Neither Settler nor Native: The Making and Unmaking of Permanent Minorities

by Mahmood Mamdani

Participants in these civil wars are not primarily demanding redistribution and social equality; they are fighting for or against inclusion in the political community. That the new political community is constituted in the course of anticolonial resistance is clearly an unreasonable presumption. So the question must be asked anew at independence: Who belongs to the political community? Who is the citizen and who is the sojourner? This question short circuits the social question; it is prior to it.

Politically, decolonization is best thought of as a two-sided process: externally, the assertion of political independence from the colonial power and a claim to membership in the community of states in the world at large; internally, the reimagination and redefinition of the political community.

Like Marxist theory, decolonial theory too gets decolonization backward. Not only does the political precede the social, I argue that the political is twinned with the epistemological. The first question at independence is not “how do we distribute wealth?” but “who belongs?”

The epistemological revolution is closely tied to internal political revolution—not throwing off outside rule but excising the ideology of political modernity internalized under colonialism.

Getting to justice is not just a normative project of imagining a better world—that is the stuff of mainstream political theory. Yes, we should imagine that better world, but realizing it means also understanding the making of the world we live in, a world of permanent minorities, reproduced through the politicization of identity under the structure of the nation-state. Unmaking the permanence of political identities begins with the recognition that they are not natural and are not forever.

I don’t pretend to know exactly what this next world will look like. Decolonizing the political is nothing less than reimagining the order of the nation-state. I cannot prescribe the outcome. I do have some recommendations for getting there, though.

First, to reform the national basis of the state by granting only one kind of citizenship and doing so on the basis of residence rather than identity. Second, to denationalize states through the institution of federal structures in which local autonomy allows diversity to flourish. And third, to loosen the grip of the nationalist imagination by teaching the history of the nation-state, juxtaposing the political model against the criminal, and bolstering democracy in place of neoliberal human rights remedies.

Americans have heard of reservations, but few realize that their Indian residents have no constitutional rights. Their citizenship and civil rights are specified only in federal statutes revocable by congressional decree. Indians are omitted from the Constitution’s protections by virtue of the document’s explicit language, and federal Indian statutes do not replicate the full range of these protections, even in revocable form.

Blacks have been a source of labor and Indians a source of land, resulting in different governance regimes. Blacks have been governed by a regime of white supremacy, the struggle against which has been incorporated into the American sense of self—a fact demonstrated by the comfort with which racists cite King and other icons of civil rights. Indians, by contrast, have been governed by colonialism, which, if recognized, would destroy the American sense of self.

In the early period of American colonization, “there was no reference to a place called Indian country.” That is because every place was Indian country. All attempts to access land in North America began with “the recognition that it belonged to Indians,” Charles Wilkinson writes.2 Settlers in Maine rented land from Indians. In the Dutch and English colonies, settlers purchased land from Indians, either wholesale or piecemeal.

Because the land belonged to the Crown, Indians who wished to sell their use rights could sell only to the Crown. After the American Revolution, the United States adopted the same scheme, and to this day Indians on reservations retain only “Indian title” or “right of occupancy.” Their holdings can be dissolved by Congressional action.

Later arguments for the Second Amendment right to form armed militias for collective defense of the “free state” are easily understood from the perspective of citizens who feared attacks by Indians perceived to be enemies of that state.

He pointed out that, in practice, Indians were neither citizens nor fit to exercise citizenship. He reasoned that, under the constitutional scheme, Indian tribes in the borders of the United States were best thought of as domestic dependent nations, which meant that they would be subjects of the federal government, not the states. But as the Constitution explicitly denied Indians rights, Indians would have to be wards of the state rather than citizens, subject to congressional decrees not reviewable by courts.

In any event, the idea that Indians were children in law stuck. It was an important invention, not least because wardship served to distinguish Indians and enslaved Africans. Specifically, in Cherokee Nation, Marshall developed a legal theory in which enslaved people could be under state jurisdiction, while Indian wards were subject to the federal will.

In an opinion written by Marshall, the court ruled that the Cherokee were not a foreign nation and therefore could not bring suit against the United States in federal courts. Rather, the Cherokee were a domestic dependent nation. The justices split three ways. One, a group of dissenters argued that the Cherokee were indeed a foreign nation, though a defeated one. A second group joined the majority but in concurring opinions argued that the Cherokee were a conquered people with no status as a nation at all, either foreign or domestic.13 Each point of view augured a different political future for the Indian. A defeated foreign nation might one day regain independence. A conquered people who had lost their nationhood could be integrated into the conquering society, as individuals but not as a group. It would never be independent, and its members, subject to state law, might or might not enjoy political and social equality. A domestic dependent nation would be a part of the United States but also separate, either as an internal colony, which is what happened, or with some novel status not contemplated by the Constitution. The third view was formulated by Marshall.

A year later, in Worcester v. Georgia, the Court decided the Cherokee nation’s suit on the merits, ruling that the Georgia law was unconstitutional because only the federal government, not the states, had authority over Indian nations.

Indians did not focus on animal domestication but had developed sophisticated game management. Their methods supported large numbers of people: the total human population of the Western Hemisphere in the fifteenth century is estimated around 100 million, at a time when the population of Europe up to the Urals was about 50 million.

History made clear that Indians were conquered, a fact that the state of Georgia, for instance, would not have disagreed with. But because the Constitution determined that conquest was a federal power, Indians were not subjects of the states. History—conquest—also demonstrated that Indians were not foreigners, who possessed a constitutional right to sue the federal government. But the Constitution declared these nonforeigners noncitizens. With the states and the Constitution out of the picture, Indians were at the mercy of Congress alone. Congress could choose to grant Indians no rights at all, but if it chose otherwise—if it chose, for example, to respect an Indian right of land use—the courts would have no authority to vindicate these rights. Tribal sovereignty means congressional wardship, without recourse to the courts or constitutional rights.

Few challenge the numbers, but some ask whether this was a natural or a social catastrophe. After all, most died of disease—smallpox, specifically. Yet this hardly relieves the settlers of responsibility. As Dunbar-Ortiz points out, Europe lost at least a third of its population to medieval pandemics, but it recovered; why didn’t the Indians? “If disease could have done the job, it is not clear why the European colonizers in America found it necessary to carry out unrelenting wars against Indigenous communities in order to gain every inch of land they took from them—nearly three hundred years of colonial warfare,” Dunbar-Ortiz writes. Besides, there is evidence that settlers were aware of the natives’ extreme vulnerability to smallpox and sought to employ the disease for purposes of germ warfare: “Could it not be contrived to send the Small Pox among those disaffected tribes of Indians?” the English general Jeffery Amherst wrote in 1763 to his subordinate Colonel Henry Bouquet. “We must, on this occasion, use every stratagem in our power to reduce them.” The colonel promised to do his best.

There was no shortage of men like General William T. Sherman, who in 1866 telegrammed General Ulysses S. Grant, “We must act with vindictive earnestness against the Sioux, even to their extermination, men, women and children.” On another occasion, he wrote, “during an assault [on Indians], the soldiers cannot pause to distinguish between male and female or even discriminate as to age.”

The earliest reservations in the English colonies in North America did not form a well-organized system, like that envisioned in Ulster or later on by the US federal government. These first North American reservations comprised survivors from among the conquered Pequot of Southern New England, a Christianized people known as “Praying Indians.” They were allocated a ring of lands outside of Boston and settled there by the mid-1670s. The first reservation was the town of Natick. Over time, these reservations became like magnetic islands attracting freedmen seeking refuge. The freedmen intermarried, acquired land, and settled down, in the process bringing accumulated skills in European agriculture to the Indian population.

Lincoln’s Indian policy began with sporadic massacres and culminated in a generalized reform that combined treaty-making with large-scale land grabs and removal to reservations. The Santee Sioux in Minnesota were crushed in 1862 after rebelling against their treatment by the federal government, charging that it “was violating treaty guarantees when it failed to provide annuities and rations, especially food.” Major General John Pope, who led the Union forces, acted “without mercy,” ordering “the destruction of Indian farms and food supplies as well as the killing of Indian warriors.” Pope wrote Colonel Henry Sibley, “It is my purpose utterly to exterminate the Sioux if I have the power to do so and even if it requires a campaign lasting the whole of next year. They are to be treated as maniacs or wild beasts, and by no means as people with whom treaties or compromises can be made.”

In other words, under Lincoln, reservations were a counterinsurgency policy. The Indians “should be taught to earn their subsistence by labor, and be instructed in the cultivation of the soil,” so that they would turn to docile activities.

In addition to preventing further rebellion, reservations were seen as key to opening up the West to the railroads and to settlers. The transcontinental railroad and the expanded reservation policy were two sides of the same coin: confining the Indian in the reservation ensured the security of the settler economy. The Homestead and Pacific Railway Acts of 1862 “opened the west to accelerated white settlement on lands taken from Indians through treaties.”

“Nearly all” of the military and civilian officials who executed the policy “shared a common presumption: that the federal government should persuade or coerce the Plains Indians to exchange their religion, communal form of property, and ‘nomadic’ way of life for Christian worship and settled agriculture on federally supervised reservations. In a word, they should surrender most of their land and cease to be Indians.” Toward this end, generals employed methods they had perfected during the Civil War, destroying “the infrastructure of the Indian economy,” including the buffalo. “In 1871, Congress abrogated the treaty system that dealt with Indians as independent nations—a step that was strongly supported by railroad corporations, which found tribal sovereignty an obstacle to construction.”

The reservation, in its era of consolidation, was presented to white society both as a way of segregating the races and accelerating the “civilization” of Indians, so that they could eventually be assimilated. This is important to keep in mind: although the reservation became the permanent two-state solution, it was sold to the public as an essential step toward a one-state solution.

Courts were effectively extensions of the agents, at whose pleasure the judges were appointed and served. Occasionally the judges were police officers, but often they were influential chiefs. The degree of an Indian’s apparent assimilation was a major criterion in his selection as a judge; agents’ reports are replete with descriptions of Indian judges as “Christian,” “wearing white man’s clothing,” or “monogamous.” By placing the legal process in the hands of assimilated Indians, agents factionalized notions of authority on the reservations, as some Indians continued to practice their own ways, while others implemented BIA rules.

The BIA encouraged the development of reservation police states by proscribing basic aspects of life. There was the aforementioned ban on long hair;

obstreperous,

Commissioner Thomas J. Morgan made war on what might be the most elementary of cultural signifiers: names. Morgan argued in a March 1890 circular that there will be “needless confusion” and “considerable ultimate loss to the Indians if no attempt is made to have the different members of a family known by the same family name on the records and by general reputation.” This was just one “among other customs of the white people it is becoming important that the Indians adopt,” he explained. He also condemned the translation of Indian names into English, a practice that often resulted in “awkward and uncouth” nicknames.

Civilization was always an excuse to justify fiat authority. The BIA and its agents ran an occupation regime. Besides wielding police force and influencing courts where they existed, the agent determined the flow of resources to the reservation. By 1915 the superintendent had “control of all welfare services, and anyone who found fault with his doings could be set down as a malcontent.”58 More often than not, reservations appeared as “mammoth poorhouses rather than nurseries of civilization.”

in practice, the reservation was a place of crisis, not civilization, education, or improvement. Subjugation and isolation robbed the Indian way of life of vitality and meaning, reducing it to a set of rituals disconnected from each other and from the material circumstances of the tribe. Indian culture was to an extent preserved, but it was placed in a museum, where it could no longer meet the problems of the moment or evolve to meet those of the future. Not only were the buffalo and the wide stretches of open territory gone, but also systems of social organization, built up through generations to protect fundamental interests, were deteriorating or archived. To be sure, there were substitutes, such as agricultural life and Christianity, but these were sometimes unfamiliar and not always relevant to the emotional and communal needs of the people.

The critical legal maneuvers were the Dawes Act of 1887 and Curtis Act of 1898, also known as the allotment acts. These gave reservation authorities the power to identify deserving Indians and grant them allotments of land in “trust patent.” This meant the land title would be held in trust by the United States for twenty-five years, after which the premises would at last be conveyed to the Indian as common law property. Initially the Dawes Act called on the BIA to allot 160 acres of tribal land to each Indian head of household, but this was later amended to 80 acres. Those taking allotments were also required to renounce their tribal membership but were promised citizenship instead. The guarantee of citizenship was soon diluted. The 1906 Burke Act amended Dawes, requiring that the promise of citizenship would only be realized after the twenty-five-year period was complete.63 This had the effect of tethering Indians to reservations.

Allotment was also a land grab, which was, after all, the goal of most strategies the settler arranged against the Indian. The law might have gifted the occasional Indian strong property rights, but it also designated large tracts as surplus that could be taken by white buyers.66 The incorporation of Indian land into the settler property regime also was a boon to whites, who suddenly could buy that land as though it were any typical piece of real estate. Every speculator who hoped to benefit from the sale of Indian land championed their right to sell, knowing that many Indians desperate for better lives would trade their allotments for cash.

Allotment had many serious consequences. First, there was a drastic reduction in land under Indian control. Already diminished to 156 million acres in 1881, the extent of Indian land plummeted to “about 50 million acres” in 1934. Another 500,000 acres were taken over by the government for military use during the Second World War, and then there were losses registered by “over one hundred tribes, bands and Rancherias” as a result of various acts of Congress during the termination era of the 1950s, described below.

Yet in Germany no less than the United States, the political meaning of genocide has never been widely understood. Both populations have, for the most part, denounced genocide as a racist act, but neither has recognized that it was also a productive one, whose outcome is the nation-states in which they live. Germans lament the Final Solution without admitting that they live out its success every day in a state where the national majority was effectively severed from the national minority, and the majority elevated as the nation at the expense of the minority. Now that the Jews are gone, Germans are content to uphold Israel as a refuge for the minority they could not abide under the terms of European political modernity. German support for Israel, meanwhile, reflects an acceptance of guilt but also a failure to recognize the same nationalist ideology at work in both the Third Reich and Israel. Nazis demanded an end to Jews in their midst so that Germans could have the homogeneous nation-state that was their right under political modernity.

That Germans—indeed, the whole of the West—considered Israel a kind of compensation after the Holocaust demonstrates that they saw the attempted elimination of European Jewry only as a monstrous crime, not as an effort to establish in national terms the boundaries of membership in a political community. For supporting the Zionist cause also means supporting just such a nationalist boundary-drawing effort.

Again, the world has repudiated genocide in Germany, but not its political aims.

By interpreting Nazism narrowly as a set of crimes committed by Germans rather than as an expression of nationalism, the Allied Powers protected themselves and their citizens from scrutiny. Most fundamentally, the Allies absolved the nation-state form they shared with Germany, lest they be forced to account for their own nationalist violence at home and in their colonies (which, in the case of the United States, was home).

Foreign corporations that supplied Hitler’s war machine were entirely exempted from charges and punishment, and “useful Nazis”—especially scientists who could develop advanced armaments and defenses—were eagerly embraced by the Allies. Such amnesties made clear that, if denazification had political goals, these were simply the advancement of the Allies’ immediate desires within the context of nation-state competition.

And the Americans flattened the German population, asserting collective guilt. The result was widespread resentment toward what appeared to be not true justice but victor’s justice.

Doing so would have led them to the legions of homegrown German antifascists. But, among the Allies, it was only the Soviets who sought to cultivate these groups. Fearing bolshevism, the Western Allies marginalized Germany’s internal pro-democracy forces, some of which leaned left. Eventually, amid the hardening politics of the Cold War, the Soviets also abandoned German activists. The diversity of opinion among antifascists in the Soviet-occupied zone was quashed as Soviet-backed authorities and security forces imposed an uncompromising official Marxism on the population. Many of those authorities and agents were themselves former Nazis. Once the bane of Eastern Europe, responsible for incalculable carnage in the USSR, these Germans were now useful to Stalin’s cause. And so denazification sputtered in the East as well.

Indeed, in the West, just a few years after the war, ex-Nazis held the majority of civil service positions. It was in this context that West Germany threw its weight behind Jewish nation-building in Israel. Ex-Nazis seemingly understood that giving Jews a place of their own, far away, was an acceptable outcome.

in the aftermath of the Cold War, the logic of Nuremberg was revived in postcolonial contexts under the name of transitional justice, which repackages criminalization and victim’s justice in the language of human rights. The latest one-size-fits-all international regime, transitional justice is offered as panacea for postconflict situations from Yugoslavia to Rwanda. Yet “transition” just means rebuilding the state that broke down in the throes of extreme violence, without asking questions about the nature of the state to be reconstructed.

He wrote in Mein Kampf, “The racially pure and still unmixed German has risen to become master of the American continent, and he will remain the master, so long as he does not fall victim to racial pollution.” Hitler was under no illusions about how this mastery was attained. In a 1928 speech, he noted approvingly that the Americans had “gunned down the millions of Redskins to a few hundred thousand.”

James Q. Whitman writes that, in the early 1930s, when Nazi lawyers were engaged in creating a race law that would function as a barrier to miscegenation and race-based immigration, “they went looking for foreign models and found them—in the United States of America.” For instance, they learned from the United States how to rank residents into superior and inferior classes. Until 1924, American Indians were considered “nationals” but not citizens; the Nazis adopted that same terminology. Hitler had written in Mein Kampf that “the volkish state divides its inhabitants into three classes: Staatsburger (citizens), Staatsangahorige (nationals) and Auslander (aliens).” Nationals in the Reich would be treated much as the Indians were after 1924: as “second class citizens entitled to the protection of the state, but not to full political rights.”

Even the most radical of Nazi lawyers recoiled in the face of the one-drop rule; it was, Whitman writes, “too harsh to be embraced by the Third Reich.”

In addition to their shared commitment to racial ideology, Americans and Nazis had a strong affinity for industrial capitalism and did what they could to promote US businesses in the Third Reich, even when doing so served to advance German military aims.

In his description of the results of Allied bombing in Germany, Henry Morgenthau, Jr., the US Treasury secretary, noted that a “surprisingly large number of factories were damaged only superficially while many were entirely unscathed.” This could not have been accidental: “Some of the latter apparently owed their escape to the careful, precise work of the Allied airmen,” he observed. Ford and British Courtauld plants at Cologne “shared the immunity of the famous cathedral.” General Motors’ Opel works “were said to be almost the only buildings intact in Russelsheim.” In the face of “the seemingly miraculous escape of the IG Farben works at Hoechst, … London’s New Statesman noted that American firms had been associated in the enterprise before the war.”5 After the war, a report led by the economist John Kenneth Galbraith found that strategic bombing had been a “disastrous failure” as “German war production had, indeed, expanded under the bombing.”

When it came time for judgment at Nuremberg, the Americans and other non-Germans who had supported the Reich politically and economically were not brought to account, and the US influence on Nazi decision-making was inadmissible at the court proceedings. This is a key mechanism by which denazification left Nazism itself intact. To put Nazism—as opposed to individual Nazis—on trial would have revealed that it was not just a German project but also an American one and indeed a global one; a complex of the nation-state and big business, working toward the aims inherent in themselves.