On August 27, 2014, a three-judge panel of the 9^th Circuit Court of Appeals handed down a split (2-1) decision in the case White v. University of California. The case involves a dispute regarding two 9,000 + year old ancestral remains which the Kumeyaay Cultural Repatriation Committee (KCRC) considers to be the skeletal remains of Kumeyaay ancestors.

The 9^th Circuit Court of Appeals panel termed them the “La Jolla remains.” The Kumyeyaay ancestral remains were first “discovered” in 1976 during an archaeological excavation on the land where the UC San Diego Chancellor’s residence is located within the original territory of the Kumeyaay Nation.

Toward the opening of its decision, the panel for the Ninth Circuit Court of Appeals said: “The Kumeyaay, also known as the Ipai, Tipai, or Diegueño, aboriginally occupied areas of the south-western United States and northwest Mexico.” The Court continued: “The Kumeyaay Nation currently occupies various lands extending from San Diego and Imperial Counties in California and 75 miles south of the Mexican border.”

The 9^th Circuit Court panel did not acknowledge that the Kumeyaay Nation originally lived in 100% its own national Kumeyaay territory. Rather it said that the Kumeyaay Nation “aboriginally occupied areas of,” meaning, “belonging to,” the United States and Mexico. Use of the phrase “aboriginally occupied” provides a political context of foreign colonization. For the word “aboriginally” traces to “aborigine,” meaning, “An indigenous inhabitant esp. as contrasted with an invading or colonizing people.”

The context of an “invading or colonizing people” is the frame of reference for the 9^th Circuit’s use of “aboriginally occupied” areas of “the southwestern United States” and “northwest Mexico.” This wording only considers the nature of the Kumeyaay Nation after it had been invaded and colonized, or become “indigenous.” To avoid any potential political complications that might arise as a result of the 9^th Circuit Court of Appeals saying that the Kumeyaay Nation still “currently occupies” its own lands, the Court’s second footnote clarifies that, in the court’s view, the Kumeyaay Nation only has an “aboriginal interest” in the lands it currently occupies:

A three-judge panel of the 9^th Circuit Court of Appeals in the case White v. University of California, August 27, 2014, footnote 2:

Aboriginal interest in land generally is described as a tribe’s right to occupy the land. It is not a property right, but “amounts to a right of occupancy which the sovereign grants and protects against intrusion by third parties.” Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279 (1955). That right, which is residual in nature, comes from the legal theory that discovery and conquest gave conquerors the right to own the land but did not disturb the tribe’s right to occupy it. See Johnson v. M’Intosh, 21 U.S. 8 Wheat 543, 588-91 (1823).

The 9^th Circuit panel’s statement that “a tribe’s right to occupy the land” is “residual in nature” is important because “residual” in this context means, “of, relating to, or constituting a residue: remaining after a part is taken.” The characterization of “a tribe’s right to occupy the land” as “residual in nature,” said the panel, “comes from the legal theory that discovery and conquest gave conquerors the right to own the land.” (Re-expressed this becomes: discovery and domination gave dominators the right to own the land).

That wording is taken from Tee-Hit-Ton Indians v. United States. The majority decision was written by Justice Stanley Reed. Reed wrote for the Court: “This position [on Indian title] has long been rationalized by the legal theory that discovery and conquest gave conquerors sovereignty over the lands thus obtained. 1 Wheaton’s International Law, c. V.” Whereas Reed wrote “sovereignty over the lands thus obtained,” the 9^th Circuit Court panel said that “discovery and conquest” “gave conquerors the right to own the land.” (emphasis added)

While the entire section that Justice Reed cited from the chapter in Wheaton’s Elements of International Law is quite lengthy, a couple of pertinent passages provide insight into the basis for “legal theory” that the Supreme Court used in its Tee-Hit-Ton decision, and which the 9^th Circuit Court of Appeals used to describe the Kumeyaay Nation’s right to occupy lands as “residual.” As Wheaton stated:

According to the European ideas of that age [of discovery], the heathen nations of the other quarters of the globe were the lawful spoil and prey of their civilized conquerors, and as between the Christian powers themselves, the Sovereign Pontiff was the supreme arbiter of conflicting claims.

Thus, the bull of Pope Alexander VI. reserved from the grant to Spain all lands which had been previously occupied by any other Christian nation; and the patent granted by Henry VII. of England to John Cabot and his sons, authorized them “to seek out and discover all islands, regions, and provinces whatsoever, that may belong to heathens an infidels;” and “to subdue, occupy, and possess these territories, as his vassals and lieutenants.”. . . It thus became a maxim of policy and of law, that the right of the native Indians was subordinate to that of the first Christian discoverer…” (Wheaton’s emphasis on “Christian”)

The 9^th Circuit Court panel’s citation to both Tee-Hit-Ton Indians and Johnson v. M’Intosh is highly important. Not only did Justice Stanley Reed write the 1955 Tee-Hit-Ton opinion, as previously mentioned, he also wrote a dissenting opinion in the 1946 case Alcea Band of Tillamooks. In that dissent in Alcea Band, Reed said Johnson v. M’Intosh expressed “the theory” that “discovery by Christian nations gave them sovereignty over and title to the lands discovered.” In his Commentaries on the Constitution of the United States, published in 1833, Justice Story, who was still on the U.S. Supreme Court, supported this view when he wrote:

We have also seen that the title of the Indians was not treated as a right of propriety and dominion; but as a mere right of occupancy. As infidels, heathen, and savages, they were not allowed to possess the prerogatives belonging to absolute, sovereign, and independent nations. The territory over which they wandered, and which they used for their temporary and fugitive purposes, was, in respect to Christians, deemed, as if it were inhabited only by brute animals.

 It is on this basis of this kind of bigoted Christian thinking that the 9^th Circuit Court of Appeals considers the Kumeyaay Nation’s right to occupy land in its territory to be “residual.” The mere “right to occupy” is the “residue” left after the Kumeyaay have been made to undergo a process of “reduction” by means of which Christian dominium and non-Christian subjection was constructed. The Kumeyaay “right to occupy” their own lands, without any right of property and dominion, is the conceptual residue remaining after, in the words of the Johnson v. M’Intosh ruling, the Christian European monarchs had assumed the “ultimate dominion to be in themselves,” and had assumed the original Nations to be “a people over whom the superior genius of Europe might claim an ascendency,” a word that is defined as “domination.”

In short, footnote 2 of White v. University of California is a direct result of the claim made centuries ago that Christian people discovered the lands of “heathens and infidels,” and that this resulted in the Christians being able to claim Christian sovereignty (dominium, a right of domination) over all Original Nations and Peoples of this continent, including the Kumeyaay Nation. Today the United States is the successor to that claim right of Christian domination based on a claimed right of Christian “discovery.”

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 early 1980s.