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Newcomb: Justice from whose perspective?

When Columbus made landfall on Guanahani island (the first Caribbean island he sailed to), he cut and seized a handful of grass to represent his seizing control of the land in the name of the queen of Castile, or, in other words, for ;'the Crown'' of Castile. He also erected a cross to symbolize faith, and a gallows to symbolize justice.

From the perspective of Western Christendom, one meaning of ''justice'' was retribution against Indian peoples for not faithfully obeying the colonizing and Christian imperial authority. Gallows were erected to announce the imposition of Christendom's ''justice system'' and to convey a message: If you Indians do not obey the lordship of those of us who now presume to be in control of this land and your lives, then you will be punished and, in the worst-case scenario, ''justifiably'' killed. An Indian committed a capital ''crime'' under that system of ''justice'' simply by not doing a good enough job of mining by turning in a required amount of gold for the Spanish crown.

What preceded Christendom's invasion of this continent - and its obsession with mining - is the original free and independent existence of indigenous nations and peoples, a time when our indigenous ancestors lived completely free of Christian European claims to authority or dominion on the continent.

The above thoughts contextualize the recent jailing of First Nations leaders in Canada who dared to stand up and protest corporate ''claims'' to minerals on indigenous lands. Seven Indian leaders, for example, were given six-month jail terms for protesting the approval given to mining companies by the Ontario government to engage in uranium and platinum mining exploration on indigenous lands. Robert Lovelace, a former chief of the Ardoch Algonquin First Nation, ''was sentenced in the Ontario Superior Court of Justice in Kingston to six months in maximum security, plus crippling fines.'' And what ''crime'' was committed? Peacefully protesting proposed corporate uranium exploration on Native lands.

Chief Paula Sherman - a grandmother and First Nation council member - was fined $15,000 and was given until May 15 to pay. (As it turns out, she could not pay the fine, but was not jailed). And in a similar and high-profile case March 17, a Superior Court judge in Thunder Bay sentenced six leaders of the Kitchenuhmaykoosib Inninuwug (KI) to six months in jail for peacefully protesting mineral mining within traditional Indian territory by Platinex, a platinum mining corporation.

In a letter of support to the Kitchenuhmaykoosib Inninuwug First Nation, Chief Omniyak, of the Lubicon Lake Indian Nation, said in part: ''When you and your council stood in the way of Platinex regardless of what the courts and the provincial government said, we took heart that there are leaders like yourselves who are willing to stand up and demonstrate that we, as aboriginal people, will not sit idly by while outside governments and companies destroy everything we value - the land, the air, the water and our way of life.''

Perhaps an analogy will clarify the basis of Canada's (''the Crown's'') treatment of the First Nations. Some years ago in Afghanistan, the Taliban government, on the basis of its version of the Islamic religion, destroyed two monumental statues of standing Buddhas. The event sparked world outrage. It was perceived as outrageous for the Taliban to have destroyed those massive statues on the basis of religion, or simply because those statues were not acceptable from the religious viewpoint of the Taliban.

Is there a religious basis for the presumption by the Canadian or provincial governments, or by ''the Crown,'' that indigenous nations and peoples are now obligated to allow mining exploration and ecologically destructive mining to occur on their lands? Yes. The claim that vast areas of Indian lands are ''Crown lands'' is rooted in early Christian claims to non-Christian lands based on the doctrine of Christian discovery and dominion.

In the 1823 case Johnson v. M'Intosh, U.S. Supreme Court Chief Justice John Marshall said that the documents on the subject of discovery ''are ample and complete.''

''So early as the year 1496, her [England's] monarch granted a commission to the Cabots, to discover countries then unknown to Christian people, and to take possession of them in the name of the king of England. Two years afterwards, Cabot proceeded on this voyage, and discovered the continent of North America, along which he sailed as far south as Virginia. To this discovery, the English trace their title.'' [Marshall placed italics on the words ''Christian people.'']

Marshall saw the Cabot charter, and other English charters, as evidence that the English crown had asserted ''a right to take possession,'' regardless of the already existing possession of the ''natives, who were heathens.'' This is the hidden Christian religious basis of the concept of ''Crown lands'' in Canada. It is also a key part of the basis for the presumption that originally free and independent First Nations such as the Lubicon Cree, the Ardoch Algonquins and the KI, and others, have no right to say ''no'' to mining or mining exploration within their respective territories.

Today's claims by Canada and the provincial governments that huge areas of indigenous lands are ''Crown lands'' is rooted in earlier claims of Christian discovery and dominion. In short, the presumption of a right to jail indigenous leaders for protesting destructive exploitation of their lands by ''the Crown'' and by corporate mining interests rests on the religious foundation of early Christian claims to non-Christian indigenous lands.

Steven Newcomb, Shawnee/Lenape, is the indigenous law coordinator for the education department of the Sycuan Band of the Kumeyaay Nation, co-founder and co-director of the Indigenous Law Institute, and author of the book ''Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery'' (Fulcrum, 2008).