Rethinking Indian Law 30 Years Later

Steven Newcomb

In 1982, the National Lawyers Guild published a book entitled Rethinking Indian Law. It was, in part, a collaborative effort between the Guild and Tim Coulter of the Indian Law Resource Center (ILRC). In an essay contributed by the Indian Law Resource Center, Mr. Tim Coulter said that an assertion had been made in the 1800s “that the right of discovery gave the discovering nations and later the United States the absolute rights of property and dominion over Indian lands.” Mr. Coulter said that this was “a warped misuse of the original discovery doctrine.”

According to Mr. Coulter, there was an “original conception” of the right of discovery and a “subsequent misuse” of that doctrine. The two versions can be best understood, he said, by comparing quotations from two major opinions by the Supreme Court: Johnson v. M’Intosh and Worcester v. Georgia (1832). In support of his theory, Mr. Coulter selectively quoted from the 1823 ruling Johnson & Graham’s Lessee v. M’Intosh.

Mr. Coulter then used a quote from Worcester v. Georgia, in which Chief Justice John Marshall was dismissive of the idea that merely sailing ships along the coast could give the sponsoring monarchy or country a claim of “dominion” over the entire continent. By combining his selected quotes from the Johnson and Worcester rulings, Mr. Coulter made it seem as if, by the time of the Worcester ruling, the Supreme Court had not advanced the idea that “discovery” had resulted in the first “discoverer” asserting or assuming “dominion” in relation to the Indian lands of the continent.

What Coulter chose not to include in his account were the U.S. Supreme Court’s repeated use of “dominion” and “ultimate dominion.” The following statement from the Johnson ruling exemplifies the language that Mr. Coulter did not select for comparison with language from Worcester:

While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives.

Next Mr. Coulter turned to the 1842 Supreme Court ruling Martin v. Waddell, making it seem as if Martin was the very first time the U.S. Supreme Court had expressed the claim that mere “discovery” had resulted in “the discoverer” claiming a title of “dominion” over the Indian lands of the continent:

…the Indian tribes in the new world were regarded as mere temporary occupants of the soil, and the absolute rights of property and dominion were held to belong to the European nation by which any particular portion of the country was first discovered.” In Waddell the Supreme Court further said that the ‘territory’ that the Europeans occupied “was disposed of by the governments of Europe at their pleasure, as if it had been found without inhabitants.

Perhaps because it would have been fatal to the argument he was developing, Mr. Coulter neglected to mention that the Martin ruling referenced Johnson v. M’Intosh as an authoritative source for the above language about “dominion.” This is demonstrated by the statement in Martin that the "territory" the Europeans occupied “was disposed of by the governments of Europe at their pleasure, as if it had been found without inhabitants.”

The Martin Court further said: “The discoveries made by persons acting under the authority of the government were for the benefit of the nation… [T]he Crown, according to the principles of the British constitution, was the proper organ to dispose of the public domains, and upon these principles rest the various charters and grants of territory made on this continent. The doctrine upon this subject is clearly stated in the case of Johnson v. McIntosh, 8 Wheat. 595.”

Clearly, when the Martin Court used the Johnson ruling as an authoritative source, the justices did not believe that they were “misusing” the concepts of “discovery,” “temporary occupants of the soil” and “absolute rights of property and dominion” found in Johnson. Contrary to Mr. Coulter’s claim in Rethinking Indian Law, the 1842 Martin opinion was the Court’s further application of the claim made by the Court in Johnson that ‘discovery’ by “Christian people,” gave them the right to claim “ultimate dominion” on the continent. This was the same Johnson Court which posited that Indians’ rights had been “wrested from them” by conceptualizing them as "heathens" with a “mere right of occupancy.”

As Henry Wheaton wrote in his Elements of International Law (1836) regarding the Doctrine of Discovery: According to the European ideas of that age [of discovery], the heathen nations of the other quarters of the globe were the lawful spoil and prey of their civilized conquerors…. It thus became a maxim of policy and of law, that the right of the native Indians was subordinate to that of the first Christian discoverer.”

Now that the 11th session of the United Nations Permanent Forum on Indigenous Issues (which met from May 7 to 18) focused on theme of the Doctrine of Discovery for its 11th session, it is imperative that we develop a counter argument to refute the view that the first “Christian people” to “discover” lands inhabited by non-Christians (“heathens”) have the right to assert or assume the “ultimate dominion” (“right of domination”) to be in themselves relative to the original free and independent nations and peoples of the continent and the hemisphere.

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 (2008), and a columnist for Indian Country Today Media Network.

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michaelmack's picture
Amen. We need to press this point to Indian Country leadership, and not stop until they "get" it and DO something to challenge and change this "colonized" mindset. My own tribal leadership remains stuck in the old mindset but I keep pressing the issue every chance I get, and promote this idea when I talk with NDN students, and anyone else who is interested.
michaelmack's picture
I'm a historian, not a lawyer (sometimes I wish I were). so much to say on this topic... a major issue in Indian Country is that our leadership for the most part doesn't question the foundational principles of federal Indian law - in fact I believe for the most part they I don't think about it at all, they just accept it. How can this be changed? I'd like to see NARF or NCAI or some NDN group, or perhaps the UN address the topic in some larger way - perhaps a conference with a title such as "Questioning the Source of Federal Indian law" - the point is to expose the foundation principles and question their legitimacy. Also, because the Bible is an essential element of U.S. law - even though most Americans are in denial of this fact - we need to understand it better. For example in Genesis 1:28, the command to have "dominion over the earth" was said to those who believe in the God or Israel, later Christians - it does NOT specify white people or European people, in fact the people of that time in the middle-east were Arabic, African, and Eurasian mixes. Today most people "assume" the God of Israel was talking to white or euro people (which is why the U.S.s Anglo/Northern European dominant groups placed themselves above others), but that is not His point - the Bible must be understood in the context of its world. Those commands were addressed to Believers of many colors, not just one racial group. But like many other Biblical concepts, it has been hijacked first by Europeans and later Americans to justify their ungodly, self-serving actions. And unfortunately most of the "civilized" world now believes it. To put it simply, it is these basic "assumptions" most Americans and NDN's have today that need to be re-examined from the context of their original meanings, not later interpretations. I believe the real reason that most Americans, Christians, colonized NDN's don't want to really examine these foundational concepts, is that they know at some deeper level, that the institutions of colonization that justifies the U.S.'s empire building history, are in fact "built on sand" not solid rock.
forbiss's picture
Agreed,quinzy, about Newcomb, who belies the notion that judicial argumentative acumen resides outside American Indians' purview to supplant the Christian Discovery Doctrine safety net with barbaric, illicit conquest & ordinary, low-life chicanery, dogma by dogma; Supreme Court decision after another. btw, another Comment has been added to First Nations Continue To Be Savaged...Ravaged.
rezzdog's picture
MM, orgs like NCAI and NIGA, under their current leadership pride themselves as being American first and Indigenous second. Those two presidents have done more to unify like minded tribal leaders with anti-indian groups, not in the defense of Indigenous america, but for the proud march towards americanism. One cannot be a leader among many nations while holding the banner and pledging allegiance to one nation under god. So, the question remains, what are the grass roots natives (you and your's) willing to do to regain control of first the local tribal dialogue then the international dialogue that can reposition, well, our position? What are you and Quinzy doing besides stroking each other's, er, um, intellect?
quinzy's picture
Well, what do you want us to do rezdog? I will probably try to do exactly that. My personal belief is he who controls the media controls the world. Unfortunately Indian media is hijacked by interests alien to Indians. Look at your own attitudes rezdog, for instance. If I say something like the American Marines are brainwashed idiots who murder innocent indigenous people in indigenous countries around the world for capitalistic dollars, and therefore skins should not serve in the colonizer's Marines, that makes you mad, doesn't it? Comments by me, michaelmack, chief and other readers - if published - will ensure to some extent at least that Indian media won't be completely hijacked by people whose interests align more with America than with Indians. If our comments are not published, then some of us should consider starting an alternative to ICTMN, one with ONLY Indian interests at heart, and not interests of the Marines and the US military. After all, it is not very difficult to start something like ICTMN, if one person is willing to do it full time.
michaelmack's picture
I absolutely agree about NARF, NCAI, etc. I've talked with my tribal leadership, communicated these ideas to NARF, etc. on the off-hand possibility that I might get a response (haven't so far) and also talk about this when asked to speak at colleges/universities and American Indian organizations. What do you suggest?
quinzy's picture
Actually it is not Indian law but anti-Indian law.
quinzy's picture
I agree that we need to develop a counter argument to refute the view that the first Christian people to “discover” lands inhabited by non-Christians have the right to assert or assume the ultimate dominion to be in themselves relative to the original free and independent nations and peoples of the continent and the hemisphere. We should do something else along with this - we need to DECOLONIZE our minds and hearts. The biggest threat to Indian nations is that our minds and hearts are already colonized. Don't agree with me? Just talk to people on our reservations about how the white man's religion is wrong and see the dirty looks they give you. Or talk to people on the rez about why skins should not serve in the colonizer's military and watch the brainwashing kick in. Or tell people on the rez that we need to stop dating whites and stick to dating skins and see how many will violently disagree with you. The battle is already lost because they have colonized our hearts and minds. People who think like me are virtually non-existent. Newcomb seems to be a refreshing exception.
amacarro's picture
Thank you! Thank you! Thank you! You have not gone deaf, dumb, and blind!
michaelmack's picture
This topic touches upon the application that European colonists claimed provided justification for the conquest of the Americas - their use of the Bible as their "moral authority" for conquest. Rather, their usage of the Bible reveals their (in New Testament terms) disobedience or SIN in failing to obey the teachings of Christ who NEVER justified nor preached forcing people to change. Indeed, the New Testament tells Christians to "preach the gospel" ONLY. In other words, God's assignment to Christians was, like Christian missionaries today, to visit non-Christians, preach to them about Jesus, and then return back to where they came from. Nowhere in the New Testament does Jesus Christ or Paul or any of the disciples give the ok to allow Christians to move in, take over, and subject the people they mission for some political agenda. Yet today Americans and Indian Country have come to think that the history of conquest is somehow “natural” or “inevitable” – it WASN’T. Europeans conquest of the Americans and the U.S. political system that maintains it are completely without any of the moral authority, based not on my opinion, but on the very teachings of the Bible, whom those Euro-Americans and U.S. government claim as their “moral authority” – it’s a lie, in Biblical terms what they did and perpetuate can be described in one word - sin! In today’s secular world, most would say, so what? But to see this in purely secular terms is the ignore the Biblical foundation upon which the legal structure of the U.S. and all its components, i.e., the BIA were supposedly founded upon. In other words, to remove Biblical reliance and justification from the foundations of the U.S. legal system would render it unrecognizable. Unfortunately, this CENTRAL moral issue remains ignored by Indian Country leadership and of course BIA and federal decision makers. It’s understandable why the feds won’t acknowledge it, but what about Indian Country leadership? In the 1823 Johnston v. McIntosh decision, Chief Justice Marshall stated ... "[h]owever extravagant the PRETENSION of converting the discovery of an inhabited country into conquest may appear, if the principle has been asserted in the first instance ... if a country has been acquired and held under it; ... it becomes the law of the land, and cannot be questioned." REALLY? So, for example, in using his reasoning I can declare myself "The King of Texas" and that makes it true? Hardly! The U.S.'s construction of the PRETENSE that we know as "Federal Indian Law" is just that - PRETENSE - and few if anyone lawyers or in tribal government leadership in Indian Country are willing to call it what it is – A LIE The PRETENSE of federal Indian law – as Chief Justice Marshall acknowledged - is no different than say in the children's fable of "The Emperor's New Clothes" - it's fake, it's a lie without any moral or legal substance. Yet for over 200 years Indian Country has gone along with the pretense – and we wonder why we’re sick and dying. Indian Country has allowed itself to get brainwashed into thinking that somehow ‘if we’re good little Indians” maybe, things might get better – it won’t as long as we do nothing to challenge the PRETENSE that has controlled us. Marshall's "admission" of the pretense of legal justification for conquest, IS an invitation to challenge it - unfortunately, Indian Country leadership has never truly taken up the challenge to address this centerpiece of Federal Indian Law. Unfortunately, most of Indian Country still acts as if Johnson v. McIntosh and the other pretenses of Federal Indian law are above reproach - it ISN'T. Oh if only Indian Country leaders would 'GET' this, call it like it is, and work to expose it for the lie it is!