On Federal Indian Domination
For many thousands of years, our indigenous ancestors lived free and independent of Christian European domination. Thousands of years of being free resulted in our nations and peoples possessing to this day the inherent right to freely define our own political status, and to freely pursue our economic, social, and cultural development. Even today, we have the inherent right to live free of and from American domination.
The effort by one people to hold another people under domination ought to never be considered legitimate from the perspective of those being subjected. However, it is imperative that those being dominated pass a spirit of resistance on to every new generation so that they never stop challenging the dominance. If they fail to do so, later generations will no longer recognize the nature of the domination under which they have been made to live. Without realizing it, they may begin to accept, embrace, identify with, and even praise the domination that their people have been forced to live under. They may begin to live a delusion by calling the system of domination "our country," and "our system of law."
Neither the United States as a whole, nor any individual state of the United States, has a right to unilaterally impose an inferior political status upon us as Indigenous peoples, without our free and informed consent. I am challenging an argument commonly made during the fifteenth, sixteenth, and later centuries, that some "Christian people," "Christian state," or "Christian power" was entitled to assume a right of domination over our free and independent ancestors and over our traditional territories. To this day that argument undergirds the claim by the United States that it has an ultimate dominating authority, or "plenary power," over our nations, and our lands, territories, and resources, and that we are, at most "domestic dependent nations."
What is called U.S. federal Indian law and policy is nothing other than a carefully constructed and carefully guarded institution of American domination over our Indigenous nations that has been successfully passed from one generation of Americans to the next.
How do we know this? Because of the words found in Vatican documents and in the overall Christian European history that gave birth to U.S. federal Indian law and policy. The evidence is found in words such as "conquer" "conquest," "conqueror," "empire," "sovereignty," "the sovereign," "their Highnesses," "lordship," "overlordship," "overriding," "dominion," "the crown," "ultimate title," and "ultimate dominion," "domestic," "dependent." Each and every one of these terms is but a different expression and manifestation of domination.
With such terms, Marshall quite brilliantly provided the basis for the social construction of a reality of domination that made it unnecessary to physically defeat our Indian nations. The chief justice provided the linguistic seeds needed for propagating a future reality of Indian domination. From those seeds the US gradually grew itself a conqueror/domination reality within which it continues to hold captive our originally free Indigenous nations.
Johnson v. M'Intosh 21 U.S. (8 Wheat.) 543 (1823) was the first U.S. Supreme Court ruling to express a tradition of domination that the United States has used in dealing with our rightfully free Indian nations. In that decision, Chief Justice Marshall employed the phrases "Christian people" and "Christian prince or people" as distinguished from "natives, who were heathens." To those nations categorized as "Christian" and "European," the Court ascribed such characteristics as "ultimate title" or "absolute title," "ultimate dominion," "perfect independence," "unlimited independence" and "civilization."
A sensible interpretation of the Supreme Court's phrase "ultimate dominion" is "ultimate right of domination." For the Court, Marshall said that the "discoverers" "assumed the ultimate dominion to be in themselves." From the perspective of Western Christendom, it was the "god-given" right of all Christian sovereigns to locate and dominate ("possess") all non-Christian lands on the planet.
Unfortunately, many American Indian leaders are now moving in the direction of appearing to embrace the domination of the American empire by appearing to accept an Indian nationhood or "tribal" political identity under the political framework of the American empire. This is a disturbing trend. Vine Deloria, Jr., was one Indigenous scholar and intellectual who called for a "political activism" combined with "critical reflection and constructive strategy."
Some federal Indian law scholars and law professors are moving in the opposite direction by advocating that Indian leaders be willing to embrace the "plenary power" (domination) of the American Empire. They advocate that we accept what I am calling domination by referring to it as "being under the protection of the United States." Unfortunately, such people never seem to advocate that we find a way to challenge and one day end the domination of Indian nations and peoples that is premised on mythical "discoveries" by some "Christian prince or people."
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.