The Modern Insurrection Act: A Colonial And Racial History
Nina Farnia* | 27.6 | Citation: Nina Farnia, The Modern Insurrection Act: A Colonial and Racial History, 27 U. Pa. J. Const. L. 1174 (2026).
The potential invocation of the Insurrection Act poses a serious threat to Indigenous, Black, immigrant and dissident communities in the United States. This Article recuperates the modern history of the Insurrection Act and military deployment on U.S. soil. Through archival research and legal analysis, I conduct two historical case studies involving the Insurrection Act—the Wounded Knee rebellion of 1973 and the Los Angeles rebellion of 1992.
First, I argue that although the U.S. Constitution does not recognize a general state of national emergency and has limited language on the matter, the United States has a broad, fragmented national emergency architecture composed of constitutional provisions, statutory authority, and classified military plans. Next, I turn to one such example of a military plan, the Department of the Army Civil Disturbance Plan, deployed against Indigenous peoples at Wounded Knee and Black and Latinx communities in Los Angeles. I contend that the use of military force on U.S. soil has led to considerable racial and colonial violence against these communities, including the imprisonment of Leonard Peltier, one of the longest held political prisoners in the United States. He was recently released after serving nearly half a century behind bars.
*Assistant Professor of Law, Albany Law School; A.B., University of Chicago; J.D., UCLA School of Law, specialization in Critical Race Studies; Ph.D., University of California Davis, History