A number of fundamental assumptions inform my writing. For one thing, I assume that our nations and peoples are presently in a political struggle with powerful descendants of those who first colonized the lands and territories of what is now called "the Americas." By a "political struggle" I mean that we are on a daily basis engaged in a contest of key arguments and interpretations of the non-Indigenous society.
The ideas we are currently struggling with were first crafted over hundreds of years by ingenious ancestors of the dominating society. Those ideas were crafted and used for the purpose dominating our ancestors in order to exploit the immense wealth of our traditional territories, and they are still being used against us for the same purpose by the present day descendants of those colonizing ancestors.
I assume it’s our job to sort this all out by meticulously combing the records of the past in order to inform ourselves in the present so as to heal, strengthen, and liberate our nations and peoples.
I assume there was a time when our ancestors spoke no English, or any other European language. This placed them at a grave political disadvantage because of a severe language barrier. Our ancestors could not use our own languages to challenge the dominating society because to do so would be to use a language that their colonizing opponents could not understand. (There was a time, though, when a great deal of communication occurred in our original languages through the use of translators, but it was a time fraught with miscommunication because of cultural differences).
At that time, our ancestors’ were greatly restricted in their ability, or entirely unable to use English to politically challenge the colonizers’ ideas and argument. Either way they were unable to speak and write in the colonizers’ language with the same level of proficiency as that of the most intellectually powerful figures in the non-Indian society.
I assume our ancestors were also at a huge political disadvantage because they lacked specific and detailed information about how the non-Indian society was formed through its organic and fundamental laws. Our ancestors did not have the luxury of researching the legal and political history of the non-Indian society, and studying the specific arguments used against our peoples by the non-Indian courts.
A key example is the sentence from Johnson v. M’Intosh, in 1823, in which Chief Justice John Marshall wrote for a unanimous Supreme Court: “Their rights to complete sovereignty, as independent nations were necessarily diminished, by the original fundamental principle that discovery gave title to those who made it.”
I assume that our ancestors at the time of the Johnson ruling and later did not know of this specific argument. I further assume that our ancestors spent no time whatsoever crafting a response to Marshall’s use of Christian “discovery” against the original independence of our nations. After all, why would they spend time building a political response to something they knew nothing about?
Even when we search the present day writings of most Indian scholars from the 20th and 21st centuries we find no real effort to develop a political counter-argument to the U.S.’s claim that “discovery” by “Christian people” had “diminished” our original independence. Instead, Marshall’s sentence about the original independence of Indian nations having been “diminished” is simply ignored, and it is not ridiculed as the nonsensical argument, based on Christianity, that it is.
Now is as good a time as any to ask ourselves, “What would such a counter-argument look like?” If we argue that Christian “discovery” did not diminish the original independence of our nations, then what does this mean? What are the implications in terms of, for example, treaties, jurisdiction, and taxation? Do we have the stomach for making such a powerful political argument?
If the U.S. government begins to cry “secession” how shall we respond? Are we making a secessionist argument if we contend that the U.S. government has no right to dominate our nations on the basis of a claim of Christian discovery? Of course we aren’t. Nor is it secession to point out that a system of domination lacks any political legitimacy.
Given that our previous generations were at such a disadvantage, and given the indoctrination we have been laboring under in the name of a “domesticating” federal Indian law, it makes perfect sense to begin a meticulous investigation of the organic and fundamental laws of the dominating society, which are rooted in the age of Christendom. It is time to develop powerful political arguments based on that information. It is time to utterly reject the U.S.’s claim, based on Christianity, that “discovery” by “the Christian nations of Europe” of “heathens and infidels” resulted in the “diminishment” of our original independence as nations.
Steven Newcomb has been researching U.S. federal Indian law and international law since the early 1980s. He is the 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).