In 1971, Alvin Josephy published his classic Red Power: The American Indians’ Fight for Freedom, which is a compilation of different articles and talks by various Indian and non-Indian personalities. The idea of Indians fighting to be “free” in the so-called ‘the land of the free’ was probably more readily understood as something of an irony four decades ago.
The chapter “We Are Not Free,” contains a talk given in February 1967 by the great and eloquent Clyde Warrior (Ponca), who was then President of the National Indian Youth Council, and who died a year later at the tender age of twenty-eight. He spoke before the President’s National Advisory Commission on Rural Poverty in Memphis, Tennessee. “Most members of the National Indian Youth Council,” said Warrior, “can remember when we were children and spent many hours at the feet of our grandfathers listening to stories of the time when the Indians were a great people, when we were free, when we were rich, when we lived the good life.” He continued:
At the same time, we heard stories of droughts, famines and pestilence. It was only recently that we realized that there was surely great material deprivation in those days, but that our old people felt rich because they were free. They were rich in things of the spirit, but if there is one thing that characterizes Indian life today it is poverty of the spirit. We still have human passions and depth of feeling (which may be something rare in these days), but we are poor in spirit because we are not free—free in the most basic sense of the word.
Clyde Warrior pulled no punches. “Fifty years ago the federal government came into our communities and by force carried most our children away to distant boarding schools. My father and many of my generation lived their childhoods in an almost prison-like atmosphere.” He further said:
Many returned unable even to speak their own languages. Some returned to become drunks. Most of them had become white haters or that most pathetic of all modern Indians—Indian haters. Very few ever became more than very confused, ambivalent and immobilized individuals—never able to reconcile the tensions and contradictions built inside themselves by outside institutions.”
No doubt many Indian people today will argue that things have much improved in Indian country in the decades since Warrior’s talk, especially in those sectors that have significant revenues from casinos. But a question arises based on Clyde Warrior’s speech, “Are Indian nations free—free in the most basic sense of the word?”
When we look at the conceptual bedrock of federal Indian law when Clyde Warrior gave his amazing speech, and compare it with the conceptual bedrock of federal Indian law today, the foundation-concepts of Christian “dominion” and non-Christian “subordination” have not changed in the least. For this reason, our nations and peoples are no more free from U.S. dominance (“plenary power”) today than they were in 1967.
An indicator that our nations and peoples are not free is demonstrated by the deep, albeit understandable, concern over the Supreme Court’s acceptance of the case State of Michigan v. Bay Mills Indian Community, and the issue of Indian nation sovereign immunity. The context of that particular fight, and so many other conflicts in Indian Country, is the challengeable view that the U.S. has an unquestionable right to define of our existence and seal our fate in whatever manner it chooses. This in turn is premised on the U.S.’s claim that our original independence as nations has been permanently “reduced” or “diminished” by “discovery.”
An example of this presumption is found in the 1987 Supreme Court ruling Oliphant vs. Suquamish Indian Tribe. By then it had been 20 years since Clyde Warrior’s speech. Chief Justice Rehnquist wrote the opinion for the Court. He said of Indian nations: “Their rights to complete sovereignty, as independent nations, [are] necessarily diminished.” The brackets tell us that the chief justice had replaced an older word in the original quote with the word “are.” The sentence that Rehnquist was quoting and revising is from Johnson v. M’Intosh: “Their rights to complete sovereignty, as independent nations, were necessarily diminished by the original fundamental principle that discovery gave title to those who made it.” (emphasis added)
And although Chief Justice Rehnquist premised his claim that Indian independence had been “diminished” on the above sentence from Johnson, Rehnquist did not make the “right of discovery” explicit. In Johnson, Chief Justice Marshall based the Court’s claim that Indian independence had been diminished on the “right of discovery.” Marshall said that right “was confined to countries then unknown to all Christian people,” using several English royal charters to illustrate the point.
The patent issued to John Cabot and his sons was the first charter that Marshall used to illustrate the “right of discovery.” According to James A. Williamson, “We may conclude by noticing a very wide implication of the [Cabot] patent. It was at that time accepted as a fundamental law of Christendom that all Christians were in a state of war with all infidels. This was the justification of the permission to ‘conquer, occupy, and possess’ any non-Christian territories that might be found.” (The Cabot Voyages and Bristol Discovery Under Henry VII [1962, Cambridge, MA: Published for the Hakluyt Society, p. 53])“
Williamson’s comment enables us to identify the Rehnquist Court’s tacit rationale in Oliphant, and Marshall’s explicit rationale in Johnson, for claiming that our independence had been “diminished”: The Supreme Court reasoned in Johnson that Indian “rights to complete sovereignty, as independent nations, were [are] necessarily diminished” on the basis of “a fundamental law of Christendom, that Christians were in a state of war with all infidels.” In short, the Supreme Court’s argument that the original independence of our nations was diminished by “discovery” is based on Christianity, which is premised on the Bible.
Williamson’s statement above explains the covert religious background of what the Supreme Court decides in every case dealing with American Indians, such as State of Michigan vs. Bay Mills Indian Community. Associate Justice Joseph Story, who was on the Court at the time of the Johnson ruling, expressed that religious background in his 1833 book Commentaries on the Constitution of the United States: “As [because they were] infidels, heathens, and savages,” wrote Story, “they [the Indians] were not allowed [by Christians] to possess the prerogatives belonging to absolute, sovereign, and independent nations.” Today, as a result of this antiquated and unacceptable reasoning process, premised on Christendom’s state of war with all infidels, it is presumed that the U.S. Supreme Court may legitimately pontificate on the sovereign immunity of our originally free Indian nations.
Steven Newcomb (Shawnee, Lenape) is the co-founder and co-director of the Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (2008, Fulcrum Publishing).