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Newcomb: Johnson v. M'Intosh: The Christian right of colonization

My book, ''Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery'' (Fulcrum, 2008), unpacks many layers of meaning found in the 1823 Supreme Court ruling Johnson v. M'Intosh. It poses an alternative view by identifying the doctrine of ''Christian'' discovery in U.S. law, and posits that a failure to account for the role that the Christian religion plays in Marshall's reasoning in the Johnson ruling is a failure to crack the cognitive (mental) code hidden or buried in that decision.

The ''great nations of Europe,'' Marshall said, had historically established ''a principle'' (a guiding generalization) that they acknowledged as ''the law'' by which the right of land ''acquisition'' (colonization) would be regulated among them, thereby avoiding bloody and costly wars over territory in North America. ''This principle,'' Marshall explained, ''was that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments.''

Nothing in the wording of the previous sentence even remotely suggests that the Christian religion had anything to do with the claim that ''discovery gave title'' to the European government said to have made a ''discovery'' in North America. However, Associate Justice Joseph Story, who was on the Supreme Court at the time of the Johnson ruling, published a book 10 years later in which he drew a specific connection between Christianity, the pope (the Vatican) and the ''principle'' of ''discovery'' adopted by the Supreme Court.

In his ''Commentaries on the Constitution of the United States'' (1833), Story identified a papal decree as the origin of the ''principle'' of ''discovery'' that his friend and mentor Chief Justice Marshall had written into the Johnson ruling. As Story stated:

''Alexander the Sixth, by a Bull issued in 1493, granted to the crown of Castile the whole of the immense territory then discovered, or to be discovered, between the poles, so far as it was not then possessed by any Christian prince.

''The principle, then [therefore], that discovery gave title to the government, by whose subjects or by whose authority it was made, against all other European governments, being once established [by the Pope], it followed as a matter of course, that every government within the limits of its discoveries excluded all other persons from any right to acquire the soil by any grant whatsoever from the natives. No nation would suffer either its own subjects or those of any other nation to set up or vindicate any such title. It was deemed a right exclusively belonging to the government in its sovereign capacity to extinguish the Indian title, and perfect its own dominion over the soil, and dispose of it according to its own good pleasure'' (emphasis added).

Above, Story thereby makes a direct link between the Vatican papal bull and Johnson. Notice, too, that Story characterized the ''discovering'' government as a ''sovereign'' with its ''own dominion over the soil,'' which it had the right to ''perfect'' by exercising its ''sovereign capacity to extinguish the Indian title.'' According to this theory, the ''discovering'' Christian prince (monarch) or government was understood to have a right or title of colonizing dominion (domination) over indigenous soil, even before taking physical possession of the land, and before any ''Indian title'' had been extinguished.

The above theory is the background of the following wording from the Johnson ruling: ''While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised as a consequence of this ultimate dominion, a [colonizing] power to grant the soil, while in the possession of the natives.''

So long as the lands said to have been ''discovered'' were not ''possessed by any Christian prince,'' then, according to the international law of Christendom, that Christian sovereign, or ''lord conqueror,'' was considered to automatically obtain a colonizing ''sovereignty'' and ''dominion'' over lands inhabited and possessed by non-Christians (referred to by Marshall in the Johnson ruling as ''heathens''). This political sovereignty and dominion - or in Christendom's feudal parlance, ''Lordship'' - could be transferred by treaty from one monarchy or government of Christendom to another, such as from Great Britain to the newly formed United States in 1783.

Validation of this interpretation of the Johnson ruling is found in the way Marshall illustrated the ''right of discovery'' (right of Christian colonization). As just one example, Marshall cited the John Cabot charter as a key instance of England's ''assent to this principle'' of discovery: ''So early as the year 1496,'' Marshall wrote, ''her [England's] monarch granted a commission to the Cabots, to discover countries then unknown to Christian people, and to take possession of [colonize] them, in the name of the king of England.''

My book documents that behind the Johnson ruling is the tacit, Old Testament-premised claim that Christians, as ''chosen people,'' have a ''God-given right'' to colonize (conquer, subdue and possess) the lands of ''un-chosen'' indigenous nations and peoples.

In the case of the Cabots, for example, they were authorized by King Henry VII's letters patent, to ''find, discover, and investigate whatsoever islands, countries, regions or provinces of heathens and infidels ... which before this time have been unknown to all Christians.'' James A. Williamson explained ''a very wide implication of the patent.'' ''It was at that time,'' Williamson said, ''accepted as a fundamental law of Christendom that all Christians were in a state of war with all infidels. This was the justification of the permission to 'conquer, occupy and possess' and profit from any non-Christian territories that might be found.''

Like the ''chosen people'' to whom Yahweh ''promised'' the land of Canaan in the Old Testament, the king ''promised'' the Christian adventurers of England the right to ''conquer, occupy and possess'' any lands held by non-Christians ''in whatsoever parts of the world,'' such as the ''new Canaan'' of North America. As the 19th century British scholar Sir Henry Sumner Maine put the matter: ''In North America, where the discoverers or new colonists were chiefly English, the Indians inhabiting that continent were compared almost universally to the Canaanites of the Old Testament, and their relation to the colonists was regarded as naturally one of war almost by divine ordinance.''

It is this religiously bigoted and subduing ideology of empire and colonization that the Johnson ruling covertly enshrined in U.S. law, where, to this day, it remains the background secret code and cognitive (mental) cornerstone of federal Indian law and policy.

Steven Newcomb, Shawnee/Lenape, is the indigenous law research coordinator at the Sycuan Education Department, co-founder and co-director of the Indigenous Law Institute, a research fellow with the American Indian Policy and Media Initiative, and a columnist for Indian Country Today.