In 1954, at the opening of the era of Termination, the U.S. Justice Department delivered its legal brief to the U.S. Supreme Court, and later delivered oral arguments to the Court on that basis. The issue before the Court was whether the Tee-Hit-Ton Indians in Alaska were entitled to monetary compensation for a taking of their timber by the U.S. Interior Department.
The Justice Department introduced the context for its argument with the following: “The discovering nations acquired absolute title to the lands of this continent subject only to the Indian right of occupancy.-Prior to the great era of discovery beginning in the latter part of the fifteenth century, the Christian nations of Europe acquired jurisdiction over newly discovered lands by virtue of grants from the Popes, who claimed the power to grant to Christian monarchs the right to acquire territory in the possession of heathens and infidels.”
The Justice Department looked back to the 14th century to provide an example. “For example,” wrote the U.S. attorneys, “in 1344, [Pope] Clement VI had granted the Canary Islands to Louis of Spain upon his promise to lead the islanders to the worship of Christ, and, following the discovery of the New World by Columbus, [Pope] Alexander VI in 1493 and 1495 issued bulls granting to Spain all lands not under Christian rule. . .”
The Justice Department said it was eventually “necessary for the civilized, Christian nations of Europe to develop a new principle which all could acknowledge as the law by which they should regulate, as between themselves, the right of acquisition of territory in the New World, which they found to be inhabited by Indians who were heathens and uncivilized according to European standards.” The U.S. Justice Department continued:
“At first, mere discovery was considered sufficient to create a good and complete title, but because of extravagant, conflicting claims based upon discovery alone it was soon found that a more stringent basis was necessary. . . After a lapse of many years the principle was finally evolved “that discovery gave title to the government by whose subjects, or by whose authority it was made, against all other European governments, which title might be consummated by possession.” Johnson v. McIntosh, 8 Wheat. 543, 573; Martin v. Waddell, 16 Pet. 367, 409-410
In 1954, the same year that the U.S. Supreme Court overturned the Jim Crow laws by overturning Plessy v. Ferguson, the U.S. Justice Department reaffirmed the conceptual framework of Christian discovery and domination. This is found in the following passage from the U.S. legal brief:
Although the nations of Europe thus ceased to recognize the Popes as the source of their titles to newly acquired lands, the new concept of title by discovery was based upon the same idea that lands occupied by heathens and infidels were open to acquisition by the Christian nations [footnote 4]. As stated in Johnson v. McIntosh, 8 Wheat. 543, 573.
After this statement that “lands occupied by heathens and infidels were open to acquisition by the Christian nations, the Justice Department placed a footnote:
This [new concept of title by discovery, that lands occupied by heathens and infidels were open to acquisition by the Christian nations] is demonstrated by the fact that the English sovereign’s grant of a commission to the Cabots was for the discovery of countries then unknown to Christian people and to take possession of them in the name of the English king. Similar commissions issued to Gilbert and Raleigh. See Johnson v. McIntosh, 8 Wheat. 543, 576-577.
How were the Christian nations supposed to “acquire” lands “occupied by heathens and infidels?” By taking those non-Christian lands away from the non-Christians. The U.S. Justice Department even cited to Genesis 1:28 in the Bible:
That the discovering nations asserted complete title in themselves, even as against the heathen natives, is well illustrated by the enactments of the colonial legislatures. In Massachusetts, as early as the period 1633-1637, the General Court had declared. . . :
That what lands any of the Indians in this jurisdiction have possessed and improved, by subduing the same, they have just right unto, according to that in Gen. 1, 28, and Chapter 9, 1, and Psal. 115, 16.
An accompanying footnote of the U.S. legal brief reads:
Gen. 1:28. “And God blessed them, and God said unto them, Be fruitful and multiply, and replenish the earth, and subdue it: . . . Chap. 9:1. “And God blessed Noah and his sons, and said unto them, Be fruitful and multiply and replenish the earth.” Psal. 115:16. “The heaven, even the heavens, are the Lord’s; but the earth hath he given to the children of men.”
To this day, whenever the United States Supreme Court cites to its own precedents that have relied on the Christian premised form of reasoning explained by the U.S. Justice Department in its 1954 legal brief, it is still using that form of reasoning against our Original Nations and Peoples. That form of reasoning is the basis upon which the Democrat Congressman Raul Ruiz of Maryland recently said of the lands where the dispute over the Dakota Access Pipeline is taking place, “I just want to remind everybody that the piece of land we’re talking about is on federal land.”
Ruiz, who is a medical doctor, is the ranking member of the House Committee on Natural Resources. He is viewed as, and views himself as, an ally of the Native peoples in the Standing Rock dispute. Yet it is on the basis of the Doctrine of Christian Discovery and Domination that he claims the lands of the Oceti Sakowin are U.S. federal land: “So this is land that is under the jurisdiction of the federal government. And that what we’re talking about here is not just a matter of right. It’s the law.”
In the U.S. government legal brief of 1954, the Justice Department openly explained the unjust and biblical form of reasoning applied to all the Original Nations of the Continent. It is that form of reasoning which has resulted in even the federal “allies” of Native Nations, such as Congressman Ruiz claiming that all Indian land is supposedly “federal” land existing under “federal” jurisdiction.
Given the Fort Laramie Treaty of 1851, that land is rightfully Oceti Sakowin Nation territory and therefore rightfully under the jurisdiction of the Oceti Sakowin. It is not so regarded because of the religious form of reasoning based on Christian dominionism, which says that our nations are not entitled to exist free from U.S. domination because our ancestors were not humans because they were not Christians when the Christian invaders first arrived.
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 is a producer of the documentary movie, The Doctrine of Discovery: Unmasking the Domination Code, directed and produced by Sheldon Wolfchild (Dakota), with narration by Buffy Sainte-Marie (Cree). The movie can be ordered from 38Plus2Productions.com.