Indian Wars: Old & New

I. Introduction In March 2011, the United States submitted a brief in United States v. al Bahlul, a military commission case reviewing the conviction of a war-on-terror 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. 2 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 modern era. 3 The military's comparison of Indian tribes to modern international terrorist organizations strikes a divisive chord in Indian country and elsewhere, as modern Indian tribes are as far removed from al Qaeda as can be. And yet, the government continues to juxtapose the Indian warrior stereotype with modern law and policy, as this Article will demonstrate. 4 As our colleague Professor Wenona Singel asked, "Who would be persuaded by such an argument?" 5 The 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 resources 6 - 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 ...