In March 2011, the U.S. government filed a response brief to two appeals by two Guantanamo Bay detainees. They had been convicted of “providing material support for terrorism” and their defense contended that the charge was not a war crime subject to military tribunal jurisdiction.
The defense argued that the U.S. government was obliged to cite historical evidence demonstrating that “providing support to an enemy” had been previously treated by the United States as a war crime. In its March 2011 response, the United States created an explicit connection between the Seminole Indians and al Qaeda under the label of “terrorism,” and cited a single historical example to support its theory. (See “History and Tradition in American Military Justice” by Samuel T. Morrison.)
That precedent was the prosecution and hanging of two British subjects under Major General Andrew Jackson’s command during his unauthorized invasion of Florida. In an effort to make their precedent fit, the U.S. military commission prosecutors offered two examples of what they claimed to be “terrorism,”—the Seminole Indians resisting Jackson’s invasion in 1818 and al Qaeda in 2001.
In 1818, without authorization, U.S. Major General (later President) Andrew Jackson led an invasion of Spanish-claimed territory in Florida, thereby igniting the First Seminole War. Jackson did so to capture “fugitive slaves” and to invade and attack the Seminole and Miccosukee nations. During the invasion, Jackson captured two British subjects (Alexander Arbuthnot and Robert Ambrister) who had been living among the Seminoles.
Letters found aboard Arbuthnot’s schooner, in which he had advocated for Seminole land and treaty rights, were used as evidence against him. Because the Seminoles were deemed by Jackson to be “enemies” of the United States, and because the two British subjects had supported those “enemy” Indians who were resisting Jackson’s invasion of Florida, a military panel decided that the two men deserved to be executed. Ambrister was initially sentenced to death, but this was reversed and he was then sentenced to 50 lashes and one year hard labor. However, Jackson unilaterally overturned that sentence and had Ambrister hanged anyway.
Given that neither Arbuthnot nor Ambrister were U.S. citizens, and owed no duty of allegiance to the United States—and that they were arrested in an illegal US invasion of Spanish claimed territory—their conduct was not a “war crime” under international law. Despite this, they were executed by Jackson.
The U.S. government’s attempt this past March to analogize al Queda with the Seminole people was a terrible distortion. Worse still is the parallel between Andrew Jackson charging and hanging Arbuthnot and Ambrister for “aiding the enemy” and current U.S. congressional legislation now moving quickly toward passage. Not only have US government attorneys wrongly converted Seminoles into al Qaeda, but the Congress is now about to pass legislation that would treat all humans on the planet as potential detainees for aiding those deemed by the United States to be “enemies.”
The proposed legislation would make The Authorization for the Use of Military Force of September 2001 a permanent feature of U.S. law. It would make due process protections under the U.S. Constitution unavailable to anyone detained. The scope of the legislation appears to be anybody, anytime, anywhere.
A bill authorizing a regime of global war was added to the National Defense Authorization Act of 2011 (H.R. 1540) by House Armed Services Committee Chairman Howard “Buck” McKeon (R-CA). The Act passed the House last week and now moves to the U.S. Senate. Another such bill was recently put forward by U.S. Senator John McCain (R-AZ).
The new war authorization will allow the United States to wage war “wherever there are terrorism suspects in any country around the world without an expiration date, geographical boundaries or connection to the 9/11 attacks or any other specific harm or threat to the United States,” the ACLU said recently.
According to a May 9 article by Laura Pitter in “The Hill” newspaper (“Proposed McKeon and McCain legislation won’t make us safer”), the bills put forward by congressman McKeon and Senator McCain “would expand who the U.S. says it is at war with and mandate military detention for broadly defined terrorist suspects based on scant evidence.” Hearsay evidence will also be admissible.
By means of a permanent war authorization, indigenous peoples, and their allies, who advocate for self-determination and for the protection of Indigenous resources (lands, water, minerals, etc.) against colonial and corporate exploitation could be accused by the United States of “supporting terrorism,” and thereby come under attack or be seized by the U.S. military and end up being held as detainees. The legislation would further ratify and intensify the U.S. policy of treating Indigenous peoples’ issues as a matter of national security.
On May 25, Congressman Ron Paul (R-TX) said of the overall situation of the United States at this time, “The last nail is being driven into the coffin of the American Republic.”
Steven Newcomb (Shawnee/Lenape) is co-founder and co-director of the Indigenous Law Institute, author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008), and a columnist for Indian Country Today Media Network.