Law and Settler Colonialism

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, the 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” (9). While Border War convincingly illustrates the connections between legal thought and American nationalism, questions remain regarding whether these connections shaped or were shaped by racism and notions of citizenship on the ground.

Border Law offers more than a survey of the legal arguments and counter-arguments put forth by the Monroe administration and its various opponents. What continues to fascinate me the most is Rosen’s assertion that legal justifications for the maltreatment of Seminole and Creek Indians helped develop and institutionalize the use of violence by “civilized” peoples against “savage” ones.

This is, of course, not an entirely new argument. Historians have studied how notions of race and civilization shaped the discourse of citizen and alien. What is new (and extremely informative) is Rosen’s argument that justifications for Jackson’s campaign laid the legal and cultural groundwork for violent expansion during the rest of the nineteenth century. “American 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” (7).

Rosen’s research grounds many of the tenants of settler colonialism in legal history.  “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 a lingua franca spoken by a transatlantic population determined to advance a discourse about civilization, imperial power, and racial supremacy. It was neither liberal or conservative, nor was it a product of a unique American environment; rather, it was a culture shaped by the global ramifications of a bevy of local and transnational phenomena like (and not limited to) 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 a very clear connection between the questions about citizenship, tribal sovereignty, and civilization runs between her narrative and the Civil War era. However, I believe that there are important distinctions need to be sussed out now that we’ve placed the Civil War in a wider temporal context.

First, all of these works focus on the legal and intellectual elites of their times. While it is now clear that the legal arguments and the political philosophy behind them shaped American notions of race and sovereignty, it is less clear whether or not the debates and ideas shaped the culture of everyday Americans. Rosen argues that American international legal thought “forged a stronger, more unified national identity at home,” but I wonder if these ideas and arguments should be seen as a product of nationalist and expansionist thought and practice among everyday Americans.

In other words, was an strengthening sense of white American nationalism shaped primarily by above (as Rosen, Guyatt, and others argue) or did it simply reflect the racial and cultural realities on the ground? 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.


Allan Branstiter is a writer and Ph.D. student studying U.S. History at the University of Southern Mississippi. Currently residing in Los Angeles, California, he is writing a dissertation examining the experiences of Civil War veterans in the American West. He is a veteran of the Iraq War and a former candidate for the North Dakota State Senate.

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