Denying the Violence: The Missing Constitutional Law of Conquest
Juan F. Perea * | 24.6 | Article | Citation: Juan F. Perea, Denying the Violence: The Missing Constitutional Law of Conquest, 24 U. Pa. J. Const. L. 1205 (2022).
If against these Indians, the end proposed should be their extermination, or their
removal beyond the lakes or Illinois [R]iver. The same world will scarcely do for them
and us.
—Thomas Jefferson to George Rogers Clark, 1780
The United States committed at least two original sins. The one, slavery,
is well known. The other, conquest, is both obvious and unknown at the
same time.
The Constitution was designed and implemented to facilitate American
empire. The country we now know grew from a narrow strip of colonies
along the east coast to encompass much of a continent, from sea to shining
sea. It grew purposefully, through powers newly granted in the Constitution.
The conquest of native America happened pursuant to the Constitution.
The fact of conquest is proven by the sheer magnitude of the land transfer
from indigenous people to white Americans. Before the conquest, native
Americans possessed all 1.9 billion acres of the continental United States.
After the conquest, they retain only 56 million acres of land held “in trust”
by the United States, together with some land owned by natives in fee
simple. This number is two one-hundredths of one percent (.02%) of what
they owned prior to conquest. Over time, non-Indians, mostly whites,
managed to take 99.98% of the continental lands originally inhabited by
Native peoples. Most of the natives who survived were removed to isolated reservations located in the parts of this country that were least desirable to whites.
This transfer of land is one of the monumental facts of American history.
It demands further explanation. As described by legal scholar Robert A.
Williams, Jr., “[t]he history of the American Indian . . . reveals that a will to
empire proceeds most effectively under a rule of law.” Alexis De
Tocqueville came to a similar conclusion regarding the effectiveness of law
in dispossessing Native Americans. Writing in 1835, Tocqueville witnessed
the removal of Cherokees from North Carolina:
[T]he Americans of the United States have accomplished this twofold
purpose [the extermination of Indians and deprivation of their rights] with
singular felicity; tranquilly, legally, philanthropically, without shedding
blood, and without violating a single great principle of morality in the eyes
of the world. It is impossible to destroy men with more respect for the laws
of humanity.
As I shall show, Tocqueville was wrong in stating that no blood was shed.
He describes a fictively orderly, glossy, legal surface of the conquest while
minimizing the warfare and violence that actually accomplished it.
Interestingly, constitutional law has taken little or no account of how
westward expansion happened and of the role of the Constitution in this
expansion. Most theorists of constitutional law, and most authors of
constitutional law casebooks, have ignored entirely one of the most
momentous developments in our national identity: the acquisition of its land,
which forms the now-familiar silhouette of the lower forty-eight states. How
can it be that the making of the United States, the conquest of this huge part
of the American continent, has generated such little attention among many
of the most prominent scholars of the Constitution?
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* Juan F. Perea is the Curt and Linda Rodin Professor of Law and Social Justice at Loyola University Chicago School of Law.