Ten people really need to read this editorial. They are Pope Benedict XVI and the nine justices of the U.S. Supreme Court. Remote as the odds might be, we probably have a better chance of getting the attention of the Holy Father than of the American jurists. After all, it’s his business we’re talking about.
For some time now, indigenous intellectuals have been urging the Vatican to rescind the 15th century papal bulls that provided the ultimate legal justification for European domination of the Natives of the Americas and Africa. This call came up with renewed force at the recent annual meeting of the Permanent Forum on Indigenous Issues at the United Nations. A panel of speakers from the Haudenosaunee (Iroquois) of New York state, Panama and Ecuador gave emotional testimony about the ongoing impact of the bulls and the “doctrine of Christian discovery” that they inspired. As one speaker, Tonya Gonnella Frichner, of the Onondaga Nation Snipe Clan, observed, this is no antiquarian issue. It is causing continuous and increasing damage. Supreme Court Justice Ruth Bader Ginsburg cited the doctrine of discovery in the first footnote of last year’s infamous City of Sherrill v. Oneida Indian Nation of New York decision, denying the right of the Oneida Indian Nation unilaterally to re-establish sovereignty on its own reacquired aboriginal territory.
(This issue affects our own self-interest, since the Oneida Nation owns Four Directions Media, publisher of Indian Country Today; but there can be no doubt that Sherrill is a major problem for all Natives in the United States. The decision was twisted and expanded by the 2nd Circuit Court to deny the Cayuga Nation land claims long after they had been adjudicated. The Supreme Court let that ruling stand, and the mischief is bound to continue. In the latest disaster, the 1st Circuit en banc reversed its own three-judge panel and on May 24 severely truncated the sovereign rights of the Narragansett Indian Nation.)
As our columnist, Steven Newcomb, has shown so ably, the makeshift legal arguments for European dispossession of Native America trace back to the doctrine of discovery, somewhat ambivalently endorsed by Chief Justice John Marshall in the 1823 foundation case Johnson v. M’Intosh. Although subsequent Supreme Court cases try to cover it up, this doctrine is really that of Christian discovery, the superior right of the Catholic monarchs of Europe to enlighten the pagan Natives of the New World (and, incidentally, take over their land.) And this right derives from a series of papal declarations starting in 1454.
Robert A. Williams Jr., Lumbee, the outstanding Indian law scholar at the University of Arizona Rogers College of Law, tells the story in his fascinating book, “The American Indian in Western Legal Thought” (1990). Although the origins go back to the beginning of the crusades, the modern portion starts with the effort of King Duarte of Portugal to take over the Canary Islands. Pope Eugenius had intervened to protect the Canary Islanders, the Guanche – some of whom had already converted – from Portuguese massacres. But Duarte argued that the “nearly wild” islanders would benefit from his own conquest, which he had begun “more indeed for the salvation of the souls of the pagans of the islands than for his own personal gain, for there was nothing for him to gain.” Eugenius bought this line and issued the bull “Romanus Pontifex,” authorizing Duarte to oversee conversion of the so-called barbarians. Later versions also confirmed the Portuguese monopoly of trade and slaving up and down the coast of Africa.
A veteran of this Portuguese trade was a certain Christopher Columbus, who approached Spanish monarchs Ferdinand and Isabella with the prospect of a trade route outside of the papally sanctioned monopoly. On the return from his first voyage, he was briefly detained and interrogated by the Portuguese in the Azores, and the Portuguese king promptly thanked the Spanish for extending his own western possessions. Spain rushed its lawyers to the papal curia even before Columbus set foot in Cadiz, and asked Pope Alexander VI, a Spaniard, to confirm its rights in the Indies.
Alexander complied with a series of bulls under the heading “Inter caetera.” The first gave Ferdinand and Isabella the task of converting the heathens discovered by Columbus, whom, as Williams observes, he described in terms very similar to the Portuguese description of the Canary Island natives. The second bull answered objections from Portugal by drawing a line separating their spheres of conversion. This line “from the Arctic to the Antarctic Pole” cut through the western tip of South America, which is why Brazilians now speak Portuguese instead of Spanish.
Other monarchs of the era, notably the French and English, found the whole exercise ridiculous. Today it would seem like a quaint artifact, if it weren’t for its enduring influence on the Supreme Court. The Native appeal to the Vatican is not just symbolic. It’s an urgent matter of preserving sovereign rights against a renewed onslaught by the federal judiciary. In a surprising twist to the story, moreover, the Holy See providentially has the principles at its disposal to give great support to Native rights.
Williams recounts that even as Eugenius drafted the first of these bulls, he drew on a theological and legal tradition that recognized the natural-law rights even of infidels. This principle, derived by the great Dominican theologian St. Thomas Aquinas from Aristotle, held that the ultimate divine sanction for political life was God’s creation of man as a rational and social animal. All human beings possessed a rational soul with a natural urge to band together in families, extended clans and ultimately self-governing communities. So all self-contained human political units possessed the natural right to dominium, or sovereignty, provided they did not egregiously violate natural law in their other conduct. This is as good a support for American Indian tribal sovereignty as we are likely to find in the Western legal tradition.
The Vatican doesn’t even have to repudiate the declarations of Eugenius and Alexander. All it has to say is that the conditions of that day no longer exist, certainly now that the indigenous nations have demonstrated spiritual strength that compares quite well with Europe. The religious excuse for European domination of aboriginal people no longer exists (it never did for Native nations), and the two societies should make their accommodation to their historical legacy on the basis of mutual respect for their political existence. Since the Supreme Court has certainly lost its way in this regard, it could use some guidance from another Supreme authority.
The Holy See is certainly aware that indigenous people are asking for action on these bulls. A representative of the Papal Legation to the United Nations has discreetly attended the panels on the subject at the last few sessions of the permanent forum. Given the long and complicated relation of the Catholic Church and the Native peoples of the Americas, a rescission of the bulls is the least the pope could do.