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Arguments over Genocide: The War of Words in the Congress and the Supreme Court over Cherokee Removal

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Title: Arguments over Genocide
Subtitle: The War of Words in the Congress and the Supreme Court over Cherokee Removal
Subject Classification: Law and Legal Ethics, History, Equality Diversity Inclusion, Race
BIC Classification: JPVH3, LNSH, JFSL9
BISAC Classification: POL061000, LAW110000, HIS028000
Binding: Hardback, pp.(to be confirmed)
Planned Publication date: April 2023
ISBN (printed book): 978-1-80441-107-0
ISBN (web pdf): 978-1-80441-108-7

Price: £79.99

Post publication, e-books above will be available for libraries from Proquest and EBSCO with non-institutional availability from GooglePlay

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The politics of domination with which the United States oppresses and exploits the Native Nations, is a violation of the intentions of the framers of the Constitution, and the meaning of the text itself. The arguments of the advocates of the genocide of the 1830s and their appeasers have come to determine the 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. By recovering these arguments, and allowing readers to explore large questions of law, justice, genocide, and politics in a context closely tethered to empirical evidence and careful argument, this book should facilitate more widespread understanding of the Native Nations’ rights to their treaty-guaranteed dominion over their own lands and perhaps 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.

Arguments over Genocide aims to reach a broad audience of college students, in courses on American History, Indigenous Studies, and the United States and the World, as well as in more specialized upper division courses on constitutional law, American/European imperialism, and resistance, independence, and decolonization movements.  Individuals interested in the founding of the United States, in the Trail of Tears, and in 19th century American history should find the work compelling, as should legal practitioners in the field.


Author: Dr Steven J. Schwartzberg is Part Time Instructor in Political Science, DePaul University, Chicago, and a former Candidate for Congress in the Illinois 5th District, Chicago, USA


"On December 1, 1790, the new United States summarily informed the Ohio Iroquois that it had them in their hand, by the 'closing' of which, they 'could crush' them to 'nothing.' To prevent the crushing, the invader 'demandeda great County,' Ohio, as 'the price of that peace' thus offered. It was as if, said the Seneca chiefs Gaiänt'wakê, Gahgeote, and Kiandochgowa, 'our want of strength had destroyed our rights.' That was precisely the invader’s presumption, articulated at the birth of U.S. Indian Affairs and continuing into the present.

It is what Steven Schwartzberg examines legally in Arguments over Genocide: The War of Words in the Congress and the Supreme Court over Cherokee Removal. Neither was the weakness of the proposition unrecognized at the time by a loud minority in Congress, even as the State of Georgia obviated the new Constitution by unilaterally evicting the Cherokee from their homeland. As critics lay supine, the Supreme Court under John Marshall crafted the 'Marshall Trilogy'Johnson v. McIntosh (1823); Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832)—gutting James Wilson’s carefully crafted, legal premises of 1787. Despite Marshall’s legalized genocide in embracing the antique, papal doctrine of discovery and its corollaries of conquest, the Trilogy to this day forms the basis of 'Indian law,' with its 'dependent domestic' definition of Indigenous nations as 'wards' of the U.S.

Examining Marshall’s premises, Schwartzberg demolishes them, one by one, demonstrating their honeyed lethality and urging a principled revision of American jurisprudence.

- Barbara Alice Mann, Ph.D., University of Toledo, and author of Iroquoian Women : The Gantowisas (2006)


We all, indigenous people and settler descendants, have become trapped in the tangled web of the Doctrine of Discovery and a legal system that practices denial of justice and historical facts. Too often these themes deliver a message of despair and hopelessness. However, 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 that became entangled as two nations and civilizations encountered one another in the 18th century.  

I think it is no coincidence that Steven lives on, writes from, and in many ways writes about the history of my tribal homeland in and around Chicago. This place is obviously speaking to him, and he listens. Throughout his book, and particularly in his magnificent climactic Epilogue, Steven writes in a voice that expresses respect for the aspirations both of indigenous people and of our other than human kin in a manner that is rare amongst those with no Native American ancestry.  This book is more than a mere scholarly exploration. It is a gift.  Hopefully, it is part of a roadmap forward.

- Randy Kritkausky is an enrolled tribal member of the Citizen Potawatomi Nation

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