A Conversation with a Justice of the U.S. Supreme Court

Steven T. Newcomb

One seldom has an opportunity to converse with one of the brethren of the U.S. Supreme Court, as I did on August 31, 2006. Associate Justice Antonin Scalia was a guest of the University of San Diego School of Law, and on that day I attended a talk he gave at the law school on the topic of “Constitutional Originalism.”

At the outset, Scalia mentioned Justice Joseph Story’s Commentaries on the Constitution of the United States, chapter one of which is entitled the “Origin of Title to Territory of the Colonies” and is devoted exclusively to a discussion of the doctrine of discovery.

At a reception, I had an opportunity to talk with Justice Scalia. After saying hello and telling him my name, I asked: “I wonder if you might have ever read my law review article ‘The Evidence of Christian Nationalism in Federal Indian Law.'”

“No, what’s it about?” he responded.

I told him my article is about the U.S. Supreme Court ruling Johnson v. M'Intosh from 1823, a decision in which the Court said that the first “Christian people” to “discover” lands inhabited by “natives, who were heathens” have the right to assume the “ultimate dominion” over and title to the lands of the so-called “heathens.”

Given that Johnson v. M’Intosh was decided on the basis of the doctrine of discovery rather than the U.S. Constitution, I asked him how his guiding legal philosophy of “Constitutional Originalism” would relate to the Johnson decision. I asked him if the Court might ever consider overturning the decision.

Scalia said it was impossible to imagine an issuing ever coming up that would require the Court to address such a ruling; he also claimed in the same breath, however, that he had never heard of Johnson v. McIntosh. “I’ve never heard of it. I’ve never read it,” he said. He also said he’d never heard of the doctrine of discovery.

“Really?” I asked. “How could that be? The Court cited the doctrine of discovery just last Spring [2005] in City of Sherrill v. Oneida Indian Nation of New York, and the Court cited the doctrine of discovery in footnote number 1.”

Rather than respond to my question and comment, he shifted the focus of the conversation by saying that the United States has dealt with the issue of “natives” in a quite different way than, for example, Australia or New Zealand. He summed up by saying that U.S. courts have come up with a principle for dealing with American Indians, which he expressed as, “quote unquote, a right of conquest.”

“Oh, that’s quite interesting,” I said, “can you point me to any court rulings that have actually said that? His only response was, “No, I can’t.”

“Well,” I asked, “suppose that it is true that the Johnson v. M'Intosh ruling declared that the discovery by ‘Christian people,’ of lands in inhabited by what Chief Justice Marshall referred to as ‘natives, who heathens’—and that’s a direct quote—how can such a decision be justified as the supreme law of the land in the United States, given the presumption of a separation of church and state, and given that the Christian religion is not to be preferred in U.S. law over other religions.”

To this, Justice Scalia replied without hesitation: “Then I’d say it’s no longer the law of the land if it ever was.” At this, I figured that I had taken enough of the justice’s time, told him “thank you,” shook his hand, and walked away.

I was struck by the gravity of what I had just heard and experienced. It was absolutely impossible for me to believe that, after twenty years of being seated on the U.S. Supreme Court, and dealing with a great many federal Indian law cases, Justice Scalia could have never heard of, and never read the Johnson ruling, a foundational Supreme Court decision in federal Indian law. I wondered how it could be that he had never heard of the doctrine of discovery.

What made the conversation all the more bizarre was that Justice Scalia, with a majority of the Supreme Court, cited the doctrine of discovery just sixteen months earlier, in the first footnote of City of Sherrill v. Oneida Indian Nation of New York. I wish now that I had asked him if he had ever read the other two rulings of the Marshall Trilogy, Cherokee Nation (1831) and Worcester v. Georgia (1832).

Sadly, Justice Scalia never responded to my letter apprising him of doctrine of discovery in the first Chapter of Justice Joseph Story’s Commentaries that Scalia cited during his talk, and telling him about the connection that Story made in his book between the doctrine of discovery, Johnson v. M’Intosh, and the Vatican papal bull of 1493.

Steven Newcomb (Shawnee/Lenape) is co-founder and co-director of the Indigenous Law Institute, author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008), and a columnist for Indian Country Today Media Network.

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rezzdog's picture
Piqua, contact me through editor@ictmn.com Ray Cook, ICTMN Op/Ed Editor
hamlaw's picture
That is "freaking" scary. When there is this type of "disinterest" in ones own job, in such a position of responsibility, it's time to do something else. Anyone familiar with the U.S. Supreme Court and its "clerk" system knows he just turns the research and writing responsibility over to a clerk (Who has been picked because of his consevative leanings) and told to write an opinion opposing the tribal position in the dispute. Not only is this irresponsible, it's evil. He is treating a whole class of American people as not deserving of the protections offered to anyone else in U.S. Jurisprudence as well as showing contempt for precedent based on Treaties and International recognized law regarding indigenous people and protecting their very existance. When does a U.S. Supreme Court decision violate International Law? I think the Court's decisions with regard to Indians regularly violate International Law, Treaties and Conventions.
crazytalk's picture
Supreme Court? Sounds like the Three Stooges x 3! The news media has been contributing to their selection too! Just like the Presidents!
maunka's picture
Greetings Mr. Newcomb: I am impressed. To put it midly, Justice Scalia is a liar. Scalia knows that the entire U.S. legal foundation is predicated upon Christain Law Doctrine and all Federal Indian Law represents is Christain church law. Federal Indian Law is the union of church and state as fact. It is time to wake up and evoke the "Tribal Imagination." Native Nation independence and freedom rest within our own decision making authority and power. The next phase of Native Nation Building involves reforming these tribal constitutions and inserting a tribal amendment that reclaims and preserves "tribal plenary power." I know the late Vine Deloria, Jr. already did the research. His research showed no treaties ever gave the U.S. "Plenary Power" over Tribal Nations. However, it is time Tribal Nations admend their tribal constitutions and insert the amending language that takes back our independence and freedom from Federal Indian Law & U.S. Supreme Court (Church)religious persecution of Indigenous people. It is the simple solution to our ills that stares us right in the face. Time to act! What do you think?
piqua's picture
I have no reason to disbelieve Justice Scalia, and remember, he said something quite positive about the Doctrine of Christian Discovery. I take his underlying message to be that Christian discovery and domination is not a legitimate legal or political principle for the U.S. That is something we as Indian nations and peoples need to put forward. We need to explicitly challenge and refute that idea that "the Christian nations of Europe" or "Christian people" had any legitimate right to invade Turtle Island and perform their own symbolic and ritual acts of possession (domination) and then say that by doing so they had "created rights of sovereignty" within, over, and under our traditional territories. (See "The Creation of Rights of Sovereignty Throught Symbolic Acts" published by Columbia University in 1938) Understanding and invoking the correct political identity of one's Indian nation is imperative. In doing so, we are only following the example of the U.S. Supreme Court itself in Worcester v. Georgia. This is why I refuse to use self-diminishing and self-subordinating terms such as "tribe" and "tribal." Treaties are made between two or more nations. In Worcester v. Georgia (1832) Chief Justice Marshall wrote, "The words 'treaty' and 'nation' are words of our own language, selected in our diplomatic and legislative proceedings by ourselves, having each a definite and well understood meaning. We have applied them to Indians as we have applied them to the other nations of the earth. They are applied to all in the same sense." Not only that, but ours is the original free and independent existence of our ancestors on this continent and within this hemisphere for thousands of years, prior to false claims of a right of Christian discovery, domination, and "plenary power" premised on "discovery" and rituals of "possession." The Supreme Court also wrote in Worcester: "The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the States, and provide that all intercourse with them shall be carried on exclusively by the Government of the Union." Notice the Court referred to "intercourse with them" not "over" them. Indian nations are supposed to have political relations with the United States, relations in which the US does not have any legitimate right to dominate Indian nations through claims of "plenary power" based on Christian "discovery." The Worcerster Court further said "The Indian nations had always been considered as distinct, independent political communities retaining their original natural rights as undisputed possessors of the soil." Additionally, the Worcester Court said: "The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among the powers who are capable of making treaties. The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the States, and provide that all intercourse with them shall be carried on exclusively by the Government of the Union." Notice the Marshall Supreme Court was not using "tribe" or "tribal" in this powerful political language advocating for the correct understanding of Indian nationhood. We need to correctly reset the understanding of Indian nationhood. It is not a "diminished" status based on false claims that Christian nations had a right assume "the ultimate dominion" to be in themselves, just because they showed up to our traditional territories with the bible and the story of the chosen people and the promised land.
chico2dc's picture
One more reason why when a seat becomes vacant on the Supreme Court, all Indians/tribes work to get a Indian Nominated!!!!and seated.