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Notes
1. This article is dedicated to my fellow Australian David Hicks. At the time of writing, and with the shameful connivance of the Australian government, the United States has been holding this Australian citizen in Guantánamo Bay for over five years, without due process, in inhuman conditions, and in defiance of international law. US citizens are specifically excepted from this treatment. For their comments, I am grateful to Connie Atkinson, Julie Evans, Ann Genovese, Lorenzo Veracini and David Yarrow. An earlier version of this article was presented to Monash University's 2005 ‘Dialogues Across Cultures’ conference, convened by Lynette Russell.
2. See, e.g., Edwin S Morgan, American Slavery American Freedom: The Ordeal of Colonial Virginia, New York; Davis, 1975; David Brion, The Problem of Slavery in the Age of Revolution 1770–1823, Ithaca, NY, 1975.
3. The reference is to Jacques Derrida's practice of placing concepts sous rature—which is to say, inheriting while negating them—which Gayatri Spivak translated as ‘under erasure’ and lucidly explained in her ‘Translator's Preface’ to Derrida's Of Grammatology, Baltimore, 1976, pp ix–lxxxvii, pp xii–xv.
4. Sarah H Cleveland, ‘Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs’, Texas Law Review 81, 2002, pp 1–284.
5. Cleveland, ‘Powers Inherent in Sovereignty’, p 5.
6. Cleveland, ‘Powers Inherent in Sovereignty’, p 2.
7. Philippe Sands, Lawless World: America and the Making and Breaking of Global Rules, London, 2005, p 144; Tony Judt, ‘The New World Order’, New York Review of Books 52(12), 14 July 2005, pp 14–18, p 17.
8. Uday S Mehta, ‘Liberal Strategies of Exclusion’, Politics and Society 18, 1990, pp 427–454, p 429.
9. Mehta, ‘Liberal Strategies of Exclusion’, p 433.
10. The classic explication of this is, of course, Alexis de Tocqueville's Democracy in America. For more recent accounts see, e.g., Seymour Martin Lipset, American Exceptionalism. A Double-Edged Sword, New York, 1996.
11. The Fourteenth Amendment excludes ‘Indians not taxed’ from its provisions, while the Fifteenth limits its application to citizens. See, e.g., James D Richardson, A Compilation of the Messages and Papers of the Presidents 1789–1897, Washington, DC, 1900, i, pp 37–38.
12. Thus the ‘boundary between the politically included and the politically excluded’ is in the singular for Mehta, ‘Liberal Strategies of Exclusion’, p 435.
13. Ralston Hayden, The Senate and Treaties 1789–1817. The Development of the Treaty-Making Functions of the United States during their Formative Period, New York, 1920.
14. See, e.g., Alexandrowicz, ‘Doctrinal Aspects of the Universality of the Law of Nations’, British Year Book of International Law 37, 1961, pp 506–515.
15. Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law’, Harvard International Law Journal 40, 1999, pp 1–80.
16. Otto Friedrich von Gierke, Natural Law and the Theory of Society 1500–1800, Ernst Barker (trans), Cambridge, 1934; Arthur Nussbaum, A Concise History of the Law of Nations, New York, 1954, pp 35–85.
17. Alexandrowicz, ‘Doctrinal Aspects’, p 506, termed this ‘the conception of a positive European law of nations based on treaties and custom’.
18. Robert N Clinton, ‘The Proclamation of 1763: Colonial Prelude to Two Centuries of Federal-State Conflict over the Management of Indian Affairs’, Boston University Law Review 69, 1989, pp 329–385, p 381; Dorothy V Jones, License for Empire: Colonialism by Treaty in Early America, Chicago, 1982.
19. For the Blue Water Thesis, whereby the United Nations accepted a definition of colony as geographically separate from its administering nation, see Ward Churchill, Perversions of Justice. Indigenous Peoples and Angloamerican Law, San Francisco, 2004, p 51.
20. See especially Robert A Williams Jr, The American Indian in Western Legal Thought: The Discourses of Conquest, New York, 1990. See also Peter Fitzpatrick, Modernism and the Grounds of Law, Cambridge, 2001, esp. pp 148–166.
21. Williams, American Indian in Western Legal Thought.
22. Alexander (‘Publius’) Hamilton, ‘The Federalist No. 24’ [19 December 1787], in Jacob E Cooke (ed.), The Federalist, Middletown, CT, 1961, pp 152–157; Vine Deloria, Jr and David E Wilkins, Tribes, Treaties, and Constitutional Tribulations, Austin, TX, 1999, p 19; Jones, License for Empire, pp 164–169.
23. Anghie, ‘Finding the Peripheries’, p 69; cf. L C Green, ‘Claims to Territory in Colonial America’, in L C Green and Olive P Dickason (eds), The Law of Nations and the New World, Alberta, 1989, pp 76–127, pp 125–126.
24. Harvey D Rosenthal, ‘Indian Claims and the American Conscience: A Brief History of the Indian Claims Commission’, in Imre Sutton (ed.), Irredeemable America: The Indians’ Estate and Land Claims, Albuquerque, NM, 1985, pp 35–70, p 36.
25. See, e.g., Clinton, ‘Proclamation of 1763’, p 335; p 349; p 357.
26. E.g., ‘[A]ll lands in this government are holden of the King of Great Britain as the lord of the fee […] no title to any lands in the Colony can accrue by any purchase made of Indians on pretence of their being native proprietors thereof.’ Nathaniel B Shurtleff (ed.), Records of the Governor and Company of Massachusetts Bay in New England, Vols 1–3, Boston, 1853, i, p 112. See also John Bulkley, ‘An Inquiry into the Right of the Aboriginal Natives to the Lands in America […]’, Massachusetts Historical Society Collections, 1st series, 1795, vol IV, pp 172–173.
27. Timothy Alan Garrison, The Legal Ideology of Removal: The Southern Judiciary and the Sovereignty of Native American Nations, Athens, GA, 2002, p 68. For exemplification and further references, see William Cronon, Changes in the Land: Indians, Colonists, and the Ecology of New England, New York, 1983, pp 68–70.
28. Williams, American Indian in Western Legal Thought, p 269.
29. Johnson and Graham's Lessee v. William McIntosh (Johnson v. McIntosh) (Wheaton's US Supreme Court Cases, vol 8, February Term, 1823, 543–605), 573.
30. The year Marshall died, for instance, three years before the Cherokee Trail of Tears, the court in Mitchel v. United States (34 US [9 Peters] 711, 1835, 746) considered Indians’ right of occupancy to be ‘as sacred as the fee simple of the whites’.
31. Green, ‘Claims to Territory in Colonial America’, p 125.
32. Jill Norgren, The Cherokee Cases. The Confrontation of Law and Politics, New York, 1996, p 90.
33. Ernest Nys (ed.), De Indis et De Iure Belli Relectiones being parts of Relectiones Theologicae XII by Franciscus de Victoria, John P Bate (trans.), Washington, DC, 1917, S. 3, proposition 4, p 157. See also Antonio Truyol Serra (ed.), The Principles of Political and International Law in the Work of Francisco de Vitoria, Madrid, 1946; Williams, American Indian in Western Legal Thought, pp 96–118.
34. ‘While [Hobbes’] cool and indiscriminate alignment of aggression and defense flies in the face of scholastic teachings, his argument, taken as a whole, is an almost classical expression of the ever recurrent feeling that international law is no more than an inane phrase.’ Nussbaum, Concise History of the Law of Nations, p 146. See also Serra, Work of Francisco de Vitoria, p 55; David Kennedy, ‘Primitive Legal Scholarship’, Harvard International Law Journal 27, 1986, pp 1–98; John H Parry, The Spanish Theory of Empire in the Sixteenth Century, Cambridge, 1961.
35. Anghie, ‘Finding the Peripheries’, p 11 acknowledges that positivism was an ‘extended elaboration’ of Vitoria's category of human law without pursuing the implications of this acknowledgement for his connecting of positivism to the late nineteenth century.
36. Serra, Work of Francisco de Vitoria, p 55.
37. Though the immediate referent was the use of money (‘For no such thing as Money was any where known’—i.e. when all the world was America). John Locke, Two Treatises of Government […] 2 Vols, London, 1690, vol. 2, ch. 5, para. 49.
38. Johnson v. McIntosh, 589.
39. Johnson v. McIntosh, 545.
40. Johnson v. McIntosh, 596.
41. The Cherokee Nation v. The State of Georgia (Peters’ US Supreme Court Cases (vol. 5, January Term, 1831), 2–79), 15; 19.
42. Clinton, ‘Proclamation of 1763’, p 371; Walter H Mohr, Federal Indian Relations 1774–1788, Philadelphia, PA, 1933, p 199; Nell Jessup Newton, ‘Federal Power Over Indians: Its Sources, Scope, and Limitations’, University of Pennsylvania Law Review 132, 1984, pp 195–288, p 200.
43. As Marshall observed in his Worcester v. Georgia judgment (Peters’ US Supreme Court Cases (vol. 6, January Term, 1832, 515–596), 515; 549), the early journals of Congress had exhibited ‘the most anxious desire to conciliate the Indian nations [...] The most strenuous exertions were made to procure those supplies on which Indian friendships were supposed to depend; and everything which might excite hostility was avoided.’
44. Journals of the Continental Congress 25, pp 681–693; 27, pp 453–465; Reginald Horsman, ‘United States Indian Policies, 1776–1815’, in Wilbur E Washburn (ed.), Handbook of North American Indians, Vol 4, History of Indian–White Relations, Washington, DC, 1988, pp 29–39, p 29; Francis P Prucha, American Indian Policy in the Formative Years. The Indian Trade and Intercourse Acts 1790–1834, Cambridge, MA, 1962, pp 32–33.
45. ‘And the said Indian tribes again acknowledge themselves to be under the protection of the said United States and no other power whatever.’ Treaty with the Wyandot, etc. (1795, Art. v), reprinted in Charles J Kappler (ed.), Indian Treaties 1778–1883, New York, 1972, pp 39–45, p 42.
46. John R Wunder, ‘No More Treaties: The Resolution of 1871 and the Alteration of Indian Rights to Their Homelands,’ in John R Wunder (ed.), Native Americans and the Law: Contemporary and Historical Perspectives on American Indian Rights, Freedoms, and Sovereignty. New York, 1966, pp 39–56, p 42.
47. Annie Heloise Abel, ‘The History of Events Resulting in Indian Consolidation West of the Mississippi River’, American Historical Association Annual Report for 1906, Washington, DC, 1906, i, pp 233–450, p 307.
48. Garrison, Ideology of Removal, p 47; Wilbur R Jacobs, ‘British Indian Policies to 1783’, in Washburn, Handbook of North American Indians, pp 5–12, p 9; Jones, License for Empire, p 99; Prucha, Indian Policy in the Formative Years, p 16.
49. Letter to Governor William Henry Harrison, February 1803, in Andrew A Lipscomb (ed.), The Writings of Thomas Jefferson, 22 vols, Washington, DC, 1904, vol. X, pp 369–371.
50. California was an exception. See the documents collected in Robert E Heizer, The Destruction of California Indians, Lincoln, NB, 1974, and Felix S Cohen, ‘Original Indian Title’, Minnesota Law Review 32, 1947, pp 28–59, p 37, n 20.
51. Frederick E Hoxie, A Final Promise. The Campaign to Assimilate the Indians, 1880–1920, Cambridge, 1989, pp 33–34. The basic contention, ‘the message sent by Indian policy finds its significance in audiences other than the Indians themselves’, has been argued from a Gramscian perspective by George P Castile, ‘Indian Sign: Hegemony and Symbolism in Federal Indian Policy’, in George P Castile and Robert L Bee (eds), State and Reservation. New Pespectives on Federal Indian Policy, Tucson, AZ, 1992, pp 165–186, pp 176–183. The point also shares ground with Felix Cohen's famous comparison between the Indian and the miner's canary: ‘Like the miner's canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere, and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith.’ See Felix S Cohen, ‘The Erosion of Indian Rights’, Yale Law Journal 62, 1953, pp 348–391, p 390.
52. Johnson v. McIntosh, 591.
53. Frank Shockey, ‘“Invidious” American Indian Tribal Sovereignty: Morton v. Mancari contra Adarand Constructors, Inc., v. Pena, Rice v. Cayetano, and other recent cases’, American Indian Law Review 25, 2001, pp 275–313, p 279.
54. See, e.g., Abel, ‘Indian Consolidation West of the Mississippi’; Grant Foreman, Indian Removal. The Emigration of the Five Civilized Tribes of Indians, 2nd edn, Norman, OK, 1953; Sean Michael O'Brien, In Bitterness and in Tears: Andrew Jackson's Destruction of the Creeks and Seminoles, Westport, CT, 2003.
55. Cherokee v. Georgia, 17.
56. Where it was in turn repeated from Marshall's 1810 Fletcher v. Peck judgment (10 US [6 Cranch] 87).
57. Cherokee v. Georgia, 17.
58. Mr Justice Baldwin, Cherokee v. Georgia, 30.
59. Kenneth W Porter, ‘Relations Between Negroes and Indians within the Present Limits of the United States’, Journal of Negro History 17, pp 287–367; Porter, The Negro on the American Frontier, New York, 1971; Laurence Foster, Negro–Indian Relationships in the Southeast, Philadelphia, 1935.
60. Residual (or inherent) sovereignty refers to the residuum left over (or reserved, hence the term ‘reservation’) from treaties through which Indian tribes surrendered or modified aspects of their primordial sovereignty. See Felix S Cohen, Handbook of Indian Law, Washington, DC, 1941, p 122; Robert W Oliver, ‘The Legal Status of American Indian Tribes’, Oregon Law Review 38, 1959, pp 193–245.
61. 16 Stat., 566 (Act of March 3rd, 1871, c. 120, s. 1).
62. D Otis, The Dawes Act and the Allotment of Indian Lands (1934), reprinted F P Prucha (ed.), Norman, OK, 1973; Hoxie, Final Promise; Francis P Prucha, American Indian Policy in Crisis: Christian Reformers and the Indian, 1865–1900, Norman, OK, 1976.
63. John R Wunder, ‘Retained By The People’: A History of American Indians and the Bill of Rights, New York, 1994, p 39; p 17. For the genocidal procedures that were institutionalised at boarding schools for Indians, see Ward Churchill, Kill the Indian, Save the Man: The Genocidal Impact of American Indian Residential Schools, San Francisco, 2004.
64. In the half-century from 1881, the total acreage held by Indians in the United States fell by two-thirds, from just over 155 million acres to just over 52 million. Statistical Abstract of the United States, US Bureau of the Census, Department of Commerce, 1955, p 180.
65. The power to abrogate treaties was stated explicitly under the doctrine of plenary power in the 1903 Lone Wolf v. Hitchcock decision (187 US 553), plenary power conventionally being traced back through the 1886 Kagama case (118 US 375) and the 1871 Cherokee Tobacco case (78 US 616) to Taney's 1846 judgment in United States v. Rogers (45 US 568).
66. Thus it is significant that, although coming from France, de Tocqueville could declare that, ‘[i]f there is a single country in the world where one can hope to appreciate the dogma of the sovereignty of the people at its just value [...] that country is surely America [...] The people reign over the American political world as does God over the universe. They are the cause and the end of all things; everything comes out of them and everything is absorbed into them.’ Alexis de Tocqueville, Democracy in America, Harvey C Mansfield and Winthrop Delba (eds) and (trans), Chicago, 2000, pp 53–55.
67. Edward S Corwin, ‘The “Higher Law” Background of American Constitutional Law’, Harvard Law Review 42, 1928, pp 147–185; pp 365–409, p 401.
68. G Edward White with Gerald Gunther, The Marshall Court and Cultural Change, 1815–35, New York, 1988: History of the Supreme Court of the United States, vols 3–4, p 740.
69. Schmitt, ‘Definition of Sovereignty’, in his Four Chapters on the Concept of Sovereignty, G Schwab (trans), Cambridge, MA, 1985, pp 5–15, p 15.
70. Schmitt, ‘Political Theology’, in his Four Chapters, pp 36–52, p 36.
71. At least, other than candidates for the presidency.
72. See especially Matthew F Jacobson, Whiteness of a Different Color: European Immigrants and the Alchemy of Race, Cambridge, MA, 1998; David Roediger, The Wages of Whiteness: Race and the Making of the American Working Class, London, 1991. See also, e.g., Noel Ignatiev, How the Irish Became White, New York, 1995; and Ignatiev's irrepressible Race Traitor journal.
73. Madison, Writings, Vol III, p 515, quoted in Abel, ‘Indian Consolidation West of the Mississippi’, p 255, n.
74. Schmitt, ‘Definition of Sovereignty’, p 5.
75. Otherwise, I would prefer not to endorse an idea coined by a man who would later become a theoretician of Nazism. As it is, I see my use of him (even the Weimar Schmitt whom I am citing) as setting a thief to catch a thief.
76. Giorgio Agamben's use of homo sacer comes to mind at this point, especially since I have cited Schmitt, on whom Agamben relies, but I do not find in Agamben's book an adequate explanation for why homo sacer cannot be sacrificed. Since this is one of the two defining properties of homo sacer (the other being that he can be killed with impunity), this strikes me as a serious weakness. See Agamben, Homo Sacer: Sovereign Power and Bare Life, D Heller-Roazen (trans), Stanford, CA, 1998.
77. Dred Scott v. Sanford (60 US [19 How.] 393), 407. Earlier in the same judgment, the court had also stated, in dicta (pp. 403–404), that Indians were not citizens.
78. United States v. Rogers (45 US 568).
79. United States v. Sandoval (231, US, 1913, 28), 46.
80. Marx observed that the USA was a country ‘where bourgeois society did not develop on the foundation of the feudal system, but developed rather from itself; where this society appears not as the surviving result of a centuries old movement, but rather as the starting point of a new movement’. Karl Marx, Grundrisse: Foundations of the Critique of Political Economy, New York, 1973, p 884.
81. Patrick Wolfe, ‘Land, Labor, and Difference: Elementary Structures of Race’, The American Historical Review 106, 2001, pp 865–905.