To
anchor westward expansion in the realm of foreign policy, I ask my students to
focus on three aspects of this expansion: the national status of indigenous
polities, the way law harnessed less visible forms of state power, and the
institutional and ideological contributions of the Northwest Ordinance to
facilitating the spread of a republican, state-based continental empire. These topics
both reveal the imperial nature of expansion and help to explain the
difficulties in recognizing it as such.
Chief
Justice John Marshall famously ruled in Cherokee
Nation v. Georgia (1831) that Indians were “domestic dependent nations.”
This confounding phrase is vital to understanding both the institutional
mechanisms and ideological rationalizations of empire. But it is important to
begin by reminding students that from a native perspective—and from a European
one as well, at least at first—the Indians were very much independent nations
with their own foreign policies. For this reason, even though my class
officially “began” in 1763, we actually picked things up in 1754 in order to
emphasize the role of native diplomacy in the Seven Years War. (Andrew Cayton and Fred Anderson’s narrative of how George Washington’s bumbling mission to
the Ohio valley helped spark that war helps to drive the point home.) We also
read sections of Adam Jortner’s entertaining The Gods of Prophetstown: The Battle of Tippecanoe and the Holy War for the American Frontier to illuminate the role of Native diplomacy and
imperial resistance in the origins of the War of 1812 (or as my students agreed
the conflict should be called, “The War that Nobody Really Won but the Natives
Definitely Lost”).
Treaties
help to illustrate the persistence of the Indian diplomatic presence into the
Early Republic. The Avalon project helpfully provides the full text for
many. I assigned two treaties, one from 1785 and one from 1787, each with a
group of tribes that included the Wyandot, Ottowa, Chippewa, and Delaware. Comparing
the two reveals the limits of the young United States’ initial aggressive
approach. Though it first claimed land as the prerogative of victory in the war
against England, by 1787 it was forced to reverse course and recognize a
(slightly) more mutualistic relationship: the second treaty includes provisions
for extensive gift-giving in exchange for land.
The
actual distribution and settlement of land by white Americans was often a less
visible affair. Yet here too law helps to illuminate it. Drawing from Stuart
Banner’s How the Indians Lost Their Land, I emphasized the formal legality of the process of acquisition of Indian
land. No matter how coercive or morally dubious in practice, Americans could
frame such acquisition as legitimate. This made it possible to construe the
process as voluntary exchange rather than coerced dispossession. Students noted
the pattern here—U.S. negotiators also insisted on paying for the land taken
from Mexico in 1848—and related it to an ideological need for the United States
to reaffirm its origins as an anti-colonial republic.
Paul
Frymer’s recent article, “Building an American Empire: Territorial Expansion in
the Antebellum Era (U.C. Irvine Law Review 1:3 (2011)) also proved helpful in
this regard. Building on his arguments, I explained to the class how domestic
U.S. laws enabled empire-building. Property laws encouraged speculation and
squatting; loose immigration laws contributed to pressure on Indian lands; and
legal frameworks provided for the distribution of treaty lands to individuals
and created federal territory (in Oklahoma) that made Removal possible. In
short, laws helped to mobilize society to exercise a vast informal power that compensated
for a weak state and small army. This was most explicit in laws such as the
1842 Armed Occupation Act, which provided land to settlers who pledged to
remain armed and defend their land from Indians. Institutional developments are
also part of this story. For instance, the transfer of Indian Affairs
from the Department of War to the Department of the Interior in 1849 prefigured
the later ruling, in Lone Wolf v.
Hitchcock (1903), that Congress had the right to unilaterally abrogate
Indian treaties.
Finally,
we discussed yet another legal framework of expansion that made empire possible
in the late-nineteenth and early nineteenth century: the Northwest Ordinance of
1787. In their previous lesson on the Constitution, students learned that
the formation of the United States took place in a context where the grouping
of various political units was up for grabs: the creation of a single transcontinental
nation in our present mode was hardly a sure thing. Thomas Jefferson, for one,
imagined the rise of a series of allied republics in North America. Nor could
one assume the continuing unity of the new United States, given differing
regional interests and the difficulties of communication and transportation. The
location of the Northwest territories (distant from the Atlantic seaboard,
closer to remaining British strongholds) exaggerated these centrifugal tendencies.
These territories (present-day states of Ohio, Indiana, Illinois, Michigan,
Wisconsin, and part of Minnesota) were essentially colonial possessions of the
United States, and some American politicians favored treating them as such. Gouverneur
Morris, for one, advocated fixing representation to “secure to the
Atlantic states a prevalence in the National Councils.” But others recognized that treating (white)
territorial inhabitants as colonial subjects might convince them to transfer
their allegiance—and with it the control of a key area of North America—to
Britain or to independent sovereignties. Thus as well as setting out “domestic”
rules of state recognition, the Northwest Ordinance of 1787 addressed an
international issue of potentially great importance. As Edward Carrington noted
at the time, denying the rights of statehood to the territories would “have
been disgusting” to the inhabitants and “ultimately inconvenient for the
Empire” (Morris & Carrington quotes from Frederick D. Williams, ed.,
Northwest Ordinance: Essays on its
Formulation, Provisions and Legacy (Lansing: Michigan University Press,
1988), 14, 33).
By
guaranteeing rights to settlers and providing a legal path to equal statehood,
the Ordinance helped to ensure that spreading population and territory could
remain united in an imperial framework, rather than splintering off into
competing states (at least until the 1840s and ‘50s, when expansion aggravated
sectional dissensions). It also played an important role in camouflaging the
imperial context of this expansion. By formatting empire as a process of
cellular replication the Ordinance thus “domesticated” the process of empire
building, minimizing the colonial status of the territories (a legal question
that would resurface in 1898) and making it easier to overlook the
dispossession of the land’s original native inhabitants.
With
a stronger grasp of this institutional and legal background, students proved
more willing to see the growth of the United States in imperial terms. More
importantly, they became increasingly comfortable discussing the nuances of
power and ideology. Rather than debating: Was the United States an Empire, they
were primed to consider the question: Just what sort of empire was it?
