In 1987, while I was staying at Sunset Beach on the North Shore of Oahu, Hawai’i, I had a strange dream. In my dream I encountered several priests from long ago who were wearing grey hooded robes. One of them said to me: “These people are so stupid that they still believe these are folk lands when we conquered them by the sword.”
The next day I went to the library at the University of Hawai’i School of Law. After some digging for source materials on feudal land law, I came across Frederick Maitland’s Domesday Book & Beyond, first published in 1897.
I carried that and a couple of other books down to the copier. As I stood there, flipping absent-mindedly through the pages of Maitland’s book, I was startled by an unexpected chapter heading. I snapped the book shut, remembering of my dream from the previous night. I thought that perhaps my eyes were playing tricks on me. I reopened the book, and, sure enough, the chapter heading read: “Book-land and Folk-land.”
In the chapter, Maitland explains the difference between the two kinds of land: “So far as we can see,” says Maitland, “book-land from first to last was only held by the churches and by very great men.” Further on he explains: “Folk-land is land held without book, by unwritten title, by the folk-law.”
In time, the kings, and there were many of them, “discovered” that they could conceive of themselves as possessing an alienable or grantable “superiority” over the folk land. Additionally, they found that that this conceived “superiority” could be transferred to others, without the permission of the folk or common people. Book-land is created partly “by alienations of this superiority, [and] partly perhaps by gifts of land of which the king himself is owner.”
In other words, through the manipulation of their invented “superiority,” the kings were able to grant the lands of the folk to others of their choosing, and often to the church.
The point is that the kings and the church were able to operate in “a book realm.” The folk or common people had no control over that book realm that operated “from on high.” The distinction between book-land and folk-land can be thought of as “a superiority” (a domination) and “an inferiority” (a subordination).
By way of analogy, folk-land corresponds to “Indian land” originally held by Indian nations and peoples, “without book, by unwritten title, by folk-law.” The analogy is extended by thinking of “the Christian European sovereign” as being able to “convert” Indian “folk land” into book-land. This is accomplished by the self-proclaimed “sovereign” being conceived of as possessing “a Christian European superiority” over all non-Christian Indian land.
This “superiority” could also be alienated or transferred either to another self-proclaimed “sovereign” or to some other grantee. This pattern corresponds to language found in the 1823 Johnson v. M’Intosh ruling.
Take, for example, the following passage from Johnson: “While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives.”
The nations of Europe or “Christendom,” as it was then called, asserted an ultimate superiority to be in themselves as self-assumed and self-proclaimed “sovereigns” (i.e., superiors). That superiority was conceived of as alienable or transferable to others. Based on that presumption of superiority, the nations of Christendom claimed a power to “book” or grant Indian lands to others, while those lands were still “in the possession of the natives.”
Maitland’s historical information enables us to see that after such a granting or “booking” of Indian land, the grantees were considered to hold the granted Indian lands by “book-right.” The Indian lands were considered to have been “converted” to “book-lands,” without the permission of the original “folk” nations and peoples.
As Chief Justice John Marshall said in Johnson v. M’Intosh, “These grants [“bookings”] have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.” A deeper meaning is revealed when we reverse Marshall’s formula: The Indian right of “occupancy” is subject to the non-Indian “sovereign’s” self-proclaimed assertion of superiority,” which Marshall termed “ultimate dominion.”
In The Catholic Tradition of the Law of Nations (1935) John Eppstein states, “Changes of overlords or sovereigns and of frontiers between their dominions” were events that “were hardly perceived by the common people of mediæval Europe when they were occasioned merely by marriage or inheritance between ruling housese.” This notion of “overlords or sovereign’s,” meaning those who “lord it over” the folk, is at the root of the domination / subordination idea system that gave birth to U.S. federal Indian law and policy that has been used to convert Indian folk lands into book lands.
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 Kumeyaay and Indigenous Research Coordinator for the Sycuan Band of the Kumeyaay Nation.