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The Dangerous Dissent in State of Michigan v. Bay Mills Indian Community

Steven Newcomb
6/14/14

On May 27, 2014, the U.S. Supreme Court delivered a 5-4 decision in the case State of Michigan v. Bay Mills Indian Community. A five justice majority issued a ruling that works in favor of the Bay Mills Indian Community. While a great deal of commentary is likely to be focused in the majority decision, this column is about the dissent by justices, Thomas, Alito, Ginsburg, and Scalia, and their tacit acknowledgment that a system of domination has been and is still being used by the United States against our nations and peoples. Here’s the damning sentence:

Despite the Indian tribes' subjection to the authority and protection of the United States Government, this Court has deemed them "domestic dependent nations" that retain limited attributes of their historic sovereignty. (emphasis added)

A question arises: What kind of existence did our nations have before the onset of what Thomas, Alito, Ginsberg, and Scalia characterized as the “subjection” of our nations by the United States government? Answer: Our nations existed originally free and independent of any “subjecting” domination by political powers from Europe or by the U.S. government on the basis of a distinction between unbaptized “heathens” and “infidels” (our ancestors) and Christians (their ancestors).

Christian political powers considered themselves to have the right to take over, dominate, and subjugate lands that were inhabited by unbaptized nations and peoples so long as the lands were uninhabited and, or, not possessed by Christians. It is this history that the four dissenting justices are invoking by their use of the word “subjection” in their Bay Mills dissent.

The word “subjection” in the Webster’s Third New International Dictionary is defined in an “obsolete” sense, as, “the exercise of lordship or control : lordly sway or rule; the act of subduing or subjection : SUBJUGATION.” Language of dominating lordship is apt in the context of federal Indian law because the ideas that constitute that system of “law” are traced back to Vatican Holy See papal bulls and royal charters of various Christian monarchs of Western Christendom in the fifteenth, sixteenth and later centuries.

In a more contemporary sense, “subjection” is defined as, “the quality or state of being subject esp. under the power, control, or government of another.” Because the term is derived from the Latin subjectus, “to throw under,” I define subjection as “to throw or force under domination.” In that context, the phrase in the Bay Mills dissent, “Despite the Indian tribes’ subjection to the authority and protection of the United States Government” (notice the small ‘t’ on “tribes” to symbolize a lower level or “sub” existence and the capital ‘G’ on “Government” to symbolize a dominating existence), is an admission by the four dissenting members of the U.S. Supreme Court.

The admission by the four U.S. Supreme Court justices in their Bay Mills dissent is that the United States government has used and continues to use a subjecting conceptual system of domination against our originally, and still rightfully, free and independent Nations and Peoples. On the basis of a presumed right to dominate (subject) Indian nations to the dictating conceptions (ideas and judgments) of the United States, the U.S. Supreme Court has for more than two centuries been presuming an authority to define the nature of our nations. It was on the basis of that presumed right to dominate us--by defining and categorizing us—that the Supreme Court first deemed our nations to be, “perhaps,” accurately termed “domestic dependent nations.”

Ever since Johnson & Graham’s Lessee v. M’Intosh (1823), the Supreme Court has used that same domination/subjection framework against our nations. It was on the basis of a claimed Right of Christian Discovery and Domination that for the first time the U.S. Supreme Court metaphorically deemed our originally free Indian nations to have lost, through a supposed process of “diminishment,” our rights to “complete sovereignty, as independent nations.” In other words, by supposedly being “discovered” by the carriers of Christianity, our nations were presumed to have lost the right to ever again be free of domination and subjection imposed in the name of Christian theology.

The U.S. Supreme Court deemed all that to be true on the fictional and metaphorical basis of what Chief Justice John Marshall called an “extravagant pretension” of “converting the discovery of an inhabited country into conquest.” Eight years later, the Supreme Court used that same Christian premised “right of discovery” and domination (“subjection”) to create the category “domestic dependent nations.”

Now the four dissenting justices in the Bay Mills Indian Community case have officially put Indian Country on notice. They are going to be looking for a fifth member of the Court to join them so they can use the domination/subjection framework—or what I call ‘the Domination Code’—to altogether eliminate “tribal sovereign immunity.” Perhaps someday Indian leadership in Indian Country will come together and directly challenge the bogus U.S. claim of a right of domination and subjection over our nations and peoples.

Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute, and the author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum Publishing, 2008). He has been studying U.S. federal Indian law and international law since the early 1980s.

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Waabooz Biboon's picture
While I agree that it is desirable to have a free and independent sovereign nationhood for all Indian Tribes, I can't help but wonder what that reality would look like in terms of day to day living; having enough profitable earnings for all Tribes such that dependence on an outside government for support would never be necessary. President Obama recently visited Standing Rock Res., N. Dakota and promised support for Indian needs. Those needs must be addressed by Indians first to become free of any dependence on their Christian society as a matter of practicality. But as I look at Indian Prophecy, in terms of the Nine Fires, all of this becomes moot because "the meek shall inherit the Earth" and "the first shall be last and the last shall be first"; even their Christian Bible says so. Jockeying for power by either side will become obsolete as we move into a new world where Indian wisdom will prevail and be the guiding law where all of the colors of the four directions will be gathered together and all shall be brothers and sisters equally and as one.
Waabooz Biboon
Anisahoni's picture
I think what we were working with in these matters, Waabooz, is the importance of shifting consciousness among all peoples with respect to domination and subordination as a matter of justice. Perhaps the fruition of the prophecies takes place as the 'Dominance Code' is exposed and dismantled. To me, this is because the 'way of thinking' behind the historical etymology of these words 'dominance' and 'subjection' becomes obsolete, as you say, only when people begin to question their sense and articulate their objections to same through social institutions pertaining to justice. When those institutions are themselves dogmatically attached to legitimizing and rationalizing dominance, it is through the exposure of their injustice and oppression that they are themselves brought toward dismantling. All people move closer together from the four directions as they witness and understand this dismantling. At the same time, it is their own evolving awareness and understanding that brings it about. That's my thought on how prophecy and unity emerges gradually through active questioning and challenging of what is said and done by these highly-politicized systems like the Supreme Court. I think it's a mistake to believe they'll rule from on high and solve anything. It is the questioning and challenging that matters more. This is only my own belief and I don't mean to impose it on others.
Anisahoni
denwdigg's picture
To hear president of the United State spike at the setting rock reservation 06/13/2014 you would think that under Mr Obama administration we have nothing to fear . Mr Obama may be using the work sacred and sovereign to loosely or are we just looking at has life hand to be hit with the right hand . We have be though this before.
denwdigg
denwdigg's picture
To hear president of the United State spike at the setting rock reservation 06/13/2014 you would think that under Mr Obama administration we have nothing to fear . Mr Obama may be using the work sacred and sovereign to loosely or are we just looking at has life hand to be hit with the right hand . We have be though this before.
denwdigg
Waabooz Biboon's picture
1) I agree with you, Anisahoni. I believe we are now in a transition phase where the collective unconscious is moving away from a dominance/submission model because this role requires dreadful injustices. The broadening of telecommunications is making the world everyone's backyard and such injustices are intolerable and unacceptable; especially in light of their justification for such a model; excessive wealth in the hands of only a few while the many suffer and starve. Though there are those who eagerly and industriously participate in this rapacious and subjugatory model, we ALL know this is fundamentally wrong. Even Queen Isabella of Spain in the fifteenth century knew this and recalled Columbus, and later his son, Diego, for their inhumane treatment of the Taino and other Caribbean Indians. 2) Yes, when the Dominance Code has sufficiently eroded away, a vacuum will be created. A law of nature demands that all voids be filled. The prophecies directly address a succession of 'fires of notification' that change is imminent. A choice will be offered to the human race to change or perish. We must see to it that Indian wisdom fills that void and prevails if we wish the promised children of the future to survive. 3) White society has been trained not to question or challenge their institutions of justice. In his six years in office, President Obama has not seen fit to restore habeas corpus or rescind posse comitatus (res ipsa loquitur) which were repositioned under Bush43's Patriot Act. This speaks volumes about where the current administration stands on such matters and their extrapolated uses in the field. We see the mission of the police in this country as no longer "to protect and to serve" but rather they are tasked with paramilitary containment. The mainstream media (MSM) constantly keeps truthful information from the citizens; and blogs are constantly being monitored and censored for critical comments about the power structure and its personnel. Bush43 said, "Don't worry about government; let us handle it. You just go shopping." As we know, anything in motion has a tendency to stay in (that) motion. Change from this old model to a new model requires a shift in the collective unconscious to become manifest in personal questioning and then propelled into social institutions (advocacy groups) and finally a dismantling of corrupted legal institutions. All of this will take time but I think this process has begun. Most Indigenous peoples in the past have remained quiet and in the shadows. It's good to see North American Indians collecting their courage and giving voice to things that truly require change; silence, by the White community, is construed to be consent. 4) I have great affection and respect for Mahatma Gandhi. He was able to precipitate what you say when you say: " When those institutions are themselves dogmatically attached to legitimizing and rationalizing dominance, it is through the exposure of their injustice and oppression that they are themselves brought toward dismantling." And Gandhi's precipitation was brought forward without any support for violence. We need a peaceful path out of the weeds and endless wars to a place of greater enlightenment for all; let reason prevail over warfare. 5) You have touched upon a key element in all of this when you say, "All people move closer together from the four directions as they witness and understand this dismantling." Yes! Understanding is a key component of the fundamental change we are discussing. People must understand what's at stake to continue relentlessly following an unchecked economic model that demands the subjugation of everything living for a price that is only temporarily worth the having while the extensive and unchecked damage done by such a model is incalculable and without any long lasting or true merit. [I say ‘long lasting’ because such rewards need replenishing with even more predatory warfare.] 6) And I also agree that it is in questioning the establishment and their dogmatic institutions on their value and validity we will clarify our need for change and the form that change needs to take. This is why I am so happy to see Indians stepping up to the plate and joining in the conversation. Indian wisdom contains the path out of the quagmire and I believe exposure to that wisdom will set a new dynamic in motion that will be beneficial to all that contain a life force. ***
Waabooz Biboon