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Newcomb: Pretension as the rule of U.S. Indian Law

Federal Indian law is a language system, originally created by white men in the past whose job it was to think and write about Indians and about the relationship between Indian nations and the United States.

By identifying federal Indian law as a system of language, I am attempting to heighten the reader's awareness that this "system" is not hard or solid like a tree or a rock. Federal Indian law is comprised only of words and ideas. That these ideas and words are written down in books only serves to further the illusion that that system of "law" is something other than words and ideas in people's minds.

According to the linguist Robin Tolmach Lakoff, in her book "The Language War (2000)," "Language is, and has always been, the means by which we construct and analyze what we call 'reality.'" When we talk about "federal Indian law" as part of the "reality" of the dominant society, we are talking about "a body of words and ideas" - the words written down in federal and state case law, words in treatises on law, the words in legal briefs, the words spoken by judges as they hand down their decisions, 25 U.S.C., and so forth.

People typically presume that federal Indian law is binding on Indians. From the point of view of the United States Indians are obligated to "obey" the patterns of words and ideas of this body of law.

But there is one question that virtually never gets raised about federal Indian law: Upon what basis are the words of white men in the past said to be binding on Indians? Furthermore, why is it automatically assumed that Indians are subject to the legal pronouncements, principles, and assumptions of the dominating society? What is the rationale behind this assumption?

One possible answer to this question is that Indians are subject to the "trusteeship" of the United States. But this simply begs the question, because we can ask again: how did this "trust" get created? It was also the product of the minds of some white men in the past.

Years ago, I called a solicitor at the BIA in Portland, Ore., and asked him how I might obtain a copy of the "legal instrument" or document that set up the "trust" between the United States and Indian nations. "Well," he said, "you have to understand that we're not talking about an ordinary trust in the sense of a private law trust. To answer your question we really have to go back to three early Supreme Court decisions handed down by Chief Justice John Marshall in the early 1800s: Johnson v. McIntosh, Cherokeee Nation v. Georgia, and Worcester v. Georgia."

The BIA Solicitor then proceeded to inform me about the "Doctrine of Discovery," carefully explaining the idea that "discovery gave title to the first European country to discover lands not possessed by Europeans." He also mentioned the Court's view that discovery had diminished Indian rights to complete sovereignty as independent nations. Eventually he referred to Congress's authority over Indians.

So I asked him, "Now, I notice you've mentioned congressional authority over Indians, where did that come from?"

The Solicitor said, "What do you mean, where did it come from?"

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"Well," I said, "I can think of a time before the United States even existed in North America, and it certainly didn't have authority over Indians when it didn't exist, so once the U.S. came into existence how did it get authority over Indians?"

"Oh." said the Solicitor, "Well, you really have to go back to the "Doctrine of Discovery" as expressed by the Supreme Court in the early 1800s."

I then said to the Solicitor, "Now I notice that Chief Justice John Marshall, in the Johnson v. McIntosh ruling, made a very specific distinction between 'Christian people' and 'natives, who were heathens,' how does that religious distinction between Christians and non-Christians factor into your explanation?"

At this point, the BIA Solicitor was evidently upset as he said, "Hey, you already know a lot about this," and quickly ended the conversation.

So there you have it: A legal advisor to the BIA in United States Department of the Interior, explaining that the presumption of U.S. authority over Indian nations is based on the "Doctrine of Discovery," and the Johnson v. McIntosh ruling of 1823. In other words, returning to the question I asked above, the legal pronouncements of the United States regarding Indians are considered binding on Indians today because certain white men in the past, duly authorized by the monarchs of Christendom, are said to have "discovered" the ancestors of present day Indians.

The Johnson ruling is instructional. Toward the end of the decision, Chief Justice Marshall explained at length why the ordinary rules of conquest could not be applied to the Indians. Some "new and different rule, better adapted" to the habits and character of the Indians was needed. So, the Court came up with such a rule: the "pretension" that the discovery by one people of a country already inhabited by another people, is equivalent to the conquest of the original inhabitants.

In the Johnson ruling, the Court decided that it would pretend that Indian nations were by definition conquered because "Christian people" had "discovered" lands in the Americas inhabited by "natives, who were heathens."

Marshall's new rule in Johnson brings us back to the definition of law. One definition is "the habit of obedience." Another is, "The habit of obedience to a person or group of people who pretend to a higher authority over others." In order to kick the habit of obedience to a system based on religious racism, we must call into question Marshall's "pretension" of conquest.

We must challenge the very basis of the U.S.'s pretension of a higher authority over Indian nations on the basis of religious racism. Let's face it. Christian "discovery" did not even for one moment "diminish" Indian rights "to complete sovereignty, as independent nations."

It just claimed to do that. And every time we go along with that claim, we are making it possible for the U.S. to get others to accept the "pretense" of U.S. Indian law.

Steven Newcomb, Shawnee and Lenape, is director of the Indigenous Law Institute, and Indigenous Research Coordinator at D-Q University at Sycuan on the reservation of the Sycuan Band of the Kumeyaay Nation. He is a columnist for Indian Country Today.