Our Originally Free and Unbaptized Existence

Steven Newcomb

There are some things we have not very often thought about or reflected upon because we have lacked the vocabulary necessary to name and think about those things. Many of my columns are an effort to name and think about “the usual” in an unusual manner, and to reframe certain issues in a way not typically considered.

An example is an effort over the years to focus the reader’s attention on the original free and independent existence of our ancestors. It is my contention that our original free existence as nations and peoples has tremendous political and other types of significance.

It is commonplace in Indian country to invoke “sovereignty,” a sixteenth century term of monarchy developed by Jean Bodin to defend the French monarch’s claim of divine and therefore absolute power. However, using the political term “sovereignty” is not the same as explicitly pointing out the irrefutable fact that we were originally free and independent of any Christo-European claims of a right to non-Indian governmental domination over our nations, or dominium over our traditional territories.

When we presume that the United States has “plenary power” over our nations, our original free existence is no longer a factor because it is no longer in our focus. Our original free existence is put out of focus by the presumption that the U.S. has the ultimate right to control the existence of our nations and peoples. And, so long as we passively stay in “the U.S. has plenary power over Indian nations” conceptual frame of reference, we never get around to developing an alternative viewpoint.

The start of an alternative viewpoint and set of arguments is our original free existence, which provides us with the potential and the ability to respond to dominating claims of federal plenary power, or “overriding sovereignty” over Indian nations. (The concept of “overriding sovereignty” was expressed by the U.S. Supreme Court in the 1978 Oliphant v. Suquamish decision.)

The claim of U.S. plenary power over Indian nations is a conceptual formula of domination that is not typically recognized as such. Far too many of us have been conditioned or programmed to needlessly accept that claim. As a result of our quiet acceptance of non-Indian federal Indian law thinking, we spend almost no time developing a set of arguments to contest and challenge U.S. doctrines of dominance. The U.S. claim of plenary power over Indian nations, and other manifestations of domination, constitute “the gigantic gorilla in the room” in Indian Country that most of us spend almost no time addressing.

In my view, we have spent too little time reflecting upon the full significance of our original free existence. Here’s an argument that Indian country is not using: “As a consequence of our original free existence we shall forever possess a fundamental right to live free of U.S. domination over our nations and peoples.”

The question is, when will we begin invoking our original free existence as a means of challenging the dominating underpinnings of U.S. federal Indian law and policy? Those underpinnings are premised on the Christian “Right of Discovery,” which is a conceptual system of Christian warfare against non-Christians which was woven into federal Indian law by the U.S. Supreme Court.

The actual phrase “right of discovery” appears only once in the 1823 U.S. Supreme Court ruling Johnson v. M’Intosh. “The right of discovery,” wrote Chief Justice John Marshall for a unanimous Supreme Court, “was confined to countries then unknown to Christian people.” Such countries unknown to Christians were inhabited by nations and peoples that had never been baptized. From a Christian viewpoint, the unbaptized existence of our ancestors was of political and legal significance.

Through a Christian lens, lands inhabited by unbaptized people were by definition empty because they were empty of Christians, and of Christian claims of “sovereignty” (domination). Christians defined unbaptized peoples as politically nullus (‘non-existent’) as far as “sovereignty” was concerned, and thus were deemed disqualified from being able to resist Christian claims of ascendancy. According to nineteenth century scholars Francis Lieber and Burke Aaron Hinsdale, the term nullus was applied to “a heathen, pagan, infidel, or unbaptized person.”

For the Catholic / Christian world, baptism was the main feature or characteristic of humanity. We know this because in order to be “human” one had to have been baptized. Without it, one had no claim to be regarded as human, and the Christian nations of Europe undertaking their colonizing expeditions had no obligation to treat in a humane manner those who were not baptized. As Lieber put it, unbaptized peoples could not even appeal to Christians for “sympathy with bodily suffering.”

Today the U.S. continues to claim a dominating power over our originally free and independent nations and peoples based on the Christian Right of Discovery. Stated differently, the United States claims an overriding sovereignty over our nations and peoples on the basis of our ancestors not having been baptized.

So, then, what is our counter-argument? What words and arguments shall we use to powerfully respond to the little known contention about baptism that undergirds U.S. law and policy? Here’s the start of a response: “Nonsense.”

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 the Indigenous and Kumeyaay Research Coordinator for the Sycuan Band of the Kumeyaay Nation.


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Two Bears Growling's picture
Since most all treaties this group of Invaders agreed to were broken by THEM, I see no reason to even recognize what these land thieves had to say. For them to call themselves, "Christians", they would need to be living by what the Christ wrote. So many of them are ,Christian, in name only, because it's for sure so many of them do not live what they preach. So many of them seem to only go through the motions of their beliefs, but do not live those convictions each day of their lives. They live a lie. Native people who practice our beliefs, live our belief in our Creator with conviction. Each day is a day to celebrate living, thankfulness & living in the way the Great Spirit taught us: Living with humility, sharing, compassion, caring & love of our Creator, our family, our people & ourselves through our actions & words each day. We First Nations people have no reason to recognize anyone over us but our Creator, it is to the Great Spirit that we answer to. A relationship began on lies of Invaders is no relationship at all other than a lesson in caution. Remember that my friends & think upon these words as you have been granted one more day & one more breath to live as our Creator set forth for us in the beginning.
Two Bears Growling
Anonymous's picture
God is Red by Vine Deloria Jr., and Pagans in the Promised Land by Newcomb should be required reading in "America." But they'd be banned. As well as would be the Willie Lynch letter.
Anonymous's picture
When you consider most aboriginal peoples date back thousands of years before christ then even the europeans were non christian. In the past christianity may have been thrust upon the original residents of a country as it was on the peoples of europe prior to the 'discovery' of the new lands and hence may have formed part of the indictrination of the people just as the language was. The settlers not only took away your lands and way of life they took away your tongue and your beliefs as well. But how many of the first nation peole still follow the original ways, how many have adopted christianity in one of it's many forms as their own religion. This is no longer enforced on you it is a choice you are free to make. The past has produced many mistakes by a great many people against a great many people but the past is past. I appreciate you cannot go back to the old ways due to the invasion of the europeans but you do have choices you can make, you have your reservations on which you have your own laws, you can choose to develop the old ways but unfortunately the young of first nation peoples want the same as the young of the european settlers and that is a good career and income in order to provide the false trappings of luxury that most americans do not think they can be without. You cannot ressurrect the past but you can make sure that it is not forgotten. Also the US may provclaim domination over the lands of America but the native aboriginals have a vote the same as every other american but also have a place they can escape to if they dont like what they have off the reservation
Anonymous's picture
Nice dream, but it went the way of the buffalo. Because, religion, mainly the second largest one in the world after Islam, is deeply embedded in american politics, if not a political tool in itself. A good example was the brutal bush/cheney regime. How many times did they way the second largest organized religion, as a means to an end. The modern day "crusades" in the killing fields of the middle east also attest to this use of religion to attack anyones sovereignty. Since American Indians are basically wards or the US government, the whole issue of what to do with us has been done. Nothing will change.
Anonymous's picture
Correction:Mr. Newcomb you amaze me with your passion and conviction, on Federal Indian Laws. Your life's work is a pilgrimage for the betterment of First Nation People. Thank you! for keeping us grounded, in our innate origin. I feel that Native people created Ceremony out of appreciation for the divine, and as a people has kept this pure form of sacredness. All humans feel the divine in his or her heart, which is held in respect. Some groups seized to developed this into a larger form of control and profit. In light of this huge transition of assimilation here in the U.S. most of us, have no idea of what amount of sacred ceremony has been lost. I believe Religion is a form of brainwashing, to maintain social control of the masses, as it seems Indigenous people have fallen into this trap. Stripped of almost all of their true innate existence, and sacred passage, we became vulnerable... but not defeated. Baptism is supposed to mean a scared rite, of ceremonious, but First Nation People had perfected the rite of ceremony of honor and trust, way before the big take over. The Maori the indigenous Polynesian people of New Zealand, have the Haka ancestral war cry and the Apache and Africa are so closely linked that they still believe in Gaan, rituals, and music ceremonies. We need to utilized the words " Sacred People", the people of Mother Earth to gain respect! As a child I would ask " Ma why? why are we not doing what the world is doing, and she would just laugh", why? because deep down innately we are Native!!... Sacred to Mother Earth!!! Ceremoniously lets Flip the U.S. law and policy around, encircle it and spiral it out of existence..." We Belong", First Nation People!!!! One drum beat!! Margaret ( Navajo Dine, Apache)
Jim Dumas's picture
First, I'd like to say that I agree with Two Bears Growling. What was done in the past to the People was wrong...can't change that. In fact I can't change what happened before 1949, only how I have lived the last 63 summers. I'm not Native American, I'm Cajun/Irish, but I have the same burning pride as you do. And there are others like myself that, though we can't change the past, we are willing to work towards a better future...not only for your people...but all people.
Jim Dumas
tesmith47's picture
religion is/ was one of the weapons used by the europeans all around the world, note the crazy Ugandan "christians" that is why am a Black atheist