What Justice Scalia Said He Didn’t Know About U.S. Indian Law

Steven Newcomb

News of U.S. Supreme Court Justice Antonin Scalia’s passing on February 15 made me think of the brief conversation that I had with him at the University of San Diego (USD) on August 30, 2006. His talk that evening that was hosted by the USD School of Law. Afterwards, at a reception, I was able to talk with Scalia face to face. Given that he had been on the U.S. Supreme Court for twenty years by that time, imagine my surprise when he told me in response to my initial question that he had never heard of the doctrine of discovery or the Johnson v. M’Intosh ruling, which law schools in the United States typically regard as the starting point of U.S. property law, as well as U.S. federal Indian law.

The topic of Scalia’s talk that evening was “Constitutional Originalism.” No big surprise there, since that seemed be his central focus during his long career. Toward the opening of his talk he mentioned the book Commentaries on the Constitution of the United States (1833), written by U.S. Supreme Court Justice Joseph Story. When Scalia told me he had never heard of the doctrine of discovery or Johnson v. M’Intosh, I was all the more surprised because the first section of Story’s book, “Origin and Title to the Territory of the Colonies,” opens with a full explanation of the doctrine of discovery. In the first paragraph of that section, for example, Story says.

The ambition of Henry the Seventh was roused by the communications of Columbus, and in 1495 he [Henry VII] granted a commission to John Cabot, an enterprising Venetian, then settled in England, to proceed on a voyage of discovery, and to subdue and take possession of any lands unoccupied by any Christian Power, in the name and for the benefit of the British Crown.

According to what I prefer to call the doctrine of Christian domination, it was customarily understood by the monarchies of Christendom at that time that “any Christian power,” such as England, had “the right” to “subdue” (dominate) and claim to seize possession of the lands of our original Native nations. The only condition was that the located lands must not be already inhabited by or claimed by Christian nations. If Christian nations were living there, then it was “hands off.” But if non-Christian nations and peoples were existing there, then the policy of the Christian powers, and of Christendom as a whole, was to subdue and claim a right of possession (dominium) over those non-Christian lands. Justice Scalia claimed to have no knowledge of this information which is so clearly explained in the book that Scalia referenced in his evening talk.

As a result of the thinking that Story identifies in his Commentaries, the sole question at that time became whether the lands that were “new” to the adventurers and voyagers of Christendom had already been claimed and seized by some other Christian power, in the name of Christianity. In his Commentaries, Story directly links the Johnson v. M’Intosh ruling to the papal bull of 1493 and to the categorical distinction between Christians and “infidels, heathens, and savages.”

How was it possible, I wondered, that Scalia knew nothing about any of this? Did he skip reading the opening of Story’s Commentaries? Did he have a poor memory that caused him to forget what Story had written in the opening of his book? How had he managed to be on the Supreme Court, and deal with numerous federal Indian law cases, without knowing about the conceptual foundation of the system about which he was making decisions?

Shocked at what he had just told me, I said to Justice Scalia, “I don’t understand [how you’ve never heard of the doctrine of discovery], just last Spring [in 2005], in City of Sherrill v. Oneida Indian Nation of New York, the Supreme Court cited to the doctrine of discovery in footnote number 1.”

He simply ignored my incredulity and began to compare the policies of the United States, Australia, and New Zealand, regarding Native peoples. He summed up by saying that the United States had arrived at a policy of conquest. He said this as if it were something perfectly ordinary. “That’s very interesting.” I said, “Can you point me to any decisions that actually said that.” He simply replied, “No.” Realizing there was no point in carrying the conversation any further, I thanked him for his time and made way for the next person waiting to speak to him.

There is always the possibility that Scalia was simply pretending that he knew nothing about the doctrine of discovery and Johnson v. M’Intosh. Assuming, however, that this wasn’t the case, what I took away from my one brief conversation with Scalia is that he was woefully uninformed about the foundational conceptions of U.S. federal Indian law, and of U.S. property law (given that he evidently did not even recognize the name of the Johnson ruling). It probably sounds axiomatic to say this, but the men and women who sit on the U.S. Supreme Court can only make decisions based on what they know. They cannot make decisions on the basis of information they don’t know.

What a sad state of affairs for our Native nations. We who were originally free, and are, in my view, still rightfully free, are now regarded by the dominating society as subject to ideas mentally created by nine men and women who have so little understanding of our history and our existence. With regard to whatever case they are dealing with, all nine members of the Supreme Court use as their starting point, a presumption designed by their predecessors on the Court. Namely, that our nations today are not allowed to exist free from U.S. domination (as in “plenary power”). Why? Because our ancestors were, in the words of Joseph Story, “infidels, heathens, and savages,” and were not allowed by Christian powers to be recognized as nations that were fully independent of a claimed right of domination by Christian nations. Now that would have been the focus of a fascinating conversation with Justice Scalia given his strong Catholic orientation, and given that none of this thinking is found the original text of the U.S. Constitution. It will be interesting to see whether his replacement on the Court will have a greater understanding of the non-constitutional starting point of U.S. federal Indian law.

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 co-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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nokomis's picture
Kudos for taking him to task for his gross inconsistencies...how can someone with a strong Catholic orientation defy the popular will of the people over Citizens United, which is a corporatist philosophy? According to Ralph Nader, "Scalia interpreted the constitution (theory of originalism) hypocritically as he extended the Bill of Rights to corporations and elitist values." How Christian is that?
mem's picture
Plain and simple they used the connection to God to excuse and rationalize their true lust which was greed. They also used propaganda to demonize the genuine Americans so that their murderous genocide and relocation of humans would not be questioned. There were individuals that would be against their vile actions and they knew this - their theft of this continent was premeditated and methodically planned and carried out clear to the Pacific ocean. Where they actually partied after the bloody path of massacres of millions lay behind them - there is no criminal in the world that will confess to brutal crimes if it means his life, loved ones & material possessions are at risk(no matter how fraudulent). All opportunists that have come here and given the benefit & promise of riches will never want to "know" about their inclusion in the most gruesome genocide & human relocation ever carried out by human beings. This MUST be exposed, it can't be left to the criminals to admit to the crime - they don't want to "know." Until their other crime of slavery was exposed, they hid it and they will never, ever, admit to genocide until proven guilty. Don't depend on compassion - shoot for shame because if ever there should be shame, it should be on all those that came here to "knowingly" commit genocide and land theft.
onedman's picture
Mr. Newcomb, maybe some day you could expand on this "plenary power"? My Great Grandfather was the Lawyer for Lone Wolf vs Hitchcock before the Supreme Court. He was Hampton Lawrence Carson, he lost the case for Lone Wolf because of this fairy-land term/idea of plenary power. To this very day, I think, it is the cause of so much grief between Native Americans and the "government". Much like the Papal Bull, plenary power controls this land even in 2016 and does it still have too? Is there not some way of re-examining through the court system, to correct this wrong? Legal scholars find it as distasteful as Dred Scott. Thank you for the work you do.
onedman's picture
This has been troubling me for some time, not as long as you but I'm just a slow white guy. Anyway, is it not possible to over-turn Lone Wolf vs Hitchcock on anti-discrimination grounds? No one else in this land is under the Plenary Power of Congress as Native Americans are, this seems to me good grounds for the suit. I have been known to dream a lot about what is the moral thing to do.