The war on terror erases the state-based violence against the Native – the war on terrorism is just another fulfillment of Constitutional Democracy.

The question, then arises, what are we to do with the fact that, as Native scholar Luana Ross notes, genocide has never been against the law in the United States?7 On the contrary, Native genocide has been expressly sanctioned as the law. And, as legal scholar Sora Han points out, none of these post-9/11 practices is actually extraconstitutional or extralegal. In fact, the U.S. Constitution confers on the State the right to maintain itself over and above the rights of its citizenry.8 Butler may be arguing that post-9/11 rule of law through sovereignty (seemingly displaced, in Foucault’s analysis, during the rise of capitalism) has made a comeback as a legitimizing notion that works to extend state power. But this argument, as the work of Joy James and Rey Chow demonstrates, fails to consider how the state has always operated through sovereign power exacted through racial and colonial violence.9 Thus the argument that we are currently under a resurgence of sovereignty itself normalizes the history of U.S. sovereign power exacted against the bodies of indigenous peoples and peoples of color. In fact, a Native feminist analysis could be used to read Butler’s Gender Trouble against her analysis of sovereignty. In Gender Trouble, she critiques theorists such as Lacan, Irigaray, and Wittig, who posit a naturalized, prediscursive, gendered body as the foundation by which to critique contemporary heteropatriarchal practices. She argues that the very process of theorizing a prediscursive body demonstrates that the body cannot be prediscursive and hence it cannot be represented outside of prevailing power relations. But positing the body as prediscursive, according to Butler, allows the theorist to disavow her or his political investments because the theorist is supposedly rendering an account of the body prior to power relations. Butler’s critique could then be more broadly applied to a critique of “origin stories.” That is, when we critique a contemporary context through an appeal to a prior state before “the fall,” we are necessarily masking power relations through the evocation of lost origins. In even radical critiques of Bush’s war on terror, the U.S. Constitution serves as an origin story—it is the prior condition of “democracy” preceding our fall into Bush’s “lawlessness.” The Constitution’s status as an origin story then masks the genocide of indigenous peoples that is its foundation. Thus reading Butler against Butler, a Native feminist analysis might suggest that her analysis of Bush’s policies is predicated on what David Kazanjian refers to as the “colonizing trick”—the liberal myth that the United States is founded on democratic principles rather than being built on the pillars of capitalism, colonialism, and white supremacy.10 In this way, even scholars such as Butler and Kaplan, who make radical critiques of the United States as an empire, still unwittingly or implicitly take the U.S. Constitution as their origin story, presuming the U.S. nation-state even as they critique it. Consequently, the project of imagining alternative forms of governance outside of the United States remains impoverished within the field of American studies. Certainly, Native feminism should provide a critical resource for this project because the United States could not exist without the genocide of Native peoples—genocide is not a mistake or aberration of U.S. democracy; it is foundational to it.11 As Sandy Grande states: The United States is a nation defined by its original sin: the genocide of American Indians . . . American Indian tribes are viewed as an inherent threat to the nation, poised to expose the great lies of U.S. democracy: that we are a nation of laws and not random power; that we are guided by reason and not faith; that we are governed by representation and not executive order; and finally, that we stand as a self-determined citizenry and not a kingdom of blood or aristocracy . . . From the perspective of American Indians, “democracy” has been wielded with impunity as the first and most virulent weapon of mass destruction.12 From this perspective, the Bush regime does not represent a departure from U.S. democratic ideals but rather the fulfillment of a constitutional democracy based on theft and violence.