British Association for American Studies


The Un/Incorporated, Continental, Overseas, Global States of America: The Grammar of Jurisdictional Incongruence in US Imperialism

Image created by Mathias Temmen. Copyright for the image belongs to Jens Temmen.

The notion of the United States as a (and eventually the sole) global power of the 20th and 21st century is a shorthand that seeks to reconcile the United States’ self-fashioned identity as an alleged vanguard of democracy, a proliferator of universal human rights, and an exceptional nation of liberty and peace with the way that this identity is projected and affirmed via violent imperial campaigns and colonial practices across the globe.[1] The fact that Thomas Jefferson foreshadowed this paradoxical identity in his vision of the United States as an “empire of liberty” (cf. Thomas 89) as early as the 1790s, suggests a historical dimension that has shaped the present narrative of a global and benevolent US empire. A thorough and critical reading of contemporary US imperialism necessarily needs to capture this historical dimension of the narrative of US imperialism (cf. Kaplan, “Where is Guantánamo?” 832-34). This longer historical narrative promotes the notion that the United States’ current globalized phase is connected both with its continental phase (ca. 1782–1890) and its overseas phase (1898–ca. 1945) of expansion through a self-ascribed continuity of an “anti-colonial” and exceptional character of US imperialism (cf. Temmen and Waller, “Introduction“ 28-29). Simultaneously, this narrative promotes a strict demarcation of these three phases based on their individual modes of territorial incorporation and management (continental and incorporated, overseas and unincorporated, global and extraterritorial, etc.)—all of which are described as equally ‘anti-colonial’ in spite of being distinct (cf. Rowe, Literary Culture and Imperialism 3). Based on the United States’ allegedly “anti-colonial“ modes of expansion, as well as the exceptionalism of the US nation-state as such in relation to other Euro-American projects of imperialism, the United States continues to resist and elude the characterization of an “empire“ (cf. Goldstein 14-15).

As noted in the essay series’ introduction, expounding the logic that allows for a simultaneous rejection and exercise of imperialism is one of the most challenging and complex intellectual endeavours in American studies. In the following, I will argue in favour of approaching US imperialism through the lens of the legal discourses that legitimise the notion of a multi-phased anti-colonial US expansion in spite of the United States’ well-documented history of colonialism (cf. Temmen, The Territorialities 17). I argue that at its very core, the structural integrity of this paradoxical framework draws on the model of the Westphalian nation-state, which, conversely, lays down the congruence of state sovereignty, jurisdiction and territory as the key characteristic of any modern nation-state (cf. cf. Raustiala, “The evolution of territoriality” 219). Within the framework of the narrative of US imperialism, strict adherence to this notion of “jurisdictional congruence” becomes a marker of anti-coloniality (cf. Raustiala, Does the Constitution Follow the Flag? 32; cf. Temmen, The Territorialities 38). In other words, the notion of different phases of “anti-colonial” expansion relies on the argument that US territorial expansion did in no phase challenge the “jurisdictional congruence” of the US nation-state (cf. Kahler 5; cf. Raustiala, “The evolution of territoriality” 219). This convoluted narrative of a many-phased anti-colonial US imperialism serves to affirm the status of the United States as a Westphalian nation-state and serves to conceal, as Alyosha Goldstein argues, that:

the United States of America has never been a uniform or unequivocal geopolitical entity. … Rather, the United States encompasses a historically variable and uneven constellation of state and local governments, indigenous nations, unincorporated territories, free associated commonwealths, protectorates, federally administered public lands, military bases, export processing zones, colonias, and anomalies such as the District of Columbia that do not comprehensively delineate an inside and outside of the nation-state. (Goldstein, “Toward a Genealogy“ 41)

In the process, this narrative, like a fire blanket, buries underneath it the blatantly colonial relationship of the United States with a diverse number of colonised groups within or outside its allegedly sovereign national territory (cf. Perez, “Transterritorial Currents“ 619; cf. Bevacqua and Cruz, “The Banality of American Empire“; Camacho and Shigematsu, “Introduction“). Thereby, this narrative tries to suffocate past and present efforts for enfranchisement of colonised groups within the framework of the US nation-state, and smother anti-colonial movements for political independence, as well as accusations of colonialism leveled against the United States from basically any direction.[2]

A critical approach that seeks to lift that fire blanket necessarily has to go against the grain of US imperialism by focusing on the colonised voices and perspectives directly disenfranchised by this discourse. While there are a multitude of colonised voices that have been impacted by US legal culture, it is the relationship between the United States and Native American Nations on the North American continent and Indigenous Nations in the Pacific that have been of particular importance for the raison d’état of the US nation-state (cf. Wald 64-65).[3] Yet even though the presence of Indigenous peoples is at the heart of US legal culture, Native Americans (and other Indigenous groups) have struggled for agency within US law precisely because US law does speak about Indigenous peoples, but does not want Indigenous peoples to speak for themselves. Indigenous peoples have responded to this lack of enfranchisement through a variety of strategies and practices within the framework of Anglo-American common law, but also by employing, as Eric Cheyfitz and Shari Huhndorf remind us, oral and written stories, songs, performances, and other cultural productions that have “what the west might understand as juridical force” (cf. Cheyfitz and Huhndorf, “US Federal Indian Law” 264-265). Employing a law and literature and/or cultural approach that reads together US legal texts and practices and Indigenous oral, written and performative practices as legal practices, makes visible the logics and mechanisms of US imperial discourses obscured by a US law that is designed to affirm the imperial narrative.[4]

Centering Indigenous perspectives challenges the narrative of different phases of anti-colonial expansion from different vantage points. While my own research draws on the works of 19th century Indigenous authors and activists like John Rollin Ridge (Cherokee), Geronimo (Bedonkohe Apache) and Queen Lili’uokalani (Kanaka Maoli) and focuses on the ways in which these authors deconstruct the very legal foundations of the narrative of US continental and overseas imperialism, Indigenous resistance to colonial Western law and legal practice necessarily predates the US nation-state[5]. Across the globe today, Indigenous resistance continues to break the logic of US legal discourse at its fault lines, as seen in the ongoing #NoDAPL protests against the Dakota Pipeline at Standing Rock, Kanaka Maoli protection of Mauna Kea against the construction of the Thirty-Meter Telescope (TMT), or protests across Pacific communities against the ongoing militarization of the Pacific as exemplified in military exercises such as RIMPAC 2020 (cf. Archambault, “Taking A Stand at Standing Rock.“ ; cf. Saraf, “‘We’d rather eat rocks’“; cf. Knodell, “Ships Arrive in Hawaii“). All of these perspectives tell us of the ways that US expansion relies on a strategic incongruence of the core vocabulary of the Westphalian nation-state—sovereignty, jurisdiction, and territory—in order to simultaneously exert control over various colonial spaces, while veiling the coloniality of this control (cf. Rifkin, “Indigenizing Agamben” 89-90; Bruyneel; cf. Dudziak and Volpp 4; cf. Temmen, The Territoriality 3-4). In other words, they describe how flexibly disconnecting this vocabulary functions as one of the fundamental mechanisms of US imperialism—the “imperial grammar“ of jurisdictional incongruence, to keep with the metaphor. This imperial grammar is, paradoxically, at odds with the model of the Westphalian nation-state on which the narrative of US expansionism rests. It reveals that the United States was at no point in its history a Westphalian nation-state in the classic sense of the model, but that claiming adherence to the model was and is fundamental for perpetuating a narrative of a sovereign, legitimate, exceptional, and essentially anti-colonial US expansion (cf. Goldstein 14). This imperial grammar of jurisdictional incongruence is the actual core continuity across all alleged phases of U.S. expansion.


[1] This contribution expands an argument made in “The Imperial Grammar of Jurisdictional Incongruence,“ published in Minor Cosmopolitan: Thinking Art, Politics, and the Universe Together Otherwise (Ed. Zairong Xiang. Zurich: Diaphanes, 2020).

[2] The three spaces mentioned here, in which decolonising efforts have attempted to resist, confront and deconstruct the structures of US imperialism, necessarily fall short of encompassing the flexibility and even fluidity of these imperial structures as they are employed in a variety of spaces across the globe, nor does it do justice to the diversity of decolonising efforts and goals in face of these structures.

[3] For more background on this relationship look up the work of Robertson, Echo-Hawk, Rifkin, and Deloria. The very recent decision by the United States Supreme Court on the case of McGirt v. Oklahoma, which affirmed the reservation status of a large chunk of the state of Oklahoma, and the subsequent debate of the decision’s fallout highlight, among many other things, that the relationship of Native American Nations with US nation-state cuts to the heart of the narrative of how the United States came into being as a nation (See Wemsley, “Supreme Court Rules“). It also again reveals, however, that the complexity of this relationship, which entangles Native American Nations with local, state and federal levels of the US nation-state (and even creates legal spaces in its own right), is often very much at odds with this narrative of US nationhood.

[4] At the same time, such a ’culture as law’ approach can contribute to decolonial efforts by highlighting how non-western legal practices conceptualize and maintain sovereignties outside the US legal framework.

[5] There are multiple references to this notion. However, both Lindsay Robertsons’s Conquest by Law as well as Walter R. Echo.-Hawk’s (Pawnee) In the Courts of the Conquerer both present us with comprehensive overview and precise analysis of the relationship between Native Americans and Anglo American common law since colonial times.


List of Works Cited

Archambault II, David. “Taking a Stand at Standing Rock.“ nytimes.com, 24 August 2016, https://www.nytimes.com/2016/08/25/opinion/taking-a-stand-at-standing-rock.html. Accessed 22 August 2020.

Bevacqua Michael Lujan and Manuel Lujan Cruz, “The Banality of Empire: The Curios Case of Guam, USA.“ American Territorialities. Eds. Jens Temmen and Nicole Waller. Special Forum of the Journal of Transnational American Studies (JTAS). 2020, 86-107.

Bruyneel, Kevin. The Third Space of Sovereignty. U of Minnesota P, 2007.

Camacho, Keith L. and Setsu Shigematsu, “Introduction: Militarized Currents, Decolonizing Futures.“ Militarized Currents: Toward a Decolonized Future in Asia and the Pacific. Minneapolis: U of Minnesota P, 2010, xv-xviii.

Cheyfitz, Eric, and Shari M. Huhndorf. “US Federal Indian Law and Violence against Native Women in Louise Erdrich’s The Round House.” New Directions in Law and Literature, edited by Elizabeth S. Anker and Bernadette Meyler, Oxford UP, 2017, pp. 264-78.

Deloria, Philip J. Playing Indian. Yale UP, 1998.

Deloria, Philip J. “The Cherokee Nation Decision.” A New Literary History of America, edited by Marcus Greil and Werner Sollors, Harvard UP, 2009, pp. 205-10.

Dudziak, Mary L. and Leti Volpp. “Introduction: Legal Borderlands: Law and Construction of American Borders.” American Quarterly, vol. 57, no. 3, 2005, pp. 593-610.

Echo-Hawk, Walter R. In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided. Fulcrum Publishing, 2010.

Goldstein, Alyosha. “Toward a Genealogy of the U.S. Colonial Present.” Introduction. Formations of United States Colonialism, edited by Alyosha Goldstein, Duke UP, 2014, pp. 1-32.

Kahler, Miles. “Territoriality and conflict in an era of globalization.” Territoriality and Conflict in an Era of Globalization, edited by Miles Kahler und Barbara F. Walter, Cambridge UP, 2006, pp. 1-24.

Kaplan, Amy. “Where is Guantánamo?” American Quarterly, vol. 57, no. 3, 2005, pp. 831-58.

Knodell, Kevin. “Ships Arrive In Hawaii For RIMPAC Amid Heightened Local Scrutiny.“ civilbeat.org, 16 August 2020, https://www.civilbeat.org/2020/08/ships-arrive-in-hawaii-for-rimpac-amid-heightened-local-scrutiny/. Accessed 22 August 2020.

Perez, Craig Santos. “Transterritorial Currents and the Imperial Terripelago.” American Quarterly 67, no. 3 (2015): 619–24.

Raustiala, Kal. “The evolution of territoriality: international relations and American law.” Territoriality and Conflict in an Era of Globalization, edited by Miles Kahler und Barbara F. Walter, Cambridge UP, 2006, pp. 219-50.

—.    Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law. Oxford UP, 2009.

Rifkin, Mark. “Indigenizing Agamben Rethinking Sovereignty in Light of the ‘Peculiar’ Status of Native Peoples.” Cultural Critique, no. 73, 2009, pp. 88-124.

Robertson, Lindsay G. Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands. Oxford UP, 2007.

Rowe, John Carlos. Literary Culture and Imperialism from the Revolution to World War II. Oxford UP, 2002.

Saraf, Aanchal. “‘We’d rather eat rocks’: Contesting the Thirty Meter Telescope in a Struggle over Science and Sovereignty in Hawai‘i.“ American Territorialities. Eds. Jens Temmen and Nicole Waller. Special Forum of the Journal of Transnational American Studies (JTAS). 2020, 151-175.

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Temmen, Jens. The Territorialities of U.S. Imperialism(s): Conflicting Discourses of Sovereignty, Jurisdiction and Territory in Nineteenth-Century U.S. Legal Texts and Indigenous Life Writing. Heidelberg: Universitätsverlag Winter, 2020.

—.    “The Imperial Grammar of Jurisdictional Incongruence.“ Minor Cosmopolitan: Thinking Art, Politics, and the Universe Together Otherwise. Ed. Zairong Xiang. Zurich: Diaphanes, 2020, pp. 9-11.

Temmen, Jens and Nicole Waller. “Introduction: Mapping American Territorialities.“ American Territorialities. Eds. Jens Temmen and Nicole Waller. Special Forum of the Journal of Transnational American Studies (JTAS). 2020, 5-31.

Thomas, Brook. “A Constitution Led by the Flag: The Insular Cases and the Metaphor of Incorporation.” Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution, edited by Christina Duffy Burnett and Burke Marshall, Duke UP, 2001, pp. 82-103.

Wald, Priscilla. “Terms of Assimilation: Legislating Subjectivity in the Emerging Nation.” Cultures of United States Imperialism. Eds. Amy Kaplan and Donald E. Pease, Duke UP, 1993, pp. 59-84.

Wemsley, Laurel. “Supreme Court Rules That About Half Of Oklahoma Is Native American Land.“ NPR.org, 9 July 2020, https://www.npr.org/2020/07/09/889562040/supreme-court-rules-that-about-half-of-oklahoma-is-indian-land. Accessed 15 July 2020.


About the Author

Jens Temmen is postdoctoral research assistant at the American Studies department at Heinrich-Heine-University DŸsseldorf (Germany). He received his PhD in American Studies as part of his PhD fellowship with the Research Training Group minor cosmopolitanisms at the University of Potsdam. His first monograph, titled The Territorialities of US Imperialism(s): Conflicting Discourses of Sovereignty, Jurisdiction and Territory in Nineteenth-Century US Legal Texts and Indigenous Life Writing (UniversitŠtsverlag Winter, 2020), analyzes discourses of sovereignty, jurisdiction, and territoriality in legal and literary narratives on the North American continent and in the Pacific. In 2016, he was a DAAD-funded visiting scholar at the Center for Biographical Research at the University of Hawai'i at M_noa (USA). He is co-editor of an anthology titled Across Currents: Connections between Atlantic and (Trans)Pacific Studies (Routledge, 2018) and co-editor of a Special Forum of the Journal for Transnational American Studies (JTAS) on "American Territorialities". His postdoctoral research project employs an ecocritical lens to analyze representations of Mars colonization in contemporary US literature and culture.