Indian Wars: Old & New

I. IntroductionIn March 2011, the United States submitted a brief in United States v. al Bahlul, a military commission case reviewing the conviction of a war-onterror suspect, comparing the tactics Indians used in the First Seminole War to al Qaeda,1 an argument the Court partially accepted in a companion case, United States v. Hamdan} As government lawyers had argued in the days following September 11, 2001, the government in al Bahlul argued that the Seminole Tribe in the 1810s engaged in a form of "irregular warfare" not for the purpose of establishing a nation or state, much like al Qaeda in the modem era.3 The military's comparison of Indian tribes to modem international terrorist organizations strikes a divisive chord in Indian country and elsewhere, as modem Indian tribes are as far removed from al Qaeda as can be. And yet, the government continues to juxtapose the Indian warrior stereotype with modem law and policy, as this Article will demonstrate.4 As our colleague Professor Wenona Singel asked, "Who would be persuaded by such an argument?"5The United States historically has swept up American Indians and Indian tribes along with larger policy choices. The Indian "problem" of the Framers-acquiring valid title and control over American Indian resources6-eventually became the Indian "wars" of the latter half of the nineteenth century.7 From the earliest days of European and American interaction with Indian people, the perceived violent, savage, and inferior character of Indians has dominated intergovernmental affairs between the two groups.8 The Indian wars over resources largely are over, but American "wars"-on poverty, drugs, and terror-continue to sweep up American Indians and Indian tribes into the morass of federal government policymaking. In recent decades, major American domestic reform initiatives have come to resemble in rhetoric if not action the virulent opposition to Indians and tribes dating back to the nineteenth century.This Article analyzes American history from the modem wars on poverty, drugs, and terror from the perspective of American Indians and Indian tribes. These domestic wars are aptly named, as the United States often blindly pursues broad policy goals without input from tribal interests or consideration of the impacts on Indians and tribes. With the possible exception of the war on poverty, these domestic wars sweep aside tribal rights, rights that are frequently in conflict with the overarching federal policy goals.Modem federal Indian law and policy recognizes tribal selfdetermination and emphasizes govemment-to-govemment relations, called in short, the trust relationship. The United States's domestic wars, usually announced with much fanfare but without reference to Indian affairs, have alternately exploited and ignored the trust relationship to advance national goals.The "declaration" of the domestic wars is nothing more than a move toward the fundamental reconsideration of the foundations of the rule of law in these contexts. In innumerable instances relating to Indian affairs, the federal (and occasionally state) government has justified its actions relying on one of these domestic wars. And in many of these instances, major shifts in Indian law and policy occur that, absent the domestic war, would likely have been otherwise declared illegal. This is not to say that tribal interests have never benefitted from a domestic war, because they have benefitted marginally in some eras. But when a domestic war that negatively affects Indian country is declared, the impacts are nothing short of devastating.This Article explores three declared domestic wars and their impacts on American Indian tribes and individual Indians, in loose chronological order, starting with the war on poverty. As Part II demonstrates, the Johnson Administration's Great Society programs helped to bring American Indian policy out of the dark ages of the era of termination, in which Congress had declared that national policy would be to terminate the trust relationship. …