Newcomb: On non-Indian, anti-Indian law

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The dominant society of the United States presumes that American Indian nations and peoples are obligated to accept and live in accordance with a non-Indian perspective on American Indian existence. Unfortunately, we as Indian people don’t spend enough time challenging that presumption.

Non-Indian government officials created the ideas that are now referred to as federal Indian law. Those ideas may be typically called “laws,” or “the law,” but they began as the ideas of non-Indian people nonetheless. These are ideas that have become conventional and institutionalized over a long period of time, and called by the name “law.” Such ideas are a form of non-Indian law.

In keeping with non-Indian, anti-Indian law, what has the society of the United States said to Indian nations and peoples?




Non-Indian, anti-Indian law is comprised of a body of ideas (called “a system”) that were mentally created and designed by non-Indian people working as official representatives of the government of the United States. I use the term “anti-Indian” because the effect of these ideas has been to bind, contain, limit and control originally free and independent Indian nations so as to render them not free, and to take over and profit from the vast majority of the lands, waters and resources of Indian nations.

How ironic. At the same time that the people of the United States have prided themselves on their own tradition of liberty, they have worked simultaneously for more than two centuries to deprive originally free Indian nations of their own liberty. The American people have done this as a means of benefiting from the trillions of dollars in wealth to be gained by taking over and exploiting Indian lands and waters found in the traditional territories of Indian nations.

History clearly demonstrates that when one people is able to control another people, those who have achieved that dominant position will use it to their advantage by habitually manipulating and abusing those under their control. This calls to mind the old saying, “What good is power if you can’t abuse it.”

The presumption of non-Indian control of Indian nations is contradicted by the thousands of years that our respective nations lived completely free and independent of any Christian European authority. Ever since the invaders arrived, our struggle has always been between our original liberty and a presumption of colonizing authority by those populations that traveled here to North America from Western Europe, which at the time was known to them as Western Christendom.

Non-Indian, anti-Indian law does not begin with an acknowledgment of the original free and independent existence of Indian nations. Instead, it begins with a premise of “domestic dependent nationhood,” without explicitly acknowledging the basis of that premise, which is the claim that non-Christian (“heathen”) Indian lands were discovered by Christian people.

The original free and independent existence of our ancestors and our nations ought to be highly valued by us as Indian people, yet it is something we seldom explicitly mention. Scholars and practitioners of non-Indian federal Indian law certainly spend little time making the point. Instead, they merely reiterate the customary non-Indian ideas called “federal Indian law,” while seldom attempting to challenge the indefensible Christian religious premise of that system of ideas, a premise traced back to the Old Testament, and to declarations of war against non-Christian peoples that are found in many Vatican documents and royal charters.

In keeping with non-Indian, anti-Indian law, what has the society of the United States said to Indian nations and peoples? When we examine papal bulls, royal charters and the laws and policies that have followed from those documents, the dominating society has said:

Because we are Christian and European, and you Indians are not, these lands where you have lived rightfully belong to us.

Because we are Christian and European, and you are not, we have the right to control your lives and your existence.

The effect of these ideas has been to bind, contain, limit and control originally free and independent Indian nations.

Because we are Christian and European, and you are not, we have the right to work to destroy your languages; and we have the right to take your children away from you and raise them according to our judgment of what is right and proper so they will be raised to be like us.

Because we are Christian and European, and you are not, we have the right to take over the lands you are accustomed to using and exploit the soil, the waters, the timber and anything else that we consider valuable.

We have the right to consider the places you regard as sacred and holy to be sources of mineral wealth that God put on this earth in order for us to extract and utilize for our enrichment.

We have the right to enrich ourselves with these valuable things in order to make ourselves and our society wealthy and powerful, while making certain that you remain weak, ineffective and divided.

And, because we make sure that you have no means of stopping us from doing these things, or of making your perspective known to the public, we are able to operate independent of your will. Your will and your views cannot deter us, and never will, because our God has decreed that this is how we should and must behave toward you and in relation to the earth.

We can and must do a better job of explicitly repudiating the Christian bigotry at the core of non-Indian, federal Indian law, while articulating a nationhood perspective premised on our original free and independent existence. Part of how to do this is to be self-disciplined about using the term “nation” to express our political identity.

Steven Newcomb, Shawnee/Lenape, is indigenous law research coordinator in the education department of the Sycuan Band of the Kumeyaay Nation in San Diego County, co-founder and co-director of the Indigenous Law Institute, and author of “Pagans in the Promise Land: Decoding the Doctrine of Christian Discovery” (Fulcrum Publishing, 2008).