In a previous column, I noted that U.S. federal Indian law is traced to the religio-political narrative of Chosen People and Promised Land in the biblical book of Genesis.
In this column I want to address the fact that 2015 marks the 60th year since the U.S. Supreme Court handed down its decision in Tee-Hit-Ton Indians v. United States under the leadership of Chief Justice Earl Warren. The Supreme Court handed down its majority decision in that case, in support of the U.S. government’s main argument that the Tee-Hit-Ton Band of Tlingit Indians did not deserve monetary compensation for timber taken from lands in their traditional territory (part of which Congress had declared to be the Tongass National Forest). The reason? According to the U.S. government’s argument, it was because “the Christian nations of Europe” had “discovered” and thereby supposedly become “the sovereign” over “the lands of heathens and infidels.” To set the context, let’s look at some historical background.
On January 21, 1954, President Dwight Eisenhower appointed Simon Sobeloff to be Solicitor General of the United States. The Tee-Hit-Ton Indians’ case was already, or would soon be, on the new Solicitor General’s desk. On February 4, 1954, two weeks after Sobeloff’s appointment, interim U.S. Supreme Court Justice Chief Justice Earl Warren (he had not yet been confirmed by the U.S. Senate) delivered an address at “the Annual Christian Action Conference, sponsored by International Council for Christian Leadership.” The event took place at the Mayflower Hotel, in Washington, D.C., and President Dwight Eisenhower, Vice President Richard Nixon, and various members of the U.S. Congress were seated in the audience. It had been only nine years since the end of World War II, and it was the era of the anti-communist “Red Scare” and resulting Christian fervor.
In his speech at the Mayflower Hotel, Chief Justice Warren said of the United States: “our governmental affairs have been guided by men and women of religious faith. I believe no one can read the history of our country without realizing that the Good Book and the Spirit of the Savior have from the beginning been our guiding geniuses.” He gave as examples the “Commission from Ferdinand and Isabella” to Columbus, the Charter of Virginia, and other such colonial documents. In all those documents, he said, “the same objective is present: A Christian land governed by Christian principles.”
In October of 1954, Solicitor General Sobeloff delivered to the Earl Warren Supreme Court the U.S. government’s legal brief in Tee-Hit-Ton Indians v. United States. The context of the United States’ main argument in the Tee-Hit-Ton Indians’ case was the historical claim that The Tee-Hit-Ton Indians in Alaska were not entitled to monetary compensation for timber taken from a region of their traditional territory because “discovering nations acquired absolute title to the lands of the continent subject only to the Indian right of occupancy.”
Consistent with Chief Justice Warren’s address, the U.S. legal brief in Tee-Hit-Ton said that “the Christian nations of Europe” had developed the doctrine of discovery. The U.S. legal brief said that the Tee-Hit-Ton Indians had argued that “Russia did not subscribe to the doctrine of title by discovery because it was not a Roman Catholic or maritime power, and was not actuated in its discovery by the need for territory.” The Justice Department argued there was “no substance” to the Tee-Hit-Ton’s argument in view of what the Department said was “the definite and conclusive proof that Russia did subscribe to the doctrine.”
The U.S. Justice Department went on to argue in present tense, saying “that the doctrine of title by discovery is [emphasis added] not merely a Roman Catholic doctrine, but rather a principle adhered to by all the Christian nations. It cannot be denied that at the pertinent time Russian was a Christian nation.” In other words, it was the Justice Department’s position in 1954 that the Christian discovery principle “is” still adhered to “by all the Christian nations.” This matches Chief Justice Earl Warren’s speech about the United States being a Christian nation, while claiming there is a separation of church and state in the U.S.
By using the “doctrine of title by discovery” in the Tee-Hit-Ton case, the U.S. legal brief framed the United States as one of the “Christian nations” that, in 1954, was still adhering to the principle of title by Christian discovery of what the U.S. legal brief called “the lands of heathen and infidels.”
A professor of mine at the University of Oregon, C. A. Bowers, taught me that metaphors are carriers of entire metaphorical frameworks or systems. When, for example, we see the words “Christian,” “heathen,” “infidel,” “pagan,” “Genesis,” “Psalms,” and so forth (all found in the Tee-Hit-Ton legal brief) all those terms are “carriers” of a greater holistic framework, in this case, a Judeo-Christian religious framework. By contrast, the words “Europe,” “European,” and “white,” are metaphorical carriers of a secular, non-religious framework.
In U.S. federal Indian law scholarship, we find two very distinctive ways of writing about the doctrine of discovery: one is religious and the other is secular. Many scholars have said, for example, that the doctrine is the idea that “the first European nation to locate non-European lands had the right to claim those lands in the name of that European nation.” This is not accurate, though, because not one of the earliest original documents that expressed the doctrine, whether the edicts of popes or royal charters issued by the monarchs of Christendom, said one word about Europe or Europeans.
This is because at that time the nations and peoples from that part of the planet identified themselves as “Christians” existing in a place called “Christendom.” Thus, for instance, the John Cabot charter of 1496 authorized Cabot and his sons to “seek out, discover, and find, whatsoever isles, countries, and regions of the heathen and infidels that before this time have been unknown to all Christian people.” After centuries of Christian Crusades, during the so-called Age of Discovery it was considered “a fundamental law of Christendom that all Christians were in a state of war with all infidels” (J.A. Williamson, The Cabot Voyages and Bristol Discovery under Henry VII, Cambridge: The Hakluyt Society at the University Press) Williamson said the Christian state of war against non-Christians “was at that time the justification of the [English crown’s] permission to ‘conquer, occupy, and possess’ any non-Christian territories that might be found.”
Scholars who characterize the language of the Cabot charter as authorizing the “European” discovery of “non-European” lands have not paid close enough attention to the metaphorical system in play in the original document, and have misunderstood and mischaracterized the religious dimension of that charter. It is because of the religious vocabulary of such documents, religious vocabulary quoted by the U.S. Supreme Court in Johnson v. M’Intosh and by the U.S. Justice Department in 1954, that I focus on the Doctrine of Christian Discovery.
Given that February 2015, marks the 60th year since the U.S. Supreme Court handed down its decision in support of the U.S. Justice Department’s legal brief in Tee-Hit-Ton Indians v. United States, we ought to work this year to bring the Judeo-Christian basis of the Doctrine of Christian Discovery and claimed right of domination into sharp focus so it can be challenged and disestablished. The 60th year since the ruling in Tee-Hit-Ton Indians raises the issue of the U.S. government’s use of Christianity as its basis for claiming an “ascendency” (“sovereignty” or right of “domination”) over “heathen” and “infidel” Indian nations, and as a means of conceptually limiting Indian nations to a mere “right of occupancy,” while claiming federal “sovereignty” and a dominating ownership of the lands and territories of Indian nations in what Chief Justice Warren called “a Christian land governed by Christian principles.”
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 has been studying U.S. federal Indian law and international law since the early 1980s.