The Supreme Court and the Tradition of Being Considered 'as Nothing'

Steven Newcomb

I recently purchased a Time magazine special edition, “The Supreme Court: Decisions that Changed America.” Such topics as Privacy, Free Speech, Civil Rights, Abortion, Guns, Same-Sex Marriage, and Obamacare appear on the magazine cover. After reading through the magazine, I found nothing included about American Indians, or Native nations. According to the editors at Time magazine, the U.S. Supreme Court has not made even one decision having to do with Indians or our original nations which “Changed America.” The Time magazine editors thereby treated our nations as nothing.

Perhaps Time’s editors would have felt compelled to include at least one decision about Native nations if the focus of their special edition had been “Supreme Court Decisions Foundational To America.” After all, the 1823 Supreme Court ruling Johnson & Graham’s Lessee v. M’Intosh defines Indian land title from the perspective of the United States, and it serves to this day as the cornerstone of the property law system of the United States. What is more foundational to the economic system of the United States than ownership of property – especially real property?

Upon reflection, every square inch of soil claimed by the United States is part of the traditional territory of some original nation of the continent. Yet Time’s editors apparently ignore the connection between our original nations and the history of the United States, which is traced even to the Declaration of Independence and its expression of “Life, Liberty, and the Pursuit of Happiness.” That phrase ought to read, “Life, Liberty, and the Pursuit of Happiness Through the Domination of Indian Land,” for the latter theme runs throughout the history of the United States and its Supreme Court decisions in relation to our Native nations.

The edition of Time magazine dedicated to the U.S. Supreme Court does mention the 1954 ruling Brown versus Board of Education, which overturned Plessy v. Ferguson, and thereby called for the end of the Jim Crow era of segregation in the United States. 1954 was the same year that the U.S. Justice Department delivered a legal brief to the Supreme Court in the case Tee-Hit-Ton Indians v. United States. In the brief, the Justice Department argued that the Tee-Hit-Ton Indians in Alaska did not deserve monetary compensation for a federal taking of their lands and their timber. Why? Simple. The “Christian nations of Europe discovered the lands of heathens and infidels.” In his 1955 Supreme Court majority opinion, Justice Stanley Reed upheld the US Justice Department’s religious argument in the Tee-Hit-Ton case.

The rationale behind the ideas and arguments used by the United States against the Tee-Hit-Ton Indians in the Tee-Hit-Ton ruling was well expressed by Dr. Luis Rivera Pagán, in his book A Violent Evangelism (1992). He quotes the philosopher Immanuel Kant as saying that, “When America was discovered. . . it was considered to be without owners since its inhabitants were considered as nothing.” (p. 11). Rivera-Pagán specified the religious view behind such thinking: “They were considered to be ‘as nothing’ for they were not Christians.” (original emphasis) (Ibid.).

What this means in simple terms is that our ancestors were not considered to be fully human because they weren’t Christian at the time that the Christians from Europe first invasively arrived. Rivera-Pagán then puts a finer point on the matter: “The discussion became theoretically…complex” in the mid-fifteenth century, “but the result was the same: namely, the supremacy of the rights of the Christians over that of the indigenous ‘infidels’” (p. 11). The U.S. Supreme Court first made the aforementioned Christian religious argument against our original nations in 1823, in Johnson & Graham’s Lessee v. M’Intosh.

One hundred and sixty four years later, in Oliphant v. Suquamish Tribe the U.S. Supreme Court covertly used that same religious argument to deal with the question of whether an Indian nation has the authority to prosecute a non-Indian for a crime committed on an Indian reservation. Chief Justice William Rehnquist wrote the decision for the majority, using a sentence from the Johnson ruling as the context for the Court’s opinion.

The majority in Oliphant decided that no Indian nation or “tribe” may prosecute a non-Indian for a crime committed on an Indian reservation. In reaching that conclusion, Rehnquist used Chief Justice John Marshall’s sentence from the Johnson ruling which said that the Indians’, “rights to complete sovereignty, as independent nations, were necessarily diminished by the original fundamental principle that discovery gave title to those who made it [the ‘discovery’].”

Chief Justice Rehnquist changed Marshall’s word “were” to “[are],” and wrote “Their rights to complete sovereignty, as independent [are] necessarily diminished.” Rehnquist deleted the rest of Marshall’s sentence, which mentioned “the original fundamental principle that discovery gave title to those who made it.” By doing so, Rehnquist was able to covertly use the Johnson ruling’s theme of “discovery” by “Christian people,” while leaving Marshall’s original religious rationale unspecified and out of focus.

Although the connection is not well understood, the Johnson ruling’s theme of Christian “discovery” serves as the context and underlying argument for the Oliphant decision that Indian nations do not have the governmental prerogatives necessary to prosecute a non-Indian alleged to have committed a crime on an Indian reservation. Why? The argument found in the text of Johnson ruling is that Indian nations lack such sovereign prerogatives because Christian people” (Marshall’s original emphasis) discoveredlands “inhabited by natives, who were heathens.” It is on the basis of that religious argument that the United States claims that the Suquamish nation, or any other Indian nation for that matter, does not have the governmental prerogatives necessary to prosecute a non-Indian for a crime allegedly committed on an Indian reservation.

Today, the U.S. Supreme Court has before it the issue of whether an Indian nation may prosecute a non-Indian for a crime committed on an Indian reservation in a case involving the “Dollar General” store chain. The case alleges that a Dollar General non-Native store manager sexually assaulted a Choctaw teenager. The act is alleged to have taken place on the premises of the Dollar General store located on the Indian reservation of the Mississippi Band of Choctaw. The issue now before the U.S. Supreme Court is whether the court system of the Mississippi Band of Choctaw has the jurisdiction to hear the case.

If the U.S. Supreme Court ends up using Oliphant to decide that the Mississippi Band of Choctaw does not have jurisdiction to hear the Dollar General case, it will have thereby based its decision on the dehumanizing claim of a “Christian discovery” of “heathen” lands. And it will have been able to do so by simply using the word “Oliphant,” without ever once mentioning the word “Christian.”

By using Oliphant as controlling precedent, the Court will have made the covert argument, traced to Christian “discovery” in the Johnson ruling, that the Mississippi Band of Choctaw (and by implication, no Native nation) possesses no right “to complete sovereignty as an independent nation” because a Christian discovery of heathen lands occurred in the past. The U.S. Supreme Court will have thereby decided that the Mississippi Band of Choctaw does not have the right to hear the sexual assault case against a teenage Choctaw citizen by the non-Indian Dollar General store manager, because the Choctaw government lacks “complete sovereignty, as an independent nation” as a result of the right of “Christian discovery” and “ultimate dominion” (domination).

The extension of the legacy of judicial racism continues in the federal law of the United States to this very day. Perhaps that is the explanation for Time not citing a single case involving Native peoples in its review. It would have been quite an uncomfortable conclusion for it to have to admit that the law of the United States, in relationship to Native peoples and nations, continues to be religiously bigoted and racist to its very deepest roots.

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 is a producer of the documentary movie, The Doctrine of Discovery: Unmasking the Domination Code, directed and produced by Sheldon Wolfchild (Dakota), with narration by Buffy Sainte-Marie (Cree).

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