Monday, March 18, 2013

Law and the U.S. Foreign Relations Survey, Part III: Empire and the Laws of Expansion

The myth of the isolationist United States is the myth that will not die. It persists in part because it dismisses the conquest of indigenous nations as “westward expansion,” imagined as domestic, rather than foreign, politics. But as most historians recognize, the passive metaphor of “growth” is inaccurate. The process is best understood as one of empire-building.

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?

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