The Law and Settler Colonialism

Do racist leader enable and embolden white nationalism and racial violence among everyday people, or is it the other way around? What the Seminole Wars of the 1800s can tell us about the legitimization of racial violence.

One of the books I’ve come to rely on while thinking about my dissertation is Deborah A. Rosen’s Border Law: The First Seminole War and American Nationhood. An examination of the major debates surrounding General Andrew Jackson’s invasion of Spanish Florida in 1816, Rosen’s book describes “how law shaped military conduct and how the United States used doctrines of laws to rationalize actions that the government deemed to be in the national interest” and established itself as “a member of the law-abiding community of nations while at the same time successfully contending that the law did not restrain its conduct in Florida.” In others words, this books is about how white Americans modified the country’s legal code — a code we still live under today — to legitimize their violence, racism, and hunger for land.

While Border War convincingly illustrates the codification of white nationalism from the top down, I am more fascinated by role of everyday white Americans and their violent acts in shaping notions of citizenship and race on the ground. Rosen’s book isn’t just a survey of the legal arguments and counter-arguments put forth by lawyers and judges. It’s also takes into account how regular people shaped these arguments.

In the era of Trump, we tend to think that national leaders enable racism and violence through dog-whistles, political policy, laws, and ambivalence. Rosen’s research provides further evidence that the reverse is true, too — that actions of everyday people help political leaders enact racist and unjust policies.

In the case of 19th-century Florida, the government and people empowered each other to use the law and violence of “civilized” people against “savages” in a self-perpetuating cycle of white rage and territorial greed. According to Rosen, this relationship set the legal and cultural groundwork for further violent expansionism during the rest of the nineteenth century. “Americans believed,” she asserts, “that their extraterritorial activity in pursuit of geographic expansion was justified by their right to conquer territory inhabited by ‘uncivilized’ people, because such conquest would make the land more productive and would spread American values of liberty and republican government.” This kind of demented racial thinking still informs conservative attitudes regarding welfare, unionization, housing, and crime.

I’m particularly excited about Rosen’s research because she grounds many of the tenants of settler colonialism in legal history, which I hope to use in my study of Californians massacring Native Americans during the Civil War. “Civilizing” is a central theme withing settler colonial discourse, and history shows the great lengths colonists will go to intellectualize and codify their claim to new territory. While Border Law focuses on what might be called the legal and intellectual history of settler colonialism the early nineteenth century, works like Benjamin Allen Coates’s Legalist Empire: International Law and American Foreign Relations in the Early Twentieth Century and Nicholas Guyatt’ Bind Us Apart: How Enlightened American Invented Segregation extend the historiography forward and backwards in time. Historians interested in questions of race, violence, and nationalism can also learn a great deal from Corey Robin’s treatment of the conservative political theories since Edmund Burke and Joseph de Maistre.

Taken together, these works can help highlight the legal and intellectual underpinnings of settler colonial history in the United States. Settler colonialism served as the lingua franca of a transatlantic population of Euro-Americans determined to advance a racist view of civilization, imperial power, and white supremacy. It was neither liberal or conservative, nor was it the brainchild of Americans alone; rather, it was (and is) a culture shaped by the global ideas of race and nationalism hammered out by the biases and interests of local people responding to global trends during the Enlightenment, the Age of Revolutions, and American expansionism.

Of interest to me is where the American Civil War fits into this wider history. Recent histories by Elliot West, Kate Masur, and Steven Hahn have suggested that the Civil War and Reconstruction are essentially bound to a transnational history of American expansionism and settler colonialism. Rosen’s work appears to support their arguments, and there are very clear connections between the questions about citizenship, tribal sovereignty, and civilization runs between her narrative and the that of some Civil War historians.

However, now that we’ve placed the Seminole Wars and Civil War in a wider historical context, I believe that there are important distinctions that need to be sussed out further in order to flesh out this perspective even further.

First, all of these works focus largely on the legal and intellectual elites of their times. While the role of non-elites in shaping legal arguments and political philosophy is implied, it isn’t explored as deeply as I would like. It is now crystal clear that the elite’s legal and political argumetns shaped American notions of race and nationalism, we still don’t know how this shaped the culture and actions of everyday Americans. Rosen argues that American international legal thought “forged a stronger, more unified national identity at home,” but I wonder how strong and unified this national identity actually looked once it trickled down to everyday people.

These works make it clear that American racism, nationalism, and law are deeply intertwined, but complicated nature of these connections remains fertile ground for future study.