Despite the claim of the theorists of settler colonialism that the European colonialization of North America required the genocidal extinction of the Native American Indians, it is remarkable that most if not all of those American Indian Nations that occupied North America in 1492 have survived into twenty-first century America. More than five hundred Native nations still exist today in the United States. But since those American Indian Nations lack the independent self-governing sovereignty that defines a "nation," it would be better to identify them as American Indian tribes or ethnicities existing today in a multiethnic American Nation. (As suggested by the Oxford English Dictionary, I define "tribe" as "a division of some other nation or people" and "ethnicity" as "membership in a group having a common cultural tradition.")
Before 1871, the U.S. Congress recognized the American Indian nations as true nations by making treaties with them. After 1871, the Congress refused to recognize the American Indian tribes as independent nations with whom the U.S. could make treaties.
Before the arrival of Europeans in America, and for almost four hundred years after their arrival, the American Indians satisfied their evolved natural desire for social membership by living in hundreds of independent sovereign nations (Moffett 2019). But eventually, once they were defeated in war, they were forced to choose between living on Indian reservations as "dependent domestic nations," as Supreme Court Justice John Marshall called them, or fully assimilating themselves into American society while preserving some social identity as a member of an Indian society (Cherokees, Shawnees, Kiowas, and so on). This shows what Mark Moffett has identified as "the single most radical innovation in the history of human societies"--a modern society like America can grow by absorbing formerly separate societies that become distinct ethnicities in a multiethnic society (309). Because of this evolutionary innovation, most nations today, even those that seem homogeneous, are really blended admixtures of originally separate peoples into one people.
The identity of the American people as a people can arise from their dedication to the principles of equality of rights in the Declaration of Independence, which allows for a multiethnic and pluralistic national identity that embraces hundreds of American Indian ethnicities.
In Native Nations: A Millenium in North America, historian Kathleen DuVal has shown how the Indigenous Americans built powerful and diverse nations that controlled the North American continent for thousands of years. Even after the Europeans arrived, over 90% of the continent was still dominated by the Indigenous Nations, who dictated the terms of their engagement with European traders, explorers, missionaries and diplomats, which allowed the Indians to enjoy the benefits of global networks of economic and cultural exchange. Prior to the 1820s, no European army had ever been through most of the regions inhabited by the American Indians. Most of the European settlers were confined to the eastern fringes of the continent along the Atlantic coast. It was not until the middle of the 19th century (1830 to 1880) that the Indians lost control of most of the continent.
EVOLUTION BY POPULATION GROWTH
This was due mostly to the massive growth in the European American population in contrast to the small population of the American Indians. In 1750, the total European population north of central Mexico was probably around one million, which was probably roughly equal to the American Indian population. But most of the Europeans--about 900,000 were confined to the East Coast. Across the rest of the continent, the Indigenous people far outnumbered the few Europeans. But after 1750, the European population began to double every generation--both because their agricultural economy could feed a lot of people and because of immigration.
By 1800, there were less than 100,000 Indians east of the Mississippi, as compared with five million European Americans. In 1810, the U.S. population had grown to seven million; and in 1820, it was ten million. The Indian population during this time was growing, but it was still outnumbered by a factor of one hundred to one. Remarkably, this ratio of one hundred to one is still about the same today. There are perhaps as many as one million Indians living on reservations, and as many as four to five million claim to be "American Indian" on census forms.
Most of these people who claim American Indian identity are mixed-race. This shows the Darwinian evolution of Indigenous Americans through genetic and cultural hybridization, which supports the pluralism of the American Indian Nations living in a Multiethnic American Nation.
This sustains DuVal's general argument in Native Nations that while some European settlers attempted a genocidal extermination of the Native Americans, those attempts failed to extinguish those Native Americans. It is important to see that the common assumption that the American Indians were helpless victims of European conquest, because they were inevitably doomed to extinction, and unable to offer any resistance to the overwhelming power of the European settlers, is false. Because it ignores the power of the Indians in dominating the North American continent, at least up to the middle of the 19th century. This assumption of American Indian helplessness is also false in ignoring the fact that the American Indian resistance to annihilation brought about the survival of the Native American nations.
THE "ORIGINAL NATURAL RIGHTS" OF THE AMERICAN INDIAN NATIONS: THE EVOLUTION OF PROPERTY AS A SYMBOLIC INHERITANCE SYSTEM
But then we might wonder about the legal, and even constitutional, status of those Indigenous Nations within the United States. Justice John Marshall provided the best answer to that question in a series of three Supreme Court opinions, which confirm what John Locke had said about how conquerors are constrained by the propensity of a conquered people to resist their oppression.
In Johnson v. McIntosh (21 U.S. [8 Wheat.] 543 [1823]), the question was whether Indian nations northwest of the Ohio River, in 1773, and 1775, had a property right to their lands, so that they could sell those lands to American settlers, and whether American courts should recognize those land titles, which would justify an action of ejectment against the holder of a federal land patent for those lands. To justify his claim that the Courts of the U.S. would have to uphold the federal land patent, Justice Marshall offered a general history of how European governments gained ultimate authority over land titles in America by discovery of the land and conquest of the American Indians.
Marshall began by asserting that it is the right of society to prescribe the rules by which property is acquired and preserved; and therefore, the title to lands must depend entirely on the legal rules of property prescribed by the nation in which those lands lie. In trying to identify those legal rules, we can look to two kinds of principles. First, there are those universal "principles of abstract justice, which the Creator of all things has impressed on the mind of his creature man, and which are admitted to regulate, in a great degree, the rights of civilized nations, whose perfect independence is acknowledged." Second, there are "those principles also which our own government has adopted in the particular case, and given us as the rule for our decision" (572).
Considered in the light of the evolutionary psychology of law, I have argued, we can see that all legal and moral rules are imaginary social realities created by the evolved human capacity for language and symbolism by which we agree with one another to collectively recognize those legal and moral rules. So, we can collectively agree on what counts as a legitimate claim to property.
Evolutionary psychology can also explain what Marshall calls "the principles of abstract justice." To avoid the dangers of both tyrannical dominance and factional conflict, natural selection favored moral judgment as a strategy for choosing sides in conflicts by impartial rules of action. Moral judgment is the uniquely human capacity of the human mind for creating rules of right and wrong and then applying those rules to conflicts so that people can choose the right side over the wrong side. If most people do this, and if they share the same rules and evidence, they will choose the same side in conflicts. The majority of the people in a society can then coordinate their choices through impartial moral rules without following the hierarchy, which checks the power of the dominants, and without strengthening rival factions. But when there is disagreement--either within or between societies--over these moral rules, the disagreement will have to be settled either by persuasive debate or by coercive force.
So, for example, the most people in all societies agree on the impartial rule of action that "anyone who steals someone else's property shall be punished." But people can disagree about what should count as "stealing," "property," and "punishment."
Evolutionary psychology can also explain the moral principles of property "which the Creator of all things has impressed on the mind of his creature man" as rooted in the sense of "self-ownership" that natural selection has impressed on the evolved human mind. If human beings did not have any sense of owning themselves, they could not claim ownership of things external to them as extensions of their self-owning selves.
The American Indians understood their ownership of property as an extension of their self-owning selves. They distinguished between property that belonged to individuals, families, or households (such as clothing, jewelry, and houses) and property that belonged collectively to their society (such as land, game [before it was killed], and other natural resources) (DuVal 88, 362).
But when conflicts over property arose between Indian nations or between Indians and European settlers or between European colonial governments with conflicting claims, the disputes would have to be resolved either by peaceful negotiation or by violent warfare.
In the history of European colonial claims in America, Marshall saw the doctrine of discovery as the primary principle for resolving disputes over land rights in America. The European governments agreed that discovery of any American region would give "title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession" (573). The discoverer then had the exclusive right to acquire land from the native Americans and to regulate the relations between the discoverer and the natives. Deciding to what extent and in what ways the property rights of the American natives could be recognized was to be ultimately determined by the absolute authority of the discoverer.
For this European principle of discovery, it did not matter that the original discoverers of the Americas were the Native Americans. Because the land right conferred by discovery was confined to countries "then unknown to all Christian people" (576). Thus, the Christian Europeans assumed that they had a god-given right to dominate the non-Christian world by conquest.
Remarkably, Marshall admitted that "the title by conquest is acquired and maintained by force," and therefore it is "opposed to natural right" (588-89, 591).
But he also saw that a humanitarian "natural right" as expressed in the natural moral sentiments of public opinion would constrain this title by conquest based on brute force. "Humanity . . . acting on public opinion" would establish as a general rule "that the conquered shall not be wantonly oppressed." Popular humanitarianism would demand that the conquered people be "incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected," so that they would become "one people." Where this happened, "the rights of the conquered to property should remain unimpaired" (589). Marshall believed that "public opinion, which not even the conqueror can disregard, imposes these restraints upon him; and he cannot neglect them without injury to his fame, and hazard to his power" (590). In two later Supreme Court decisions, Marshall explained how this might happen.
Andrew Jackson had long sought to remove the Five Civilized Tribes (Cherokees, Chickasaw, Choctaw, Muscogee [Creek], and Seminoles) from the southeastern region of the United States and force them to move west of the Mississippi to lands that would be designated as "Indian Country." In 1830, the Congress passed the Indian Removal Act to promote this policy. But the popular opposition to this policy was so intense that the debate over this law raged for many years. It was not until 1838 that the forced removal of the Five Civilized Tribes to their Indian territories in what became Oklahoma was carried out. About 60,000 Indians were removed by military force, and 3,000 to 4,000 of them died during the march west, which became infamous as the "Trail of Tears," and which many people today identify as the clearest case of "genocide" carried out by the U.S. Government.
Shortly after the passage of the Indian Removal Act, the government of the State of Georgia enacted its own laws to abolish the Cherokee Nation as a sovereign nation in northern Georgia.
Under the U.S. Constitution, the Supreme Court has original jurisdiction in any controversy between a State and a foreign nation. Acting under this provision, in 1830, in Cherokee Nation v. Georgia (30 U.S. [5 Pet.] 1 [1831]), legal representatives of the Cherokee Nation asked the Supreme Court for an injunction to prevent the State of Georgia from enforcing state laws within the Cherokee Nation. The Cherokee Nation had lived in what is now the southeastern United States for thousands of years. In 1830, there were as many as 14,000 Cherokees in Georgia living as a sovereign nation on land guaranteed to them by treaties with the U.S. Government.
But in his majority opinion for the court in Cherokee Nation, Justice Marshall refused to consider the merits of the case because he thought the Cherokees did not have standing to bring the case to the court as a foreign nation. He insisted that rather than being foreign nations, the Indian nations were "domestic dependent nations." Their relation to the United States was "a state of pupilage" like "a ward to his guardian" (17). (Looking back at Marshall's opinion, we can see that this was the first step towards denying that the American Indian tribes were really nations, which is what the Congress did in 1871.)
Marshall thought that the text of the Constitution supported this--particularly, the clause giving Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" (Art. I, sec. 8, cl. 3). Distinguishing these three distinct classes--foreign nations, the several states, and Indian tribes--must mean that the Indian tribes are not foreign nations. After all, Marshall observed, the framers of the Constitution could have empowered Congress "to regulate commerce with foreign nations, including the Indian tribes, and among the several states." By not using this phrasing, the framers clearly intended to deny that the Indian tribes were foreign nations.
Justice Smith Thompson wrote the dissenting opinion in this case (joined by Justice Joseph Story). His primary argument was that in making treaties with the Indians, the United States government necessarily recognized them as foreign nations, and so there was no reason to read the phraseology of the Commerce Clause as implicitly denying their status as foreign nations.
Moreover, Justice Thompson made it clear that considering the merits of the case should support the claim that the state of Georgia could not legally deny the sovereign authority of the Cherokee Nation. Thompson cited Emer de Vattel's The Law of Nations (1758) as showing how the Cherokees had all the natural rights that belonged to them as a sovereign nation according to the law of nature. "Nations being composed of men naturally free and independent, and who, before the establishment of civil societies, live together in the state of nature, nations or sovereign states are to be considered as so many free persons, living together in a state of nature. . . . Every nation that governs itself, under what form soever, without any dependence on a foreign power, is a sovereign state" (53).
As I have argued previously, Vattel was restating the Lockean understanding of international law as rooted in the law of nature in the state of nature, which was also expressed in the Declaration of Independence as part of the Lockean liberal evolution of the American nation as symbolic niche construction.
Thompson also cited Vattel for the idea that even in "unequal alliances" between nations, where a weak state puts itself under the protection of a stronger state, the weak state is still a sovereign and independent nation as long as it has self-governing authority. This should be true for the Cherokee Nation and the other Indian Nations--as long as being under the protection of the United States as a stronger state does not deprive those nations of their self-governing sovereignty.
Remarkably, only one year later, in the case of Worcester v. Georgia (6 Pet. 515 [1832]), Justice Marshall accepted Thompson's reasoning in writing a majority opinion in favor of the Cherokee Nation with the concurrence of Thompson and Story, who had dissented in the Cherokee Nation case. Marshall agreed with Thompson in drawing from Vattel the idea that "tributary and feudatory states do not thereby cease to be sovereign and independent states, so long as self government and sovereign and independent authority are left in the administration of the state" (561). This supported the conclusion that "the Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial" (559).
In effect, this decision in Worcester v. Georgia declared the Indian Removal Act and Jackson's policy of forced removal unconstitutional. Jackson responded by simply ignoring Marshall's decision. It was reported by some people that Jackson said: "Justice Marshall has made his decision and now let him enforce it." Although Jackson probably did not utter those exact words, he did certainly disregard Marshall's decision.
But even if the Worcester decision did not protect the Cherokees from forced removal, it did add to the widespread and intense criticism of the forced removal policy as a violation of the "original natural rights" of the American Indians. Jeff Fynn-Paul has surveyed this "mass resistance to Jackson's policies" as showing that it is mistaken to evoke the Trail of Tears "as typical of American treatment of the Indians, and as unopposed by U.S. institutions or public opinion" (Not Stolen, 275-92).
Moreover, the Worcester decision did become the landmark Supreme Court decision for a federal Indian policy that recognized the limited sovereignty of the Native American Nations. That sovereignty was at first limited but then completely denied by the U.S. Congress in its absolute power over the Indian tribes.
THE SURVIVAL OF THE INDIAN ETHNICITIES. BUT WITHOUT THE "UNRESTRICTED RIGHT OF SELF-GOVERNMENT" THAT BELONGS TO NATIONS
From her history of the native American Indians in North America, Kathleen DuVal draws the conclusion that despite the attempts of European Americans to extinguish them, the American Indian nations have survived:
"Despite the tremendous losses of the past two centuries, Native nations have survived, not only as the descendants of once powerful peoples, but as nations within the nation-states of the United States, Mexico, and Canada. Since 2000, the U.S. Census has counted more and more Native Americans, with the 2020 census reporting an astounding 9.7 million. Not all of them are actual citizens of Native nations, but the vast majority do report a specific tribal affiliation, so there is some truth to the number. . . . U.S. policies did unfathomable damage, but Native Americans repeatedly rebuilt their nations and figured out how to continue being their own distinct peoples within a vastly changed continent" (544).
I agree that native American Indians have survived in the United States "as the descendants of once powerful peoples," but I do not agree that they have survived "as nations." Notice the two problems in her reasoning here. First, she admits that "not all of them are actual citizens of Native nations." In fact, most of them reporting "a specific tribal affiliation" are not citizens of any Native nation.
The second problem is that claiming they have survived "as nations" ignores the fact that in the "law of nations" (international law), and in American constitutional law, a "nation" has the sovereign right of self-government; and if that is what "nation" means, then the American Indian tribes today are not nations, because the U.S. Congress exercises a complete and absolute power over the Indian tribes that denies them any right of self-government.
As I have already suggested, it would be better to say that the American Indians have survived as Indian ethnicities or "distinct peoples" within a multiethnic nation of one American people.
During the first 100 years of American history after the Revolution, the United States government managed relations with the American Indian tribes by making treaties with them, and a treaty is an agreement between nations that are self-governing sovereign states. Beginning in 1778, when the first treaty was made with the Delawares, the United States government made 370 treaties with the Indian tribes.
But that came to an end in 1871. In the Indian Appropriations Act of 1871, the Congress declared that the United States would no longer recognize Indian tribes as independent nations with whom the U.S. could make treaties: "That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty: Provided, further, that nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with on such Indian nation or tribe" (16 Stat. 544, 566).
And despite declaring here that treaties previously made with the Indians would be respected, the Congress later claimed the power to abrogate those treaties by statue without the consent of the Indian tribes.
DuVal mentions this 1871 law in two sentences, but she does not reflect on how this denies her claim that the American Indian tribes have survived into the present day as "nations," even though the Congress was very clear in declaring that after 1871 no Indian tribe would be recognized as a nation (495-96).
Amazingly, Pekka Hamalainen--in his recent history of the North American Indians--makes the same mistake as DuVal: he asserts that today the North American continent is "speckled with hundreds of Native nations that preserve Indigenous sovereignty and nationhood" (Hamalainen 2022: 461). He says nothing about the congressional denial of Indigenous "nationhood" in 1871.
Actually, the careful reader of Hamalainen's book will notice a confusing ambiguity in his conclusion to this book. He says that "indigenous sovereignty in North America" lasted for almost 400 years following Columbus's arrival, and it was not until the end of the 19th century that "the United States could claim to have subjugated a critical mass of Native Americans," and so he recognizes that "indigenous sovereignty" was extinguished shortly before 1900. But then in his last paragraph, he insists that "today, sovereign Indigenous America persists in the dynamism of modern Native communities" (462-63). The reader is left with a contradiction: "indigenous sovereignty in North America" does and does not persist today. (I will have more to say about Hamalainen's book in a future post.)
The constitutionality of the 1871 Act denying Indigenous national sovereignty was upheld by the Supreme Court--it cases such as United States v. Kagama (118 U.S. 375 [1886] and Lone Wolf v. Hitchcock (187 U.S. 553 [1903]--which affirmed that the Congress has "plenary power"--absolute and complete power--over all Native American tribes, which includes the power to abrogate treaties with Indian tribes by federal law.
This plenary power of the Congress over the American Indian tribes has been reaffirmed by the Supreme Court in recent cases. For example, in the 2020 case McGirt v. Oklahoma (591 U.S. ___ [2020]), Justice Neil Gorsuch, writing for the majority, recognized that by subjecting Indians to federal trials for crimes committed on tribal lands, the Congress had breached its treaty promises that the Indian tribes would be free to govern themselves as sovereign nations. For example, the Treaty of 1856 with the Creek Indians had promised that the Creeks would be "secured in the unrestricted right of self-government," with "full jurisdiction" over Tribe members and their property. But since then, the Congress has exercised its plenary power to break its treaty promises to the Tribe.
Notice what this means: the Congress has the tyrannical power to rule over the American Indian tribes without their consent, and thus deny the "self-evident truth" of the Declaration of Independence that "governments are instituted among men, deriving their just powers from the consent of the governed."
Or should we say that although the Congress has deprived the American Indian Nations of their "unrestricted right of self-government," the Congress has granted U.S. citizenship to all American Indians in 1924, which has allowed them the right of self-government as citizens in a multiethnic American Nation?
When the Declaration of Independence in 1776 declared that the "thirteen United States of America" were and of right ought to be "Free and Independent States," the signers knew that the success of this declaration would depend on winning a bloody war of independence and forcing Great Britain to sign a treaty of peace with them, which was achieved with the Treaty of Paris of 1783.
Similarly, the American Indian Nations were "Free and Independent States" for as long as they could go to war with their enemies--other Indian Nations, the European powers, and the Americans--and force their enemies to make treaties with them. But once they lost their military formidability, they could no longer defend their freedom and independence as sovereign nations, and they became tribes or ethnicities in the American nation.
In the U.S. Army's prolonged war with the American Indians in the 1870s, the Indians won some victories, such as the overwhelming defeat of George Armstrong Custer's soldiers by the Lakotas along the Little Bighorn River in the Black Hills in 1876. But by 1877, the Indians had lost the war. When the Nez Perces (living on the Columbia Plateau between the Spokane and Snake Rivers) were defeated in June of 1877, that was the last official military engagement between the United States and North America's Indigenous people (Hamalainen, 448-452).
Locke would say that by 1877 the American Indians had lost their "appeal to Heaven"--the God of Battles had given the victory to the U.S. Army over the Native American warriors.
REFERENCES
DuVal, Kathleen. 2024. Native Nations: A Millennium in North America. New York: Random House.
Fynn-Paul, Jeff. 2023. Not Stolen: The Truth About European Colonialism in the New World. New York: Bombardier Books.
Hamalainen, Pekka. 2022. Indigenous Continent: The Epic Contest for North America. New York: Liveright Publishing.
Moffett, Mark. 2019. The Human Swarm: How Our Societies Arise, Thrive, and Fall. New York: Basic Books.
de Vattel, Emer. 2008 [1758}. The Law of Nations. Edited with an Introduction by Bela Kapossy and Richard Whatmore. Carmel, IN: Liberty Fund.
