The Natural Desire for Membership in a Society: The Roots of Nationalism in the Lockean Evolutionary State of Nature

I have argued against the claim made by people like Frank Salter and Stephen Sanderson that there is a natural desire for ethnic nationalism that is part of our evolved human nature.  But I do recognize that there is a natural desire for membership in a society, which arose in the evolutionary state of nature of our hunter-gatherer ancestors, and that this natural desire for social membership can be satisfied in a multiethnic Lockean liberal nation like the United States.  

Furthermore, I suggest, the national identity of the American people can be best formulated through Abraham Lincoln's understanding of the American people as dedicated to fulfilling the Lockean liberal principles of the Declaration of Independence.  In this way, the identity of the American nation has evolved through the cultural history of Amerca and the individual history of political agents like Lincoln as a symbolic niche construction of Lockean liberalism.

I have found support for these conclusions in Mark Moffett's book The Human Swarm: How Our Societies Arise, Thrive, and Fall (2019), although Moffett would not completely agree with me.

IMAGINED COMMUNITIES?

As I indicated in my previous post, Moffett is a field biologist who has wondered whether the capacity of invasive Argentine ants to form massive supercolonies might help to explain the human capacity for living in nations with huge populations of people whose society cannot be based on individual recognition of all the members of the society.  An Argentine ant colony is an anonymous society in which membership is marked by the distinctive scent of the colony, which distinguishes us from them, so that individual ants will be accepted into the colony if they carry the colony's scent, but if they carry the scent of a foreign colony, they will be attacked.  Similarly, a human society is an anonymous society with markers of social membership that distinguish those who belong to the society from those who are outsiders; but for a human society the markers of membership are not chemical signals but shared symbols (such as the flag, the language, or the history of a society).

Here Moffett agrees with Benedict Anderson's Imagined Communities (first published in 1982), which has become perhaps the most influential book on the origins of nationalism.  Moffett agrees with Anderson's claim that a nation is an "imagined community," and it "is imagined because the members of even the smallest nation will never know most of their fellow-members, meet them, or even hear of them, yet in the minds of each lives the image of their communion" (Anderson 2016: 6).  Moffett observes: "By serving to distinguish us, those who belong, from them, the outsiders, shared imaginings are all we need to create societies that are true and tidy entities" (2019: 18).  

Moffett disagrees, however, with Anderson's claim that nations as imagined communities are artificial products of modern cultural history beginning towards the end of the 18th century.  Our shared imaginings of national identity are not "artificial," if that implies they are fanciful or unreal, because they "bind people with a mental force no less valid and real than the physical force that binds atoms to molecules, turning them into concrete realities."  Moffet also insists that the concept of imagined communities "holds true not just for modern societies, but for all the societies of our ancestors, likely from their remote, prehuman origins," and therefore human societies are rooted in nature--in our evolved human nature.

Actually, Anderson himself sometimes intimates that nations as imagined communities are not modern inventions: "In fact, all communities larger than primordial villages of face-to-face contact (and perhaps even these) are imagined" (6).

In any case, Moffett and Anderson seem to agree that the social identity of human societies or nations arises as a shared mental creation of what John Locke called "mixed modes" and John Searle called "institutional facts."  As I have argued, this confirms Locke's account of how, beginning in the hunter-gatherer state of nature, human beings have created society by social consent.  The first human society was created by informal consent--collective recognition or acceptance--through language, and language itself was a social creation in which certain sounds were given symbolic meaning by a "tacit consent" (ECHU, II.2).  But this first society in the state of nature was not a political society, because there was not yet any consent to a formal government or legal system (First Treatise, pars. 86-93; Second Treatise, pars. 6-14, 25-35, 77-90).  

Although he does not mention Locke or the Lockean tradition of social contract reasoning, Moffett's survey of the evidence and theorizing from the evolutionary social sciences explaining the human capacity for living in anonymous societies supports Locke's reasoning.

BANDS, TRIBES, CHIEFDOMS, STATES

Moffett's brief definition of "society" is "an enduring territorial group whose members recognize each other as belonging" (2024, 3).  He also provides a longer definition:

"A society is a group extending beyond an immediate family, capable of perpetuating its population for generations, whose members ordinarily perceive one another as belonging together and set apart from other groups (notwithstanding transfers between societies, either mutually agreeable or initially forced) and which regulates access to a space or spaces it ultimately controls, across which its members travel with relative impunity" (Moffett 2024, 13).

Societies so defined include prehistoric hunter-gatherer and horticultural groups, modern nation states, and some groups in other species.  Thus, beginning in the evolutionary state of nature, human beings have always lived in societies.  And that suggests to me that a natural desire for membership in a society is part of our evolved human nature.

Locke understood that the earliest human ancestors in the state of nature were hunter-gatherers who lived in small nomadic bands and in larger societies of multiple bands that would satisfy Moffett's definition of societies.  Locke learned this from the hundreds of books of travel literature in his library.  Particularly important were the books by European explorers of the New World, because Locke believed that "in the beginning, all the world was America."

In the two hundred years before Locke's death, for the first time in human history, a global network of trade and travel extended to almost every part of the Earth.  In the three hundred years since Locke's death, the European exploration of the many parts of the world where hunter-gatherer societies could be found has been greatly extended--to Australia and New Zealand, for example.  And since the early in the 19th century, the explorers have included scientific researchers--biologists, anthropologists, and archaeologists--so that the scientific study of human social evolution has been deepened.

Moffett's broad examination of this research in support of his general theory of human social life can verify the Lockean explanation of how societies arise by consenting to the symbolic markers of social membership, and how liberal societies arise by consenting to the symbolic principles of a free society.

Ever since the publication in 1962 of Elman Service's Primitive Social Organization: An Evolutionary Perspective, evolutionary archaeologists and anthropologists have assumed a developmental sequence in human social evolution--band, tribe, chiefdom, and state.  Moffett applies his idea of collective markers of social identity to each of these four stages of evolutionary development.

Each hunter-gatherer band consisted of an average 25 to 35 individuals in several unrelated families.  Each band was small enough that the individuals recognized one another from their face-to-face interactions.  But each band belonged to a multiband society consisting of several bands, and this society could have a population ranging up to several thousand individuals.  This multiband society would therefore be an anonymous society with membership based on some markers of social identity rather than individual recognition.  These multiband societies claimed an expanse of territory, and they were hostile to outsiders entering their territory.

Moffett speculates that the first marker of social membership for the earliest hunter-gatherer societies could have been a password--a vocalization distinct to each society, so that anyone uttering this sound could be identified as a member of the society.  Something similar has been identified among chimpanzees:  one of the three dozen or so distinctive calls uttered by chimps is the pant-hoot.  I remember well hearing this the first time I saw Jane Goodall.  It was at a conference in 1986 on "Understanding Chimpanzees" at the Chicago Academy of Sciences.  When Goodall came out on the stage to give her lecture, her first sound was a loud pant-hoot that reverberated throughout the hall.  This evoked more loud pant-hoots from the audience of primatologists who recognized this chimp call.  

The pant-hoot seems to be a group coordination signal that chimps use to assemble and mobilize the members of their community.  There is some evidence, although it is not proven, that they learn the same pant-hoot sound that is shared across a community, with other chimp communities having different sounds (Moffett 2019: 148-50).  This suggests the possibility that the earliest human ancestors living in multiband societies could have developed a vocal sound distinctive to each society by which they could distinguish members of their society as opposed to outsiders.  This could have been the first vocal flag of social identity.  Unfortunately, if this happened, we are not going to find any archaeological evidence for it.

In any case, the ethnographic record of living hunter-gatherer societies shows that they have had many markers of social identity--such as differences in language (different languages or different dialects), bodily appearance (such as tattoos, scarification, clothing, personal ornamentation, and hairstyles), and cultural practices (such as rituals and religious beliefs).

As an illustration of how aboriginal band societies in Australia distinguished insiders from outsiders based on cultural identity, Moffet quotes from anthropologist Mervyn Meggitt recalling a conversation with one aboriginal individual:  "'There are two kinds of blackfellows,' they say, 'we who are the Walbiri and those unfortunate people who are not.  Our laws are the true laws; other blackfellows have inferior laws which they continuously break.  Consequently, anything may be expected of these outsiders.'" (104)

What this person identified as the "laws" of aboriginal society correspond to what Locke called "the laws of nature" in the state of nature--customary norms of proper behavior enforced by the "executive power of the law of nature"--the natural right of every individual to punish those who violate the laws of nature.  And yet in the state of nature, there is no formal government or legal system, so these laws of nature are informal rules of conduct enforced by sanctions of social approval and disapproval.

Notice also that in speaking of "other blackfellows," the Aborigine shows some awareness of racial differences between the black aboriginals and the white Europeans.  But before the arrival of the Europeans, the aboriginals would probably not have seen any racial differences among themselves, and so their membership in different societies would not have been based on race.  If prehistoric hunter-gatherers rarely had any contact with different races, then racial identity would not have been part of their thinking about social membership.

Moffett agrees with Locke that formal governments and laws do not appear until the emergence of states: "We think of nations, which academics call states, as having governments and laws, and band societies have neither, formally speaking" (104).

Locke believed that among hunter-gatherers in the state of nature, "all men by nature are equal."  They were not equal in all respects because some had higher status or influence than others based on age, birth, talents, and social ranking.  But still they were equal in "that equal right that every man hath, to his natural freedom, without being subjected to the will or authority of any other man" (ST, par. 54).

Moffett seems to agree: "Certainly the dictum that 'all men are created equal' applied to egalitarian, ethnically uniform hunter-gatherer bands more than any society since" (334).  Hunter-gatherer bands displayed what I have called "egalitarian hierarchy"--there were differences of rank, but no one was permitted to tyrannically dominate others.

But even egalitarian hunter-gatherers could think of the foreigners outside of their societies as less than human.  And in rare cases, hunter-gatherers took captives from foreign societies and held them as slaves.

As opposed to multiband societies, tribal societies are clusters of villages that change their locations less often than bands.  Tribes could show even more complex ranking of individuals, with some exercising leadership, but the leaders had no authority to force their will on anyone.  In addition to hunting and gathering their food, tribal people practice horticulture (the domestication of plants in gardens), and some are pastoralists who herd domesticated animals.

Like multiband societies, tribal societies signal their social identity with linguistic and cultural markers that separate one society from another.  So, for example, the Yanomami are an indigenous tribal people (about 30,000 people in 200-250 villages) in the Amazon rainforest along the border between Brazil and Venezuela.   They have diverged into several tribal societies based on differences in their Yanomami languages.

Multiband and tribal societies are small societies (a few thousand individuals at most) that contain mostly the descendants of a homogeneous stock of people.  By contrast, chiefdoms and states are huge heterogeneous combinations of smaller societies that have merged into one.  It is hard to explain how these multiethnic societies merged into one society and how this heterogeneous society developed and maintained shared markers of social identity.

Moffett agrees with those evolutionary archaeologists--like Robert Carneiro (1998; 2017)--who argue that this merging of societies into chiefdoms and states was not voluntary but arose through military conquest.  This might seem to deny Locke's idea of government arising by popular consent.  But Locke understood the importance of military conquest in political history:

"Though Governments can originally have no other Rise than that before mentioned, nor Polities be founded on any thing but the Consent of the People, yet such has been the Disorders Ambition has fill'd the World with, that in the noise of War, which makes so great a part of the History of Mankind, this Consent is little taken notice of: And therefore many have mistaken the force of Arms, for the consent of the People; and reckon Conquest as one of the Originals of Government.  But Conquest is a far from setting up any Government, as demolishing an House is from building a new one in the place.  Indeed it often makes way for a new Frame of a Common-wealth, by destroying the former; but, without the Consent of the people, can never erect a new one" (ST, 175).

Government by conquest without the consent of the people is still in the state of nature, because legitimate government cannot be the product of pure force.  Locke did recognize, however, that the first governments arose as chiefdoms, in which someone with the skills of a war leader could be chosen by the people to lead them in war. Locke had learned this from his reading of people like Gabriel Sagard and Jose de Acosta writing about the social evolution of foraging bands and horticultural tribes in the New World (ST, 74, 94e, 101-112). 

Locke recognized the point that was elaborated some years ago by Carneiro (1998; 2017)--that the chiefdom was the single most important step in social evolution from band and tribal societies in the state of nature to civil societies with formal governmental and legal institutions.  Until ten thousand years ago, all of our human ancestors lived in small bands and tribal villages. The turning point in this evolution was the appearance of the first chiefdom in Mesopotamia around 5,500 BCE.  When the Europeans began exploring the entire globe after 1492, they discovered hundreds or thousands of chiefdoms around the world.  But by the end of the nineteenth century, most chiefdoms had disappeared, and almost all human beings lived in states with large populations.

Carneiro agreed with Locke that chiefdoms originated through war.  Men renown for their military skills become temporary war leaders during time of war, and they could lead an alliance of many villages against their enemies.  But they had no right to command their people once the war was over.  If warfare became prolonged, however, a war leader could become a perpetual ruler over villages merged into one society, which became a chiefdom.

If a chieftain established a formal bureaucracy of government officials and priests to enforce autocratic power, that could become a state.

CONSENT AND REBELLION?

The centralization of seemingly absolute power in chiefdoms and states would appear to deny Locke's claim that government rests on consent of the people, who will rebel against oppressive government that fails to secure their natural liberty.  But as I have argued, there is plenty of evidence in the history of ancient chiefdoms and states that their propensity to autocracy was checked by popular rebellion and resistance.

Occasionally, Moffett recognizes this:

"Few chiefdoms lasted long.  For one to persist, its chief had to put a stop to insurrections over the long haul.  Like a Big Man, a weak chief had to continue to earn his people's respect, and their faith in him rarely lasted and seldom automatically extended to his children" (2019, 289).

The establishment of autocratic states might seem to set up a state power that could enforce repressive rule.  But even here, as Moffett notes, state societies were prone to collapse and fragmentation.  For example, when a Maya civilization collapsed, there was evidence that the king lost control and the nobility vanished.  Moreover, there is evidence that the "commoners" desecrated the sacred symbolic objects and monuments that had previously given divine sanction to the state (Moffett 2019, 291-301).

In my next post, I will consider whether the social identity of a nation must be closed to outsiders by enforcing the dominance of one racial or ethnic group.  Or whether a multiethnic nation like America can be become "one people" through its dedication to the self-evident truths of the Declaration of Independence.

REFERENCES

Anderson, Benedict.  2016.  Imagined Communities: Reflection on the Origin and Spread of Nationalism. London: Verso.

Carneiro, Robert.  1998.  "What Happened at the Flashpoint?  Conjectures on Chiefdom Formation at the Very Moment of Conception."  In Elsa M. Redmond, ed., Chiefdoms and Chieftancy in the Americas, 18-42.

Carneiro, Robert.  2017.  "The Chiefdom in Evolutionary Perspective."  In Robert Carneiro, Leonid Grinin, and Andrey Korotayev, eds., Chiefdoms Yesterday and Today, 15-59.  Clinton Corners, NY: Eliot Werner Publications.

Moffett, Mark.  2013. "Human Identity and the Evolution of Societies." Human Nature 24: 219-267.

Moffett, Mark.  2019.  The Human Swarm: How Our Societies Arise, Thrive, and Fall.  New York: Basic Books.

Moffett, Mark.  2024.  "What Is a Society?  Building an Interdisciplinary Perspective and Why That's Important."  Behavioral and Brains Sciences, forthcoming.

The Biggest Society on Earth: What Should We Learn from the Argentine Ants--Open Borders, Ethnic Nationalism, or Nothing At All?

 

Aristotle was right about ants being political animals.  By some standards, the most successful of those political animals are the Argentine ants, because they have become the biggest political society on Earth, as measured both by the global extent of their territory and the number of members in their supercolony.  Trillions of individual Argentine ants belong to one supercolony found on every continent except Antartica (Whitfield 2024). 

                                 

                              A Four-Minute Animated Video on the Argentine Ant Supercolony

                       A Twelve-Minute Video on the Argentine Ant as a Dominant Species

One reason for the political success of the Argentine ants is that their colonies are what Mark Moffett (2010; 2012) calls "anonymous societies," in which group members are distinguished from outsiders based on shared cues--chemical signaling through a colony-specific odor--rather than individual recognition.  In contrast to the social insects, almost all nonhuman vertebrates live in "individual recognition societies," which means that the number of members in each society must be small--typically no more than about 150 at most--so that members can recognize one another individually.  Argentine ants and human beings are the only animal species that have naturally evolved with the capacity to organize societies with hundreds of millions or even billions of members (Griffin 2011).

Aristotle was also right in seeing that while human beings live in large, anonymous societies like the ants, human beings are more political than other political animals because human beings have a unique capacity for symbolic thought, so that social membership in human societies is communicated symbolically, rather than communicated chemically as it is for ant societies. If this arose early in human evolution among our prehistoric hunter-gatherer ancestors, then perhaps my list of twenty natural desires should include a natural desire for membership in a symbolically identified anonymous society.

Lockean liberal globalists might say that the lesson we should learn from the Argentine ants is the need for an open borders immigration policy.  But then the nationalist conservatives could say that the real lesson here is that we need ethnic restrictions on immigration to enforce the ethnic nationalism that satisfies our natural desire for ethnic identity.

Or should we rather say that it is foolishly anthropomorphic to draw any moral lessons for human politics from the social life of ants, which commits the naturalistic fallacy in falsely inferring moral values for humans from the natural facts of ant life?

ARGENTINE ANT SUPERCOLONIES

The Argentine ant (Linepithema humile) is native to the lowland areas of the Parana River drainage in northern Argentina, Uruguay, Paraguay, and southern Brazil.  They were first identified by Austrian entomologist Gustav Mayr who found them in the area of Buenos Aires in 1866.  Here the Argentine ants wage territorial battles with other ant species.  When they win the battles, they can raid the enemy nest and eat the ant brood.  But in Argentina, their opponents fight well enough to preserve their species from extermination.   It's a different story, however, when the Argentine ants become an invasive species in countries around the world, where they can wipe out most of the native species of ants (Moffett 2010; 2012).

Shipping trade out of Buenos Aires was probably the cause of the introduction of Argentine ants into other regions of the world because they travelled as stowaways on the boats.  They appeared first on Madeira Island (in the Atlantic southwest of Portugal and Spain) in 1882.  They were first recorded in New Orleans in 1891.  Then, around 1907, they were seen in California, around the San Francisco Bay and Los Angeles.  They could have arrived in a railway car from the southeastern United States.  They were discovered in New Zealand in 1990 and in Japan in 1992.

There are now four supercolonies of Argentine ants in California.  Within each supercolony, the members are not aggressive towards one another, even when they have never previously encountered one another individually, but they aggressively attack any ants belonging to another supercolony.  In the area around San Diego, the Very Large Colony and the Lake Hodges Colony are constantly at war along their borders.  It is estimated that over thirty million ants die each year along a battlefront that is many miles long.  This might be the largest battlefield on the Earth (Moffett 2010).

As the name indicates, the Very Large Colony is indeed the largest supercolony in California--stretching over 620 miles from the Mexican border to San Francisco with over a trillion members.  In Europe, the largest supercolony extends over 1240 miles from Italy to the Atlantic coast of Spain.

Researchers have collected live Argentine ants from the supercolonies in North America, Europe, Asia, Hawaii, New Zealand, and Australia.  Worker ants from different supercolonies were randomly selected and put together in pairs to see if they would show aggression towards one another.  They found that workers from the largest dominant supercolonies in these six parts of the world showed no aggression towards one another, but they were aggressive towards ants from the secondary smaller supercolonies.  Thus, the largest Argentine ant supercolonies throughout the world behave as if they are members of one transcontinental megacolony (Sunamura et al. 2009; van Wilgenburg et al. 2010).

With trillions of members on six continents, this global society of Argentine ants is the largest animal society on the Earth, even exceeding some of the largest human societies (such as China and India, each with about 1.4 billion people).

How is this possible?  The primary explanation is that the populations of these ants in this globally distributed supercolony possess similar genetic and chemical profiles, and consequently they treat one another as members of the same colony, while aggressively attacking those ants that belong to other colonies.

The minimal condition for any society is that the individual members must identify themselves as a group by seeing each other as similar and outsiders as different.  To make this distinction between us and them, they must have some shared label or sign of their identity.  For humans, this label of recognition of group identity might be a national flag, a common language, or a shared national history.  For ants, it's the odor of their colony produced by the cuticular hydrocarbon molecules on the exoskeleton of each ant.  Researchers have identified specific chemicals in the cuticular hydrocarbons of Argentine ants that identify those ants who are members of the colony (Brandt et al. 2009).  Ants are cooperative with those ants who have the odor of the colony.  But they aggressively attack those ants who have the unfamiliar odor of a foreign colony.  

An Argentine ant in the San Francisco Bay area who is a member of the Very Large Colony could be transported 600 miles to the Mexican border and dropped into a Very Large Colony nest, and she would treated as a regular member of the colony.  But if she were dropped into the nest of the Lake Hodges Colony around San Diego, she would be killed.

Another reason for the seemingly boundless growth of the Argentine ant colony has to do with its breeding system.  All ants form colonies with one or more egg-laying females (queens) and a large number of sterile females (workers).  The smallest colonies have one queen and a few workers.  But most ant colonies have one or a few queens and tens of thousands of workers.  A few species can have colonies with hundreds of thousands of queens and many millions of workers.  A mature colony rears winged sexual females and males that can fly to mate in midair, often with a few winged males from other colonies; and then each queen drops to the ground to dig a nest and begin brooding sterile workers.  This new colony will have its own distinctive scent, even differing from the queen's birth colony.

Argentine ants are different, however, because their queens never fly away.  The queens move on foot between nest chambers spread throughout the territory of the colony.  They lay eggs within the same colony with the same scent.  A big supercolony of Argentine ants can have millions of queens spread out over a huge territory that continually expands, while remaining the same colony.

Some ant experts--particularly, Deborah Gordon of Stanford University--deny that Argentine ants live in supercolonies: "In fact, there is no functional super-colony of Argentine ants, no single giant colony stretching for miles, much less across the globe" (Gordon 2010).  She argues that a supercolony cannot truly be a single colony because the ants "cannot possibly meet and thus cannot possibly share resources or interact ecologically" (Gordon and Heller 2012).

But I agree with Mark Moffett's argument that as long as the Argentine ants in a supercolony accept one another as members and reject outsiders that satisfies the minimal criterion for being a society (Moffett 2012; 2019: 77).

What--if anything--can the Argentine ants teach us about human societies?  I will take up that question in my next post.

REFERENCES

Brandt, Miriam, Ellen van Wilgenburg, Robert Sulc, Kenneth Shea, and Neil Tsutsui.  2009.  "The Scent of Supercolonies: The Discovery, Synthesis, and Behavioural Verification of Ant Colony Recognition Cues."  BMC Biology 7:71.

Gordon, Deborah.  2010.  "Colonial Studies."  Boston Review, September 13.

Gordon, Deborah M., and Nicole E. Heller.  2012.  "Seeing the Forest and the Trees."  Behavioral Ecology 23:934.

Griffin, Nicholas.  2011.  "Before the Swarm."  The Atavist, March.

Moffett, Mark.  2010.  Adventures Among Ants: A Global Safari with a Cast of Trillions. Berkeley: University of California Press.

Moffett, Mark.  2012.  "Supercolonies of Billions in an Invasive Ant: What Is a Society?"  Behavioral Ecology 23: 925-933.

Moffett, Mark.  2019.  The Human Swarm:  How Our Societies Arise, Thrive, and Fall.  New York: Basic Books.

Sunamura, E., X. Espadaler, H. Sakamoto, S. Suzuki, M. Terayama, and S. Tatsuki.  2009.  "Intercontinental Union of Argentine Ants:  Behavioral Relationships Among Introduced Populations in Europe, North America, and Asia." Insectes Sociaux  56: 143-147.

Whitfield, John.  2024.  "Ant Geopolitics."  Aeon, February 16.

van Wilgenburg, Ellen, Candice W. Torres, and Neil D. Tsutsui.  2010.  "The Global Expansion of a Single Ant Supercolony."  Evolutionary Applications 3: 136-143.

Open Borders and the Natural Desire for Social Membership

In my recent posts, I have argued that restrictions on immigration are immoral because they violate the natural human rights to freedom of movement and voluntary exchange.  If someone born outside the United States wants to live and work in the United States, and if there are some native Americans who want to employ that immigrant, and others willing to sell him a house or provide rental property where he can live, isn't it wrong for the American government to coercively prohibit these voluntary transactions?

The opponents of immigration will object, however, that it is morally right to prohibit these mutually beneficial transactions between natives and immigrants if they have severely harmful side-effects for other people.  

The most common objections to immigration point to four kinds of harmful side-effects:  immigrants are seen as harming American workers, American taxpayers, American public safety, and American culture.  But I will argue that there is little or no harm in each case; and even if people insist that there is some harm, there are ways to reduce the putative harm that are more moral than restricting immigration.  My thinking here has been shaped by the writings of Bryan Caplan (Caplan and Weinersmith 2019; Caplan 2012), Ilya Somin (2020), Hein de Haas (2023), and Ian Goldin (2024), who have surveyed the empirical research on immigration in America and around the world.

I will conclude by arguing that the free migration of people from one society to another satisfies the evolved natural desire for social membership.

HARMING AMERICAN WORKERS?

The most popular argument for restricting immigration is that this protects American workers from poverty because if the supply of labor (particularly, the low-wage and low-skilled labor of immigrants) increases, this will lower the wages of American workers or drive them into unemployment.

Empirical studies have shown, however, that immigration has little or no effect on unemployment or wage levels.  Although in the short run, low-skilled wages might fall slightly, over the long run, there is almost no decline in wages.  And even moderately educated native workers--high school graduates without college degrees--can show increased wages.  Moreover, while there is some correlation between levels of employment and levels of immigration, the correlation is negative.  Immigration goes up when unemployment goes down.  So, clearly immigrants are not taking away jobs from native workers (Caplan 2012, 7-9; de Haas 2023, 131-144).

The explanation for this, as de Haas says, is that immigrants don't steal jobs, they fill vacancies.  "Immigration is primarily a response to labor shortages caused by a dwindling supply of local workers willing and able to do various manual jobs in agriculture, construction, cleaning, domestic work and various other services" (de Haas, 132).  This is confirmed by what is happening now with Trump's increased detentions and deportations of immigrants.  As immigrants are forced to leave their jobs, their vacancies are not being filled by native American workers.  But if it were true that the immigrants stole the jobs of American workers, then we would have expected that now those unemployed Americans would be rushing to fill the new vacancies.

It is simply not true, as politicians often say, that "we don't need foreign workers."  Because many native workers would rather not work at all than to take the low-level jobs that immigrants are willing and able to fill.

There have been a few "natural experiments" in testing how a sudden massive surge in immigration can affect wages and employment.  The best example of this for the United States is the "Mariel boatlift" of 1980.  In April of 1980, Fidel Castro announced that all Cubans wanting to go to the US were free to board boats landing at the port of Mariel, west of Havana.  Cuban exiles already in Florida rushed to find boats to carry Cubans from Mariel to Miami.  This mass influx of refugees overwhelmed the US Coast Guard.  In October of that year, President Carter negotiated an end to this open migration to the US.  During this six-month period, as many as 125,000 Cubans crossed the sea to Florida, and most of them settled in the Miami area (de Haas, 132-34).

As a consequence of this, the labor force in Miami increased by about 7 percent, and the low-skilled labor force increased by 20 percent.  When labor economists studied the effects of this sudden increase in the labor supply, they found that it had either no effect or very little effect on the wages or unemployment rates of lower-skilled workers.

There have been similar cases elsewhere in the world.  After 1989, almost one million Russian Jews emigrated to Israel, which increased the population of Israel by 12 percent in five years.  At the same time, 2.8 million people migrated from East to West Germany over a period of fifteen years.  Like the Mariel boatlift, these sudden waves of migration had little if any effects on employment and wages.

Actually, immigration can create more jobs and make native workers more productive when the skills of migrants and native workers are complementary, and so they don't compete for the same jobs.

Migrant workers washing dishes, cooking food, waiting tables or delivering food increase the capacity of restaurants to serve more customers, thereby increasing jobs for senior management and income for the owners.  This also allows customers to eat out, or have food delivered for affordable prices, thereby freeing up more time to spend on their own work and be more productive.  Meanwhile, the sufficient supply of support staff like janitors, cleaners and various office workers enables (migrant and non-migrant) higher-skilled workers to concentrate on the work they're best at instead of doing manual tasks themselves.  In this way, all workers can derive mutual benefits from immigration (de Haas, 137).

Immigrants not only fill low-level job shortages, but they also introduce innovative ideas and practice entrepreneurship in ways that promote progress in all fields of human endeavor.  After all, immigrants are exceptional people who were often the most talented, resourceful, and ambitious people in the societies where they originated.  Immigrants to the US are more likely than native Americans to start their own businesses.  They are over-represented among Nobel laureates, National Academy of Science members, patent holders, and Oscar-winning film directors (Goldin, 228-31; de Haas, 138-39).

Nevertheless, there is some evidence, as I've said, that low-skilled native Americans might be a little worse off, at least in the short run, because of immigration.  But even if this is true, that doesn't justify restricting immigration because there are better ways to protect low-skilled Americans from immigration.  For example, as Caplan (2012, 9) has suggested, we could charge immigrants an admission fee or a surtax, which they could pay off by deductions from their earnings in the US; and then we could use that revenue to compensate low-skilled Americans.  Even if this seems unfair to the immigrants, it's not as unfair as denying their entry into the country.

HARMING AMERICAN TAXPAYERS?

Many people fear that immigrants create a burden on taxpayers because immigrants tend to become costly dependents on the welfare, healthcare, and education systems.  As Donald Trump has said, "illegal immigrants are lower skilled workers with less education" who "draw much more out from the system than they can ever possibly pay back" (September 1, 2016).  On the contrary, illegal immigrants on average probably pay more in taxes than they will ever get back in payments from the government because they don't have a valid social security number!  And indeed, it has been found that in general the fiscal benefits of immigrants exceed their costs (de Haas, 145-59).

The reason for this is that recent immigrants tend to be young, employed, healthy, and have no children. and so they are net contributors to public finance.  But then as they marry, have children, and become older, they use public services like schools and healthcare.  And yet, once their children become adults and enter the labor market, these children become taxpayers.

Most of the people who want to migrate to the US want to get a job and become a taxpaying worker--not to live off welfare.  After all, until recently, the US has been the most popular destination for migrants even though the US has the weakest welfare system in the Western world.

But let's say you're not convinced by this argument, and you still believe that immigrants draw more in government benefits than they pay in through taxation.  Even so, this does not justify restricting immigration because there are better ways to solve this putative problem.  You could freely admit immigrants on the condition that they will never be eligible for welfare benefits, but they will still have to pay taxes.  Or you could reduce their benefits.  Or you could say no benefits for 10 years.  Caplan (2012, 11) has suggested these and other similar ways to solve the problem.

HARMING AMERICAN PUBLIC SAFETY?

"They're bringing drugs.  They're bringing crime.  They're rapists.  And some, I assume, are good people."  Immigrant gang members "don't want to use guns, because it's too fast, and it's not painful enough.  So they'll take a young, beautiful girl, 16, 15, and others, and they slice them and dice them with a knife because they want them to go through excruciating pain before they die.  And these are the animals that we've been protecting for so long."

Was Donald Trump accurate in his description of immigrants as blood-thirsty criminals?  Even if some are "good people," are most of them violent criminals?

Here the evidence is indisputable:  immigrants have much lower crime rates than native Americans, and illegal immigrants have the lowest.  De Haas summarizes one typical study:

Using individual data on arrests from the Texas Department of Public Safety between 2012 and 2018, Light and his colleagues compared crime rates between illegal migrants, legal migrants and native-born US citizens.  Their findings were remarkable.  Illegal immigrants turned out to have the lowest crime rates, legal migrants were somewhere in the middle, while native-born citizens were twice as likely to be arrested for a violent crime compared to undocumented migrants, four times as likely to be arrested for property felony, and 2.5 times more likely to be arrested for drug crime.  These results were consistent across a broad range of crimes, including homicide, assault, robbery, sexual assault, burglary, theft and arson--undocumented migrants had consistently lower crime rates than native-born citizens.  For all criminal convictions in Texas in 2015, convictions among illegal immigrants were 50 percent below those of native-born Americans (de Haas, 200-201).

Of course, some immigrants will become violent criminals, and they should be deported.  But the fact that a few immigrants become criminals does not justify restricting the immigration of people with no record of crime.

HARMING AMERICAN CULTURE?

It has become common for nationalist conservatives like J. D. Vance to say that America needs severe restrictions on immigration because immigration creates too much cultural diversity, which dissolves the social cohesion and homogeneity of American culture: if America had open borders, it would cease to exist as nation because it would have no distinctive social identity.

        J D Vance's Speech to the Claremont Institute Accepting Claremont's Statesmanship Award

JD's wife Usha was born in 1986 in California to Lakshmi and Radhakrishna Chilukuri, who are both Telugu Indian immigrants, speaking the Telugu language, who immigrated to the U.S. in the 1980s from Andhra Pradesh, which is a state on the east coast of southern India.  Usha met JD at Yale Law School.  They married in 2014 in an interfaith marriage ceremony: Usha is a practicing Hindu, while JD was raised as an Evangelical Christian before converting to Catholicism in 2019.  They have three children.

Hmm.  Sounds like a heck of a lot of cultural diversity to me.  Does JD really believe that by marrying the daughter of Telugu Indian immigrants and creating a multicultural and interfaith family with biracial children that he is helping to dissolve the social cohesion of America?

No, of course not.  He doesn't really believe what he said at the Claremont Institute about immigration being a threat to America's cultural identity.  Because he knows that Telugu Indian immigrants--like most immigrants to America--have assimilated into American culture.

We need to remember that beginning in the 19th century, many Americans feared that German, Irish, Italian, Polish, Chinese, and Japanese immigrants would threaten the national identity of America by introducing foreign languages, religions, and cultural practices.  But all of those groups have shown the same intergenerational pattern of assimilation that we see today in the new Latino, Asian, and Muslim immigrants to America.  Initially, the first-generation migrants might be inclined to withdraw into ethnic enclaves separated from the mainstream of American culture.  But then the second and third generations show all the signs of socio-cultural integration--mixed marriages, speaking English as their first language, and adopting the social norms of American culture (de Haan, 160-79).

Ultimately, then, native Americans recognize these immigrant Americans and their descendants as full members of American society.  "They" become members of "our" society, and so "they" become "us."

MIGRATION AND SOCIAL MEMBERSHIP

I have argued against the claim made by people like Frank Salter and Stephen Sanderson that there is a natural desire for ethnic nationalism that is part of our evolved human nature.  But I do recognize that there is a natural desire for membership in a society, which arose in the evolutionary state of nature of our hunter-gatherer ancestors, and that this natural desire for social membership can be satisfied in a multiethnic Lockean liberal nation like the United States, which includes immigrants who have chosen to leave their native-born society to become members of American society.

As indicated in some previous posts, I have found support for these conclusions in Mark Moffett's book The Human Swarm: How Our Societies Arise, Thrive, and Fall.  Moffett is a field biologist who has wondered whether the capacity of invasive Argentine ants to form massive supercolonies might help to explain the human capacity for living in nations with huge populations of people whose society cannot be based on individual recognition of all the members of the society.  An Argentine ant colony is an anonymous society in which membership is marked by the distinctive scent of the colony, which distinguishes us from them, so that individual ants will be accepted into the colony if they carry the colony's scent, but if they carry the scent of a foreign colony, they will be attacked.  Similarly, a human society is an anonymous society with markers of social membership that distinguish those who belong to the society from those who are outsiders; but for a human society the markers of membership are not chemical signals but shared symbols (such as the flag, the language, or the history of a society).

Moffett's brief definition of "society" is "an enduring territorial group whose members recognize each other as belonging" (2019, 3).  He also provides a longer definition:

"A society is a group extending beyond an immediate family, capable of perpetuating its population for generations, whose members ordinarily perceive one another as belonging together and set apart from other groups (notwithstanding transfers between societies, either mutually agreeable or initially forced) and which regulates access to a space or spaces it ultimately controls, across which its members travel with relative impunity" (Moffett 2019, 13).

Societies so defined include prehistoric hunter-gatherer and horticultural groups, modern nation states, and some groups in other species.  Thus, beginning in the evolutionary state of nature, human beings have always lived in societies.  And that suggests to me that a natural desire for membership in a society is part of our evolved human nature.

That natural desire for social membership can motivate many human beings to stay in the society where they were born.  But it can also motivate some human beings to leave the society of their birth and to seek membership in another society that they believe will give them better opportunities to live a flourishing life.  To succeed in doing that, they must show the cultural markers of membership in that new society to persuade the native-born people to recognize that they belong--that "they" have become "us."

Open borders would make that easier for all those people who want to improve their lives through immigration, which will also improve the life of the society that they join.

REFERENCES

Caplan, Bryan. 2012. "Why Should We Restrict Immigration?" Cato Journal 32:5-24.

Caplan, Bryan, and Zach Weinersmith. 2019. Open Borders: The Science and Ethics of Immigration. New York: First Second.

Goldin, Ian. 2024. The Shortest History of Migration: When, Why, and How Humans Move--From the Prehistoric Peopling of the Planet to Today and Tomorrow's Migrants. New York: The Experiment.

de Haas, Hein. 2023. How Migration Really Works: The Facts About the Most Divisive Issue in Politics. New York: Basic Books.

Moffett, Mark. 2019. The Human Swarm: How Our Societies Arise, Thrive, and Fall. New York: Basic Books.

Somin, Ilya. 2020. Free to Move: Foot Voting, Migration, and Political Freedom. Revised edition. New York: Oxford University Press.

American Indian Tribes in the Evolution of a Multiethnic American Nation

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.