The Big Picture Beyond the 'Redskins' Issue

Steven Newcomb

Susan Shown Harjo's June 23 article in Politico, “The R-Word Is Even Worse Than You Think,” regarding the issue of the Washington, D.C. NFL team, was excellent. Yet, I wonder why the controversy is not generally connected and related to ‘the big picture’ in Indian Country. After all, the “Redskins” and team mascots issue is definitely one symptom of a much deeper cause; it is a cause which has been manifested in all areas of the society of the United States, all the way up to the U.S. Supreme Court.

That underlying cause is, in my view, the fact that the United States, as an American empire, was founded and built on the basis of the domination and dehumanization of our Original Nations and Peoples. Ms. Harjo illustrates this with a key sentence in her article. She traces the issue “back to the days when colonies, trade companies and some states issued bounty proclamations for exterminating Native American people and providing the bloody ‘red skins’ as proof of ‘Indian kill’.” She thereby illustrates the domination and dehumanization of our originally and still rightfully free Nations and Peoples.

The presumed right to dominate and dehumanize our Nations and Peoples is buried deep in the American psyche. Racism and Judeo-Christian religious bigotry against our Nations is woven deeply into the fabric of the political and legal institutions of the United States, and thus it’s not going away anytime soon. Allow me to provide a concrete example:

In the U.S. Supreme Court ruling Michigan v. Bay Mills Indian Community, handed down May 27, 2014, both the majority and the dissent of the Court explicitly used the word “subjection,” a term for domination, to refer to the United States government’s relationship with our originally free Nations and Peoples. What has been the response from Indian Country? The Court’s use of a framework of domination for its decision apparently hasn’t caused even the slightest emotional ripple among the leadership of Indian Country.

Not one major Indian organization came out and decried the majority of Supreme Court saying that subjection means the “subjection” of our Nations and Peoples to “the will of the Federal Government.” We also have not seen any public challenge of Justice’s Thomas dissent in Bay Mills (joined by Alito, Ginsberg, and Scalia) which said: “Despite the Indian tribes’ subjection to the authority and protection of the United States, this court has deemed them ‘domestic dependent nations’ that retain limited attributes of their historic sovereignty?”

It shouldn’t be that difficult to use the attention being dedicated to the “Redskins” and team mascot issue to also place public focus on a key fact: It is the U.S. government’s Old Testament premised claim of a right of Christian discovery and domination that has led to our Nations being defined by the Supreme Court as “domestic dependent nations.”

Both the majority and the dissent of the Supreme Court in Bay Mills quoted the phrase “domestic dependent nations” from Cherokee Nation v. Georgia (1831) decision. That phrase in Cherokee Nation traces to a sentence in Johnson v. M’Intosh (1823): “They [the Indian nations] occupy a territory to which we assert a title independent of their will…” Notice it doesn’t say that our nations existed free and independent in our own territories. Rather, it says that they ‘occupied’ “a territory” to which the United States asserted “a title.” The Supreme Court said the United States had asserted “a title of discovery” based on a claimed “right of discovery.”

Chief Justice John Marshall wrote for a unanimous Court in Johnson v. M’Intosh when he explained the basis for the United States asserting a form of title to the territories of our nations. Chief Justice Marshall, for a unanimous Court, said the nations of Europe had asserted a title to lands “then unknown to all Christian people” and said they “asserted title” by “asserting the right to take possession” of such non-Christian lands.

The lands of the “natives, who were heathens,” said Marshall, were subject to an assertion, by “Christian people,” of a right of possession. By common agreement among the European nations, only “the prior title of any Christian people who may have made a previous discovery” had to be admitted.

Joseph Story was an Associate Justice on the Supreme Court when the Johnson ruling was issued. He was also one of Marshall’s closest friends. Years later, in two of the many books Story wrote, he explained the reasoning of the Johnson decision. In his A Familiar Exposition of the Constitution of the United States, Story asked: “How, then, it may be asked, did the European nations acquire the general title, which they have always asserted to the whole soil of America, even to that in the occupancy of the Indian tribes?”

He responded: “The only answer, which can be given, is their [the European nations’] own assertion that they acquired a general title thereto in virtue of their being the first discoverers thereof, or, in other words, that their title was founded on the right of discovery.” In other words, the “discovering” European nations supposedly acquired the general title they asserted, simply by asserting that they had acquired that title. Bizarre.

Story’s phrase “the right of discovery” corresponds to Chief Justice Marshall’s use of that same phrase in the Johnson v. M’Intosh decision:

The right of discovery given this [John Cabot] commission is confined to countries ‘then unknown to all Christian people,’ and of these countries Cabot was empowered to take possession in the name of the King of England. Thus asserting a right to take possession notwithstanding the occupancy of the natives, who were heathens, and at the same time admitting the prior title of any Christian people who may have made a previous discovery.”

Importantly, contrary to what so many contemporary scholars have written, Justice Story explained that “conquest” was not the basis for the assertion of the right of discovery. A different rationale was used, which Story expressed in his Commentaries on the Constitution of the United States (1833) in this way: “As [because they were regarded as] infidels, heathens, and savages, they [the Indians] were not allowed to possess the prerogatives belonging to absolute, sovereign, and independent nations.”

Thus, “the right of discovery” refers to “Christian people” having asserted the right to take possession of the lands of “heathens” (our free and independent non-Christian ancestors). The lands of non-Christians were deemed subject to a Christian nation’s assertion or claim of a right of possession, which included a presumed right of domination by “the sovereign.” This is what the Supreme Court called “the right of discovery.” Remarkably, both the majority and the minority opinions in Michigan v. Bay Mills Indian Community, by citing Cherokee Nation v. Georgia, which traces to Johnson v. M’Intosh, used the Christian right of discovery as the domination/subjection framework for their decisions in the year 2014.

The Christian nations of Europe, and their successors, imposed on our free ancestors concepts such as “infidels, heathens, and savages.” Story reveals that this dominating imposition of terminology was part of the rationale used by the U.S. Supreme Court to define the title of our Nations as “mere occupancy.” The imposition of those dominating and dehumanizing definitions also led to our Nations being defined, in Cherokee Nation v. Georgia , and most recently in the Bay Mills case, as “domestic dependent nations” based on the supposed right of Christian discovery.

As mentioned above, in Bay Mills, the majority said that “Subjection means...” the “subjection” of our Nations and Peoples to “the will of the Federal Government.” Story traces this exact pattern to the Christian “right of discovery” when he said that our ancestors, “have been deemed to be the lawful occupants of the soil, and entitled to a temporary possession thereof, subject to the superior sovereignty of the particular European nation, which actually held the title of discovery.” (emphasis added)

The Supreme Court in Bay Mills did not acknowledge that their use of the term “subjection” in 2014 traces directly to the Christian “subjection” of “heathens, infidels, and savages” from past centuries. It is our responsibility to draw attention to that fact. There is nothing stopping us from using the high profile focus on the “Redskins” and team mascot issue to focus attention on the racist and religiously bigoted reasoning that is being used against our Nations to this day by the U.S. government. Perhaps Indian Country would be riled up if the U.S. government used a mascot to depict its domination and subjection of our Nations, especially if that mascot depicted on the right of “Christians” to discover what Western Christendom regarded as the Old Testament biblical “Promised Land” of “North America.” While the U.S. Capitol Dome—which was built by Black slave labor—may not be the U.S. government’s mascot, it certainly is an apt and ever present symbol of its system of domination.

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

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swrussel's picture
Wa do, Mr. Newcomb, for your continual reminders that words matter and SCOTUS opinions have subtext. I was wondering about one thing I have not heard before. How is it that Christian Discovery is based on the Old Testament, which antedates Christianity for hundreds of years? Would it be an appropriation of God's words authorizing Jews to practice what we would now call ethnic cleansing? This is a serious and not hostile question.
piqua's picture
Greetings Mr. Russel. Thanks for you comment and question.The Chosen People and the Promsed Land narrative of the Old Testament serves as the basis for what I have been characterizing as the doctrine of Christian discovery and domination. My book Pagans in the Promised Land goes into this connection in considerable detail. In an August 2008 article in "Foreign Affairs," Walter Russell Mead published "The Deep Roots of American Zionism," in which he made the point that: Both the Americans and the Israelis have turned primarily to the Old Testament, whose hallowed pages tell the story of the conflict between the ancient Hebrews and the Canaanites, the former inhabitants of what the Hebrews believed was their Promised Land. Americans found the idea that they were God’s new Israel so attractive partly because it helped justify their displacement of the Native Americans. The Jewish Anti-Defamation League condemned me for making that same type of analogy in my column "American Zionism" a few months prior to Mead's article being published in "Foreign Affairs." Evidently, the ADL said nothing about Meed or his article. In the book The Genesis of the United States, we find a sermon delivered to the "adventurers" of Viriginia. The sermon was delivered at White Hall in London, and the central basis of the sermon is the Old Testament story of Abram being instructed by the deity of the Old Testament: "For the Lord said to Abram, get thee out of thy Country, and from thy Kindred, and from thy father's house, unto the land that I will shew thee." It is available at p. 283 at the link below at googleboooks. It is a metaphorical application of the words attributed to "God" "the Lord" in the books of the Old Testament and applying those words and those images to the lands of our our Original Nations of Great Turtle Island, call it an appropriation if you like, but whether it or isn't an appropriation seems immaterial to the great point: Where does the United States get off using the Old Testament, and therefore biblically premised, narrative as the basis for what it calls its U.S. federal Indian law and policy system, in the name of "discovery and conquest," which is just another way of expressing "discovery and domination." Obviously much more could be said on this point that would relate more exactly to your comment about "ethnic cleansing," and passages from other areas of the bible such as Deuteronomy 20, where we find "save alive nothing that breathes as the Lord thy God has commanded you." That was to be proscribed treatment of the unchosen nations and peoples in the lands promised to the so-called "chosen people." All Our Relations http://books.google.com/books?id=zUkOAAAAIAAJ&printsec=frontcover&dq=the+genesis+of+the+united+states+brown&hl=en&sa=X&ei=c_sAVL2HCYSNyASNvoDgBw&ved=0CB8Q6AEwAA#v=onepage&q=the%20genesis%20of%20the%20united%20states%20brown&f=false
tmsyr11's picture
Interesting a very good reminder that fuels the current theme today. There is another article on ICMTN on A report of Gallup (one example BTW). It would seem worthy to worthy to refocus events as these to be brought to the national scene. Yet, instead the Redskin debate is being used as ONE MORE RACE debate in National US scene of politics - it gets shuffled and mixed in with other issues as those with latino, muslim, black, etc. As a result the TRUE PLIGHT of tribal/native lives living on reservations gets LOST. THis will take cultural identity shift in Native politics that I don't believe no-body really quite knows how to do. Every-body right now only seems interested in the bandwagon where a White-Man is involved or a White Organization is 'exploiting'. The current progressive tribal/native trend has had opportunties to take to the national scene for 20 years now due to the internet (1994-2014). I do hope for the future this cultural shift can occur (2014 - ??) where the focus is brought on tribal/native issues instead of being mixed in with and be used as an agenda. It should be apparant, we saw this in 2008 and again 2012.
nonfedindian's picture
The entire concept of "Christian Discovery" or "right of discovery" is over analyzed. I understand the basis and historical context of such terms but they are only words used to justify a much older reality drawn from nature itself - the right of conquest. For thousands of years individuals, tribes, governments and civilizations have conquered others and taken their possessions, lands, and lives. This might have been one Neanderthal killing another to take food and shelter or a group of humans killing another group to control desirable hunting grounds. Later examples include the Romans defeating the Gauls or the Normans defeating the Saxons. At one time no explanation was needed - might makes right and he who wins makes the rules. Over time excuses were devised, usually involving religion, but the results were the same. One group of people were subjugated and/or exterminated for the benefit of another group. To focus on one particular group and its motives, such as European Christians, as if they were a peculiarity in the history of mankind is wrong but obviously extremely easy because we have the benefit of 500 years of well-recorded history. Does anyone believe that such actions never occurred here on this continent between rival Native American groups prior to European invasion?