Francis Lieber (1798-1872) is an important but little remembered 19th century political philosopher and scholar of civil society, law, and morality. An extremely important figure in American thought, Lieber was also the founder of the Institut de Droit International ("Institute of International Law"), which was started in 1873 in Ghent, as a permanent alliance of leading international jurists.
One of the subjects Lieber wrote about was the "Right of Discovery." Prior to the Reformation, the Right of Discovery was "the first visit of a Catholic to an island or country not peopled at all or peopled by non-Christians, whom it was perfectly fair to conquer or subdue by any means, in which not even the lowest animal sympathy had play."
To illustrate what he meant by this lack of sympathy for non-Christians, Lieber recalled a time when he was in Rome in 1823. A girl was amusing a little child in her arms with the contortions of some 10 or 12 beetles the girl had skewered on a knitting needle. When Lieber commented on how cruel it was to treat the beetles in that manner, the girl exclaimed: "It is unbaptized stuff." One meaning of "stuff" is "worthless things or matter."
This incident had a powerful impact on Lieber. Through his study of history, Lieber discerned that the people of Christendom repeatedly treated non-Christians as "unbaptized stuff," by exhibiting an absence of sympathy for non-Christian human beings. He saw this phenomenon exemplified in the use of vicious dogs to track and capture Africans for the slave trade, and in the way African captives were tortured to force them "to betray the hiding places of their comrades."
Lieber recognized another example of the Christian dehumanization of non-Christians while reading an account of a Portuguese slaving expedition to the western coast of Africa in 1444. In one particular entry, the Portuguese chronicler Barros wrote that the expedition had achieved "a victorious day, glory for so many hardships, and [gained] compensation for their expenses, for there were captured, men, women, and children, one hundred and sixty-five pieces." As far as Lieber was concerned, Barros' reference to the captured Africans as "pieces" was a direct result of them never having been baptized, thus making them, from a Christian viewpoint, less than human.
Lieber saw this Christian tendency to dehumanize non-Christians as the basis of the so-called Right of Discovery. From this point of view, "Christianity" meant "humanity," and non-Christian meant non-human.
Some thinkers in Western Christendom regarded pagan or unbaptized peoples as existing in a non-legal state, or as having what he referred to as, "an existence sine juribus." Essentially, this means "an existence without rights," or with very few inferior rights, in western law and political thought.
Categorizing indigenous peoples as essentially inhuman "unbaptized stuff," resulted in an automatic inference: Christians are paramount over all non-Christians. It was this idea that led to the pope's claim of "sovereignty over the whole earth," a claim that led Pope Alexander VI to purport to divide the globe by the famous line of demarcation, whereby the Vatican granted Portugal the right of conquest over one half of the globe, and the Spanish monarchs the right of conquest over the other half, so long as the "discovered" lands were "not possessed by any Christian prince." This is the famous papal bull Inter Cetera (four such bulls were issued in 1493) that called for the "subjugation" of all "barbarous" non-Christian nations. The 1794 Treaty of Tordesilla between the two monarchies formalized the demarcation line.
The cognitive system of Christendom did not disappear as the generations passed. It merely morphed into a more secularized expression of the same religious mentality. Thus, Lieber wrote: "The English and Americans have not wholly discarded the idea that the white man, at least, if not the Christian, is entitled to this earth, if not cultivated by the colonizer. So our Supreme Court decided by an opinion of the Chief Justice of the United States [John Marshall]." Here Lieber was referring to the 1823 Supreme Court ruling Johnson v. McIntosh, which he considered the "jus divinum" (divine law) of the United States.
In the Johnson decision, Chief Justice Marshall wrote that whenever "Christian people" "discovered" lands inhabited by "natives, who were heathens," this achievement gave the Christian "discoverers" the right to assert "ultimate dominion" over the "discovered" lands. The Christian assertion of "ultimate dominion" may also be phrased as the assertion of an ultimate sovereign power, or what is most often referred to today as federal plenary power over Indians.
Consider the following questions and answers based on the Johnson ruling: Q: What is the basis for the Christian European assertion of "ultimate dominion" over the continent? A: The "discovery" of the continent by "Christian people." Q: Why did the Christian Europeans claim the "ultimate dominion" to be in themselves? A: Because, the lands of the continent were inhabited by "natives, who were heathens." Presumably, heathendom could not prevent Christendom from asserting an ultimate Christian dominion on the continent. Q: On what basis were Indian rights to complete sovereignty as independent nations diminished? A: The original fundamental principle that, discovery [by "Christian people"] gave exclusive absolute title to those who made the discovery.
Recently, a federal court ordered Chief Justice Moore of the Supreme Court of Alabama to remove a bronze monument of the Ten Commandments from the court building where Judge Moore worked. The federal court held that Judge Moore's bronze display of the Ten Commandments in a public courthouse was in violation of the separation of church and state. When Judge Moore refused to remove the monument, he was removed from the bench for refusing to obey a federal court order.
This incident in Alabama got me wondering: What is the difference between physically displaying an icon from the Old Testament (the Ten Commandments) in a public courthouse, and the Supreme Court conceptually displaying and institutionalizing a fundamental distinction between Christians and heathens in the Johnson ruling?
Why is it assumed to be constitutionally permissible for a United States Supreme Court ruling to make an explicit distinction between "Christian people," and American Indians as "natives, who were heathens?" Why is it assumed to be constitutionally permissible for the Supreme Court to maintain as an active precedent the proposition that Christian "discovery" somehow "diminished" Indian rights "to complete sovereignty, as independent nations," and to use that precedent in cases such as the 1987 ruling Oliphant v. Suquamish Indian Tribe?
According to Lieber: "The Christian religion is interwoven with all the institutions which surround us and in which we have our social being. The Christian religion has found its way into a thousand laws, and has generated a thousand others. It can no more be excluded than the common law, or our language."
While it is certainly possible that Lieber overemphasized the role of Christianity in Western political and legal thought, the religious distinction in the Johnson ruling would seem to support Lieber's conclusion, at least with regard to the status of American Indian nations in U.S. law and politics. Strangely, in the 21st century, Native nations are now considered to be subject to the plenary power of the United States on the basis of Christendom's legacy of categorizing so-called heathen nations as inferior "unbaptized stuff."
Steven Newcomb, Shawnee and Lenape, is director of the Indigenous Law Institute, and Indigenous Law research coordinator at D-Q University at Sycuan, on the Reservation of the Sycuan Band of the Kumeyaay Nation and is a columnist for Indian Country Today.