William C. Bradford, Acknowledging and Rectifying American Indian Genocide
presents a logical heuristic whereby to assess more broadly the requirements of justice following
The brutal reality of invasion, murder, slavery, land theft, ethnocide, and sterilization has
not percolated deeply into contemporary understandings of U.S-Indian history. The role of the
U.S. in the deliberate destruction of Indian populations, property rights, and cultural patrimonies
is for most Americans a hidden history.11 Because the genocide of American Indians is neither
broadly acknowledged nor deeply understood, Part I will provide historical foundation. Part II
will present and evaluate several theories of justice with respect to the Indian claim for redress.
Part III will counter these theories with an indigenist theory intended to accord the full measure
of relief to Indian claimants consistent with the requirements of justice for all peoples.
The Genocide of American Indians
American Indian genocide assumed varied forms: aggressive war, murder, land theft,
ethnocide, and forced sterilization.
A. Aggressive War
In May 1493 Pope Alexander VI ordered Spanish conquistadores to discover new lands in the
Americas in order to draw “barbarous nations” to Christianity.12 The subsequent invasion of the
Western Hemisphere, predicated upon the assumption that its indigenous inhabitants were a distinctly
inferior species, was governed by the international legal principle, invented specifically to address the
phenomenon on the European encounter with the Americas and contrary to existing principles
proscribing aggressive war, that a European nation became sovereign of territory its agents
“discovered” provided it subjugated the population and annexed its lands.13 To justify the dichotomy
between the law applicable to Indians and the law applicable to non-indigenous peoples and enable
the lawful use of force against the former, European legal scholars proclaimed that indigenous peoples
were sub-humans devoid of legal personality—fit for legal protection only if they submitted to
European rule, fit for the sword otherwise.14 It is no wonder that the next four centuries are known as
the “Age of Genocide.”15
Most Americans are ignorant of the dark history of U.S.-Indian relations. See VINE DELORIA & CLIFFORD M. LYTLE,
AMERICAN INDIANS, AMERICAN JUSTICE 102 (1983).
WILCOMB E. WASHBURN, RED MAN’S LAND/WHITE MAN’S LAW 5 (2d ed. 1995).
Johnson v. McIntosh, 21 U.S. 543 (1823).
Lawrence Rosen, The Right to Be Different: Indigenous Peoples and the Quest for Unified Theory, 107 YALE L. J. 227, 242 (1997).
See DAVID E. STANNARD, AMERICAN HOLOCAUST 55–146 (1992).