Jonathan Matthew Schmitt is a recent Ph.D. in International History at the Graduate Institute, where his dissertation focused on U.S.-Native American relation in the context of American Empire and international law. He lives and teaches in the United States. He is presently at work on several feature documentaries, one of which deals with the history of the American Indian Movement, and another, in concert with University of Pennsylvania Political Scientist Robert Vitalis, dealing with racism in U.S. foreign policy, and how it contributes to a mythology of scarcity and existential security threats in the geopolitics of oil. 

THE HISTORY OF U.S.-INDIAN LAW IS A HISTORY LAW AT THE LIMITS. Neither entirely encompassed by national domestic law, nor exhausted by international law, the jurisprudence that has determined the political relationship between the American state and indigenous polities within its borders has always sought, as the saying goes, ‘to have its cake and eat it too.’

The United States instrumentalised principles of international laws to claim plenary, extraconstitutional sovereignty over indigenous polities; but that same arrogation demanded a simultaneous recourse to the very constitution it defied, one which American courts claimed did not recognise indigenous American polities as “foreign” nations, thus leaving them without the aegis of international law against  rapacious imperialism.

The cognitive dissonance on display here was rationalised by an appeal to the distinction between natural and positive law, which amounted to an argument that indigenous polities in the United States were in a state of nature, but were not ‘nation-states’. For American courts and legislators in the nineteenth century, natural law became, as scholar Patrick Wolfe has maintained, an alibi for the denial of indigenous political rights. Natural law, in fact, became both a consolation and excuse for the expropriation of indigenous land, and, perversely, the principle that secured the American state’s title to North American soil.

Fast forward to the present day, and the United States has magnified this positive/natural distinction to stake out an equally self-serving commitment to universal human rights. In 2020, the U.S. Department of State released its Report of the Commission on Unalienable Rights. Leaving aside for the moment the irony that an American administration infamous for maligning, harassing, abusing and incarcerating the children of migrants and asylum-seekers would pretend credibility in the human rights forum, it is worth noting that Secretary of State Mike Pompeo and his cadre appear to believe themselves to be real proponents of some universal principle of rights, ordained by divinely inspired natural law. 

The Report could not be clearer on this point: “The most fundamental distinction is between unalienable rights – sometimes referred to as natural rights in the founding era and today commonly called to as human rights – and positive rights. Unalienable rights are universal and non-transferable. They are pre-political in the sense that they are not created by persons or society [and] are essential to the dignity and capacity for freedom that are woven into human nature.” The confusion between these natural/human/unalienable and positive rights is, it appears, vexing enough to the U.S. State Department to necessitate the investigation. Pompeo himself expresses frustration at the “proliferation” of human rights claims these days, and “the questions and clashes about which rights are entitled to gain respect.”

The Commission does not extend any robust provisions for social and economic human rights. In fact, it maintains that human rights advocates should train their focus more narrowly on civil and political rights. And yet, we might ask, if unalienable rights are pre-political, how do we exercise them in the political realm? The answer, it seems, registers only in the negative: human rights are reduced to a regime of the bare minimum that exists to militate against assaults on “freedom.” As such, the United States’ most recent position on human rights recognises their form, but grants them no determinant content. Human rights “set the standard for politics,” but do not engage in the political. In a way, then, human rights are what the U.S. concedes in place of authentic political rights.

This position on “bare minimum” rights is not a novel stance. Neither is the operative distinction between “natural” and “positive” rights; nor is the use of “natural law/rights” as a Trojan Horse to smuggle into the conversation pious de-politicalisation, not to mention the denial of political subjecthood and sovereignty. A quick glance at the United States’ record in dealing with indigenous polities in North American, and it is clear that Pompeo and his band are just recycling the greatest hits.

In 1831, U.S. Supreme Court Chief Justice John Marshall famously adjudicated that Indian nations within the United States (at the time aspirational) borders were not foreign nations – in the sense to which the latter were understood in the U.S. Constitution – but “domestic dependent nations,” outfitted with a hazily-conceived but fundamentally encumbered species of quasi-sovereignty.  This decision is directly related to America’s first foray into systematic, bureaucratised ethnic cleansing: the forced removal of the Five Civilized Tribes from the American southeast to the trans-Mississippi west, colloquially known as the Trail of Tears.

Chief Justice Marshall’s assertion of “domestic nationhood” was at best spurious, and at worst the jurisprudential coalescence of an ineluctable American settler imperial logic. That is to say: domestic dependency was a creation out of whole cloth, a sort of crypto-national category that conferred a peculiar brand of indigenous sovereignty, which ultimately served as a means for American Empire’s ends.

Novel or not, Marshall did not argue in a vacuum. He had the precedent of his own hand to refer to. Eight years earlier, he had ruled that Indian “tribes” could not claim radical title to the lands they inhabited because the United States exercised pre-emptive title to any territory it claimed in North America. In this ruling, Marshall invoked the Doctrine of Discovery, the secularised residuum of fifteenth-century canon law’s justification for (Catholic) European land appropriation in the “New World.” However, even Marshall had his doubts about the legitimacy of this doctrine as a settled matter of the customary law of nations. Or rather, he had his doubts whether Discovery as underwritten by a positive European law of nations could pretend justice in the waning but not extinguished light of “natural law.” 

Few commentators spend significant time on the natural/positive law impasse in early nineteenth-century U.S.-Indian jurisprudence, thus the significance of the American indigenous political struggle to the colonial history of international law is often overlooked. Scholars like Anthony Anghie, for example, who have written extensively (and seminally) on the international law’s intellectually beleaguered transition to positivism and its irreducible connection to European imperialism, barely cast a glance at the United States and its “domestic” Indian nations, thus failing to see the crisis of imperial positivism effectively being born. 

This tension is readily demonstrated in Marshall’s tortured jurisprudence: “However [Discovery] may opposed to natural right, and to the usages of civilised nations, yet if it be indispensable to that system under which the country has been settled, and be  adapted to the actual condition of the two people, it may perhaps be supported by reason, and certainly cannot be rejected by courts of justice.” Relegating Native title to the dustbin of the nonjusticiable amounted to more than a technical evasion. Contrary to nature as it may have seemed on its face, Marshall almost wistfully suggested that what he effectively styled as indigenous polities’ categorical incapacity to exercise full title to their land “may perhaps be supported by reason.” Reason, presumably, in the Kantian, European sense.

Incompatibility with statehood was as much a matter of granting pre-political, so-called ‘natural’ rights to indigenous polities as it was denying them political rights.

Indigenous nature – not yet, in the early nineteenth century, entirely co-extensive with race – was what prevented admittance into the European Family of Nations (which inclusion would have brought with it benefit of territorial sovereignty). A nebulous constitutive principle grounded in natural law made American Indian nations something other than nation states. Of course, this constitutive principle often went under the cognomen “civilisation”; but the latter brought with it its own problems, especially when indigenous polities like the aforementioned Five Civilized Tribes transitioned from their traditional forms of governance to deliberate – and self-defensive – constitutional republicanism in the early nineteenth century. As another justice on the Marshall Court agonised (in an explicit display of positive imperial law in extremis): “…every advance, from the hunter state to a more fixed state of society, must have a tendency to impair [the United States’] pre-emptive right, and ultimately to destroy it altogether, both by increasing the Indian population, and by attaching them firmly to the soil.”

Despite – or perhaps because of – the recognition that indigenous polities could well develop quantitative aspects of “civilisation” that eclipsed the qualitative “savagery” they were said to embody, U.S. Courts ultimately double down on American Indian “nature,” and gave it probative dominance in order to determine that indigenous polities were not, and could not become, nation states. Ironically, incompatibility with statehood was as much a matter of granting pre-political, so-called “natural” rights to indigenous polities as it was denying them political rights. In fact, it can be maintained that the early U.S. jurisprudence on the issue of Indian political sovereignty mired indigenous societies in a surplus of “natural” rights. 

John Marshall was not, in the end, comfortable deciding that American Indians had no right to the land on which they lived. Instead, he again innovated – this time a new category of tenure that granted Indian nations the right to “occupancy.” This occupancy title, according to Marshall, was inviolable, and yet always subordinate to the pre-emptive, politically vested title enjoyed by the United States. The occupancy doctrine was further developed during the long nineteenth century to strip indigenous polities of both external and internal political rights.

In a sense, it is useful to think of natural rights here as precursory to human rights – at least to the extent that (to modify what Jacques Rancier has written about human rights) indigenous “natural” rights were those “disused” by the American state, and in effect “returned” to indigenous polities as a last line of defence against calculated extermination. Put another way, so-called “natural rights” functioned as a consolation prize for the revocation of political rights. The oft-cited discourse of American Indian “Noble Savagery” bears this out. The nobility of the savage is the nobility of the prelapsarian pre-political; but, again cribbing from Rancier, it is also the nobility of an “absolute victim,” that will be forced to depend on the “infinite justice” of the American state. 

Lest we forget, the history of U.S. Indian policy is also a history of humanitarian intervention, of international aid that disguises itself as domestic welfare. What the history of U.S.-Indian policy is decidedly not is the history of any serious assessment of indigenous capacity to self-govern viable states; nor is it the history of any self-critical reflection of the denial human rights – which are always, already political – to American Indian societies. American Indian nations, however, are at this very moment proving themselves more than capable of self-government – in spite of the American state.