When Rep. Alexandria Ocasio-Cortez (D-N.Y.) toured a Customs and Border Protection facility detaining migrant children at the border, she encountered resistance. She says she observed armed guards “laughing in front of members of Congress” who were there to follow up on reports of grievous human rights abuses.
On-the-ground officials resenting federal government oversight is hardly new. As president of a new nation embroiled in its own violent border conflicts, George Washington, his Cabinet and Congress struggled to establish strategies to keep local officials under control. With a limited budget and a small number of federal officials at its disposal, the Washington administration also relied on state governments to enforce the law at a local level.
But when state militiamen committed atrocities against native peoples, the president and Congress both refused to ignore unconstitutional and illegal actions undertaken by officials on the frontier. The current moment is so dangerous because today, many officials are indifferent to the illegal and cruel treatment of migrants and to clear violations of the law.
Before, during and after the American Revolution, white colonists flooded across legal borders with Indian nations and settled illegally on Indian lands, sparking violent confrontation and death. King George III sought to halt westward movement through the 1763 Royal Proclamation, which banned settlement west of the Appalachian Mountains. After the War of Independence, the Confederation Congress also attempted to prevent state governments and individual settlers from encroaching on Indian lands and asserted its right to regulate interactions with Indian nations.
But before the ratification of the Constitution, these policies met with little success. Under the Articles of Confederation, Congress lacked both the money and the executive power to enforce its laws in the states.
When George Washington became president in 1789, he and his secretary of war, Henry Knox, were also keen to enforce a wall of separation between white settlers and native peoples, even as the administration found ways to push westward.
To do this, they worked within the union’s newly established legal frameworks. The Constitution gave the federal government the exclusive right to “engage in War” and make binding treaties with Indian nations. In 1790, Congress passed the first Indian Nonintercourse Act, which prevented whites from buying land from or trading with Indians without a federal permit. To enforce the law, the federal government relied on superintendents of Indian affairs and agents working locally.
Officials in this period walked a delicate line between enforcing federal law and integrating with the local communities where they worked. As historian Gautham Rao’s work shows, to collect taxes for the federal government, customs officials had to build relationships with the powerful local merchants whose trade they regulated. Because the federal bureaucracy was so small, Washington and his Cabinet also relied on the state governments to implement federal law.
In Georgia, this led to illegal atrocities. In 1790, the state claimed a territory of roughly 145,000 square miles with a settler population of only 82,500. Much of this territory was inhabited by a powerful confederacy of Indians known to white contemporaries as the Creeks. During the first years of Washington’s presidency, the Georgia state militia launched extralegal attacks on Indian towns and murdered members of the Creek nation. In March 1793, a group of Creeks retaliated against Georgia by robbing a store, killing some white people and capturing others. This sparked fears of a broader conflict.
Due to the great distance from Savannah to the federal capital in Philadelphia, it was weeks before this news landed on Washington’s desk. With his Cabinet, he prepared a proportionate response, attempting to prevent all-out war. Because Georgia and the Creek territories bordered the Spanish empire in Florida, Washington asked Georgia Gov. Edward Telfair not to allow armed parties into Creek country, in case it should lead to war with Spain. Instead, the federal government would send more troops to guard the border and send an agent to negotiate for the “surrender” of the people who had attacked the store.
But Washington’s warning arrived too late. Telfair had “called into service considerable bodies of Militia, Horse, and Foot” to retaliate against the Creeks even before Washington’s instructions reached Georgia. In June, the governor allowed 700 armed volunteers to make an “expedition into the Creek Country,” and in August, he “convened a Council of General Officers” to discuss an attack on “the five inimical Towns in the Creek Nation.” Militia officer James Jackson, himself a former U.S. congressman and future U.S. senator, derided the federal government’s attempts to prevent violence against the Indians, referring to federal officials as “the friends of savage barbarity.”
Washington was furious that his orders — and federal law — had been so blatantly disregarded, but Telfair persisted. In October, two militia officers raided a Creek town, killing six men and taking women and children as prisoners. According to federal Indian agent James Seagrove, the people who were attacked were not enemies; they “were among the most friendly of the Creeks” and had not provoked the attacks in any way. To add insult to injury, the Georgia government sent Congress a bill for the wages of the “considerable bodies of mounted Volunteers” they had called up to fight the Creeks.
But Congress refused to pay for Georgia’s unauthorized troops. When the state’s commissioners attended treaty negotiations between the Creeks and the federal government in 1796, they were humiliated both by the Creeks and by the federal commissioners and left the negotiations empty-handed.
Washington remained outraged: when he heard of the Georgians’ illegal expeditions against the Creeks, he replied that “he utterly disapproved the measure at that time as being unauthorized by law — as contrary to the present state of affairs, and as contrary to the instructions heretofore given upon the subject.” Washington’s concern was not the well-being of the Creek people, but the rule of law.
Herein lies the difference. The Trump administration has shown disdain for both the rule of law and human rights. As members of Congress push for greater oversight and inquiry into the conditions and fact of immigrant detention, they should remember Washington’s reaction to the atrocities committed by Georgia’s state militia and decry them as violating our laws and values. They could even go further. Not only should all people be treated in accordance with the laws — by honoring, for example, the Flores Settlement Agreement’s rules about the conditions of child detention — but they should all be treated with dignity. Officials who mistreat and abuse people of any nationality or immigrant status should be held accountable.