A Call for Accurate Native Nation Advocacy in the Supreme Court

Steven Newcomb

A dispute between the store chain Dollar General and the Mississippi Band of Choctaw has reached the U.S. Supreme Court. The issue before the Court in Dollar General Corp. v. Mississippi Band of Choctaw Indians, is whether the court system of the Mississippi Band of Choctaw has civil jurisdiction in a tort case (damage case), involving allegations of a sexual assault by a Dollar General non-Native store manager against a Choctaw teen-ager. The assault is alleged to have taken place on the Choctaw reservation. Dollar General claims the Mississippi Band of Choctaw does not have such jurisdiction.

While reading a “friend of the court” brief filed by historians and legal scholars in the case, I was struck by the way in which the language system of domination constrains the manner in which they have written their filing. Unfortunately, in their effort to persuade a less than friendly Supreme Court, the legal brief concedes to a number of assumptions that deserve to be contested. Such concessions do not set the record straight for the Court. They merely further reinforce anti-Indian interpretations of the historical record that the Supreme Court itself has acknowledged are premised on “an extravagant pretension.” This involves pretending that something is true while knowing full well it isn’t.

One concession the historians and legal scholars make throughout their brief is to the use of the words “tribe” and “tribal,” while avoiding the words “nation” and “national.” This choice of vocabulary is admittedly customary in federal Indian law cases. Nonetheless, it immediately moves the discussion away from the most powerful language for Indian nations found in the Worcester v. Georgia ruling of 1832. Preferring the word “tribes,” the historians and legal scholars avoid the word “nation” so powerfully used by Chief Justice John Marshall in Worcester.

“Incorporation” is an idea the historians and legal scholars ought to have contested. They say “tribal jurisdiction over nonmembers’ activities on tribal land, and over civil disputes stemming from those activities, is part of a tribes’ inherent sovereignty that has never been divested, either implicitly through incorporation into the United States or explicitly by treaty or statute.” A clarifying phrase, “because such incorporation has not occurred,” would have shown an effort to challenge the idea of incorporation of Indian nations into the United States. That argument was not made.

The authors of the amicus brief ignored the late Milner S. Ball’s authoritative law review, “Constitution, Court, Indian Tribes,” published in 1987. Professor Ball’s expertise was in U.S. constitutional law. His article is not cited as a source in the friend of the court brief.

In his article, Ball discusses what he calls Chief Justice John Marshall’s “remarkable confession” in Johnson & Graham’s Lessee v. M’Intosh (1823), which is the chief justice’s admission is of an “extravagant pretension of converting the discovery of an inhabited country into conquest…” (p. 28). Ball sums up, “Whatever other meaning may be ascribed to Marshall’s confession, at least this much is clear: Indian nations were not incorporated into the United States.” (p. 29). The historians and legal scholars chose not to mention Marshall’s confession.

Based on no other “historical” evidence than the anti-Indian decision of Chief Justice William Rehnquist in Oliphant v. Suquamish Indian Tribe (1978), the historians and legal scholars state: “The tribes’ later incorporation into the territory of the United States, moreover, restricted their exercise of separate power to the extent that it ‘conflict[ed] with the interests of the [the United States’] overriding sovereignty.’ Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 209.” As I’ve noted elsewhere [http://indiancountrytodaymedianetwork.com/2015/11/27/supreme-court-and-tradition-being-considered-nothing], Oliphant traces directly back to the claimed right of Christian discovery and domination, a claimed right the historians and legal scholars fail to mention.

In section A. “The Colonial and Early National Era,” the historians and legal scholars say: “To begin with basic principles, Indian tribes originally possessed all the powers of sovereign nations.” They do not say that those Indian polities were sovereign nations, just that they had “all the powers of sovereign nations.” They then quote Chief Justice Marshall’s explicit acknowledgment of Indian polities as nations: “‘[t]he Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial.’ Worcester v. Georgia 31 U.S. (6 Pet.) 515, 559 (1832).”

After the quote, however, the historians and legal scholars once again favor the term “tribes,” and favor of U.S.-contrived politically biased anti-Indian storytelling: “European conquest and the corresponding discovery doctrine terminated Indian tribes’ external political sovereignty.” For support they cite to pages 543 and 544 of the Worcester ruling, which happens to be the point at which Worcester cites to Johnson v. M’Intosh:

To avoid bloody conflicts which might terminate disastrously to all, it was necessary for the nations of Europe to establish some principle which all would acknowledge and which should decide their respective rights as between themselves. This principle suggested by the actual state of things was “that discovery gave title to the government by whose subjects or by whose authority it [the discovery] was made against all other European governments…” 8 Wheat 21 U.S. 573.

 “8 Wheat 21 U.S.” is the Johnson ruling for a unanimous Court. Nine years later, in Worcester, Marshall said of the principle of discovery: “This principle, acknowledged by all Europeans because it was in the interest of all to acknowledge it, gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it.” (at 543) Marshall then says of the discovery principle: “It was an exclusive principle which shut out the right of competition among those who had agreed to it, not one [a principle] which could annul the previous rights of those who had not agreed to it.” (emphasis added)

Who had not agreed to the principle of discovery? The original nations of the continent. Contrary to what the historians and legal scholars have claimed, Worcester acknowledges that the principle of discovery could not “annul” or “terminate” Indian nations’ rights, and therefore did not “terminate” their right to “external political sovereignty.” (at 544) The historians and legal scholars are further contradicted by Worcester: “It [the principle of discovery] regulated the right given by discovery among the European discoverers, but could not affect [change] the rights of those already in possession, either as aboriginal occupants or as occupants by virtue of a discovery made before the memory of man.” (Worcester at 544) (Notice “man” is restricted to Europeans).

So, we have the amicus brief acknowledging that Indian nations “originally possessed all the powers of a sovereign nation.” We have the Worcester decision acknowledging that the principle of discovery could not “annul the previous rights of” Indian nations that had not agreed to that principle. And we have the point made in Worcester that the discovery principle could not “affect the rights of” Indian nations already in possession of the soiI. What inescapable conclusion could the historians and legal scholars have made? Indian nations retain all their powers as sovereign nations despite the principle of discovery expressed in Johnson with its bogus “pretension” of “converting the [Christian] discovery of an inhabited country into conquest” (a claimed right of domination).

The above insight provides an accurate context for a statement made in 1793, by then Secretary of State Thomas Jefferson, which the historians and legal scholars quote. Thirty years before Johnson, Jefferson acknowledged that Indian nations possessed “full, undivided and independent sovereignty.” What a difference it would have made if the amicus brief had started with Secretary of State Jefferson’s statement, and then rejected the pretension of “conquest” premised on a claimed right of Christian discovery and domination. This approach, however, would have required a closer reading of the Worcester decision, along with a willingness to challenge an outlandish “pretension” of a right of domination over our original nations in U.S. law based on Christianity, expressed in Johnson v. M’Intosh.

Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute, and author of the book 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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