[Marxism] The Indian Law That Helps Build Walls

Louis Proyect lnp3 at panix.com
Mon May 27 08:56:19 MDT 2019

NY Times Op-Ed, May 27, 2019
The Indian Law That Helps Build Walls
By Maggie Blackhawk

The first two years of the Trump administration have brought us horror 
story after horror story about our government: children separated from 
their families, men and women detained without due process, communities 
punished because of their faith. These horrors may seem new, but in fact 
these abuses — and in particular the law that authorizes them — have 
been part of our constitutional order since the founding of this country.

In many ways, America is just beginning to reckon with slavery and Jim 
Crow segregation. But at least we have reformed the laws that allowed 
these abuses. We have overruled the Dred Scott and Plessy v. Ferguson 
court decisions, banishing the doctrines of overt racism and “separate 
but equal” from our law, if not from our society. No government would 
cite these doctrines to justify its actions today.

But we have not yet fully dismantled the legal infrastructure that 
permitted abuse of Native Americans. On reservations starting in the 
mid-19th century, the United States established military-run detention 
camps where the executive branch held limitless power.

In these camps, children were forcibly separated from their families and 
sent to federally run boarding schools that used violence to “kill the 
Indian in him, and save the man,” as Capt. Richard Henry Pratt, founder 
of Carlisle Indian Industrial School, put it in 1892. Native Americans 
were incarcerated for practicing their faith. Naming ceremonies were 
forbidden for children, whose hair was cut at the schools, where they 
were also forced to practice Christianity.

We have not yet reformed the laws that allowed for such abuse of Native 
Americans. For example, the Dred Scott of federal Indian law, United 
States v. Rogers (1846), has not been explicitly overruled. Rogers — 
drafted by the same infamous justice, Roger Taney, who wrote the Dred 
Scott decision — established the “plenary power doctrine.”

According to this doctrine, the United States could wield power over the 
“unfortunate race” of Native Americans without constitutional limit. The 
doctrine prevented the Supreme Court from intervening, even to protect 
constitutional rights. It was the plenary power doctrine that provided 
the federal government with the authority to establish detention camps 
and boarding schools, to engage in family separation and to criminalize 
religious beliefs.

Some speculate that the Nazis used these detention camps, much admired 
by Hitler, as a basis for the concentration camps during World War II — 
and, as recent work by the law professor James Q. Whitman documents, 
“the single most important figure in the Nazi assimilation of American 
race law,” Heinrich Krieger, studied the plenary power doctrine and 
published an article in The George Washington Law Review on federal 
Indian law.

Beyond the plenary power doctrine, much of our constitutional law, from 
the treaty power to the war power, was established within the context of 
westward expansion and Manifest Destiny. The United States determined 
the reach and meaning of the war power in its very first war under the 
new Constitution — a war fought against Native people in the Northwest 
Territory from 1790 to 1795 — and the young nation remained at war with 
Native American nations for over a hundred years after its birth.

The so-called Indian Wars were wars fought without legal limits, 
including military commissions, indefinite detention and unbridled 
violence. As Gen. Andrew Jackson said, long before he became one of 
President Trump’s heroes, “The laws of war did not apply to conflicts 
with savages.”

The federal government has been increasingly drawing on these doctrines 
to justify its actions. The last three administrations have pointed to 
the Indian Wars as precedent to justify executive action in the war on 
terrorism, with the Trump administration invoking the plenary power 
doctrine as justification for family separation, migrant detention camps 
and religious persecution.

Last summer, in Trump v. Hawaii, the Supreme Court invoked the plenary 
power doctrine to hold that the Trump administration’s so-called Muslim 
travel ban did not violate the First Amendment. Rather than applying the 
strict scrutiny afforded most constitutional rights, the Supreme Court 
deferred to the executive under the plenary power doctrine and applied 
rational basis review, a much weaker standard. The rights to religious 
liberty and freedom of expression were subsumed under a doctrine 
developed by Justice Taney and used to dispossess Native Americans.

Since its inception, the plenary power doctrine has been expanded beyond 
Indian Country to justify seemingly limitless power over all kinds of 
people at the margins of American empire. As in Trump v. Hawaii, the 
doctrine fuels much of our current immigration law and policy, including 
executive detention and family separation.

In upholding the travel ban, the Supreme Court tried to erase this past 
— treating Japanese internment during World War II and Korematsu v. 
United States, which authorized it, as aberrations. Rather than 
overturning the plenary power doctrine entirely, the court applied it 
but at the same time disclaimed the connection between the doctrine and 
the “morally repugnant order” upheld in Korematsu — “Korematsu,” the 
opinion declared, “has nothing to do with this case.”

But Japanese internment was just one chapter in a long history of 
detentions under this doctrine. Two of the 10 Japanese internment camps, 
the Colorado River and Gila River Relocation Centers, were established 
on Native American reservations. The man who oversaw Japanese internment 
as the head of the War Relocation Authority, Dillon Myer, was 
subsequently appointed to head the Bureau of Indian Affairs. Yet neither 
the court, the dissenters, nor the amicus briefs in Trump v. Hawaii 
recognized the origins of the plenary power doctrine and its genesis in 
the detention and religious persecution of Native Americans.

We are long overdue to confront the abuses of Native Americans and the 
failure of American colonialism. At the very least, no government should 
be able to cite the violent detention and oppression of Native Americans 
as justification for harming other vulnerable populations. The court 
should overturn the plenary power doctrine; the Indian Wars should serve 
as precedent for nothing.

Only then can these doctrines take their rightful place beside Dred 
Scott and Plessy v. Ferguson in the anti-canon of constitutional law.

Maggie Blackhawk (Fond du Lac Band of Lake Superior Ojibwe) is an 
assistant professor of law at the University of Pennsylvania and the 
author of “Federal Indian Law as Paradigm Within Public Law.” 

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