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Newcomb: The smoking gun

It is a gem of religious racism that fully documents the illegitimate foundation of U.S. Indian law and policy.

We now have conclusive evidence: In a legal brief filed in the case Tee Hit Ton, the United States government traced the origin of Indian title in U.S. law to the ideology that discovering Christian sovereigns had the right to take over and acquire the lands of “heathens and infidels.”

Simon E. Sobeloff, solicitor general of the United States, Perry M. Morton, assistant attorney general of the United States, as well as Ralph A. Barney and John C. Harrington, attorneys at the Department of Justice, authored the brief.

The Tee Hit Ton case was brought by the Tee Hit Ton Indians, a Tlingit people, to recover damages to their lands caused by the United States. The lands had been declared by Congress to be the Tongass National Forest. In a joint congressional resolution, dated August 8, 1947, Congress authorized the U.S. secretary of agriculture “to sell timber growing on any vacant, unappropriated, and unpatented lands within the Tongass National Forest in Alaska, notwithstanding any claim of possessory rights.”

In keeping with the resolution, on Aug. 20, 1951, the secretary of agriculture contracted with the Ketchikan Pulp & Paper Company for all merchantable timber in an area of some 352,000 acres of land and 150 square miles of water.

The United States responded to the Tee Hit Ton complaint by stating: “It is a well established principle of international law with respect to the lands of this continent [that] ‘discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments which title might be consummated by possession.’” Here the attorneys for the United States cited Johnson v. M’Intosh, from which they lifted the quoted language.

The Tee Hit Ton case was brought by the Tee Hit Ton Indians, a Tlingit people, to recover damages to their lands caused by the United States.

The U.S. brief stated further that “the discovering nations asserted in themselves, by virtue of the principle of discovery, the complete and exclusive title to the land – subject only to a right of occupancy in the Indians.” Such an Indian right of occupancy, said the U.S. attorneys was “being retained by the Indians only by the grace of the sovereign.”

The United States brief continued with the religious background of the doctrine of Christian discovery: “The discovering nations acquired absolute title to the lands of this continent subject only to the Indian right of occupancy. Prior to the great era of discovery beginning in the latter part of the fifteenth century, the Christian nations of Europe acquired jurisdiction over newly discovered lands by virtue of grants from the Popes, who claimed the power to grant to Christian monarchs the right to acquire territory in the possession of heathens and infidels. …

“For example, in 1344, [Pope] Clement VI had granted the Canary Islands to Louis of Spain upon his promise to lead the islanders to the worship of Christ, and following the discovery of the New World by Columbus, Alexander VI in 1493 and 1494 issued [papal] bulls granting to Spain all lands not under Christian rule. …

“The latter papal grant, because of the breaking down of the papal authority and the vastness of the territory covered, was not accepted by the other nations or even greatly relied upon by Spain, and it was necessary for the civilized, Christian nations of Europe to develop a new principle which all could acknowledge as the law by which they should regulate, as between themselves, the right of acquisition of territory in the New World, which they had found to be inhabited by Indians who were heathens and uncivilized according to European standards. ...

“Although the nations of Europe thus ceased to recognize the Popes as the source of their titles to new acquired lands,” the U.S. legal brief continues, “the new concept of title by discovery was based upon the same idea that lands occupied by heathens and infidels were open to acquisition by the Christian nations. …

“This is demonstrated by the fact that the English sovereign’s grant of a commission to the Cabots was for the discovery of countries then unknown to Christian people and to take possession of them in the name of the English king. Similar commissions issued to [Sir Humphrey] Gilbert and [Sir Walter] Raleigh. See Johnson v. McIntosh. …”

The U.S. attorneys even went on to cite Genesis 1:28, from the Old Testament, as found in the early laws of Massachusetts, stating: “That the discovering nations asserted complete title in themselves, even as against heathen natives, is well illustrated by the enactments of the colonial legislatures.”

Here, then, is the smoking gun: the U.S. government’s legal brief in Tee Hit Ton. It is a gem of religious racism that fully documents the illegitimate foundation of U.S. Indian law and policy. The U.S. legal brief in Tee Hit Ton also demonstrates that this foundation of religious discrimination and racism was affirmed by the United States Supreme Court as recently as 1955, when the court ruled that the Tlingit lands were not their property, and that religiously racist backdrop continues to be invoked whenever the court cites the Doctrine of Discovery.

Steven Newcomb (Shawnee/Lenape) is the co-founder and co-director of the Indigenous Law Institute, author of “Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery” (2008), and a columnist with Indian Country Today. Peter d’Errico, professor emeritus UMass Amherst, assisted with this column.