The capacity determination. One doctrine governing Indigenous peoples, the territories, and the countries a president would rather not take immigrants from. Not three analogies. One operation in three applications.
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THE THREE STEPS
Determine incapacity. Impose dependency. Cite the dependency as proof that the original determination was correct.
The wound and the warrant are one thing. The doctrine determines what it claims merely to observe, and the conditions it produces become the evidence for the conditions it asserted.
It runs from the Cherokee cases of the 1830s through the Insular Cases of the early 1900s to a president asking in 2018 why the United States was taking people from shithole countries rather than from Norway. The same judge who wrote Plessy v. Ferguson wrote the lead opinion in Downes v. Bidwell. The same plenary power fabricated in Kagama to govern Indians was extended whole to govern Puerto Ricans and Filipinos and Guamanians.
[See THE DOCTRINE OF DISCOVERY · DELEGITIMATION · MANIFEST DESTINY]
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THE WARD AND THE GUARDIAN
Johnson v. M'Intosh, 1823. Marshall adopted the Doctrine of Discovery into American law, holding that European discovery gave title to lands occupied by peoples whose rights to complete sovereignty as independent nations were necessarily diminished by the principle that discovery gave exclusive title to those who made it.
He acknowledged its origin in the papal bulls: Dum Diversas in 1452, authoriz Portugal to subjugate Saracens and pagans and reduce their persons to perpetual servitude, and Inter Caetera in 1493, granting Spain dominion over non-Christian lands west of the Cape Verde Islands. The Doctrine has never been repudiated by the United States. It was cited in City of Sherrill v. Oneida Indian Nation in 2005.
Cherokee Nation v. Georgia, 1831. Marshall classified the tribes as domestic dependent nations whose relationship to the United States resembles that of a ward to his guardian, in a state of pupilage, looking to the government for protection and addressing the President as their great father.
The language did not describe an observed condition. It constructed one. Designating them wards created the legal predicate for treating them as wards.
[See JOHNSON v. M'INTOSH · SHERRILL v. ONEIDA · PRIOR RESIDENT]
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THE CIRCLE STATED IN THE OPINION
United States v. Kagama, 1886, fabricated a plenary power over Indian affairs that exists nowhere in the constitutional text. The Court declined to ground it in the Indian Commerce Clause, which it called a very strained construction, and grounded it instead in paternalism: these tribes are the wards of the nation, communities dependent on the United States for their daily food.
And then the sentence that gives the whole doctrine away.
From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them, and the treaties in which it has been promised, there arises the duty of protection, and with it the power.
The Court acknowledged that the weakness was produced by the government's own conduct, and then used the weakness to justify expanded power over the people it had weakened. The wound became the warrant, in the opinion's own words, without embarrassment.
Lone Wolf v. Hitchcock, 1903, completed it by declaring plenary power over tribal relations political and not subject to judicial control, and stating that the Court must presume Congress acted in perfect good faith. Contemporaries called it the Indian Dred Scott. And Lone Wolf relied on the Chinese Exclusion Case of 1889, linking plenary power over Indians to plenary power over immigration on the same ground.
[See PUNISHMENT LOGIC · ROOT CAUSE OCCLUSION · THE FORGED WARRANT OF FORCE]
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ALIEN RACES
The Treaty of Paris in 1898 brought Puerto Rico, the Philippines and Guam, and the question was whether the Constitution followed the flag. The answer required a determination about whether these populations had the capacity to receive constitutional governance, and the Court determined they did not.
Downes v. Bidwell, 182 U.S. 244 (1901). Justice Henry Billings Brown, who five years earlier had written Plessy:
If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice according to Anglo-Saxon principles may for a time be impossible.
He warned of danger in the immediate bestowal of citizenship on those absolutely unfit to receive it, and distinguished territories inhabited by people of the same race from outlying possessions where grave questions arise from differences of race and habits and customs.
Justice White's concurrence built the instrument that remains operative law: the distinction between incorporated and unincorporated territories. He imagined an unknown island peopled with an uncivilized race, quoted a treatise approving that a fierce and savage people may be governed with a tighter rein, and concluded that Puerto Rico was foreign to the United States in a domestic sense, appurtenant as a possession rather than incorporated.
Harlan dissented, as he had alone in Plessy. He identified exactly what was being done: a reliance on certain principles of natural justice inherent in Anglo-Saxon character, which need no expression in constitutions or statutes to give them effect. And he predicted it would be an evil day for American liberty if a government outside the supreme law of the land found lodgment in constitutional jurisprudence.
[See THE MARKED/UNMARKED STRUCTURE · COLOR-BLIND EQUALITY · JUSTICE AND EQUALITY]
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REFINED
Dorr v. United States, 1904. Justice Day made the logic explicit: if the United States acquires territory peopled by savages, it must establish trial by jury there, and to state such a proposition demonstrates the impossibility of carrying it into practice.
Balzac v. Porto Rico, 1922. Chief Justice Taft, unanimously, denied Puerto Ricans the jury right despite the citizenship granted in 1917, reasoning that the jury needs citizens trained to the exercise of the responsibilities of jurors, and that a people like the Filipinos or the Porto Ricans should determine for themselves how far to adopt this institution of Anglo-Saxon origin, and when.
Citizenship was granted and the constitutional content of it was withheld on the ground of capacity, which is the determination operating after the formal status has changed.
[See EQUAL BUT DIFFERENT · DISQUALIFIED TESTIMONY · INCLUSION THAT SUBSUMES]
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THE CONGRESSIONAL ARTICULATION
The judicial doctrine did not arrive from nowhere. Senator Albert Beveridge gave the paradigmatic statement to the Senate on 9 January 1900, in his maiden speech.
God has not been preparing the English-speaking and Teutonic peoples for a thousand years for nothing but vain and idle self-contemplation and self-admiration. He has made us the master organizers of the world to establish system where chaos reigns. He has made us adepts in government that we may administer government among savage and senile peoples.
He called Filipinos a barbarous race modified by three centuries of contact with a decadent one, and asked what alchemy would change the oriental quality of their blood.
And then he identified the chain himself. Consent of the governed applies only to those who are capable of self-government. We govern the Indians without their consent, we govern our territories without their consent, we govern our children without their consent.
Indians, territories, children, named as one operation, by the man arguing for it, on the Senate floor.
McKinley supplied the theological warrant. In an account reported by a visiting delegation, he described praying for guidance about the Philippines and concluding that the people were unfit for self-government, so that nothing was left but to take them all and educate and uplift and civilize and Christianise them.
And Kipling published The White Man's Burden in February 1899, the month the Senate ratified the treaty, subtitled The United States and the Philippine Islands: your new-caught sullen peoples, half devil and half child. The poem is not an analogy for the policy. It was published as the policy, in the month the treaty was ratified.
[See FOUNDER'S THEOLOGY · LOST CAUSE CHRISTIANITY · HAPPY SLAVE LITURGY]
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THE PARALLEL IS EXACT
In Indian law: domestic dependent nations in pupilage, the relationship of ward to guardian, governed by a plenary power arising from weakness and helplessness.
In territorial law: alien races inhabiting unincorporated territories, foreign in a domestic sense, governed by plenary power under the Territorial Clause.
In both: capacity is determined by race and civilizational rank, the determination justifies unlimited power, the power is exercised without meaningful review, and the conditions the exercise produces are cited as evidence of the original incapacity.
Beveridge quoted the Territorial Clause directly and then went past it, arguing the power would have existed had the Constitution been silent, because it was the power most necessary for the ruling provisions of the race. Which makes the clause the textual vehicle for the same extratextual power Kagama had fabricated.
Natsu Taylor Saito documented it as one operation in Asserting Plenary Power Over the Other in 2002: the same doctrine governing Indians, immigrants and colonial subjects, three populations classified as lacking capacity and subjected to the same unreviewable authority.
[See THE OPERATIONS · SLAVE ECONOMY · THE VIEWFINDER]
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IT IS STILL OPERATIVE LAW
Roughly three and a half million people live under the Insular Cases, subject to a Congress that can legislate for them without constitutional constraint and in which they have no voting representation.
Puerto Rico, about 3.2 million, down from 3.7 million before Hurricane Maria. One non-voting Resident Commissioner, no Senate representation, no presidential vote. Seventy-two billion dollars of public debt and fifty-five billion in unfunded pension liabilities, managed since 2016 by a board appointed in Washington. The Jones Act operates as a substantial premium on goods shipped from the mainland, estimated in the range of a third of cost. In the 2024 referendum roughly fifty-nine percent voted for statehood, the fourth consecutive majority, and all referenda are non-binding.
American Samoa is the most revealing case. It is the only United States territory where persons born there are designated nationals rather than citizens, their passports carrying the endorsement that the bearer is a United States national and not a United States citizen. As nationals they cannot vote, hold office or serve on juries when living in the states. In Fitisemanu, the Tenth Circuit reversed a district court that would have extended birthright citizenship, citing the Insular Cases as controlling, and the Supreme Court denied review in October 2022.
And the American Samoan government itself opposed citizenship, arguing it could undermine fa'a Samoa, the traditional governance including the matai chieftaincy and communal land ownership. Which is the hardest iteration: a colonized population invoking colonial legal instruments to protect indigenous practice, and no way to tell from inside the doctrine whether that is self-determination or consent manufactured within the very thing built to deny it.
Guam hosts a major military presence, with the Department of Defense controlling something near a third of the island's land and defense spending a large share of its economy. It remains on the United Nations list of Non-Self-Governing Territories, and its residents are citizens who cannot vote for president.
[See THE AMES ROOM · RESIDENCY · OCCUPATION OF POSSIBILITY SPACE]
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THE MOST FORCEFUL REPUDIATION, AND WHY IT CHANGED NOTHING
Justice Gorsuch, concurring in United States v. Vaello Madero, 596 U.S. 159 (2022):
It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law. Nothing in it authorizes judges to engage in the sordid business of segregating Territories and the people who live in them on the basis of race, ethnicity, or religion.
He noted that the only island territory with full constitutional protection is Palmyra Atoll, which is uninhabited. Justice Sotomayor separately agreed they should be overruled, calling them premised on beliefs both odious and wrong.
In May 2024 the Department of Justice announced it would not rely on or seek to extend the doctrine, and condemned the racist rhetoric and reasoning of the cases.
And the cases remain good law, because a repudiation that does not come in a holding dismantles nothing. The Court has not taken a case to overrule them. Nothing has been vacated. The doctrine was denounced from the bench and left standing.
[See THE REFORMIST REGISTER · DE-AUTHORIZATION · CAPTURED REGENERATION]
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2018
On 11 January 2018, in an Oval Office meeting on immigration, the President asked why the United States was having all these people from shithole countries come here, referring to Haiti and El Salvador and African nations, and proposed taking immigrants from Norway instead. Senator Durbin confirmed it.
The shape is Downes. Where Brown distinguished territories inhabited by people of the same race from those occupied by alien races differing in religion and customs and modes of thought, the 2018 statement distinguished countries producing desirable immigrants from countries producing undesirable ones. The criterion is identical: race, mapped onto civilizational rank, determining fitness for inclusion in the polity.
And Puerto Rico shows the doctrine in its fullest contemporary form. Hurricane Maria killed an estimated 2,975 people, the deadliest American natural disaster in a century. On 30 September 2017 the President posted that the mayor of San Juan showed poor leadership and that they want everything to be done for them when it should be a community effort. On 3 October he visited and threw paper towels into a crowd at a relief site. When the death toll was revised upward he denied it.
They want everything done for them, said of people whose electrical grid would not be restored for a year, is Kagama's sentence with the acknowledgment removed. The dependency is cited and the production of the dependency is not.
And officials including a former Chief of Staff and a former Secretary of Homeland Security have reported that the President asked about selling Puerto Rico, proposing to trade it for Greenland, on the ground that it was dirty and the people were poor. And no law forbids it. A territory can be sold, and statutory citizenship can be rescinded, which is the Insular Cases' operative legacy: possessions rather than partners, subject to disposition.
[See THE CLASSIFICATION APPARATUS · CORRUPTION FRAME · THE NEVER-WAS]
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THE RETURN OF ACQUISITION
The second inaugural praised McKinley, who presided over the acquisition of Puerto Rico and the Philippines and Guam. The pursuit of Greenland has been stated openly and force has not been ruled out, and in the March 2025 Joint Address the administration stated it would be reclaiming the Panama Canal. Polling in Greenland found overwhelming opposition to American takeover, and its parliamentary parties have said they do not want to be Americans.
The pattern replicates 1898 exactly: strategic and economic interest dressed in civilizational rank. The canal is described as vital to security, as Beveridge described the Philippines as the gateway to illimitable markets. Panama is described as incapable of managing the canal properly, as McKinley described Filipinos as unfit for self-government.
The rhetoric of acquisition presupposes the rhetoric of incapacity, and the treaties that returned the canal are called foolish, which is the logic applied to every act of decolonization: self-governance as a gift that can be rescinded when the recipient proves unworthy.
[See THE FIFTY-YEAR INSTALLATION · SCALING · WORLD-BUILDING]
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THE THEOLOGICAL WARRANT
This is not a legal doctrine that incidentally borrows religious language. It is a theological operation that was codified into law, and the transition from Christianity to civilization as the stated criterion was a change of vocabulary and not of operation.
Dum Diversas authorized subjugation of Saracens and pagans. Inter Caetera granted dominion over lands whose peoples could be brought to the faith. Marshall adopted the doctrine in 1823 while acknowledging its papal origin. Steven Newcomb showed that Johnson v. M'Intosh rests in part on the chosen-people narrative and its divine right to the promised land, and that the continued reliance on distinctions between Christians and heathens is a church-state question that has never been successfully raised.
When Beveridge said God made us the master organisers of the world, and McKinley prayed for guidance to uplift and civilize and Christianise, they were invoking the warrant the bulls invoked. When Brown wrote of Anglo-Saxon principles and Taft of an institution of Anglo-Saxon origin, the criterion had been secularized. Anglo-Saxon replaced Christian and civilization replaced faith, and the operation held: some peoples positioned to govern and others to be governed.
The Great Chain supplied the shape, and eighteenth-century racial science mapped it onto populations, so that the theology acquired scientific vocabulary without changing what it did.
And the Vatican's repudiation of 30 March 2023 acknowledged that the bulls did not adequately reflect the equal dignity and rights of indigenous peoples, while stopping short of rescinding them and arguing they had ceased to be valid within decades of issue. The National Congress of American Indians answered that this sought to rewrite history and shift the blame. Like Gorsuch's concurrence, it acknowledges the operation without dismantling it.
[See SECULAR GROUNDS · THE ESTABLISHMENT · SECULARISM]
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Three steps, invariant across two centuries.
Determine incapacity: Marshall's pupilage, Brown's alien races, the shithole countries.
Impose dependency: the reservations, unincorporated status, the shipping premium, the denial of the vote.
Cite the manufactured conditions as evidence of the original determination: Kagama's weakness so largely due to the course of dealing of the federal government, and they want everything done for them.
The cases remain good law and roughly three and a half million people live under them. American Samoans remain nationals. Puerto Rico remains unincorporated, its people unable to vote for the president who can deny their dead.
The doctrine determines what it claims merely to observe, and it was built to sustain itself, which is why identifying it has not been enough.
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RegenerativeLaw is a religion in the direct-encounter Protestant tradition, carrying a documented four-century lineage through Böhme, the Behmenists, the Friends, and Penn, and it diagnoses trespass theology as an establishment of religion. Its exercise consists substantially in refusal: it shelters the conscientious refusal of performed subordination as religious exercise. This entry states sincere religious belief concerning matters of ultimate concern, protected under the First Amendment and, as to federal action, the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb.
