I have often wondered why federal Indian law attorneys dare not mention the crusading tradition of the United States against "heathens" and "infidels," namely, American Indian nations. The Western Shoshone Nation is directly challenging this tradition in court and in the U.S. Congress. Their challenge brings to light the strange and startling fact that U.S. federal Indian law is based on religious prejudice.
As bizarre as it may seem, today's federal definitions of Indian title and Indian nationhood find their basis in the Old Testament covenant tradition. This tradition is premised on the idea of a "chosen people" who have a covenant (treaty) with their deity to take over and colonize certain lands that the deity promised them, in this case Indian lands.
The history and discourse of the United States is replete with examples of this crusading tradition, which is rooted in the Old Testament of the bible. Even Thomas Jefferson, known for his strong advocacy of a separation of church and state, proposed that the Great Seal of the United States depict the Israelites moving into the "promised land," guided by clouds and fire.
In 1987, President Ronald Reagan gave a speech at Independence Hall in Philadelphia to commemorate the 200th anniversary of the U.S. Constitution. The constitution, said Reagan, is no ordinary document, but "a covenant with the Supreme Being to whom our founding fathers did constantly appeal for assistance."
According to the book, "A Covenanted People: The Religious Origins of American Constitutionalism," published the same year as Reagan's speech, ever since the pilgrims established the colony of Massachusetts, "Americans have believed that they are a chosen people, singled out by God for a special commission" to take over and colonize the "promised lands" of North America.
President Reagan further explained the covenant tradition of the United States in his speech at Independence Hall when he quoted George Washington's reference to an "invisible hand" which conducts the affairs of men. Every step that the American people have taken toward their status as an independent nation, said Washington, seems to have been guided "by some providential agency."
When Washington made this statement, said Reagan, he was no doubt "thinking of the great and good fortune of this young land: the abundant and fertile continent given us" (emphasis added). Of course, Reagan's statement contains the belief in a divine covenant whereby God gifted (gave) the Indian lands of the continent to the United States as its inheritance.
Reagan could have cited another quote from Washington. It is found in a letter to David Humphreys regarding Indian lands north and west of the Ohio River, the old Northwest Territory. Washington wrote: "Rather than quarrel about territory, let the poor, the needy, and the oppressed of the earth, and those who want land, resort to the fertile plains of our western country, the second land of promise, and there dwell in peace, fulfilling the first and great commandment" of the Bible.
The first and great commandment that Washington referred to is Genesis 1:28, "Be fruitful and multiply, and replenish the earth and subdue it: and have dominion over the fish of the sea, and over the fowl of their air, and over living things that moveth upon the earth."
Two keywords in this "first commandment" are "subdue" and "dominion." In Hebrew subdue means "to tread down upon," or "to bring into bondage" and conveys the image of a conqueror placing his foot on the neck of the conquered. It also means, "to rape." The Hebrew word for dominion, rdh, comes from a word meaning "to trample," or "to press."
"Subdue" and "dominion" in "the first great commandment" of the Bible connote: "unrestricted power, absolute dominium, lordship, tyranny, despotism." Political power grown from property, dominium, equates to domination.
In the 1823 ruling Johnson & Graham's Lessee v. McIntosh, Chief Justice Marshall said that the nations of Christendom asserted that they had the "ultimate dominion" over the "discovered" lands that were occupied by "natives, who were heathens." Based upon the above etymology, the Court's mention of "ultimate dominion" was its way of saying that the first "Christian people" to discover "heathen lands" gave themselves an absolute political power on the continent based on their claim of an absolute right of property.
In other words, the Christian "discoverers" gave themselves the power of dominium and lordship, or a right of domination over Indian lands. Today's polite sounding legal term for this racist, religiously based idea is "plenary power."
In the 1989 film "To Protect Mother Earth," about the Western Shoshone, filmmaker Joel L. Freedman conducts an interview with an Assistant U.S. Attorney, who says: "Indian title is not title as we traditionally know it as fee title in land. It is a title to roam and occupy in the sense of making a living off of the lands in that area, as between Indian tribes, not as between Indian tribes and the United States."
The rationale behind the argument that Indian title is merely a title to roam and occupy, and not a title that is good against the United States, is Christendom's supposed right of dominion based on Genesis 1:28. But this rationale also rests in part upon Psalms 2:8: "I will give to you the heathen for your inheritance, and the uttermost parts of the earth for your possession."
An inheritance is a form of property. Thus, in Psalms 2:8 we find the biblical idea of the "chosen people" having the divine right to possess "heathen" nations and peoples as inherited property, along with the divine mandate to take over and possess all the lands of the earth as "promised lands" or, in this case of the U.S., the Indian lands of North America.
The current struggle of the Western Shoshone nation to retain its homeland is perhaps the most visible present day example of how the Old Testament tradition continues to operate as a covert force in the United States. The Western Shoshone struggle is symbolic of what every Indian nation has been through and will continue to face so long as the racist Old Testament covenant tradition remains enshrined in U.S. "law" and policy.
Although such antiquated arguments are intellectually bankrupt, and morally indefensible, they continue to serve as a hidden pretext and rationalization for U.S. policies of conquest. What such arguments ignore is our existence as distinct nations for thousands of years, in our own homelands, and our inherent right to be free just as our ancestors were free.
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.