At his 2005 Inaugural address, U.S. President George W. Bush made the
unequivocal statement: "All who live in tyranny and hopelessness can know:
The United States will not ignore your oppression, or excuse your
oppressors. When you stand for your liberty, we will stand with you." While
Bush obviously had a number of other countries in mind, these bold words
can also be applied directly to the United States government with regard to
both the plenary power doctrine, and its mistreatment of the traditional
Western Shoshone Nation, which is emblematic of the entire field of federal
Tyranny is defined as "arbitary or unrestrained exercise of power; despotic
abuse of authority." It is also defined as "oppressive or unjustly severe
government on the part of any ruler." It's a pretty safe bet that Bush's
condemnation of tyranny was a rhetorical flourish meant to be more form
than substance, as is often the case with a ceremonial speech. Certainly
Bush's inaugural address does not mean that, in an effort to end tyranny,
he is going to go after those repressive regimes that are allied with the
U.S., such as Saudi Arabia and Pakistan. Rather, if Bush makes the theme of
ending tryanny in the world a substantive part of his foreign policy during
the next four years, he will place regimes such as Iran, Syria, and North
Korea in the cross hairs. But I digress.
As this column has noted numerous times, the Western Shoshone Nation made
the Treaty of Ruby Valley with the Unted States in 1863, and, pursuant to
the U.S. Constitution, that treaty was ratified by the U.S. Senate in 1869.
The Constitution is part of the organic law of the United States. What is
commonly referred to as "the rule of law," so we are led to believe, must
be premised upon and emerge out of the concepts found in the organic law
documents, and subsequent statutes consistent with the Constitution.
Based on the Treaty Clause of the U.S. Constitution, the Ruby Valley Treaty
between the United States and the Western Shoshone Nation is part of the
rule of law in the United States. It is a treaty in which both sides pledge
peace and friendship towards one another. A treaty is by definition made
between two or more free and independent nations. Both parties to the
Treaty of Ruby Valley were free and independent nations when they entered
into the treaty, and both continued to be so after they made the treaty.
As noted above, tyranny is the "arbitrary or unrestrained exercise of
power." The United States government acts arbitrarily toward the Western
Shoshone Nation when it ignores the will of the Western Shoshone people and
does whatever it wants, whenever it wants, without regard to the treaty
relationship established between the two nations.
What is most fascinating about federal Indian law generally, and about the
Western Shoshone case specifically, is the background presumption that
American Indians became subject to the mind and mental processes of "the
white man" as soon as he arrived to this hemisphere from Western Europe.
According to this presumption, which I don't subscribe to, the Christian
Europeans' mental processes (thoughts and ideas) took control of the entire
hemisphere, and the indigenous inhabitants, as soon as the Christian
Europeans arrived. Instead of referring to this view as the doctrine of
discovery - which gives them credit for "discovering" a hemisphere that was
already well known to those living there - I prefer to call this the
Doctrine of Christian European Arrival.
The Doctrine of European Arrival is tryannical because it entails "the
white man" arbitrarily assigning to himself mental and physical control of
the existence of hundreds of indigenous nations and peoples, by virtue of
nothing more than his mere arrival to this hemisphere, and his self-assumed
superiority. This arbitrary and unrestrained assumption of power is then
given a fancy name: "Plenary power," which is a form of dominion. As
mentioned in a previous column, one line in the Inter Caetera bull
pinpoints the conceptual connection between government and dominion, or
domination: "We trust in Him from whom empires, and governments, and all
good things proceed."
The Latin word for "governments" in the text of the papal bull is
"dominationes." William Brandon, in "New Worlds for Old" (1986), explained
dominion as derived from the Latin dominatio, which, he notes, "extends the
word into 'rule, dominum,' and ... with an odious secondary meaning,
unrestricted power, absolute dominium, lordship, tyranny, despotism." U.S.
Supreme Court Justice Joseph Story once referred to plenary power as plenum
et utile dominum.
President Bush ought to take note of the fact that the plenary power
doctrine is a form of unrestricted power or tryanny that the United States
exerts over originally free and independent Indian nations. If he wants to
end tyranny around the world, he ought to begin right here in North America
by disavowing and putting an end to the arbitrary use of the plenary power
doctrine against the Western Shoshone Nation, and all other American Indian
Rather than being abstract theory, the above information has real world
consequences. Historically, the plenary power doctrine was responsible for
forcing the Indian nations west of the Mississippi River in order to "open"
those lands to white occupation. It is also on the basis of the tryannical
plenary power doctrine that the United States government enacted the 1887
Allotment Act that successfully wrested some 90 million acres of land and
other valuable resources away from Indian nations.
More recently, it is on the basis of the plenary power doctrine that the
U.S. government has attempted - unsuccessfully in my view - to dispossess
the Western Shoshones of millions of acres of their sacred homeland, and
impose an average 15-cent-an-acre payment on them. Meanwhile, the U.S. has
permitted huge multinational mining companies to extract some $26 billion
dollars in gold from Western Shoshone lands, with not one penny of that
money accruing to the Western Shoshone people. On the basis of this same
kind of tyranny the federal government has violated the fundamental human
rights of the Western Shoshones by stealing hundreds of Western Shoshone
cattle and horses in an effort to crush them economically and force them to
submit to the political power of the United States.
I wish that Bush had also addressed his words directly to the traditional
Western Shoshone: "The United States will not ignore your oppression,"
especially if it is the United States of America that is instigating that
oppresssion. Just think what an example it would have set for the world
community if Bush had pledged to stop U.S. tyranny in Western Shoshone
country by no longer being the traditional Western Shoshones' oppressor.
Steven Newcomb, Shawnee/Lenape, is Indigenous Law Research Coordinator at
Kumeyaay Community College on the Sycuan Indian Reservation, co-founder and
co-director of the Indigenous Law Institute, and a columnist for Indian