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In The Courts of the Conqueror: A Short Review

Steven Newcomb
3/13/11

At a hefty 560 pages, Walter Echo-Hawk’s noteworthy book In The Courts Of The Conqueror: The 10 Worst Indian Law Cases Ever Decided (Fulcrum, 2010) examines U.S. federal Indian law within the scope of ten U.S. Supreme Court rulings. Given the short space of this column, I will restrict my remarks to Mr. Echo-Hawk’s treatment of what I am fond of calling the Doctrine of Christian Discovery, and his analysis of the 1823 Supreme Court ruling Johnson v. M’Intosh.

In chapter three, Mr. Echo-Hawk refers to many U.S. legal cases that “describe Indians as ‘inferior,’ ‘ignorant,’ ‘savages,’ ‘heathens,’ or ‘uncivilized.’” Among these, he cites Johnson v. M’Intosh, which he says “approved the appropriation of title to all tribal land in the United States, because Indians are ‘heathens’ and ‘fierce savages.’”

Then, in chapter four, Echo-Hawk briefly deals with what he calls the “religious justification” argument—“that Christians have the right to take land from non-Christians.” He writes: “Since colonization brings Christianity to heathens, so the argument went, surely this benefit is payment enough for taking Indian land…This supposed right to simply take non-Christian land turned also upon the Eurocentric legal fiction that heathens lack property rights.”

Despite Mr. Echo-Hawk having just acknowledged in chapter three that Johnson v. M’Intosh contains a categorization of Indians as “heathens,” he subsequently contradicts himself in chapter four, by citing U.C.L.A. Law Professor Stuart Banner’s (author of How the Indians Lost Their Land: Law and Power on the Frontier, 2007) statement that the claim of a “right of Christians to take non-Christian lands is scarcely found” after the early seventeenth century. Following this thought, Echo-Hawk’s five page analysis of the Johnson decision in chapter four does not mention one word about the Christian/heathen language that Chief Justice John Marshall wrote into the Johnson decision in the early decades of the nineteenth century.

Echo-Hawk’s commitment to race theory is one possible explanation for him omitting the Christian religious content of the Johnson ruling. Because “religion” is a separate category from that of “race,” it seems that Echo-Hawk casts aside the Christian religious content of Johnson v. M’Intosh in favor of a race theory critique. Despite having pointed out in chapter three that Johnson used the argument “because Indians are ‘heathens,’ and ‘fierce savages’,” Echo-Hawk framed that argument in terms of “race”: “In Johnson, the Supreme Court referred to Indians as racially inferior people. Based upon the language employed by the Court for the next hundred years, that perception never changed.”

Echo-Hawk’s mention of “heathens” falls out of focus. His use of “racially inferior people” serves to draw the reader’s attention away from the fact that “heathen” is religious category. According to the Oxford English Dictionary, it is “a word of Christian origin.”

One might ask, “What difference does it make whether Johnson is said to be premised on Christianity or on racism?” Simple. The Johnson ruling cannot be based on Christianity without also being based on the Bible. There ought to be no place in federal Indian law for the idea found in Johnson v. M’Intosh on the basis of the Bible that American Indians have a mere title of “occupancy” because our ancestors were not “Christian people” when the Christian Europeans first invasively arrived and claimed to have “discovered” North America.

Unfortunately, Mr. Echo-Hawk seems oblivious to the fact that some metaphors, such as “heathen,” invoke a biblical religious paradigm, while others, such as “Eurocentric,” invoke a secular race paradigm. For example, when Echo-Hawk mentioned the “Eurocentric legal fiction that heathens lack property rights,” he was using the secular concept “Eurocentric” to characterize the biblical religious concept “heathens.”

In an article published in 1975 in the newspaper Akwesasne Notes (Vol. 7, No. 5), Vine Deloria Jr. wrote: “We still have a nebulous title to our lands which goes back to the 1500s and the basis of this title is that because Indians were not Christians, we had no capability of ever holding good land titles.” (original emphasis) Given that the religious rationale “because Indians were not Christians” has not disappeared from federal Indian law, a question needs to be addressed by authors such as Mr. Echo-Hawk: What is the source of their refusal to explicitly identify the Christian biblical rationale that to this day remains embedded in the conceptual structure of federal Indian law.

At a minimum, major books on federal Indian law published in the twenty-first century ought to explicitly pinpoint the Christian religious underpinnings of Johnson v. M’Intosh and of federal Indian law that Deloria was trying to get people to focus on thirty years ago, and throughout his illustrious career. That should not be too much to ask.

Steven Newcomb (Shawnee/Lenape) is the co-founder and co-director of the Indigenous Law Institute, author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery, and a columnist for Indian Country Today Media Network.

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n4tiv3's picture
Laws are made for people to follow. To justify their unjust actions, they had to invoke an unfounded idea that christians were superior to other races or religions, in order for the masses of people to accept and follow (manifest destiny). Christianity is neither a race or a superior religion. It was meant as a path to god the creator like other spiritual practises.
n4tiv3
cayusewarrior's picture
Until we as Indian People start enforcing and codifying our own laws, we will continue to look at the European/American law system as a means by which to get a fair hearing...that will never happen. While I respect our Indian People who have gone on to law school to become American lawyers, what I have seen and what I see here is "American Apologists," and not the warriors we need that will institute our Native laws.
cayusewarrior
derrico's picture
Cayusewarrior is on the right track. A major flaw in the education of Indian lawyers is the lack of a critical perspective on federal Indian law. (I call it federal anti-Indian law.) To start with, the supposedly 'good' parts of FIL all involve a subjugation of indigenous peoples to the federal 'state' (i.e., 'trust relationship,' 'plenary power,' etc.). Secondly, the US Supreme Court has been making very serious inroads on even these aspects of FIL (Navajo coal case, Carcieri, Oneida, etc.). The UN Declaration provides one platform from which to build a critique; Steve Newcomb's work (Pagans in the Promised Land) provides another. Any Indian law student needs to be prepared to examine the curriculum with these thoughts in mind, and to question any teacher who ignores the deep problems of FIL as a vehicle for indigenous self-determination.
derrico
wanbli's picture
Your right on Steve! The BIA and IRA minded oppressor will never free the oppressed among our unrepresentitive frist nation's peoples of Turtle Island within the BIA and IRA construct of genocide. His connect to the oppressor and his reward is his disconnection to the reality and destiny of authentic traditional and national red life in the new creation that is happening. He has hurt many good oyates....for the political and ecconomical gains, rewards, rules, guildlines and laws of Empire. He's a real Uncle Tom!!!! And his children will probably end up like him, which is a great loss to our next generations of genuine authentic red traditional leaders.
wanbli
wovokanarchy's picture
I think Newcomb is splitting hairs here. Today, people are more prone to distinguish others based on their race and not whether or not a person is a christian. I've just started reading Mr. Echo-Hawks book and it's extremely exceptional is laying out the thought process behind the legal fictions used to render rulings.The book is very helpful for the everyday layman who has no understanding of legalese. Mr. Echo-Hawk refers in one of his footnotes that anyone interested in an indepth account of the Johnson v. M'Intosh should read "Conquest by Law" by Lindsay Robertson, which I plan to do. I think to discredit an entire book based on the fact an author didn't think the concept of christianity was relevant in demonstrating the unjust legacy of American law towards Indians serves to hinder understanding rather than promote it. Read the book and draw your own conclusions.
wovokanarchy