When I began attending the University of Oregon, I read The Autobiography of Malcolm Xas Told to Alex Haley, a book based on Haley’s interviews of Malcolm. One part of the book I found compelling was Malcolm’s time in prison. At that point he was barely literate. Eventually, he obtained a dictionary and over a period of time he rewrote every word of the entire dictionary, from A to Z, onto paper tablets. He could still remember the first entry in the dictionary; it was the word aardvark, a medium-size nocturnal mammal native to Africa.
Ever since I read Malcolm X’s story, I have spent countless hours reading dictionaries. By doing so, I am constantly finding new features of the English language I had not previously noticed. Dictionaries enable us to delve deeply into the meaning of key words. Take the word civilization for example. One definition is “the act of civilizing; esp the forcing of a particular cultural pattern on a population to whom it is foreign.” The word forcing lets us know that this is just another word for the domination of the said "population."
Or, take the word aborigine. It is defined as “one of the native people especially as contrasted with an invading or colonizing people.” Thus, the latecomer society’s domination by invading and colonizing is as the background context for the word aborigine. Aboriginal is the adjective formed from aborigine. Thus, in keeping with the definition of aborigine, aboriginal title is that form of title as distinguished from the title claimed by an invading or colonizing (dominating) people.
In U.S. federal Indian law, the title of those original nations and peoples on the receiving end of the invading and colonizing is defined as an "aboriginal" title of “mere occupancy.” The word “mere” means "only." Thus, from the point of view of the dominating society, "aboriginal title" of "the aborigines" is only a title of "temporary occupancy" as distinguished from the title of "the Dominator" ("the Sovereign").
In short, the invading or colonizing people impose a concept of title on the original nations and peoples labeled as "aborigines" (or "aboriginal"). The invading or colonizing people make certain that the concept of "aboriginal title" they impose on the original nations and peoples is a title that is incapable of interfering with successful and profitable domination by the dominator society. The aborigines get to keep living, albeit on a temporary occupancy basis, on the lands where they have been accustomed to living, and they are able to go on living there, until "the Dominator" (i.e., "the Sovereign") succeeds in obtaining the land from them.
This way of thinking was expressed as follows in a 1954 U.S. government legal brief in the case Tee-Hit-Ton Indians v. United States: “This Indian right of occupancy, also known as ‘original Indian title,’ is not a right in the soil itself, but is merely a usufructuary right, i.e., the right of using and enjoying the profits of a thing belonging to another…” (emphasis added). In U.S. federal Indian law, as a result of the doctrine of discovery and domination, all Indian lands claimed by the U.S. in North America are considered to belong to the United States as "the Sovereign" dominator. (However, it is inaccurate to say that the Tee-Hit-Ton Indians got to "enjoy" the profits of a thing belonging to another, since the profits from the Tee-Hit-Ton timber taken from them went to the Ketchikan Pulp and Paper Company).
Given the framework of Domination embedded in U.S. federal Indian law, particularly in the “aboriginal title” of “occupancy,” several questions arise: What are the most effective arguments we as Indian people are able to develop to refute or challenge the notions of domination found in federal Indian law and policy? How much time are we as Indian people and our non-Indian allies working to develop such arguments? Clearly, continuing to use the dominating language of U.S. Supreme Court rulings as our best means of refuting the dominating language found in U.S. Supreme Court rulings is a self-defeating strategy.
One such approach is to stop treating ideas that are clearly nonsensical as if they make sense. For example, we need to say that Christian European claims to a right of discovery and domination failed to diminish Indian rights to complete sovereignty as independent nations, as the Johnson v. M’Intosh ruling claims. We need to continual say that ancient assertions of a Christian right of discovery and domination of non-Christian lands are not a legitimate basis for the United States to claim an ultimate dominating authority over our originally free Indian nations and peoples.
Steven Newcomb (Shawnee/Lenape) is co-founder and co-director of the Indigenous Law Institute, author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (2008), and a columnist for Indian Country Today Media Network.