In the 1823 U.S. Supreme Court ruling Johnson and Graham’s Lessee v. M’Intosh, Chief Justice Marshall made a statement on behalf of a unanimous court that the United States is still applying to our original nations and peoples one hundred and ninety two years later.
Here’s my paraphrase of Marshall’s statement for the Supreme Court: It may appear “extravagant” for the United States to pretend to convert the discovery of an inhabited country into a claimed right of domination (Marshall used the term “conquest”). Nonetheless, if such a “pretension” of a right of domination has been asserted and then sustained, “if a country has been acquired and held under it,” “if the property of the great mass of the community depends on it,” that “pretension” of a right of domination “becomes the law of land and cannot be questioned.”
The fact that Marshall used the word “conquest” instead of the phrase “right of domination” on behalf of a unanimous Court is immaterial to the point I’m making here. After all, the only way for one nation or people to pretend to “convert” “discovery” into “conquest” and use it against another nation or people is by imposing an unjust reign of domination on that other nation or people.
Domination results in the dehumanization of the nation or people being compelled into subjection. Just think of the dehumanizing acts of domination such as the Gdnattenhütten Massacre, the Sand Creek Massacre, the Bear Creek Massacre, the Spanish Catholic Mission System of Death, the Trail of Tears that resulted in the dehumanizing deaths of thousands of the children, women, and men of the Cherokee Nation. Think of the bloody bodies of slain Hunkpapa ancestors lying in the bloody snow at the Wounded Knee Massacre, and on and on.
Just think of all the dominating and dehumanizing (and, yes, genocidal) events that, for more than five centuries, have been inflicted on our nations and peoples over the entirety of this vast continent, and across the width and breadth of the entire hemisphere. We see instance after instance of our nations being dominated and dehumanized by being deprived of the ability to live on our own lands, in our own territories, in a manner of our own choosing, free from the imposition of arbitrary control by an invading nation or state of domination.
This being the case, why is it that the accurate words domination and dehumanization are not typically used by non-Native historians when they recount our history? Based on the above examples, we are able to draw the accurate inference that the U.S. federal Indian law and policy system is a forcibly imposed system resulting from more than two centuries of domination and dehumanization of our nations by the United States. One result of the aforementioned history is the U.S. system of federal recognition of “Indian tribes,” which are political entities that the U.S. Supreme Court in Michigan v. Bay Mills Indian Community recently declared to exist in “subjection” to or “subject to” U.S. “plenary power.”
The United States government recently made a statement at the United Nations Permanent Forum on Indigenous Issues (UNPFII) which used the U.S. system of federally recognized tribes as a frame of reference. The statement was delivered on behalf of the United States on April 20, 2015 by Ms. Ann Marie Bledsoe Downes, an enrolled member of the Winnebago Tribe of Nebraska, who also happens to be an attorney within the system of U.S. law and U.S. federal Indian law.
That April 20 statement by the United States says that the U.S. government “supports enhanced participation for representatives of its federal recognized tribes, which have a nation to nation relationship with the United States.” (emphasis added) “Its” tribes? Really? In English grammar, the word “its” is a possessive. Thus, on the world stage the United States has officially characterized “federally recognized tribes,” as “belonging to” the United States as U.S. “possessions.” Such terminology is clear evidence of the domination system.
The idea-system of “tribes” and “domestic dependent nations,” which the U.S. deems to exist “in subjection” to the U.S., is an idea-system which the United States uses against our originally and still rightfully free and independent nations and peoples. Given that there is no such thing as “a right of domination,” it is sensible to argue that our nations continue to be and shall forever be rightfully free and independent of the U.S. government’s unjust system of domination and dehumanization. Certainly Indian leaders and advocates have the capacity to argue that the United States has never had the right to impose its system of domination on our nations. Whether they will decide to make that argument, however, remains to be seen.
This brings us to the catch behind the U.S. April 20 statement at the United Nations: If the United States can make it seem to the world community that we have “freely consented” to the federal Indian law and policy system (the U.S. system of domination), then the U.S. can tell the world that it’s U.S. federal Indian law and policy system is not being imposed on us against our will based on domination. It can say that we have freely conceded to that system through an exercise of our own “free, prior, and informed consent.”
Without a doubt, this is the strategy being used by the United States in the UN at this time. The United States is working to incorporate into the United Nations’ system-wide action plan, the U.S. federal Indian law and policy system of “subjection.” How ironic that the United States is doing this in the name of “implementing the UN Declaration on the Rights of Indigenous Peoples.”
The United States knows that if it can weave U.S. federal Indian law and policy into the UN as a global model for “Indigenous peoples,” it will have made domestic U.S. federal Indian law and policy an international norm. The UN’s “system-wide action plan,” which is the result of the outcome document produced by the UN high level plenary meeting of the UN General Assembly last September, provides the U.S. with this opening. Unfortunately, some of the so-called Indigenous peoples’ advocates are falling in line by going along with the U.S. strategy.
Something is critically wrong when the Indian people who claim to be using the international arena to create reform, as a means of solving the myriad problems facing our nations, advocate in favor of institutionalizing in the United Nations and thereby internationalizing the very same U.S. system that has resulted in the problems they purport to be fighting against. The problems that our nations face on a daily basis cannot be ended by retaining the U.S. conceptual system of domination that has caused those problems and maintains them.
It is disingenuous for the U.S. to claim that it is working to give “tribes” an “enhanced participation” in the UN, when what it actually doing is replicating in the context of the United Nations the very same problem-producing system of domination that the U.S. has been using against our nations and peoples for more than two centuries. That is not reform. It is merely a clever means of the U.S. maintaining its status quo in the name of “implementing” the UN Declaration on the Rights of Indigenous Peoples.
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. He has been researching and writing about U.S. federal Indian law and policy and international law since the early 1980s.