When a writer expresses a particular reality, the “reality” expressed thereby is created by the mind of the writer. When Chief Justice John Marshall wrote the U.S. Supreme Court ruling Johnson v. M’Intosh in 1823, he mentally created the following version of “reality”: Whenever a “Christian people” successfully located a land inhabited by “heathens,” this automatically “gave” the Christians an “ultimate title” to that non-Christian place.
What Marshall was saying in the Johnson ruling is this: When Christian Europeans first sailed to some non-Christian place where no Christians had previously been, they mentally and metaphoricallyimagined themselves as suddenly “having” or “holding” a “title” to the lands of the nations. But there is something Marshall did not explain. If these "title" events “happened” at all, they didn’t happen physically; they “happened” mentally, as a result of the Christians’ thought processes about lands “not possessed by any Christian prince.” I have placed many of the above words in quotation marks to indicate that they are metaphorical (imaginative) mental constructs that we are now able to contest and challenge mentally with our own thought processes.
Marshall used his drafting of the Johnson v. M’Intosh ruling to create a Christian/non-Christian-premised version of legal reality. He did so by mentally crafting and telling a particular story on behalf of the U.S. Supreme Court. It was a story that he and the rest of the Supreme Court intended the United States government to keep using for the political and economic benefit of their future generations, and, most importantly, as a means of creating and exerting a system of domination “over” our Native nations.
As the basis for the story he was telling on behalf of the United States, Marshall used words and ideas from ancient documents such as Vatican papal bulls and English royal charters. Those documents likewise were created from the minds of their authors and were enforced by the powers of the author's institutions. Marshall was telling a story about how the claim of a Christian right of domination was first mentally created in “the Americas” (Great Turtle Island). This is why he wrote the following:
No one of the powers of Europe gave its full assent to this principle [of domination] more unequivocally than England. The documents upon this subject are ample and complete. So early as the year 1496, her monarch granted a commission to the Cabots to discover countries then unknown to Christian people and to take possession of them in the name of the King of England.
Contained in the royal commission to John Cabot and his sons was a presumption that a Christian monarch (e.g., King Henry VII) had the right to dominate lands that, until Christian world representatives sailed there, had been “incognito” to "Christian people.” The Cabot charter and Vatican papal decrees assumed that “Christian people” automatically had a “God-given” right of domination in relation to any non-Christian lands they were able to locate and invade.
In the original Latin version of the Cabot charter, a copy of which I now have, several terms of Christian domination are used: “Dominium Titulum,” (domination title) “subjugare” (dominate) “jurisdiction” (to rule or control as a means of successfully dominating). As a result of U.S. federal Indian law being rooted in Johnson v. M’Intosh, these terms of domination are still being used by the United States government against our Native nations and to claim our lands and territories.
Marshall’s story in the Johnson ruling could be accurately titled, “Once upon a time, Christians invaded a non-Christian land where no Christian thought processes had ever been expressed before.”
The point is that wherever the Christians invaded a non-Christian place, the voyagers from Christendom were intending to create a colonizing and dominating Christian reality with the intention of profiting from the resources existing there. That’s the story Chief Justice Marshall was telling for the U.S. Supreme Court in the Johnson ruling. Marshall was saying that when the Christians arrived in the lands of “natives, who were heathens” (those are Marshall’s words), the Christians refused to acknowledge the non-Christian nations as having “a right of soil.” The Christians refused to think that any “heathen” nation had a property right of domination to its own non-Christian homeland.
It is important to keep in mind that the account Marshall wrote about the past in the Johnson ruling is not what physically happened, but what Marshall metaphorically imagined and therefore declared had taken place centuries earlier. What he put down on paper were his imaginings and conjecturing. Marshall expressed his own imaginative account of past events.
Now, whenever we read the Johnson ruling, we again re-create in our own mind’s eye Marshall’s mental depiction of the “past” that he created in his mind’s eye. It was this mental process that Justice Stanley Reed, in a dissenting opinion he wrote in United States v. Alcea Band of Tillamooks, built upon when made his statement about a “theory” he said is found in the Johnson ruling, namely, that a “discovery by Christian nations gave them sovereignty [domination] over and title to the lands discovered.”
Think about it. If the Christians had mentally acknowledged any “heathen” nation as having a right of dominion over its own territory, this could logically lead to the conclusion that the “heathen” nation’s authority in its own country was absolute and exclusive, to the exclusion of the Christians. This in turn could lead to the powerful argument that "heathens" had the fundamental right to permanently exclude the Christian invaders and deny their “pretensions” of a right and title to the heathens’ soil. It would seem that this is the key intention of the Johnson ruling: to prevent any thought of a heathen rightof domination (absolute dominion) from ever entering anyone’s mind.
Most Native people still do not know that a mentally created “reality” of Christian domination is embedded in the Johnson v. M’Intosh ruling. They also do not know that this claimed right of Christian domination over non-Christians is the premise of U.S. federal Indian law and policy. Not only is an assumed right of U.S. domination over our nations being used against us. It is also being successfully hidden and cloaked behind such metonymic phrases as “the trust relationship,” “the plenary power of Congress,” “aboriginal title,” and “the right of occupancy.”
Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute, and author ofPagans 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.