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Poetics, Politics and U.S. federal Indian Law

I recently came across the book Writing the Social Text: Poetics and Politics in Social Science Discourse (New York: Aldine de Gruyter, 1992), edited by Richard H. Brown. In his chapter “Poetics, Politics, and Truth,” Professor Brown talks about the way in which “the positivist account” of knowledge “has eroded in recent decades” (p. 4).

For more than a century, says Brown, “most Western thinkers held that knowledge could be gained with certainty through empirical observations and logical deductions.” He continues:

In their view, there is a world of objective facts governed by causal laws. The discovery of these causal laws permits the theorist to map reality accurately for purposes of prediction and control. Thus, reality was seen as independent of the thinker, who through systematic observation may develop testable propositions. Those propositions that survive empirical tests and are able to predict events come to constitute the body of knowledge.

However, an alternative view gradually began to develop. As Brown puts it: “In this alternative view, theories do not mirror reality; they are products of human artifice, which themselves shape what we take as real and true.” To frame theory as a human artifice is to posit that a given theory is an artistic creation of the theory-maker(s). In this regard, Brown mentions a “conception of reality as molded through [human] discourse.” It is, he points out, “a return of rhetoric,” which the Greeks defined as the art of persuasion.

The above discussion leads to a key suggestion: The ideas typically called “U.S. federal Indian law and policy” are the result of the colonizers using language to maintain a “conception of reality” constructed by elite white men of the past. It was their job to use ideas and arguments to build a reality system in which the United States is conceived of as the top-dog, existing in a dominating position in relation to a sub-order reality that those elite white men constructed for the captivity of our original nations. It was the goal of the United States to create a system of persuasion, a tightly structured system of arguments, that would be passed from one generation to the next, and thereby prove most useful and profitable to the United States of America by working to rob our nations of our free existence and our territories and resources.

The ideas and arguments typically called U.S. federal Indian law and policy are the result of that persuasive use of human language in an effort to disempower our original nations while empowering the United States. Thus, it stands to reason that persuasion and persuasive skills are of great importance for every original nation, for every original nation leader, and for everyone who advocates on behalf of an original nation. Despite this, how often does the importance of rhetoric (persuasion) get identified as critically importance for our nations? Seldom if at all, is about right.

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The art of persuasion is necessary for developing arguments and for critiquing the arguments of our opponents. Every one of our nations and every one of our leaders must deal on a daily basis with the arguments put forward by an opposing side. The colonizing society’s use of arguments against our nations is incessant and never-ending. Yet, how much time do we spend analyzing and critiquing the arguments of other side, and developing our own responses?

Law and politics are rhetorical (persuasive) through and through. Given that fact, how can we effectively deal with the ideas and arguments that constitute U.S. federal Indian law and policy without understanding the art of persuasion and continually working to developing and improve our skills in that discipline? Studying federal Indian law as an expression of “their law” is not the same as studying federal Indian law as an expression of “rhetoric” (persuasive strategy) from our own perspective. One reason for framing the dominating society as dominating is because of its adroit use of persuasion (rhetoric) in ways that maintain the mental image of the United States as existing over the top of our originally and still rightfully free nations and our territories.

Much of what our nations and peoples have learned to treat and experience as “reality,” was first constructed by elite white men in the past on the basis of persuasive arguments made about our existence by men and women of the colonizing society. Gradually, over a period of many generations, more and more of our own people have begun to accept the very ideas which our ancestors steadfastly opposed. More and more ideas that our people at one time considered false have come to be accepted as true by more and more of our people.

What’s an example of our people accepting as “true” the white man’s persuasive discourse? One such example is the idea that “the rights” of our nations “to complete sovereignty, as independent nations” were “diminished” by a supposed right of domination (“ultimate dominion”) resulting from Christian discovery. The lie of such a “diminishment,” which was first constructed by Chief Justice Marshall for the U.S. Supreme Court, has seldom if ever been specifically challenged by our own people, and is never challenged by the attorneys working for our nations. Why? The lie of such a “diminishment” of our right to a free existence, based on a claim of “discovery” by “Christian people” of non-Christians’ lands, has taken on the appearance of a persuasive “reality” that remains unnoticed, and, goes mostly unchallenged.

Much of the rhetoric of the dominating society has been developed by U.S. courts in a rarified and elite atmosphere, without us ever having developed a powerful and effective counter argument. The domination premised society of international states, has developed an entire body of arguments in support of their claimed right to dominate of our nations. It is a body of arguments that has been given the appearance of being well beyond our reach and control.

Chief Justice Marshall contributed to this attitude when he wrote in the Cherokee Nation v. Georgia decision of 1831, “We assert a title to their lands independent of their will.” This statement was based on an argument that Marshall created by means of the Johnson v. M’Intosh ruling: “We assert a right of domination independent of their will.” So what’s our response? And why has a response not forthcoming from the leadership of the nations of Great Turtle Island and other original nations?If we were to create a counter-argument to challenge the claimed right of domination by the United States, or Canada, or New Zealand, or Australia, or any other state of domination, what would that counter-argument be? Here’s one for starters: “You argue that your ancestors ‘discovered’ and ritually claimed control over our ancestors and over the vast homelands and territories of our nations? And you further argue that this occurred as a result of permission granted by some foreign and immigrant monarch living thousands of miles away from our nations? And you also argue that you have inherited a right of domination as a precedent bequeathed by your ancestors to use against our nations forever? Well, we all know your ancestors were nothing but law breakers of our Original Law systems. Their wrongful assertions of a right of domination against our nations and our ancestors are null and void. Those wrongful assertions were premised on a violation of our Original Law systems. There is no such thing as a right of domination, especially one asserted by the nations of Christendom against our non-Christian nations on the basis of Christianity.”

Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute, author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008), and a producer of the about to be released documentary movie The Doctrine of Discovery: Unmasking the Domination Code, directed and produced by Sheldon Wolfchild (Dakota).