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Legal Scholar Matthew Fletcher on Government Slurs of Indians and U.S. Law

Dr. Matthew L.M. Fletcher is an Associate Professor at Michigan State University College of Law and Director of the Indigenous Law and Policy Center. He was asked to comment on the legal and moral issues surrounding the federal government’s recent and disturbing conflation of terrorism with figures and events from American Indian history.

Coming on the heels of the Geronimo/bin Laden Incident, what do you make of the government's expropriation of indigenous history— using Geronimo as the code name for Osama bin Laden, and then citing the Jackson's murderous actions against the Seminoles and Brits as a precedent for the prosecution of Al Qaeda suspects?

Generations of West Point officers learn about war from studying the "Indian wars," and so it would make perfect sense for them to draw an analogy between Indians and al Qaeda. The military tradition is that the Indians were the bad guys, they were savage and engaged in non-traditional, even scary warfare, and that they had no rights under the U.S. Constitution. As such, they were fair game for anything—anything at all—the U.S. military wanted to do to them. Preemptive attacks on unarmed women and children like Wounded Knee, indefinite detention in concentration camps like Fort Sill, mass executions for trumped up war crimes like at Fort Snelling all of it legally justifiable from the point of the view of the military. Same is true in the Department of Justice, where in the days following 9/11, Bush Administration attorneys like John Yoo (now a Berkeley law professor) and Jay Bybee (now a Ninth Circuit judge) argued that the President needed no authorization from Congress to engage in torture, establish military jails and commissions to house and try al Qaeda suspects, etc., through extensive reliance on Indian war-related "precedents" involving self-serving legal opinions about the Modocs, the Seminoles, the Dakota at Fort Snelling, and others. It was Yoo and Bybee who authored so many of the so-called "torture papers" who first explicitly compared the Seminoles and other tribes to al Qaeda. The military prosecutors are just cribbing from them.

What do you think of the government disregarding the moral issues surrounding Jackson's actions and insisting it was only considering the legal precedent?

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If the "precedents" involving the Seminoles and other tribes were Supreme Court cases, they'd be the equivalent of Korematsu (which the Solicitor General just apologized for). Korematsu is an example of an immoral action creating a legal precedent that later was repudiated. I've yet to see the Department of Justice repudiate anything expressly when it comes to Indian law—the taking of Indian property without providing just compensation—Tee-Hit-Ton Indians v. US, for one example. And that's an easy one. No one would seriously object to it. But that rule is still there and has application. I would –argue that legal precedent cannot be persuasive if based on a fundamental immorality—but Indians always seem to be the exception.

Dr. Matthew L.M. Fletcher is Associate Professor of Law & Director of the Indigenous Law & Policy Center at Michigan State University College of Law, and keeper of Turtle Talk, a website for legal documents involving Indian law. His new book, American Indian Tribal Law, was recently published by Aspen.

For more on this topic read Andrew Jackson's Actions Model Anti-Speech, Perpetual War Legislation and Andrew Jackson and the USA Global War Bill