The Dangerous Dissent in Michigan v. Bay Mills Indian Community

Steven Newcomb

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, 16th 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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