Denying the Violence: the Missing Constitutional Law of Conquest

Abstract

If against these Indians, the end proposed should be their extermination, or their removal beyond the lakes or Illinois [R]iver. The same world will scarcely do for them and us. —Thomas Jefferson to George Rogers Clark, 1780

The 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 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. 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?

We must look to the literature of settler colonialism to begin to understand this remarkable silence. 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.” ADAM DAHL, EMPIRE OF THE PEOPLE: SETTLER COLONIALISM AND THE FOUNDATIONS OF MODERN DEMOCRATIC THOUGHT 4 (2018). 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 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, inadequate understanding of United States colonialism.

This article describes the early conquest of Native America in several parts. Part I demonstrates that the desire for land was there all along, beginning with British colonization and land speculation. Part II describes the development of the powers for conquest: this part describes the Articles of Confederation and their weaknesses with regard to centralized governance of Indian affairs and defense against border violence; I then describe how the Constitution remedied these weaknesses and created the powers for conquest. Part III demonstrates that the Northwest Ordinance, usually described as “glorious” for its detailed description of orderly westward expansion, provided for the partitioning and governance of land the United States neither possessed nor controlled. Its fulfillment depended on military 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, fictional, and bloodless version of the conquest. In this imaginary there was no white conquest of native America, no violence, and no negative consequences of note. The evidence, however, says differently.

Keywords: conquest, race, constitutional law, law and violence