In defending its use of military commissions to try a person accused of aiding the enemy, the government states:
Ambrister and Arbuthnot, both British subjects without any duty or allegiance to the United States, were tried and punished for conduct amounting to aiding the enemy. Examination of their case reveals that their conduct was viewed as wrongful, in that they were assisting unlawful hostilities by the Seminoles and their allies. Further, not only was the Seminole belligerency unlawful, but, much like modern-day al Qaeda, the very way in which the Seminoles waged war against U.S. targets itself violated the customs and usages of war. Because Ambrister and Arbuthnot aided the Seminoles both to carry on an unlawful belligerency and to violate the laws of war, their conduct was wrongful and punishable.
The quote appears on page 25 of this brief: Bahlul Brief IRT Specified Issues (11 Mar 2011). As one reader notes, “This is an unbelievable statement, given that the U.S. was invading Spanish‑held Florida, and General Jackson was burning entire Indian villages in a campaign of extermination. You have to wonder why they had to reach for this analogy.”
In many of the so-called torture papers, Bush Administration lawyers frequently referred to Indian wars as the closest analog to the war on terror. Here is a sample:
American precedents also furnish a factual situation that is more closely analogous to the current attacks to the extent that they involve attacks by non-state actors that do not take place in the context of a rebellion or civil war. The analogy comes from the irregular warfare carried on in the Indian Wars on the western frontier during the nineteenth century. Indian “nations” were not independent, sovereign nations in the sense of classical international law, nor were Indian tribes rebels attempting to establish states. Cf. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831) (Marshall, C.J.) (describing Indians tribes as “domestic dependent nations”).
Here is the Nov. 2011 memo in which this quote appears. Peter Vicaire and I will be publishing a short paper titled “Indian Wars: Old and New” in the Iowa Journal of Gender, Law, and Justice that will be describing how the government asserts this argument and others.
Turtle Talk 
while suggesting that Seminoles who defended their tribal territories from US aggression are like Al Quaida is gross and disgusting, it is true that Indians caught by the United States way back then were probably viewed more like enemy combatants by the US than anything else (regular soldiers or common criminals). Of course many of us view the whole enemy combatants classification as problematic since it can be used to deny people their full rights under the law.
There were also clear cases of Indians being held as POW’s during the Indian Wars, including (for instance) those that are now known as the Ft. Sill Apaches. I’m sure there were others. Regardless, the early Marshall cases clearly hold Indian Nations to be States, just not “foreign” ones under Art. III of the U.S. Constitution, so the analogy breaks down and the attempt to revise history falls flat. I also agree with Alex’s comment that the attempt to deny any rights such persons have under International law is problematic.
Thanks for highlighting this Matthew! Actually the analogy casts a really unflattering light on what the US is doing now. Despite the fact that Indian nations had recognized claims to sovereignty and clearly saw themselves as trying to secure independent states, the US continually denied them the rights of sovereigns and the protections of humanitarian law. And although if Indian nations were not states then their members were individuals entitled to the protections of the constitution, the US denied them individual protections as well. So although it is ridiculous to compare the struggle of sovereigns to hold onto the land that they first occupied to the terrorism of Al Quaeda, the comparison underscores the way the US is again trying to have its cake and eat it too.
Interesting, in a recent matter involving the Fort Sill Apache Tribe where NIGC and BIA attorneys have made the claim that the 27 year prisoner of war internment of the Chiricahua Apaches constituted government-to-government relationship, the Fort Sil Apache tribe used some of the recent cases and arguments relating to the Federal Government position regarding the current war on terror prisoners of war with relation to the non-state recognized status and earlier determination by the ICC that being held as a prisoner of war is a “individual” harm. It seems that the current treatment of terrorism suspects has clear ties to the Federal Government’s past treatment of Tribes and individuals connected to Indian Tribes. The only question is who were the terrrorist in that scenerio.