‘Void When Initiated; You Can’t Grant What You Don’t Possess’

Steven Newcomb

The concept of civil society is traced to the ancient Roman Empire. Today we find this concept in the phrase “civil disobedience.” That phrase communicates the idea that there are people willing to “disobey” the imposed “civis” or “civil order” of the American society, which was founded as the American Empire. Saying there are Native people willing to “disobey” communicates the problematic idea that the so-called civil order of “America” is valid and deserves to be obeyed by Native Nations that empire has and continues to colonize.

The militarized police, with their rubber bullets and mace, are at the Dakota Access Pipeline project in the territory of the Oceti Sakowin (“Seven Council Fires of the Great Sioux Nation”) to facilitate the further corporatization of Oceti Sakowin Nation lands. The police and U.S. National Guard are there to reinforce the imperial order of America. Their role is to reinforce by violence, and by the threat of violence, the habit of obedience, both mental and physical, to the American Empire’s state of domination in relation to our Original Nations.

The very idea that our Native Nations continue to exist in the full political sense of Nationhood, with a right to live within the protection of its own national territorial integrity, free from American domination, defies the logic of the American Empire with its gluttonous appetite for both soil and oil.

We must never forget that our Nations predate “America.” As far as I’m concerned, we as Native Peoples are preAmericans. Our Nations are the original preAmerican Nations. We predate the American Empire’s predation as a predator state. Our Nations predate all the various states that form the political system of the United States.

As far as the American Empire is concerned civil obedience to its ideas and arguments of dominance must be continuously reinforced.

 Those ideas and arguments have been created for the economic benefit of the American Empire, at the expense of our Nations, and it seems that many of us have unfortunately bought into the idea that the ideas and arguments of the American Empire are “the law” instead of merely ideas the United States regards as “their law.”

We are able to think back to a time, not so long ago, when we were living free and independent of foreign domination as the Original Nations of the continent. Here’s a powerful point that most people have never considered: Because of the original free existence of our Nations in these lands, the ideas and arguments of the first colonizers of Christendom were void in our territories from the moment they were initiated.

The Latin phrase that explains this, void ab initio nemo dare potest quod non habit, as Larry Green from Grand River Six Nations so kindly informed me recently, means “void when initiated, you can’t give what you don’t possess.” The popes in Rome and the monarchs of Christendom did not possess a right of domination in our nations’ territories to grant. There was no such thing as a valid exercise by Christendom of a right of domination over our Nations and our lands. Every one of the so-called “ceremonies of possession” in the territories of our nations were void when they were conducted.

Unfortunately, we as pre-America inhabitants have been placed under something of a hypnotic spell. We have been conditioned to internalize and accept without question certain nonsensical assumptions and ideas brought from Western Europe to our part of the Earth. For this reason we seem to have missed a key point: The Vatican papal bulls and monarchical royal charters purporting to grant dominion over us and our lands were void as soon as they were made, and the colonizers who made landfall in the territory of any of our Original Nations gained nothing by those bulls and charters. We need to be saying this at every opportunity.

Those monarchs and the papacy had no valid authority outside of their own territories. As soon as their supposed authorization (by papal bull or royal charter) reached our shores, that authorization was a nullity. Why? Because the monarch’s representatives were outside the monarch’s own territoriality and outside the monarch’s own jurisdiction and territory and outside the jurisdiction and “territory” of the Roman Catholic Church. No monarch of Christendom had any rightful authority in a non-Christian Nation or a non-Christian territory.

As Pre-America Nations, we have been lacking powerful counter-arguments based on an accurate understanding of law and history. We need to develop counter-arguments that make clear the false nature of the colonizers’ narratives. Lies built on top of lies are still lies no matter how sensible they have been made to appear through a false label of “the law.” Chief Justice John Marshall admitted to the lie at the root of federal Indian law in the Johnson v. M’Intosh ruling when he wrote of the “…extravagant the pretension of converting the discovery of an inhabited country into conquest [domination].” Adam Smith admitted to the falsehoods built into the colonizers’ narratives when he pointed out that colonizing countries that arrived at the “Americas” had merely declared a “fictitious title” to the lands of the Original Nations in the places being colonized.

Joseph Story asked, “How did the British colonies acquire title to the soil of the continent? His answer was “discovery.” However, the correct answer from the viewpoint of the pre-America Nations, and based on the principle of void ab initio is this: “The crown and the colonies never did acquire a valid title to the soil of the continent.” They pretended to have acquired a valid title to the soil of the continent by means of the fictitious claim of having “discovered” lands that belonged to our Original Nations.

We’ve been going about this all wrong. We have been acting as if the colonizers’ ideas and arguments are valid. To the extent we have accepted their “federal Indian law” lies as valid, we have been living a self-subordinating delusion. It’s a self-imposed bad dream from which, fortunately, we have now begun to awaken. The ideas and arguments of the colonizers, based on the Bible, Christianity and Christendom, were never valid; and those ideas and arguments are therefore not valid today: void ab initio nemo dare potest quod non habit.

We need attorneys who are willing to make these argument on behalf of the water protectors arrested at the Dakota Access Pipeline colonization site. We need to be calling into question the taken for granted false assumptions upon which U.S. federal Indian law was founded.

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). The movie can be ordered from 38Plus2Productions.com.

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David Odell's picture
The geopolitical overview of Pre-American Nations is peculiar in all the world and it’s history. I saw a video the other day, youtube,(Putin Explains The Difference Between Russia and the United States) in which Putin characterizes the genocide and colonization of the US as unique in all history. When the US goes a courtin across the pond, they say, hey you do this or we cannot deal with you because of human rights issues. Always the arrogant hypocrites. This is not lost on millions of Europeans and the time is ripe for the seeking of redress. The church has had plenty of chances to do what is right by revoking the bulls and seeking the forgiveness they so often preach. Their argument against pious fraud is always, well the people are too dumb so we have to give them guidance, even if it is not true or favorable to their community. Well, that table is turned. There should be no more pleasantness and capitulation to such incredibly insensitive monsters. The memories of burning women in the public squares is still fresh. I would grab them by the collars and force them into court and let their tongues be used to hang them selves. They cannot and will not, be able to explain even chapter one of Genesis, much less find justification for the physical and spiritual brutality they have dished out for far too long. Mercy can no longer be afforded, nor should it. And do not worry about what everything will look like when it is done. The path of the knot is the same whether doing or undoing. Unless you have a knife.
David Odell
nonfedindian's picture
“The very idea that our Native Nations continue to exist in the full political sense of Nationhood, with a right to live within the protection of its own national territorial integrity, free from American domination,…,” And just how much protection would such Native Nations receive now or in the past? If it wasn’t Europeans, some other culture would have conquered this land.
rainbow's picture
Good article Mr. Newcomb. My name is Thomas Ivan Dahlheimer. The title of a recent online article mine is, U.S. has No Valid Title To Dakota Ancestral Land In Mille Lacs Co., MN. A Grand Elder at International Center of Spiritual and Ancestral Wisdom recently shared my facebook group post in Regaining The Dakota Oyate’s Mille Lacs Homeland. A sentence in the article reads: The doctrine of Christian discovery has been primarily used internationally to support decisions invalidating aboriginal possession of land in favor of colonial or post-colonial governments. Two paragraphs in my article and facebook post read: (1.) In The Circle article titled Dakota Rising its author Jon Lurie describes how Wyatt Thomas traveled to Mille Lacs County from Nebraska where he lives on a reservation as a member of the Santee Dakota Tribe. “Thomas said that Minnesota, and Ogechie lake in particular, was, to him, home. Thomas was on a mission to scout his tribe’s Minnesota ancestral lands. An important first step in reintroducing the Santee Dakota to their original homeland.”… “Thomas is one voice in a growing chorus of indigenous cultural leaders who agree that the reclamation of traditional lands is crucial to solving the Dakota mental health crisis due to the brutality of their historic treatment.” (2.) To the above paragraph’s words “reclamation of traditional lands” I include a link to a video of a Standing Rock protest. It’s a video link of a Christian delegation of allies to Standing Rock marching on a standoff roadblock. The narrator says that they [the bishops] are denouncing the Doctrine of Christian Discovery and thus nullifying the Christian basis of [U.S.] land title to Dakota territory.