyond the sea. Mexico or Canada is certainly to be considered a foreign country, in reference to the United States. It is the political relation in which one country stands to another, which constitutes it [as] foreign to the other [emphasis original].58
Nonetheless, Marshall's views prevailed, a circumstance allowing him to deploy his “domestic dependent nation” thesis against both the Cherokees and Georgia in Worcester.59 First, he reserved on constitutional grounds relations with all “other nations” to the federal realm, thereby dispensing with Georgia's contention that it possessed a “state's right” to exercise jurisdiction over a portion of the Cherokee Nation falling within its boundaries.60 Turning to the Cherokees, he reiterated his premise that they—and by implication all Indians within whatever borders the U.S. might eventually claim— occupied a nebulous quasisovereign status as “distinct, independent political communities” subject to federal authority.61 In practical effect, Marshall cast indigenous nations as entities inherently imbued with a sufficient measure of sovereignty to alienate their territory by treaty when-and wherever the U.S. desired they do so, but never with enough to refuse.62
As legal scholars Vine Deloria, Jr., and David E.Wilkins have recently observed, the cumulative distortions of both established law and historical reality bound up in Marshall's “Indian opinions” created a very steep and slippery slope, with no bottom anywhere in sight.
[T]he original assumption [was] that the federal government is authorized and empowered to protect American Indians in enjoyment of their lands. Once it is implied that this power also involves the ability of the federal government by itself to force a purchase of the lands, there is no way the implied power can be limited. If the government can force the disposal of lands, why can it not determine how the lands are to be used? And if it can determine how the lands are to be used, why can it not tell Indians how to live? And if it can tell Indians how to live, why can it not tell them how to behave and what to believe?63
By the end of the nineteenth century, less than seventy years after Cherokee and Worcester, each of these things had happened. Within such territory as was by then reserved for indigenous use and occupancy the traditional mode of collective land tenure had been supplanted by federal imposition of a “more civilized” form of individual title expressly intended to compel agricultural land usage.64 Native spiritual practices had been prohibited under penalty of law,65 and entire generations of American Indian youngsters were being shipped off, often forcibly, to boarding schools where they were held for years on end, forbidden knowledge of their own languages and cultures while they were systematically indoctrinated with Christian beliefs and cultural values.66 The overall policy of “assimilation,” under which these measures were implemented, readily conforms to the contemporary legal definition of cultural genocide.67
Meanwhile, American Indians had been reduced to utter destitution, dispossessed of approximately 97.5 percent of our original landholdings,68 our remaining assets held in a perpetual and self-assigned “trust” by federal authorities wielding what Marshall's heirs on the Supreme Court described as an extraconstitutional or “plenary”—that is, unlimited, absolute, and judicially unchallengeable—power over our affairs.69 Suffice it here to observe that nothing in the Doctrine of Discovery empowered any country to impose itself on others in this way. On the contrary, the “juridical reasoning” evident in the Marshall opinions and their successors has much in common with, and in many respects prefigured, the now discredited body of law—repudiated first by an International Court of Arbitration opinion in the 1928 Island of Palmas case,70 then more sweepingly in the 1945 United Nations Charter and the United Nations’ 1960 Declaration on the Granting of Independence to Colonial Countries and People71—which purported to legitimate the imperialism manifested by Europe during the early twentieth century.72
Although they are usually treated as an entirely separate consideration, conquest rights in the New World accrued under the law of nations as a subpart of discovery doctrine. Under international law, discoverers could acquire land only through a voluntary alienation of title by native owners, with one exception—when they were compelled to wage a “Just War” against native people—by which those holding discovery rights might seize land and other property through military force.73 The U.S. clearly acknowledged that this was so in the earlier-mentioned Northwest Ordinance, where it pledged that indigenous nations would “never be invaded or disturbed, unless in just and lawful wars authorized by Congress.”74
The criteria for a Just War were defined quite narrowly in international law. As early as 1539, Vitoria and, to a lesser degree, Matías de Paz asserted that there were only three: the natives had either to have refused to admit Christian missionaries among them, to have arbitrarily refused to engage in commerce with the discovering power, or to have mounted some unprovoked physical assault against its representatives/subjects.75 Absent at least one of these conditions, any war waged by a European state or its derivative would be “unjust”—the term was changed to “aggressive” during the twentieth century—and resulting claims to title unlawful.76 One searches in vain for an example in American history where any of the criteria were realized.
A more pragmatic problem confronting those claiming that the U.S. holds conquest rights to native lands is that, while the federal government recognizes the existence of approximately 400 indigenous peoples within its borders, its own count of the number of “Indian Wars” it has fought “number [about] 40.”77 Plainly, the United States cannot exercise “conquest rights” over the more than 300 nations against which, by its own admission, it has never fought a war. Yet, as is readily evident in its 1955 Tee-Hit-Ton opinion, the Supreme Court, mere facts to the contrary notwithstanding, has anchored U.S. land title in a pretense that exactly the opposite is true.
Every American schoolboy knows that the savage tribes of this continent were deprived of their ancestral ranges by force and that, even when the Indians ceded millions of acres by treaty in return for blankets, food and trinkets, it was not a sale but the conquerors’ will that deprived them of their land.78
Particularly in his McIntosh opinion, but also in Cherokee, John Marshall sought to transcend this issue by treating discovery and conquest as if they were synonymous, a conflation evidencing even less legal merit than the flights of fancy discussed in the preceding section. In fact, the high court was ultimately forced to distinguish between the two, acknowledging that the “English possessions in America were not claimed by right of conquest, but by right of discovery,” and, resultingly, that the “law which regulates, and ought to regulate in general, the relations between the conqueror and conquered, [is] incapable of application” by the U.S. to American Indians.79
A further complication is that as early as 1672 legal philosophers like Samuel Pufendorf had mounted a serious challenge to the idea that even such territory as was seized in the course of a Just War might be permanently retained.80 Although Hugo Grotius, Emmerich de Vattel, William Edward Hall, John Westlake, and other such theorists continued to aver the validity of conquest rights through the end of the nineteenth century,81 by the 1920s a view very similar to Pufendorf's had proven ascendant.
Oddly, given its stance concerning American Indians, as well as its then recent forcible acquisitions of overseas colonies like Hawai‘i, Puerto Rico, and the Philippines,82 the U.S. assumed a leading role in this respect. Although the Senate refused to allow the country to join, President Woodrow Wilson was instrumental in creating the League of Nations, an organization intended “to substitute diplomacy for war in the resolution of international disputes.”83 In some ways more important was its centrality in crafting the 1928 General Treaty on the Renunciation of War, also known as the “Kellogg-Briand Pact” or “Pact of Paris.”84
With the [treaty], almost all the powers of the world, including all the Great Powers, renounced the right to resort to war as an instrument of state policy. By Article 1, “[t]he High Contracting Parties solemnly declare, in the names of their respective peoples, that they condemn war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another.” By Article 2, the Parties “agree that the settlement or solution of all disputes or conflicts, of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.”85
In 1932, Secretary of War Henry Stimson followed up by announcing that the U.S. would no longer recognize title to territory seized by armed force.86 This “new dictum of international law,”87 shortly to be referred to as the “Stimson Doctrine of NonRecognition,” was expressly designed to “effectively bar the legality hereafter of any title or right sought to be obtained by pressure or treaty violation, and [to] lead to the restoration to [vanquished nations] of rights and titles of which [they] have been unjustly deprived.”88 Within a year, the doctrine's blanket rejection of conquest rights had been more formally articulated in a League of Nations Resolution and legally codified in the Chaco Declaration, the Saaverda Lamas Pact, and the Montevideo Convention on the Rights and Duties of States.89 In 1936, the Inter-American Conference on the Maintenance of Peace also declared a “proscription of territorial conquest and that, in consequence, no acquisition made through violence shall be recognized.”90 The principle was again proclaimed in the Declaration on the Non-Recognition of the Acquisition of Territory by Force advanced by the Eighth Pan-American Conference in 1938.
As a fundamental of the Public Law of America…the occupation or acquisition of territory or any other modification of territorial or boundary arrangement obtained through conquest by force or non-pacifistic means shall not be valid or have legal effect… The pledge of non-recognition of situations arising from the foregoing conditions is an obligation which cannot be avoided either unilaterally or collectively.91
By the time the Supreme Court penned its bellicose opinion in Tee-Hit-Ton, the Stimson Doctrine had already served as a cornerstone in formulating the charges of planning and waging aggressive war pressed against the major nazi defendants at Nuremberg and the Japanese in Tokyo (tribunals instigated and organized mainly by the U.S.).92 It had also served as a guiding principle in the (again, effectively U.S. instigated) establishment of both the Organization of American States and the United Nations, entities which by their very charters, like the ill-fated League of Nations before them, are devoted to the “the progressive codification of [international] law… for purposes of preventing war.”93 Correspondingly, Stimson's “new dictum” found its most refined and affirmative expression in the charters’ provisos, reiterated almost as boilerplate in a host of subsequent U.N. resolutions, declarations, and conventions, concerning the “equal rights and self-determination of all peoples.”94
Contradictory as the Tee-Hit-Ton court's blatant conquest rhetoric was to the lofty posturing of the U.S. in the international arena, it was even more so with respect to a related subterfuge unfolding on the home front. By 1945, the United States was urgently seeking a means of distinguishing its own record of territorial expansion from that of the nazis it was preparing to hang for having undertaken very much the same course of action.95 The workhorse employed in this effort was the so-called Indian Claims Commission (ICC), established to make retroactive payment to indigenous peoples whose property had been “unlawfully taken” over the years.96 The purpose of the commission was, as President Harry Truman explained upon signing the enabling legislation on August 14, 1946, to foster an impression that the U.S. had acquired none of its landbase by conquest.
This bill makes perfectly clear what many men and women, here and abroad, have failed to recognize, that in our transactions with Indian tribes we have…set for ourselves the standard of fair and honorable dealings, pledging respect for all Indian property rights. Instead of confiscating Indian lands, we have purchased from the tribes that once owned this continent more than 90 percent of our public domain.97
The game was rigged from the outset, to be sure, since the ICC was not empowered to return land to native people even in cases where its review of the manner in which the U.S. had acquired it revealed the grossest sorts of illegality. The terms of compensatory awards, moreover, were restricted to payment of the estimated value of the land at the time it was taken—often a century or more before—without such considerations as interest accrual or appreciation in land values during the intervening period.98 Still, despite its self-serving and mostly cosmetic nature, the very existence of the ICC demonstrated quite clearly that, in terms of legality, U.S. assertion of title to/jurisdiction over Indian Country can no more be viewed as based in “conquest rights” than in “rights of discovery.” All U.S. pretensions to ownership of property in North America must therefore be seen as treaty-based.
When Congress established the ICC in 1946, it expected within five years to “resolve” all remaining land rights issues concerning American Indians.99 The commission was to identify and catalogue the basis in treaties, agreements, and statutes by which the U.S. had assumed lawful ownership of every disputed land parcel within its purported domain, awarding “just compensation” in each case where the propriety of the transaction(s) documented might otherwise be deemed inadequate.100 By 1951, however, the 200-odd claims originally anticipated had swelled to 852.101 The lifespan of the ICC was extended for another five years, then another, a process which was repeated until the “third generation” of commissioners finally gave up in exhaustion.102
By the time the commission suspended operations on September 30, 1978, it had processed 547 of the 615 dockets into which the 852 claims had been consolidated, none in a manner satisfactory to the native claimants (nearly half were simply dismissed).103 Title to virtually the entire state of California, for instance, was supposedly “quieted” in the “Pit River Land Claims Settlement” of the mid-1960s by an award amounting to 47 cents per acre, despite the fact that the treaties by which the territory had ostensibly been ceded to the U.S. had never been ratified by the Senate.104
Most important, in its final report the ICC acknowledged that after three decades of concerted effort, it had been unable to discern a legal basis for U.S. title to what the federal Public Lands Law Review Commission had already described as “one third of the nation's land.”105
The fact is that about half the area of the country was purchased by treaty or agreement at an average price of less than a dollar per acre; another third of a [billion] acres, mainly in the West, was confiscated without compensation; another two-thirds of a [billion] acres was claimed by the United States without pretense of [even] a unilateral action extinguishing native title.106
There can be no serious question of the right of indigenous nations to recover property to which their title remains unclouded, or that their right to recover lands seized without payment equals or exceeds that of the United States to preserve its “territorial integrity” by way of paltry and greatly belated compensatory awards.107 Restitution rather than compensation is, after all, the guiding principle of the tort provisions embodied in international public law.108 Nor is this the end of it. Within the area ostensibly acquired by the U.S. through treaties or agreements, many of the instruments of cession are known to have been fraudulent or coerced. These must be considered invalid under Articles 48– 53 of the Vienna Convention on the Law of Treaties.109
A classic illustration of a fraud involves the 1861 Treaty of Fort Wise, in which not only did federal commissioners forge the signatures of selected native leaders—several of whom were not even present during the “negotiations”—but the Senate altered many of the treaty's terms and provisions after it was supposedly signed, then ratified the result without so much as informing the Indians of the changes. On this basis, the U.S. claimed to have obtained the “consent” of the Cheyennes and Arapahos to its acquisition of the eastern half of what is now the State of Colorado.110 Comparable examples abound (e.g., the above-mentioned California treaties).
Examples of coercion are also legion, but none provides a better illustration than does the 1876–77 proceeding in which federal authorities suspended distribution of rations to the Lakotas, at the time directly subjugated by and therefore dependent upon the U.S. military for sustenance, and informed them that they’d not be fed again until their leaders had signed an agreement relinquishing title to the Black Hills region of present-day South Dakota.111 Thus did the Congress contend that the 1851 and 1868 treaties of Fort Laramie, in each of which the Black Hills were recognized as an integral part of the Lakota homeland, had been “superseded” and U.S. ownership of the area secured.112
Without doubt, North America's indigenous nations are no less entitled to recover lands expropriated through such travesties than they are the territories already discussed. Although it is currently impossible to offer a precise estimate regarding the extent of the acreage involved—to do so would require a contextual review of each U.S./Indian treaty, and a parcel-by-parcel delineation of the title transfers accruing from invalid instruments—it is safe to suggest that adding it to the 35-odd percent of the continental U.S. which was never ceded would place something well over half the present gross “domestic” territoriality of the United States (see Map 4.1, p. 69).113
The U.S. of course holds the power to simply ignore the law in inconvenient contexts such as these. Doing so, however, will never serve in itself to legitimate its comportment. Instead, its continued possession of a vast expanse of illegally occupied territory114—an internal colonial empire, as it were115—can only destine it to remain what it was at its inception: an inherently criminal or “rogue” state.116 It is through this lens that U.S. pronouncements and performance from Nuremberg to Vietnam must inevitably be evaluated.117 So, too, President George Herbert Walker Bush's 1990 rhetoric concerning America's moral/legal obligation to kill more than a million Iraqis while militarily revoking their government's forcible annexation of neighboring Kuwait.118
On the face of it, the only reasonable conclusion to be drawn is that the unsavory stew of racial/cultural arrogance, duplicity, and abiding legal cynicism defining U.S. relations with indigenous nations from the outset has come long since to permeate America's relationship to most other countries. How else to understand Bush's 1991 declaration that the display of U.S. military might he’d ordered in Iraq was intended more than anything else to put the entire world on notice that, henceforth, “what we say, goes”?119 In what other manner might we explain the fact that while Bush claimed the “New World Order” he was inaugurating would be marked by nothing so much as “the rule of law among nations,” the United States was and remains unique in the consistency with which it has rejected both the authority of international courts and any body of law other than its own.120
For the past fifty years, federal policymakers have been increasingly adamant in their refusal of the proposition that the U.S. might be bound by customs or conventions conflicting with its sense of self-interest.121 More recently, American delegates to the United Nations have taken to arguing that new codifications of international law must be written in strict conformity to their country's constitutional and even statutory requirements, and that, for interpretive purposes, the distortions of existing law advanced by American jurists such as John Marshall be considered preeminent.122 In effect, the U.S. is seeking to cast an aura of legitimacy over its ongoing subjugation of American Indians by engineering a normalization of such relations in universal legal terms.
A salient example will be found in the ongoing U.S. rejection of language in the United Nations Draft Declaration on the Rights of Indigenous Peoples—and a similar declaration drafted by the OAS—reiterating that self-determination is guaranteed all peoples by the U.N. Charter.123 Instead, American diplomats have been instructed to insist that indigenous peoples the world over must be accorded only a “right of internal self-determination” which is “not…synonymous with more general understandings of self-determination under international law” but which conforms perfectly with those set forth in the United States’ own Indian Self-Determination and Educational Assistance Act of 1975.124 Most specifically, as was stated in an official cable in January 2001, “the U.S. understanding of the term ‘internal self-determination’ indicates that it does not include a right of independence or permanent sovereignty over natural resources.”125
The standard “explanation” offered by U.S. officials when queried about the legal basis for their government's position on native rights has been that “while the United States once recognized American Indian [peoples] as separate, distinct, and sovereign nations, it long since stopped doing so.”126 This, however, is the same, legally speaking, as saying nothing at all. According to no less an authority than Lassa Oppenheim, author of the magisterial International Law, voluntary relinquishment is the sole valid means by which any nation may be divested of its sovereignty.127 Otherwise, “recognition, once given is irrevocable unless the recognized [nation] ceases to exist.”128 As always, the U.S. is simply making up its own rules as it goes along.
As should be obvious, the implications of such maneuvers are by no means confined to a foreclosure upon the rights of native peoples. The broader result of American “unilateralism” is that, just as it did with respect to North America's indigenous nations, the U.S. is now extrapolating its presumptive juridical primacy to global dimensions. 129 The initiative is especially dangerous, given that the place now held by the U.S. within the balance of world military power closely resembles the lopsided advantage it enjoyed against American Indians during the nineteenth century.130 The upshot is that, should the present trend be allowed to continue, the United States will shortly have converted most of the planet into an equivalent of “Indian Country.”131 In fact, especially with regard to the so-called Third World, this has already to all practical intents and purposes come to pass.132
“Its an old story, really,” writes Phyllis Bennis, one of “a strategically unchallenged dominion, at the apogee of its power and influence, rewriting the global rules for how to manage its empire. Two thousand years ago, Thucydides described how Mylos, the island the Greeks conquered to ensure stability for their Empire's golden age, was invaded and occupied according to laws wholly different from those governing democratic (if slavery dependent) Athens. The Roman empire followed suit, creating one set of laws for Rome's own citizens, imposing another on its far-flung possessions. In the last couple of hundred years the sun-never-sets-on-us British empire did much the same thing. And then, at the end of the twentieth century, having achieved once unimaginable heights of military, economic, and political power, it was Washington's turn.”133
The American-style fin de 20th siecle law of empire took the form of the U.S. exempting itself from UN-brokered treaties and other agreements that it demanded others accept. It was evident in Washington's rejection of the International Criminal Court in 1998, its refusal to sign the 1997 Convention against antipersonnel land mines, its failures [to accept] the Convention on the Rights of the Child, the Law of the Sea, the Comprehensive Test Ban Treaty and more.134
Actually, the roots of the current U.S. posture run much deeper than Bennis suggests. As its record concerning the earlier-mentioned California Indian treaties readily demonstrates, the United States had by the mid-1850s already adopted a policy of selectively exempting itself from compliance with treaties to which it asserted others were nonetheless bound.135 The Supreme Court's 1903 opinion in “Lone Wolf” v. Hitchcock effectively extended this procedure to encompass all treaties and agreements with indigenous nations.136 From there, it became only a matter of time before the U.S. would begin to approach the remainder of its foreign relations in a comparable manner.137 This parallels the attitude, first explicated with regard to Indians and now displayed quite prominently on the global stage, that America is endowed with a plenary authority to dictate the “permissible” forms of other countries’ governmental and political processes, the modes of their economies, and so on.138
Legal scholar Felix S.Cohen once and accurately analogized American Indians as a “miner's canary” providing early warning of the fate in store for other sectors of the U.S. populace.139 The principle can now be projected to worldwide proportions. Given the scale of indignity and sheer physical suffering the U.S. has inflicted—and continues to inflict—upon indigenous peoples trapped within its “domestic” domain,140 it is self-evidently in the best interests of very nearly the entire human species to forcefully reject the structure of “unjust legality” by which the U.S. is attempting to rationalize its ambition to consolidate a position of planetary suzerainty.141 The only reasonable question is how best to go about it.
Here, the choice is between combating the endless array of symptoms emanating from the problem or going after it at its source, eradicating it root and branch, once and for all. Again, the more reasonable alternative is self-revealing. Unerringly, then, the attention of those desiring to block America's increasingly global reach must be focused upon unpacking the accumulation of casuistic jurisprudence employed by the U.S. as a justification for its own geographical configuration.142 Since, as has been established herein, there is no viable basis for the United States to assert territorial rights based on the concept of terra nullius or any other aspect of discovery doctrine, and even less on rights of conquest, it is left with a legally defensible claim to only those parcels of the continent where it obtained title through a valid treaty. As has also been shown herein, this adds up to something less than half its professed North American landbase. To its “overseas possessions” such as Guam, Puerto Rico, and Hawai‘i, the U.S. holds no legal right at all.143
Viewed from any angle, the situation is obvious. Shorn of its illegally occupied territories, the U.S. would lack the critical mass and internal jurisdictional cohesion necessary to impose itself as it does at present. This is all the more true in that even the fragments of land still delineated as Indian reservations are known to contain up to two-thirds of the uranium, a quarter of the readily accessible low sulfur coal, a fifth of the oil and natural gas, and all of the zeolites available to feed America's domestic economy.144 Withdrawal of these assets from federal control would fatally impair the ability of the U.S. to sustain anything resembling state-corporate business as usual. By every reasonable standard of measure, the decolonization of Native North America must thus be among the very highest priorities pursued by anyone, anywhere, who is seriously committed to achieving a positive transformation of the global status quo.145
A major barrier to international coalescence around this sort of “deconstructionist” agenda, among sworn enemies of the U.S. no less than its allies, has been the exclusively statist “world order”146—or “world system,” as Immanuel Wallerstein terms it147—in which both sides are invested. Only states are eligible for membership in the United Nations, for instance, a conflation which once caused American Indian Movement leader Russell Means to quip that “the organization would more rightly have been called the United States, but the name was already taken.”148 Although it may be no surprise to find a veritable U.S. appendage like Canada citing John Marshall's McIntosh opinion as “the locus classicus of the principles governing aboriginal title” in the formulation of its own judicial doctrine,149 it is quite another matter to find the then still decolonizing countries of Africa adopting the thinking embodied in Cherokee to ensure that the “national borders” demarcated by their European colonizers would be preserved in international law.150
This came about during United Nations debates concerning the 1960 Declaration of the Granting of Independence to Colonial Countries and Peoples. Belgium, in the process of relinquishing its grip on the Congo, advanced the thesis that if terms like decolonization and self-determination were to have meaning, the various “tribal” peoples whose homelands it had forcibly incorporated into its colony would each have to be accorded the right to resume independent existence. Otherwise, the Belgians ar gued, colonialism would simply be continued in another form, with the indigenous peoples involved arbitrarily subordinated to a centralized authority presiding over a territorial dominion created not by Africans but by Belgium itself.151 To this, European-educated Congolese insurgents like Patrice Lumumba, backed by their colleagues in the newly-emergent Organization of African Unity (OAU), counterposed what is called the “Blue Water Principle,” that is, the idea that to be considered a bona fide colony—and thus entitled to exercise the self-determining rights guaranteed by both the Declaration and the U.N. Charter—a country or people had to be separated from its colonizer by at least thirty miles of open ocean.152
Although the Blue Water Principle made no more sense during the early 1960s than it had when Justice Smith Thompson rebutted John Marshall's initial iteration of it in 1831, it was quickly embraced by U.N. member states and Third World revolutionary movements alike.153 For the member states, whether capitalist (First World) or socialist (Second World), adoption of the principle served to consecrate the existing disposition of their “internal” territoriality, irrespective of how it may have been obtained. For the Third World's marxian revolutionaries, it offered the same prospect, albeit quite often with regard to positions of “postcolonial” state authority to which they were at the time still aspiring.154 For either side to acknowledge that a “Fourth World” comprised of indigenous nations155 might possess the least right to genuine self-determination would have been—and remains—to dissolve the privileged status of the state system to which both sides are not only conceptually wedded but owe their very existence.156
The stakes embodied in this denial are staggering. There are twenty different indigenous peoples along the peninsula British colonizers called Malaya (now Malaysia), 380 in “postcolonial” India, 670 in the former Dutch/Portuguese colony of Indonesia.157 In South America, the numbers range from 35 in Ecuador to 210 in Brazil.158 There are scores, including such large nationalities as the Yi, Manchus, and Miao, encapsulated within the Peoples Republic of China.159 In Vietnam, two dozen-odd “montagnard tribes” of the Annamese Cordillera have been unwillingly subsumed under authority of what the Vietnamese constitution unilaterally proclaims “a multinational state.”160 The same situation prevails for the Hmongs of Laos.161 Not only the Chechens of the south but at least three-dozen smaller northern peoples remain trapped within the Russian rump state resulting from the breakup of the Soviet Union.162 In Iraq and Turkey, there are the Kurds;163 in Libya and Morocco, the Bedouins of the desert regions.164 Throughout subsaharan Africa, hundreds more, many of them partitioned by borders defended at gunpoint by statist régimes, share the circumstance of the rest.165 Similar situations prevail in every quarter of the earth.166
Observed from this standpoint, it's easy enough to see why no state, regardless of how bitterly opposed it might otherwise be to the United States, has been—or could be— willing to attack the U.S. where it is most vulnerable. The vulnerability being decidedly mutual, any precedent thus established would directly contradict the attacking state's sense of self-preservation at the most fundamental level. Hence, the current process of militarily enforced politicoeconomic “globalization”167—world imperialism, by any other name168—must be viewed as a collaborative endeavor, involving even those states which stand to suffer most as a result (and which have therefore been most vociferously critical of it). It follows that genuine and effective opposition can only accrue from locations outside “official” venues, at the grassroots, among those who understand their interests as being antithetical not only to globalization, per se, but to the entire statist structure upon which it depends.169
It's not that native peoples are especially accepting of their lot, as has been witnessed by such bloody upheavals as Katanga and Biafra since 1960.170 In 1987, cultural anthropologist Bernard Nietschmann conducted a global survey in which he discovered that of 125 armed conflicts occurring at the time, fully 85 percent—amounting to a “third world war,” in his view—were being fought between indigenous nations and states claiming an inherent right to dominate them.171 Among the sharper clashes have been the ongoing guerrilla struggles waged by the Kurds, the Nagas of the India/Burma border region,172 the southern Karins and northern Kachens of Burma (Myanmar),173 the Tamils of Sri Lanka (formerly Ceylon),174 the Pacific islanders of Belau, Fiji and elsewhere,175 the so-called Moro peoples of the southern Philippines,176 the Timorese and Papuans of Indonesia,177 as well as the Miskito and other native peoples of Nicaragua's Atlantic coast.178 To this list may now be added the series of revolts in Chechnya179 and the recent Mayan insurgency in the Mexican province ofChiapas.180
The list extends as well to the venerable states of western Europe. In Spain, the Basques, and to a lesser degree the Catalans, have been waging a protracted armed struggle to free themselves from incorporation into a country of which they never consented to be a part.181 In France, aside from the Basques around Navarre, there are the Celtic Bretons of the Channel coast.182 The Irish are continuing their eight-century-long military campaign to reclaim the whole of their island,183 while, on the “English Isle” itself, the Welsh, Scots, and Cornish—Celtic peoples all—have increasingly taken to asserting their rights to autonomy.184 So, too, the Celtic Manxmen on the Isle of Man.185 Far to the north, the Saamis (“Lapps”) are also pursuing their right to determine for themselves the relationship of Saamiland (their traditional territory, usually referred to as “Lapland”) vis-à-vis Norway, Sweden, Finland, and Russia.186 In Greenland, the primarily Inuit population, having already achieved a “home rule” arrangement with their Danish colonizers, are pushing for full independence.187 In Canada, there have been armed insurgencies by native peoples at Oka, Gustafsen Lake, and elsewhere, as well as the emergence of a tentatively autonomous Inuit territory called Nunavut.188
Those who see dismantlement of the present U.S. territorial/power configuration as the pivot point of constructive change are thus presented with the prospect of linking up with a vibrantly global Fourth World liberation movement, one which has never been quelled, and which cannot be satisfied until what Leopold Kohr once called the “breakdown of nations”—by which he actually meant the breakdown of states—has been everywhere accomplished.189 Dire predictions concerning the horrors supposedly attending “the coming anarchy”190 blink the fact that the hegemony of statism has generated an estimated fifty million corpses from wars alone over the past half-century.191 Adding in those lost to the “underdevelopment” and “diseconomies of scale” inherent to the world system as it is now constituted would increase the body count at least twenty times over.192 Also to be considered is the radical and rapidly accelerating truncation of fundamental rights and liberties undertaken by all states—the “freedom-loving” U.S. far more than most of those it condemns as “totalitarian”—in order to concretize and reinforce their imposition of centralized authority.193 As well, the massive and unprecedented degree of cultural “leveling” entailed in the systematic and state-anchored transnational corporate drive to rationalize production and unify markets the world over.194
Rectifying John Marshall's seminal inversion of international legal principle—negating his negation, so to speak195—and thus “returning the law to its feet”196 would serve to undermine one of the most potent components of the master narrative through which statism and its imperial collaterals have been presented as though they were natural, inevitable, and somehow beneficial to all concerned.197 General exposure, in their own terms, of the falsity intrinsic to such “truths” stands to evoke a “legitimation crisis” of such proportions and intractability that the statist system could not sustain itself.198 This “end of world order”199—or, more accurately, transformative reordering of international relations200—in favor of a devolution of state structures into something resembling the interactive clusters or federations of “mininationalisms”201 which were the norm before the advent of European hegemony,202 restoring human scale and bioregional sensibility to the affairs of peoples, can only be seen as a positive trajectory.203
Putting a name to it is a more difficult proposition, however. Insofar as its thrust centers in a wholesale (re)assertion of the rights of Fourth World peoples, such a path might correctly be depicted as an “indigenist alternative.”204 Still, given so sweeping a reconfiguration of humanity's relationship with itself and its habitat must encompass those who are of the Fourth World in neither identity nor present orientation, the old standby of “anarchism” might well prove a more apt descriptor.205 Regardless of its labeling, the result will inevitably be far more just, and thus more liberatory, than that which it will replace.