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.