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Newcomb: ‘That’s just the way things are. …’

In a recent interview, Indian Country Today reporter Gale Courey Toensing asked John Echohawk, executive director of the Native American Rights Fund, about inherent sovereignty and plenary power. “How does it relate to inherent sovereignty to have another sovereign come and say, ‘We now have this jurisdiction over you? Is anyone challenging Congress’ claim to plenary power over the [Indian] nations?” she asked.

Echohawk began his response with the word “Yes,” indicating that there are indeed some people who challenge the idea that the U.S. Congress has any rightful plenary power over Indian nations. He then continued by saying: “… but of course under the law of this country, the way that’s all been interpreted and the way it’s been litigated is the tribes are domestic dependent nations, and that’s just the way things are. …”

When I read and pondered this response, it dawned on me that, at a minimum, American Indian advocates ought to be as determined in their advocacy for Indian nations as those non-Indians in history who advocated powerfully for Indian peoples. Imagine, for example, that after having witnessed the brutality of the Spanish encomienda system, Bartolomé de Las Casas had simply said, “that’s just the way things are” because the king of Spain fully supported that system. If Las Casas had that attitude, the encomienda system that destroyed so many Indian lives would not have been ended when it was.

If Thurgood Marshall and the NAACP had said “that’s just the way things are” regarding the racist U.S. Supreme Court ruling Plessy v. Ferguson, the United States would still be segregated because there would be no Brown v. Board of Education decision overturning Plessy.

What are we to make of Echohawk’s statement, ‘the way all that’s been interpreted and the way it’s been litigated is the tribes are domestic dependent nations?’

What are we to make of Echohawk’s statement, “the way all that’s been interpreted and the way it’s been litigated is the tribes are domestic dependent nations?” It is one thing to say this is how the matter has been interpreted, but in my view it remains the responsibility of any Indian advocate to never tire of pointing out and challenging the indefensible basis for that interpretation.

In its filing in Nevada v. Hicks, the state, supported in a friend of the court (amicus) brief by 18 other states, said Hicks’ attorneys had been “unpersuasive in their effort to ‘render the discovery doctrine of no present significance.’” The state also said, “It. … remains indisputable and undisputed by Hicks himself – that the doctrine [of discovery] served as the basis for the Court’s characterization of tribes as ‘domestic dependent nations.’”

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In his interview, Echohawk failed to say the “domestic dependent nation” category is a direct consequence of reasoning about Indian nationhood on the basis of the doctrine of discovery. For any Indian legal advocate to not explicitly spell this out indicates an unwillingness to provide Indian country with a historically accurate account of federal Indian law. It is to turn away from the possibility of ever challenging the bizarre set of ideas the U.S. has used so effectively against Indian nations and peoples. To say that “domestic dependent nationhood” is “just the way things are” is to say the same thing about the Doctrine of Christian Discovery and Dominion.

The premise of “domestic dependent nationhood” begins with Chief Justice John Marshall’s statement in the Johnson v. M’Intosh ruling that Indian “rights to complete sovereignty, as independent nations, were necessarily diminished by the. … principle that discovery gave title to those who made” the discovery.

As I have clearly documented in my book “Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery,” Justice Joseph Story (who was on the U.S. Supreme Court at the time of the Johnson ruling), later made a connection between the 1493 Vatican papal bull of Christian empire and discovery and the principle of discovery in the 1823 Johnson ruling.

Benjamin Munn Ziegler, a Harvard trained professor of international law, explained the term “unoccupied lands” meant “occupied by Indians, but unoccupied by Christians.” International law scholar Henry Wheaton examined the papal bulls and royal charters of England. Through direct quotes, he demonstrated that those charters were aimed at “heathen and barbarous lands, countries, and territories, not actually possessed by any Christian prince of people,” and the colonizers were authorized “to hold, occupy, and enjoy the same, with all their commodities, jurisdictions, and royalties.”

Based on that history, Wheaton said it “became a maxim of policy and of law, that the right of the native Indians was subordinate to that of the first Christian discoverer.” When representatives of Western Christendom arrived to non-Christian lands, the non-Christian Indians were to exist in law and policy subordinate to or beneath the level of Christian Europeans. This is the little understood Christian religious basis of the doctrine of domestic dependent nationhood in U.S. law.

Rather than saying “that’s just the way things are,” what we need in Indian country are men and women who are willing to expose the Christian bigotry at the root of non-Indian federal Indian law and challenge those outmoded religiously racist doctrines starting with Johnson v. M’Intosh, which traces back to Vatican papal bulls and royal charters of the English crown.

The U.S. Supreme Court was wrong. The sacred birthright of an original free and independent existence was not ended by a “discovery” that never happened. It is impossible to “discover” lands that are already well known to, inhabited by, and in the possession of other nations and peoples.

Steve Newcomb, Shawnee/Lenape, is indigenous law research coordinator in the education department of the Sycuan Band of the Kumeyaay Nation, 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).