Arguments over Genocide: An Afterword to a Groundbreaking Book
Steven J. Schwartzberg's Arguments over Genocide: The War of Words in the Congress and the Supreme Court over Cherokee Removal
Steven J. Schwartzberg’s Arguments over Genocide: The War of Words in the Congress and the Supreme Court over Cherokee Removal was published in March 2023 by Ethics Press.
Schwartzberg’s incisive reading of ‘founding era’ documents lays bare the arguments that occurred during the development of the US Constitution, regarding the relationship of the US to Indigenous peoples and their lands.
He reveals the deeply conflicting views expressed in those formative debates and shows that the claim of racial superiority and a right of domination over Indigenous peoples that persists to this day was not the only path open at the time.
He says the arguments of the advocates of genocide in the 1830s determined the foundation of present law, policy, and conduct of the United States, while the arguments of the opponents of what came to be known as the Trail of Tears have largely been forgotten, at least among non-Native people.
Moreover, he says that the fundamental difference separating the conflicting debaters was their spiritual and moral orientation to questions of race, property, and power.
He offers the book to “help open communication between the American people and the peoples of the Native Nations; communication on which the emergence of what Martin Luther King, Jr. called ‘the beloved community’ depends.”
I was happy to accept Steve’s suggestion that I write an Afterword to this important book. Here is that Afterword.
AFTERWORD: Arguments over Genocide: The War of Words in the Congress and the Supreme Court over Cherokee Removal
Arguments Over Genocide presents an essentially spiritual critique of US laws regarding Indigenous peoples. This is most fitting, since these laws are an expression of a specific religious tradition rooted in fifteenth century Christianity.
No doubt, this fact likely surprised many readers.
Among those familiar with the history of Christian colonization and imperialism that led to the “discovery” of the “New World”, many were likely surprised to learn that “Christian discovery” is not an artifact of history, but an active doctrine in twenty-first century US law.
Moreover, a further surprise was in store for those who presumed this strange doctrine was embraced only by “right wing” jurists.
Steven Schwartzberg makes amply clear that the Supreme Court “left” is equally comfortable with imposing religious ideas of “superior civilization” on Indigenous peoples today.
The task for any reader of this book is to grapple with the consequences of these startling revelations.
Arguments Over Genocide assists in this task by providing a global spiritual philosophy to show that there is a way toward freeing the world from ideas and structures of domination that have constituted the past 500 years of law, economics, and morality.
The unique contribution of Arguments Over Genocide is its interweaving of spiritual and constitutional discourses to help us see the deep dynamic of the debate over “Indian Removal”.
Removal was about land, no doubt; but it was also about a claimed “right of domination” of Christians over “heathens and pagans”.
On one side, it was a brutal brew of racism and religion in service of economic “development” (read, imperial expansion).
On the other side, it was a blend of pity and religion in aid of a campaign for co-existence of peoples.
Schwartzberg demonstrates that these competing perspectives fought within the frameworks of the US Constitution and the Christian religion.
For their most virulent enemies, the goal was “removal” of Indigenous peoples from the “path of civilization,” whether accomplished by extermination or wagons. For their most sympathetic friends, the goal was “civilization” of Indigenous peoples, accomplished in situ with the aid of missionaries.
Both sides of the debate claimed Christian right; both claimed Constitutional authority.
The closeness of the debate, at least in the House of Representatives, is a fact too seldom examined. It shows how hot the debate was and how close the US came to taking a very different path.
On May 26, 1830, the House vote on the bill, “An act to provide for an exchange of lands with the Indians residing in any of the States or Territories, and for their removal West of the river Mississippi,” was 102 Yea to 97 Nay. The Senate vote, a month earlier, had been lopsided, 28 Yea to 19 Nay. At the end of the debate, a difference of four votes determined the outcome.
The key legal issues of Indigenous land ownership and national status were also being debated in another forum, the US Supreme Court.
As Schwartzberg explains, Chief Justice John Marshall had already led a unanimous court to decide that “Christian discovery” would become an integral part of US property law. The decision, Johnson v. McIntosh, issued March 10, 1823, just seven years before the Removal Act, claimed that the US assumed all the claims of the English Crown, including the claim of land ownership of the continent “discovered” by John Cabot pursuant to his charter from Henry VII.
In June 1830, two months after the Removal Act, the Cherokee Nation argued to the court that their treaty with the US mandated federal protection against intrusion and removal. Their case, Cherokee Nation v. Georgia, was dismissed, with an opinion by Marshall from which two justices dissented.
Marshall said the Cherokee had no place to stand in court because they didn’t own their land and thus weren’t a “nation” in the full sense of the word. Marshall’s third act in the matter, Worcester v. Georgia, March 3, 1832, two years after the Removal Act, sounded a note of “sympathy” for the Cherokee and said Georgia had no right to intrude on their lands.
But Marshall left no doubt that the Cherokee were subservient to the US.
He didn’t even mention Indian Removal, though he cited the 1819 Civilization Act, praising its “humane designs for civilizing the neighboring Indians.”
No wonder Schwartzberg refers to these cases as “Marshall’s War”.
Marshall’s rhetoric occasionally sounded like the ”sympathetic” faction in Congress, but he upheld the federal power that served the “enemy”.
No surprise, then, when the court in 1903, in Lone Wolf v. Hitchcock, encapsulated the Marshall decisions as a doctrine of “congressional plenary authority” over Indigenous peoples and their lands. To be sure, the court had already said that the US would be “governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race” (Beecher v. Wetherby, 1877).
Schwartzberg argues for overturning the Marshall precedents, just as the anti-Black precedent of “separate but equal” was overturned in 1954.
He says the philosophical and constitutional arguments rejected by congress and the court are still available today to support this overturning.
Justice Neal Gorsuch recently argued for overturning a related colonial doctrine, attacking the notion of congressional “plenary power” over Puerto Rico, in the case of US v. Vaello Madero (2022). He said:
“A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other Territories largely without regard to the Constitution. It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.”
The Insular Cases, like Indian Removal, were the subject of what Gorsuch calls “a fierce debate”. In a clear echo of the Removal debate, he says, “At bottom…[the views in favor of plenary power] rested on a view about the Nation’s ‘right’ to acquire and exploit ‘an unknown island, peopled with an uncivilized race . . . for commercial and strategic reasons.’”
In short, Schwartzberg’s call for a wholesale reappraisal and rejection of “federal Indian law” arrives at a time when such large-scale thinking may be possible, notwithstanding the practical difficulties that would be occasioned.
To draw upon Gorsuch again:
“To be sure, settling this question right would raise difficult new ones. Cases would no longer turn on the fictions of the Insular Cases but on the terms of the Constitution itself. Disputes are sure to arise about exactly which of its individual provisions applies in the Territories and how. Some of these new questions may prove hard to resolve. But at least they would be the right questions.”
Arguments Over Genocide asks the right questions.
Moreover, Schwartzberg extends the purview of these questions to show their global “rightness” as a necessary response to the crisis of the planet brought about by “belief in the superiority and separation of humans from the natural world as embedded in the logic of dominion”.
He says, “The knowledge that is most important for us to acquire…is not new knowledge of science and technology, … but rather knowledge of how we can help maintain an already existing cosmic and social balance among ourselves and among all living beings—how we can truly pursue both inner and social peace.”
Arguments Over Genocide tasks readers with reassembling what in some sense we have always known, namely that systems of domination are “built upon trying to extend and protect the ego” and are therefore ultimately unworkable as social systems.
One characteristic of Indigenous peoples often noted by missionaries and colonizers was the combination of strong individuality and strong group cohesion.
The outsiders, believers in an abstract individualism of “cogito, ergo sum”, were puzzled by this complex sociality, which Kenyan philosopher John Mbiti describes as an awareness that “I am because we are.”
Ultimately, Arguments Over Genocide calls us to understand this phenomenon, which will give us a foundation on which to stand as we remake the law.
Click here: https://ethicspress.com/products/arguments-over-genocide/ to see the publisher’s webpage for Steve's book, where you can read additional scholarly reviews of the work.
Review Excerpts:
Thomas “Lee” Hester, Jr., a founding editor of Ayaangwaamizin: International Journal of Indigenous Philosophy, and former teacher in the History of Law and policy concerning Indigenous People at universities in Canada and the United States:
“Arguments Over Genocide will reward attentive readers whether they are new to the field of U.S. policy toward the Cherokee and other Indigenous Nations, or have studied it for decades. The author, Steven Schwartzberg, provides a framework for discussion using citations from central, well-known sources like the ‘Marshall Trilogy,’ but that is merely a beginning. He has unearthed a treasure trove of overlooked or seldom cited material from the architects and apologists of U.S. policy that will surprise and inform even people who have spent their lives studying these issues.”
Matt Fitzgerald, Senior Pastor, St. Pauls, United Church of Christ, Chicago:
“I am surprised as I write this: the most compelling new work of theology I have read in years is embedded in a historian’s exploration of 19th century legal debates. Worthy of its alarming title, Arguments Over Genocide is an urgent book that every clergyperson and seminarian should read. In it, Schwartzberg grabs hold of Christian arguments for genocide and drawing from 19th century counter arguments, beautifully refutes them, on Christian terms. … The remarkable thing is that his argument is on fire with hope. Such hope does not come cheaply.”
Barbara Alice Mann, Professor of History, University of Toledo, and author of Iroquoian Women: The Gantowisas:
“Examining Marshall’s premises, Schwartzberg demolishes them, one by one, demonstrating their honeyed lethality and urging a principled revision of American jurisprudence.”
Randy Kritkausky, enrolled tribal member of the Citizen Potawatomi Nation:
“Steven Schwartzberg’s Arguments Over Genocide transcends the darker themes of indigenous history by shedding a light of reason and moral clarity onto our nations’ colonial history. When I refer to “our nations’ history” I refer to my own Potawatomi ancestry and also our family’s French Canadian voyageur origins….”
David Waldstreicher, Professor of History, The Graduate Center, City University of New York:
“This is a bracing, learned, and eloquent study of words and actions that mattered -- that still matter -- and the relationship between them. I learned much. Steven Schwartzberg has taken the trouble to be scholastically, morally, and politically rigorous, and he has produced a book that will have lasting value.”
If you choose to purchase the book at the publisher’s website, you can enter the discount code INTEGRITY33 at checkout to receive a third off the price.
Steven Schwartzberg spoke about his research at the Parliament of the World’s Religions in August 2023. He is on Substack:
Peter, you know my feelings. Indigenous North Americans were eliminated more completely and for a longer period than any other targeted population. Since Columbus made contact, Indigenous population in North America has declined, and near the end of the 19th century were almost eliminated completely. I give evidence in the genocide section of Systemic Injustice.
https://youtu.be/HM0cIgEDgVk?si=GcKoGVb3gUhGNmUh
Yours and his will be on my soon to read list! I ordered Pagans in the Promised land and two other books that Amazon recommended. I guess you guys are too good make Amazon's top list. FFY I did find a critique of RBG as racist when I was looking up the case you mentioned related to her. Let me know if you want me to link you to it or not.