“Every story has a sacred dimension not because of gods but because a man or woman’s sense of self and the world is created through them. These stories serve to orient the life of a people through time, establishing the reality of their world.” — Catherine Ann Jones, The Way of Story: The Craft and Soul of Writing.
John Marshall, Chief Justice of the U.S. Supreme Court from 1801 to 1835, was a master story teller. So was his close friend Associate Justice Joseph Story, which is somewhat ironic given Story’s surname. Most people seem to think that the stories told by men such as John Marshall and Joseph Story in their official capacity as Supreme Court justices cease to be stories because their narrative creations ended up being called “law.” This is not the case.
There are many kinds of stories: “true stories,” “yarns,” “tall tales,” “made up stories,” “just so stories,” “fictional stories,” and “factual stories” to name just a few. Johnson v. M’Intosh is a peculiar kind of story. In 1823, Marshall, Story, and the other judges on the U.S. Supreme Court agreed upon the Johnson opinion as an official story of the United States government and thus as U.S. “law.” It’s as if the United States government has said of the Johnson ruling, “That’s our story and we’re sticking to it.”
Let’s review some of the story’s features: After identifying the question before the court, which was “the power of Indians to give, and of private individuals to receive, a title which can be sustained in the courts of this country,” Marshall began the ruling with a “Once upon a time” opening: “On the discovery of this immense continent.” This presupposes asa fact that a “discovery” of an already inhabited continent did take place. (We’ll leave aside the argument that you can’t “discover” some place that is already well known to millions of people).
Marshall continues his story by saying that the continent’s “vast extent offered an ample field to the ambition and enterprise of all.” “The nations of Europe were eager to appropriate so much of it [the continent] as they could respectively acquire,” he wrote. Simply put, the invading nations coveted the lands where other nations were already living and had been for countless generations.
The main character or protagonist of Marshall’s story is “the great nations of Europe.” The Indians are the antagonists of Marshall’s story.” And since Marshall is writing from the perspective of the nations of Europe, he adds comments that tell his audience something more about the nature of both the protagonist (Christian Europeans) and the antagonist (the “Indians”).
Marshall continues: “The character and religion of its [the continent’s] inhabitants afforded [provided the nations of Europe with] an apology [an excuse], for considering them [the Indians] as a people over whom the superior genius of Europe might claim an ascendency.” An “ascendency” is a “controlling or governing power : DOMINATION.” (Webster’s Dictionary)
The discerning reader can grasp that the main character, “the nations of Europe,” used their superior intelligence, their “genius,” to claim a right of Domination (ascendency) over the inhabitants of the continent who, according to the story, are of inferior intelligence.
Since this claim by “the nations of Europe” to possess a right of domination in relation to the continent’s inhabitants is going to result in a great loss to them, Marshall says that the Indians were to be compensated for their loss. “The potentates of the old world,” says Marshall, easily convinced themselves (how hard did they have to try?) that “they made ample compensation to the inhabitants of the new” world.
The subtlety of Marshall’s storytelling acumen is revealed in the words “potentates” and “inhabitants.” The former word is a term of great power. The word “inhabitants” is a bunch of non-specific people living somewhere out there on the land. No political power whatsoever that might compete with “potentates” is even remotely suggested by the word “inhabitants.”
In any case, what form of compensation were the Indians to receive? According to Marshall the Indians were to receive “civilization and Christianity in exchange for unlimited independence.” At this point, let us pause and reflect on some important elements of the story Marshall is telling on the Court’s behalf. As mentioned previously, the Indians had already suffered or were going to suffer some form of loss as a result of “the superior genius of Europe” claiming an “ascendency” (right of domination) over them.
The superior genius of the nations of Europe decided that the Indians deserved to be compensated with the two things that either had resulted or were going to result in their loss or injury: European style civilization (domination, from an original nation perspective) and Christianity (the Bible).
In the story he is weaving for the Court, Marshall says that “civilization and Christianity” are being bestowed on the Indians “in exchange for unlimited independence” (emphasis added). An exchange suggests two sides, each of which is handing something to the other, and each receiving something from the other. Marshall has told us that the Indians are receiving from the European nations “civilization” (domination) and “Christianity.”
The question arises: What are the nations of Europe receiving in this “exchange” and from whom? Since Marshall has said that “unlimited [perfect] independence” is being received by one side of the “exchange,” we have to ask ourselves, which side ends up with “unlimited independence”? Certainly it is not the Indians since they are the ones deserving “ample compensation” which suggests that they are the ones suffering some sort of loss or injury.
This means, then, that Marshall’s story has “the nations of Europe” receiving “unlimited” or perfect independence from themselves. The European nations giving themselves unlimited independence (a claimed right of domination), with what Marshall calls “perfect title,” means that the Indians will be entitled to receive as compensation European civilization (domination) and Christianity (the Bible). The story has them receiving compensation for the loss of their pre-invasion independence as a result of the imposed system of domination that Marshall’s story calls “civilization.”
Marshall’s story for the U.S. Supreme Court depicts European civilization and Christianity (the Bible) both causing the end of our original independence as nations, and compensating us for the supposed loss of our original independence. The above storyline leads Marshall to later say of our nations a little further into the Johnson decision, “Their rights to complete sovereignty as independent nations were necessarily diminished by the original fundamental principle that discovery gave [perfect] title to those who made it.” “Necessarily” means “necessary for the story’s consistency.”
So there we have it. Marshall was not just a master storyteller. He was a masterful manipulator. He provided the story structure for everything that the United States has received as a result of being able to overrun and profit from the traditional territories of our nations, and from the political and legal and economic domination of our nations in the name of Manifest Destiny and Christian “civilization.”
This 4th of July, when I see the bright glow of the fireworks going off, I will know that part of what is being celebrated is Chief Justice Marshall’s ability to use skillful storytelling to write fiction that has made it seem as if our right to our original free and independent existence has been stripped away from us forever. I refuse to believe in that story.
From the viewpoint of the United States, we are expected to consider American civilization, independence, and Christianity to be more than adequate compensation for the subjugation of our nations, for the destruction of our traditional territories, of our languages, our cultures, our spiritual traditions, and our sacred places. Isn’t it time for our nations to start challenging such bad and illogical storytelling that is being used by the U.S. in the name of “law?”
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 co-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.