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

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, Paperback, ebook, pp.346
Publication date: 25th March 2023
ISBN (Hardback): 978-1-80441-107-0
ISBN (Paperback): 978-1-80441-360-9
ISBN (ebook): 978-1-80441-108-7

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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


“This compelling study unravels how nearly two centuries ago, the Supreme Court developed doctrines of Christian discovery that superseded the laws of the time, including existing American law, and laid the foundation for genocidal crimes and what is now considered the legal basis for administering the Indigenous peoples who remain.”

— Noam Chomsky


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.  As a respected and well-trained historian, Schwartzberg does a masterful job of placing the history of Cherokee Removal into a much larger context, including the religious justifications for these laws which may surprise some readers. In doing so he builds on the work of people like Robert A. Williams Jr.  not only explaining the issues with this religious connection but also providing thoughtful ideas for moving forward in a more positive way.  This should be of interest to people around the globe, since the religious intervention and subsequent legal doctrines have been applied with few changes in most of the nations dominating Indigenous peoples.  In the best tradition of authors like Vine Deloria Jr., Schwartzberg is not afraid to expose the greed of policymakers and the evil it caused.  In particular, Arguments Over Genocide should cause many people to reassess their view of John Marshall’s role in both Cherokee Removal and subsequent policy.  Schwartzberg argues persuasively that common portrayals of Marshall attempting to render ‘justice’ within the context of a constitutional crisis are probably better seen as a way to rehabilitate a bankrupt policy and gloss over its true evil.  As one of the first major works since the  2020 Supreme Court Decision in McGirt, Schwartzberg places that decision within his overall picture of failed Federal Policy and unjust laws.  Though many legal commentators hailed the McGirt ruling as justice long overdue, Arguments Over Genocide provides a much more critical and arguably correct view. McGirt actually provides a smoke screen to hide the perpetuation of the worst of the policies, allowing politicians and lobbyists eager to sway them a cover behind which they can smugly feel vindicated.”  

— 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.


“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. In so doing, he indicts every American Christian, pulls Christian thought out of its pious cul-de-sac, suggests a new way to write history, and places the Christian origins of the genocide of Native Americans under the withering light of truth. The remarkable thing is that his argument is on fire with hope. Such hope does not come cheaply. Centuries of violence against Native Americans can be traced directly to Christian convictions. Schwartzberg shows that Christian legal arguments for genocide have never lost the ascendancy they gained in the 1830s, and continue to kill today. Are there ‘sufficient intellectual and moral resources within the Christian tradition to do successful battle with its capacity to believe that one is being benevolent while committing genocide?’ The story Schwartzberg has unearthed throws this question down with force. It cannot be ignored. The integrity of American Christianity rides on the answer. More importantly, so do human lives.”

— Matt Fitzgerald, Senior Pastor, St. Pauls, United Church of Christ, Chicago.


“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 ‘demanded … a 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, Professor of History, 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.


“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.”

 — Peter d’Errico, Professor Emeritus of Legal Studies, University of Massachusetts at Amherst, from the Afterword.


“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.”

— David Waldstreicher, Professor of History, The Graduate Center, City University of New York


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