Part One of this essay examined how the United States has used certain creations of the human mind to impose controlling ideas on the original Native nations of this continent. U.S. federal Indian law is a product of human imaginings. Some examples of the ideas mentally created by the white man in the past, through the U.S. Supreme Court, include, an “Indian title of occupancy,” and the claim that the right of our nations to exist independent of U.S. domination has been “diminished” because the United States asserts an “ultimate dominion” or right of domination in relation to our nations.
On what basis has it been assumed that our nations were automatically subject to whatever new idea that the white man came up with? An answer is found in the Johnson v. M’Intosh ruling of 1823. There, Chief Justice Marshall created a contrast between “Christian people” and our Native ancestors, whom he characterized as “heathens” and “savages.” The Christian people “asserted the ultimate dominion” (right of domination) “to be in themselves,” Marshall said for the Court. The Christians regarded our free and independent ancestors to be a people “over whom the superior genius of Europe” claimed “an ascendancy,” which is, a claimed right of controlling or governing power, domination.
To this day U.S. federal Indian law is premised on the amazing assumption that an U.S. argument became reality as soon as the U.S. society mentally created that argument, such as the idea that our Native nations no longer had a right to remain free and independent of domination because of a supposed discovery by Christians. As soon as that argument was created, suddenly, within the white man’s self-contained mental universe, that argument began to be treated as ‘a fixed reality’ by the United States. It was then repeated and maintained by each new generation of U.S. government officials. It is still being upheld and maintained by U.S. governmental officials and used against our nations.
This relates to an astute observation made by my former professor C. A. Bowers. He says we need to become cognizant of the way metaphorical ideas from the past colonize and control the present. For our Native nations, this is precisely the role that is played by anti-Indian legal precedents in U.S. federal Indian law. The entire point of legal precedent in federal Indian law is to enable the racist and religiously bigoted ideas invented by the white man in the past to continue controlling our Native nations in the present. This use of legal precedent is referred to as stare decisis, “Let the decision stand.”
An example of the white man’s stare decisis being used against our original nations is found in the Indian Claims Commission Act (ICCA), passed by Congress seventy years ago in 1946. It was an Act that established an Indian Claims Commission (ICC). Thus began a process that resulted in claims being filed by Indian nations or “tribes,” under an “aboriginal or Indian title.” This wording was expressed, for example, in the Indian Claims Commission’s decision of July 20, 1964 (13 Ind. Cl. Comm. 369, p. 514) regarding the Indians of California.
What received no focus during the days of the ICC is the point that the “Indian right of occupancy” was mentally concocted as a way to limit and control our Native nations. Additionally, most Native people were never told that because the ICC was using the Johnson v. M’Intosh ruling as the premise for its work, any Indian nation or “tribe” that filed a claim with the ICC was considered to be agreeing with the idea of a “heathen” “title of occupancy.” The ICC provided no means of challenging the claimed right of Christian discovery and domination, and no means of asserting that the lands at issue still rightfully belonged to a particular Indian nation, the Malheur Wildlife Refuge in the territory of the Northern Paiute Nation is a case in point.
Yet, during the time of the Indian Claims Commission (1946-1978), there was something the United States failed to take into consideration: After any given Native nation had finalized the ICC process, all that the United States had managed to “extinguish” was its own mentally invented, metaphorically imposed concept of “Indian occupancy.” The entire process of the ICC was built on the idea that our original nations were subject to the mental constructs (the thoughts and ideas) imposed on our nations by the white man and the United States.
So, what happens once our Native nations have awakened to the fact that we were manipulated into appearing to accept the white man’s mentally imposed “heathen” “title of occupancy?” Isn’t it time that we begin asking ourselves whether the ICC process actually resulted in our spiritual, cultural, and rightful connection to our traditional territories being validly ended by the United States, by “extinguishing” a concept that U.S. governmental officials had been mentally and linguistically created?
“U.S. federal Indian law and policy” is a self-contained system that came about because highly intelligent white men in the past such as John Marshall, Joseph Story, and many others, mentally invented a system of ideas that would provide the United States with the means of helping itself to the vast riches to be derived from the lands, resources, and waters of our nations. Since its inception, the dominating system of ideas created by the United States has rested on the assumption that our free and independent nations are subject to the thoughts and ideas created by U.S. government officials.
Throughout this process, it has been assumed that our ancestors, and now we as their descendants, have had no right to refuse to be subjected to the white man’s ideas and metaphors which U.S. officials have mentally created. Our nations and peoples need to become more proactive in challenging the U.S. system of domination by calling into question the way in which the ideas and metaphors of U.S. federal Indian law are being imposed on our nations.
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).