The Old Testament Religious Basis of U.S. Federal Indian Law and Policy

Steven Newcomb

“And we Americans are peculiar, chosen people, the Israel of our times; we bear the ark of the liberties of the world”—Herman Melville.

“I believe no one can read the history of our country without realizing that the Good Book and the Spirit of the Savior have from the beginning been our guiding geniuses. The Commission from Ferdinand and Isabella to Columbus was conceived of as a Christian Mission.”—Chief Justice Earl Warren.

The federal Indian law and policy system of the United States is unmistakably tied to a Judeo-Christian religio-political worldview which is well-expressed as the Chosen People and the Promised Land theory. As Walter Russell Mead stated in his 2008 article “The Deep Roots of American Zionism” in “Foreign Affairs,” “Americans found the idea that they were God’s Israel so attractive partly because it helped justify their displacement of the Native Americans.” And, in his now classic essay “Civil Religion in America,” Robert N. Bellah stated: “The theme of the American Israel was used, almost from the beginning, as a justification for the shameful treatment of the Indians so characteristic of our history.”

What other federal Indian law scholars have left out of their discussions of the doctrine of discovery, or doctrine of Christian discovery, is the fact that the Judeo-Christian worldview, traced in particular to the Genesis story of the Chosen People and the Promised Land, serves as the religious backdrop and conceptual basis of U.S. federal Indian law and policy. It is on the basis of that biblical source of ideas that the United States claims to be “the Sovereign” with “ascendency” (a right of domination) over originally free and still rightfully free Indian nations. That Old Testament relgio-political worldview is the background source of the United States’ claim that the U.S. federal government has an unquestionable and unchallengeable right of “plenary power” over Indian nations and a power of “dominium” (“ultimate dominion”) over the territories over Indian nations.

It is because of this religious, indeed, Old Testament, basis of U.S. federal Indian law, that it was necessary for the United States to pass the American Indian Religious Freedom Act in 1978, despite the fact that freedom of religion for everyone else was already enshrined in the First Amendment of the U.S. Bill of Rights. The Old Testament basis of U.S. federal Indian law is the reason why the territories and sacred places of our Original Nations have never been protected from exploitation, desecration, and destruction. As historian Edward McNall Burns put it in his book The American Idea of Mission (1957), “No truth is more patent in American history than the fact that this nation [the United States] is an Old Testament people.”

The Old Testament basis of the United States is the least noticed aspect of the history of U.S. federal Indian law. It has not been made explicit because of the tendency of federal Indian law scholars to write about U.S. federal Indian law in secular, non-religious terms. They have not acknowledged how the ideas of U.S. federal Indian law are tied to a point made by Edward Burns when he further stated: “[T]he most common idea deriving from Old Testament sources was the notion that American was divinely appointed to fulfill a great mission in the history of the planet. In the opinion of some of the colonial leaders, the great events of the past had been consummated by God in order to prepare the way for the American triumph.” (p. 11)

In his book America’s Prophet (2009), Bruce Feiler says that a letter from George Washington hangs in the lobby of Feiler’s childhood synagogue. It reads: “May the same wonder-working Deity, who long since delivered the Hebrews from their Egyptian oppressors, [and] planted them in the promised land, whose providential agency has lately been conspicuous in establishing these United States as an independent nation, still continue to water them [the states] with the dews of heaven.” (p.4)

Typical historical accounts have told us that Thomas Jefferson was “a Deist.” What those accounts have not told us is the Old Testament identity of the “Deity” that served as the focus of Jefferson’s “Deist” orientation. As Robert Bellah notes in his “Civil Religion in America,” “What was implicit in the words of Washington…becomes explicit in Jefferson's second inaugural when he said: ‘I shall need, too, the favor of that Being in whose hands we are, who led our fathers, as Israel of old, from their native land and planted them in a country flowing with all the necessaries and comforts of life.’” The conclusion? “Europe is Egypt; America, the promised land,” wrote Bellah. Jefferson, Adams, and Franklin wanted the Old Testament imagery associated with the Chosen People and the Promised Land depicted on the Great Seal of the United States. Jefferson proposed that the imagery of the Great Seal be the Israelites traveling through the desert, guided by a cloud by day and a pillar of fire by night, thereby drawing an analogy between the United States and the Chosen People of the Old Testament. This places our original nations as the “Canaanites” in the so-called “Promised Land” of the United States.

John Marshall was a contemporary of Washington, Jefferson, and Adams. When Marshall, as Chief Justice of the U.S. Supreme Court, wrote the Johnson v. M’Intosh ruling for a unanimous Court, he said that the Court would apply to the case “those principles of abstract justice which the Creator of all things has impressed on the mind of his creature man.” The Judeo-Christian worldview shared by Washington, Jefferson, Adams, and Marshall, among figures, is the background religious context for the Supreme Court’s use of the term Creator in the Johnson ruling.

The principles of abstract justice applied to “civilized nations,” nations, which Henry Wheaton called in his 1836 Elements of International Law “States of Christendom,” acknowledged those nations of Christendom to possess “perfect independence,” and, therefore, full “sovereignty.” What the Supreme Court called “natives, who were heathens” in the Johnson ruling, analogous to the “Canaanites” in the Chosen People / Promised Land narrative, were therefore “not allowed to possess” the prerogatives belonging to “absolute, sovereign, and independent nations,” “in [relation] respect to Christians,” as Justice Joseph Story put it in his 1833 Commentaries on the Constitution of the United States.

This February, 2015, marks the sixtieth year since the U.S. Supreme Court, under the leadership of Chief Justice Earl Warren, handed down its decision in Tee-Hit-Ton v. United States in 1955, based on the hidden background of the Old Testament narrative of the Chosen People and the Promised Land of the Old Testament. In another column, I will explain how the religio-political narrative of the Old Testament story informs the Tee-Hit-Ton ruling, which is traced to Johnson v. M’Intosh, papal bull edicts and royal charters of the fifteenth century.

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 federal Indian law and international law since the early 1980s.

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