In an article published in “The Journal of Libertarian Studies” in 1983, Carl Watner examined the subject of American Indian land rights. He began with a quote from Rosalie Nichols, a fan of Ayn Rand. When asked “if the Indians had ever had a title deed to North America,” Nichols replied: “Who should have issued them one, I don’t know, unless it was the buffalo.”
Nichols’ response used ridicule as an effective and skillful technique for dehumanizing American Indians. This was accomplished by creating a red herring, or false issue: the impossibility of the buffalo having ever given a paper title deed to the Indians.
The comment also was no doubt intended to evoke the issue of literacy and the observation that most American Indian nations did not use a written language system prior to the Europeans arriving. The underlying assumption is that “intelligent” people (i.e., Europeans) use a written language, and since American Indian cultures in North America did not use a written language they were not “intelligent.”
A heightened awareness of the Indians’ long standing relationship with their lands would make it that much more difficult to make sense of the idea that, based on a so-called discovery, the Europeans had a right to the lands of the North American continent superior to that of the Indians.
By focusing the reader’s attention on the image of a title deed, a very specific kind of written document unknown to American Indian cultures, Watner skillfully avoided a much more general question: Did the Indians have an original right to the lands of North America? By not posing this question, Watner left a void where the question would have been.
If Watner had asked in a straightforward manner whether the American Indians had a right to the lands in North America where they had been living for thousands of years, the common sense answer would be an unequivocal “yes.”
But once that question had been answered, the answer would create a firm presumption that would need to be explained away before European land claims to the continent could make any sense.
Raising and answering the question of whether Indians had an original right to the lands of the continent, would have focused the reader’s attention on the significance of the thousands of years American Indian nations had been existing in a living relationship with the lands and waters of the continent. A heightened awareness of the Indians’ long standing relationship with their lands would make it that much more difficult to make sense of the idea that, based on a so-called discovery, the Europeans had a right to the lands of the North American continent superior to that of the Indians.
Not asking whether the Indians had a right to their traditional territories opened up another much more general question: Who had a right to the lands of North America? It was in answer to this unstated question that Watner turned to the “Right of Discovery:”
According to the international law of Europe during the fifteenth century, priority of discovery gave a nation [the] supreme and unlimited right to the discovered territory. Title to lands unknown to Europeans was based on the union of discovery and possession.
With the above language, Watner made “the international law of Europe” and “discovery” the conceptual framework for his overall argument. Within the framework of “discovery” Watner was then able to make the Europeans the primary focus and the Indians’ relationship with their traditional lands merely an afterthought.
Through the mocking impossibility of the buffalo having ever given the American Indians a written title to their lands, Watner dehumanized American Indians out of the picture. Any possible understanding of the Indians having had original rights to their lands was thereby rendered null and void by saying the buffalo had never give them a deed. Into this void, Watner was able to place such concepts as “the Right of Discovery,” “priority of discovery,” and the “supreme and unlimited right to the discovered territory” (occupancy title v. right of soil).
Through the use of those concepts, Watner cleverly implied and answered the question of who had the first or original right to the lands of North America. Predictably, his answer was that the “discovering” Europeans had the original title or right of soil to the lands of the North American continent.
By establishing the “Right of Discovery” as the conceptual framework for his discussion, Watner was able to keep any discussion of the nature of Indian land rights within the confines of that framework. Even though American Indian nations had never consented to be subject to what he called “European international law,” Watner wrote about the Indian nations as if they were legitimately “under” that form of international law.
“Under international law,” wrote Watner, “the Indians had only a right of uncivilized occupancy.” The quoted language is from Alpheus Snow’s “The Question of Aborigines,” a book published in 1921 as the result of a study commissioned by the U.S. Department of State near the end of World War I.
Watner’s claim that “under international law the Indians only had a right of uncivilized occupancy” is directly related to what Snow had written about the Johnson v. M’Intosh decision of 1823. Snow said Chief Justice Marshall, on behalf of the court, had examined “the whole question of aborigines in the law and practice of nations.
“The result,” wrote Snow, “was that the Indian tribes were declared to hold the relationship to the United States of domesticated communities, in the nature of municipal corporations, without other right in the land than that of uncivilized [heathen] occupancy.”
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).