‘Generally Scalping the Indians,’ I Might Add

An interview with a former clerk for Justice Stanley F. Reed, sheds light on the Tee-Hit-Ton decision and the phrase “generally scalping the Indians.”
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Some years ago, I came across an interview with Gordon B. Davidson from March 4, 1981, which is part of the “Stanley Reed Oral History Project.” The interview was published on the internet by the Louie B. Nunn Center for Oral History, at the University of Kentucky libraries. Davidson was a clerk for Justice Stanley F. Reed during the 1954-55 Supreme Court term, which was when Tee-Hit-Ton Indians v. United States 348 U.S., 272 (1955) was argued and decided.

The interview was conducted by Mr. Gilson. It is slightly more than one hour in length, and it’s quite illuminating. The audio recording was retrieved on April 4, 2017.

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At one point in the interview, Davidson says: “The Teton Indians [Tee-Hit-Ton Indians v. United States] is another very interesting case.”

Gilson: “Yeah. [Justices] Douglas and Black dissented on that one.”

Davidson: “Yeah. Yeah. That was a case that . . . that the justice, I remember, in our debate said, ‘If. . .if the Indians should win in this case, how would we ever pay them off.’ [laughter by Davidson and Gilson]. Which is a pretty pragmatic view of the thing.”

Notice there is no discussion about the reasoning of the decision, or whether the Tee-Hit-Ton Indians deserved compensation for a taking of their timber (one question before the court in Tee-Hit-Ton). Reed was solely concerned with the monetary implications for the United States Treasury.

Later in the interview Davidson states: “But the Teton [Tee-Hit-Ton] Indians was. . . we had a heck of a time with the Indians. I helped with that opinion, too. They were members of the Klingit tribe.”

GILSON: “Yeah, in Alaska.”

DAVIDSON: “Spelled K-l-i-n-g-i-t, Klingit, and the justice was quite a really . . . he was . . . he was sort of a leading expert in Indian law for the Court.”

GILSON: “Oh, yeah?”

DAVIDSON: He had written probably more Indian cases than anybody else, generally scalping the Indians, I might add. [chuckle] (emphasis added)

Notice what is being treated as “humorous” word-play between Davidson and Gilson. To “cheat, defeat, or rob” are listed among the definitions listed for “scalp” in Webster’s New Twentieth Century Dictionary of the English Language Unabridged (1962), published seven years after the Tee-Hit-Ton Indians ruling of 1955.

Ruling against the Indians in a given case is being characterized as “scalping the Indians.” And apparently this kind of racist metaphorical word-play was somewhat typical in the chambers of the Supreme Court because Gilson, the interviewer, goes on to recount another example.

GILSON: I remember reading some . . . some memoranda from . . . from Douglas after . . . well, after he [Reed] had retired. . . he [Douglas] wrote to Reed criticizing one of [Charles] Whittaker's opinions, saying that, you know, "You scalped the Indians, but Whittaker's really doing it." [laughter--Davidson]

Stanley Reed was born on December 31, 1884, and Davidson says that Reed “had trouble finding the government doing any wrong.” Furthermore, Reed was extremely protective of the United States, as demonstrated by his dissenting opinion in an earlier decision, United States v. Alcea Band of Tillamooks 329 U.S. 40 (1946). The Supreme Court held that the Alcea Band Indians were entitled to receive monetary compensation for an extinguishment of “original Indian title” in Oregon. Reed wrote a dissent.

“It is difficult to foresee the result of this [Alcea Band] ruling in the consideration of claims by Indian tribes against the United States,” wrote Reed. “We do not know the amount of land taken. West of the Mississippi it must be large,” he added.

The Alcea Band case reached the U.S. Supreme Court as the result of a 1935 statute which gave the U.S. Court of Claims “jurisdiction to hear and adjudicate cases involving ‘any and all legal and equitable claims arising under or growing out of the original Indian title, claim, or rights in***the lands***occupied by the Indian tribes and bands described in certain unratified treaties negotiated with Indian tribes in the Territory of Oregon.”

The majority opinion in the Alcea Band case said that previously, “This Court has always strictly construed such jurisdictional acts.” It had not previously “offered [any] judicial opinion on the justness of the handling of Indian lands, except in so far as Congress in specific language has permitted its justiciable recognition.” (emphasis added)

With regard to the 1935 jurisdictional act’s mention of “original Indian title,” the majority said: “It has long been held that by virtue of discovery the title to lands occupied by Indian tribes vested in the sovereign.” In an accompanying footnote, the court cited, “Johnson v. McIntosh, 1823, 8 Wheat. 543, 573-574, 5 L. Ed. 681.”

The title considered vested in the sovereign, said the majority, “was deemed subject to a right of occupancy in favor of the Indian tribes, because of their original and previous possession.” When we reverse this phrasing, the U.S.-created “Indian right of occupancy” was considered “subject to the titled vested in the sovereign.” The Court majority said that the “original Indian title” “was accorded the protection of complete ownership, “[a]s against any but the sovereign.” However, that form of Indian title “was vulnerable to affirmative action [of a taking] by the sovereign.”

The Court said “the sovereign” was possessed with “exclusive power to extinguish the right of [Indian] occupancy at will.” Furthermore, a “sovereign” act terminating the right of Indian occupancy, “left the land free and clear of Indian claims.” Additionally, the Court said:

Third parties could not question the justness or fairness of the methods used to extinguish the right of occupancy. Nor could the Indians themselves prevent a taking of tribal lands or forestall a termination of their title. However, it is now for the first time asked whether the Indians have a cause of action for compensation arising out of an involuntary taking of lands held by original Indian title.

Justice Reed said in his dissent: “This case presents directly for the first time in this Court the question of whether an Indian band is legally entitled to recover compensation from the United States for the taking by the Government of the aboriginal lands of the Indians when there is no prior recognition by the United States through treaty or statute…”

Reed continued: “The Court [in this case] allows compensation. The importance of the issue persuades us that we should express the reasons for our dissent.” He said the unrecognized “type of occupancy…may be called Indian title.” Under this title, he stated, Indians “get no right to continue to occupy the lands; and any interference with their occupancy by the United States has not heretofore given rise to any right of compensation, legal or equitable.”

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Reed identified a specific theory as the source of a distinction between a right arising from what he called recognized occupancy and a right of “Indian title,” meaning, unrecognized by treaty or statue. Reed explained: “This distinction between right from recognized occupancy and from [unrecognized] Indian title springs from the theory under which the European nations took possession of the lands of the American aborigines.” (emphasis added) And what was this theory that Reed used for, as Davidson put it, “generally scalping the Indians?” The theory that served as “the source” for an original Indian title of “occupancy” “was,” wrote Reed:

that discovery by Christian nations gave them sovereignty [domination] over and title to the lands discovered. Johnson v. McIntosh, 8 Wheat. 543 572-586…1 Story, Commentary on the Constitution (5th Ed.) §152. While Indians were permitted to occupy these lands under their Indian title, the conquering nation asserted the right to extinguish that Indian title without legal responsibility to compensate the Indian for his loss. It is not for the courts of the conqueror [dominator] to question the propriety or validity of such an assertion of power.

When we combine two phrases from Johnson v. M’Intosh—i.e., “Christian people” and “Natives, who were heathens”—with key terms from Joseph Story’s Commentaries—i.e., “Christians” and “infidels, heathen, and savages”—and add Reed’s phrase, “discovery by Christian nations gave them sovereignty over and title to the lands discovered,” something becomes abundantly clear. Specifically, “the theory” Reed said the European nations had used to claim to have taken possession of “the lands of the American aborigines,” was premised on the Christian religion, the source of which is the Bible! This, then, was the “theory” that Reed used for “generally scalping the Indians,” and which he used as the basis for the majority opinion he later wrote for the Supreme Court in Tee-Hit-Ton Indians v. United States in 1955.

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.