d’Errico: Sovereignty paths not taken

Peter d’Errico

The core of federal Indian law is rooted in a legal doctrine that is not acceptable in American law, namely, religious supremacy – the so-called right of Christian Discovery. The Johnson v. M’Intosh decision 186 years ago (1823) violated the separation of church and state and set federal Indian law on a path even the Supreme Court found problematic.

The court referred to its Christian Discovery decision as a “pompous claim” and an “extravagant pretension,” and added it “may be opposed to natural right, and to the usages of civilized nations” and only “perhaps. … supported by reason.” But the court said the doctrine was designed to protect colonizer property from “fierce savages” who were “brave and high spirited” in defense of their independence.

This is a bad pedigree for a legal principle in a system based on the rule of law. The rule of law says government power must be “subordinated to impartial and well-defined principles of law” and “exercised according to mutually understood rules and procedures that are applicable to all members of a society.” (Oxford Dictionary and Reference)

When we look at federal Indian law with a critical eye, we see it is actually not part of a rule of law system, but rather a colonial imposition and a relic of religious discrimination. This is evident from the court decision.

Full indigenous sovereignty exists in and around the foundation cases of federal Indian law, whether by denial or half-acceptance.

When we look with a commitment to justice, we cannot avoid the conclusion that the Doctrine of Christian Discovery must be expunged from American law. The question is what doctrine might take its place? The short answer is indigenous sovereignty.

It is important to note the common law had long stated a sovereign may not alienate the territory of the nation. This means the actual decision in Johnson – that the Illinois Indians could not sell their lands to private individuals – could have been based on the common law “inalienability of sovereignty” rather than on the “extravagant pretension” that the Illinois Indians had no sovereignty. This would have acknowledged the Illinois Nation and the United States as legal equals.

Chief Justice Marshall, author of the Johnson opinion, subsequently supported the existence of indigenous sovereignty and questioned the idea of Christian Discovery, when he wrote the decision in Worcester v. Georgia eight years later. He referred to discovery as “absurd” and said colonizers could only acquire title “according to the common law” that a sovereign may only transfer lands to another sovereign.

So we see the principle of full indigenous sovereignty is built into two of the three founding decisions of federal Indian law: First as the path not taken, and second as a path partially taken. The path was not taken in Johnson because of a religious belief that violates the separation of church and state and demeans indigenous peoples. The path was partially taken in Worcester where it provided a tool for the federal government to block the state of Georgia.

The other foundation case, Cherokee Nation v. Georgia, shows how Marshall rationalized this approach. Having already created a peculiar and “absurd” doctrine in Johnson, Marshall said, “the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist nowhere else.” This is called pulling yourself up by your bootstraps.

The Cherokee Nation decision goes on to express “doubt” whether indigenous nations have full sovereignty and concludes they “may. … perhaps. … be. … domestic dependent nations” and “Their relation to the United States resembles that of a ward to his guardian.” This resemblance quickly became an axiom of federal Indian law, allowing the federal government to have its cake and eat it too – claiming superior title to both indigenous nations and the states.

The point to be remembered is that full indigenous sovereignty exists in and around the foundation cases of federal Indian law, whether by denial or half-acceptance. We need not look further than these cases to see the path not taken at the outset, a path supported by common law principles and by respect for indigenous nations.

The core of federal Indian law is rooted in a legal doctrine that is not acceptable in American law, namely, religious supremacy.

As Worcester says, Indian nations are “distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guarantied by the United States.”

Justice Thompson’s dissent in Cherokee Nation shows the coherence and justice of the path not taken and is proof that the court was aware of the path: “Every nation that governs itself. … without any dependence on a foreign power is a sovereign state.” And a weaker state that allies with a stronger does not thereby cease to be “sovereign and independent.”

Justice McLean’s concurrence in Worcester shows the justices knew how significant their decision was. “This case involves principles of the highest importance, and may lead to consequences which shall have an enduring influence on the institutions of this country.” Indeed.

These cases, despite their built-in peculiarity and ambiguity, quickly became unquestioned by later judges. For example, in 1846, 14 years after Worcester, Justice Taney wrote in U.S. v. Rogers, “it would be useless to inquire whether the principle [of Discovery] is just or not.” This is the same Taney who said in the Dred Scott case (1857) that black people are “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far unfit that they had no rights which the white man was bound to respect.” At least he was consistent in his commitment to racist doctrines.

Later decisions elaborated the “peculiar” guardian-ward “resemblance” into a “trust doctrine” with “fiduciary powers.” This doctrine continues to be cited today without question about its basis and without pretense of actual fiduciary responsibility, as the Navajo coal case shows. The pretense and absurdity of the foundation become more glaringly obvious. The next question is, how long will Indian nations put up with it?

Peter d’Errico graduated from Yale Law School in 1968. Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968 – 1970. Taught Legal Studies at University of Massachusetts, Amherst, 1970 – 2002. Consulting attorney on indigenous issues.

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