military commissions

Fletcher & Vicaire: “Indian Wars: Old and New”

Matthew L.M. Fletcher

Matthew Fletcher and Peter Vicaire have posted “Indian Wars: Old and New” on SSRN (download here). This is a paper prepared for the Journal of Gender, Race, and Justice’s 15th Anniversary symposium, “War On … The Fallout of Declaring War on Social Issues.”

Here is the abstract:

This short paper analyzes American history from the modern “wars” on poverty, drugs, and terror from the perspective of American Indians and Indian tribes. These domestic “wars” are aptly named (it turns out), as the United States often blindly pursues broad policy goals without input from tribal interests, and without consideration to the impacts on Indians and tribes. With the possible exception of the “war on poverty,” these domestic wars sweep aside tribal rights, rights that are frequently in conflict with the overarching federal policy goals.

This essay explores three declared domestic wars, and their impacts on American Indian tribes and individual Indians, in loose chronological order, starting with the war on poverty. As Part 1 demonstrates, the Johnson Administration’s Great Society programs helped to bring American Indian policy out of the dark ages of the era of termination, in which Congress had declared that national policy would be to terminate the trust relationship. Part 2 describes the war on drugs, declared by the Reagan Administration, which had unusually stark impacts on reservation communities both in terms of law enforcement, but also on American Indian religious freedom. Part 3 examines the ongoing war on terror, which Bush Administration officials opined has its legal justification grounded in part on the Indian wars of the 19th century. The war on terror marks America’s return to fighting a new Indian war, where the adversary is illusive and motivated, and where the rule of law is literally obliterated.

NCAI Amicus Letter in al Bahlul Case

Matthew L.M. Fletcher1 Comment

Here: NCAI Amicus Letter in Al Bahlul.

 

Update on U.S. v. Al Bahlul — More Docs & Government’s Position Comparing Seminoles to Al Qaeda Condemned

Matthew L.M. Fletcher3 Comments

We posted Tuesday on the government’s characterization of the Seminole Indians during the 19th century Indian wars as equivalent to Al Qaeda. That posting is here.

The defendant in that case has filed the following response brief, smartly pointing out the history of Gen. Jackson’s invasion of Spanish Florida, which likely was motivated by American slaveowners’ concerns about slaves escaping to Seminole territory. Jackson himself, of course, was a slaveowner. Here is that excellent brief:

US v al Bahlul – Reply on Specified Issues (15 March 2011)

An excerpt:

In the lead up to the First Seminole War, Florida remained under the nominal control of Spain, but Spanish authorities were unable to “enforce peace on the border,” and more importantly, “were unable to prevent black slaves from fleeing to Florida and joining the Seminole Indians.” John K. Mahon, The First Seminole War, November 21, 1817–May 24, 1818, 77 FLORIDA HIST. Q. 62 (1998). While the motivation for the invasion of Florida was partly territorial expansionism, the “principal objective was to break up the free Negro settlements which were becoming increasingly a menace to the slave systems of adjacent states.” Kenneth Wiggins Porter, Negroes and the Seminole War, 1817–1818, 36 J. NEGRO HIST. 249, 254 (1951).

Additionally, this case has received coverage on Huffington Post here.

And the Center for Constitutional Rights has condemned the government’s position in this press release: Balul Final 3-16-11

Federal Government Compares Seminoles to Al Qaeda in Military Commissions Case

Matthew L.M. Fletcher7 Comments

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.