Excerpted From: Juan F. Perea, Denying the Violence: the Missing Constitutional Law of Conquest , 24 University of Pennsylvania Journal of Constitutional Law 1205 (December, 2022) (419 Footnotes) (Full Document)


JuanFPerea.jpegThe United States committed at least two original sins. The one, slavery, is well known. The other, conquest, is both obvious and unknown at the same time.

The Constitution was designed and implemented to facilitate American empire. The country we now know grew from a narrow strip of colonies along the east coast to encompass much of a continent, from sea to shining sea. It grew purposefully, through powers newly granted in the Constitution. The conquest of native America happened pursuant to the Constitution.

The fact of conquest is proven by the sheer magnitude of the land transfer from indigenous people to white Americans. Before the conquest, native Americans possessed all 1.9 billion acres of the continental United States. After the conquest, they retain only 56 million acres of land held “in trust” by the United States, together with some land owned by natives in fee simple. This number is two one-hundredths of one percent (.02%) of what they owned prior to conquest. Over time, non-Indians, mostly whites, managed to take 99.98% of the continental lands originally inhabited by Native peoples. Most of the natives who survived were removed to isolated reservations located in the parts of this country that were least desirable to whites.

This transfer of land is one of the monumental facts of American history. It demands further explanation. As described by legal scholar Robert A. Williams, Jr., “[t]he history of the American Indian ... reveals that a will to empire proceeds most effectively under a rule of law.” Alexis De Tocqueville came to a similar conclusion regarding the effectiveness of law in dispossessing Native Americans. Writing in 1835, Tocqueville witnessed the removal of Cherokees from North Carolina:

[T]he Americans of the United States have accomplished this twofold purpose [the extermination of Indians and deprivation of their rights] with singular felicity; tranquilly, legally, philanthropically, without shedding blood, and without violating a single great principle of morality in the eyes of the world. It is impossible to destroy men with more respect for the laws of humanity.

As I shall show, Tocqueville was wrong in stating that no blood was shed. He describes a fictively orderly, glossy, legal surface of the conquest while minimizing the warfare and violence that actually accomplished it.

Interestingly, constitutional law has taken little or no account of how westward expansion happened and of the role of the Constitution in this expansion. Most theorists of constitutional law, and most authors of constitutional law casebooks, have ignored entirely one of the most momentous developments in our national identity: the acquisition of its land, which forms the now-familiar silhouette of the lower forty-eight states. How can it be that the making of the United States, the conquest of this huge part of the American continent, has generated such little attention among many of the most prominent scholars of the Constitution?

It would be one thing if the Constitution had little or nothing to do with the conquest. Then silence might make sense. But the Constitution, improving upon the weaknesses perceived in the Articles of Confederation, provided Congress with powers to create and support an Army, commanded by a single Commander-in-Chief, and powers to tax and borrow to finance that army. Although there is more to the story, as we shall see, the Constitution made the conquest possible and actual.

In addition, usually after the fact, the Supreme Court ratified and justified the conquest of America in numerous decisions. In Johnson v. M'Intosh, Chief Justice Marshall adopted the discovery doctrine as the justification for federal control over Indian lands. The discovery doctrine posits that the first (white) European nation to claim lands inhabited by native people shall have a superior and defensible claim against all other (white) European nations. So the British, who claimed prior discovery of its colonial lands, had a defensible claim to the lands populated by its citizens, the alleged discoverers. This is constitutional law: The Court decided that the federal government had the exclusive right to purchase and sell Indian lands.

Johnson v. M'Intosh begins, but does not exhaust, the line of cases in which the Supreme Court ratifies the conquest. Subsequent Court cases clarify that Indian nations are subject to federal plenary power, that a mere federal statute can abrogate a treaty, and that Congress has the power to decide whether constitutional rights apply, or not, to colonial territories. These cases are all constitutional law: the constitutional law of conquest. How is it that most constitutional law casebook authors have not seen fit to include any of this material in their casebooks? Is the conquest and production of our national territory truly less important than, say, the dormant commerce clause?

We must look to the literature of settler colonialism to begin to understand the answers to these questions. It may surprise some readers to learn that the United States is understood to be the quintessential example of settler colonialism in the world. As written by historian Walter Hixson, “American history is the most sweeping, most violent, and most significant example of settler colonialism in world history.” Indeed, the United States is the world leader in settler colonialism:

Inserted in the history of colonialism, America appears less as exceptional and more as a pioneer in the history and technology of settler colonialism. All the defining institutions of settler colonialism were produced as technologies of native control in North America.

Settler-colonial societies like the United States are characterized by disavowal, “the active and interpretive production of indigenous absence. In settler democratic thought, the absence of native conquest is not assumed or forgotten; it is discursively produced.” The need to make natives and their histories disappear is a way to resolve the cognitive dissonance between the violent, unjust origins of the society and its present claims to justice and morality. This has been called “the paradox of political founding,” which occurs when a “political order is founded on extra-legal violence that stands outside of democratic legitimacy.”

As I shall show, the conquest of America happened through military violence and coercion, pursuant to law and official policy. As with slavery, the country's origins were violent and deeply unjust. Given its unjust origins, the only way to regard the United States as a just society is to construct a glorious, positive narrative about its origins and to actively deny the injustice and violence of its founding.

This is exactly what has happened. As I shall show, many theorists and scholars of the Constitution have written about its “glorious past,” and constitutional law textbooks, while providing occasional instances of unjust rulings, agree implicitly that the Constitution and its origins are fundamentally sound. This can only be done by minimizing the extent and harm of slavery and by making disappear the violent conquest of native people. This recitation of virtue and omission of harm leave scholars and law students with “'an imaginary relation to actual state colonialism.”’

It is important to recognize that this discussion of American conquest and settler colonialism is, simultaneously, a discussion of early white supremacy in the United States. All of the actors responsible for imagining, pursuing, authorizing, planning, and executing the conquest were white men, cooperating with other white men to establish dominance. This study of the creation and execution of their power to conquer also provides insight on the techniques employed to create and preserve white supremacy.

While there is a recent literature on settler colonialism, there are relatively few studies of the relationship between law and settler colonialism. As I shall show, settler colonialism has huge implications for our understanding of what law does. Remarkably, the legal academy has largely ignored these implications. While constitutional law books deal inadequately with slavery and its implications, they have, to date, even less to say about settler colonialism and its implications. This Article seeks to fill this silence by showing how ideology and law, supported by violence, enabled the conquest of America.

The conquest of native America required three things to align. There was desire for conquest, thirst for the land. There was power to conquer. And there was a plan for conquest. Accordingly, the first three parts of the Article correspond to these three aspects of conquest. Part I describes the desire for conquest in two sections: the first covers the British antecedents of conquest in royal charters, legal cases, and philosophy; the second describes the embrace of these ideas by prominent framers of American independence, including Benjamin Franklin and George Washington. Part II describes the development of the powers for conquest, also in two sections: the first describes the Articles of Confederation and their weaknesses with regard to centralized governance of Indian affairs and defense against border violence; the second describes how the Constitution remedied these weaknesses and created the power for conquest. Part III then describes the plan for conquest. Usually described as “glorious” for its detailed description of orderly westward expansion, the Northwest Ordinance provided for the partitioning and governance of land the United States neither possessed nor controlled. Its fulfillment depended on conquest, and so it became the plan for conquest.

Part IV shows how the desire, the power and the plan for conquest came together and were executed. George Washington's little-known Indian Wars (1790-94) eventually yielded the conquest of the Northwest Territory after two major defeats by united Indian forces. Here we see the fact of conquest, the violence and the determination of whites seeking to dispossess Indians of their land. Lastly, Part V explores some of the consequences and implications of the conquest. Here I demonstrate how the materials of constitutional law create among lawyers and law students “'an imaginary relation to actual state colonialism.”’ In this imaginary there was no white conquest of native America, no violence, and no negative consequences of note. The evidence, however, says differently.

[. . .]

As a pioneer in the technologies of native dispossession and removal, the United States fully demonstrates the disavowal and the intentional fallacy characteristic of settler colonial societies. Our consensus constitutional history disappears the violence and injustice inflicted on native people for the sake of empire. We dwell, for the most part, in that fantastical land of the “imaginary relation to actual state colonialism.”

Ignorance is not bliss when it comes to justice. We must recognize “the irony that the tools of civilization were themselves instruments of acute suffering” for native people. We must recognize the profound, instrumental role that law played in the dispossession and conquest of native America.

We owe it to current generations of native people to understand and take responsibility for the incalculable losses of life, land, wealth, education and well-being inflicted on them by white conquerors at all ranks of society. By nearly every measure--poverty, health, life expectancy, suicide rates, victimization by serious crime--native Americans are the poorest and worst off of Americans. The unjust reciprocal of this native suffering is the wealth and comfort enjoyed mostly by white people living on stolen land. We owe it to current generations of native people to protect their reservation lands, their burial grounds, their religious practices, and their cultures. We owe it to them to honor our treaties with them, and to negotiate with them as equals at all times. We owe them their sovereignty, their power, and our respect.

Juan F. Perea is the Curt and Linda Rodin Professor of Law and Social Justice at Loyola University Chicago School of Law.