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‘Rekindling Embers of Sovereignty that Long Ago Grew Cold’

When Cristobal Colón made landfall on a sandy beach in the Caribbean, he planted the royal standards (flags) of Castile and Aragon and performed a ceremonial act of “discovery and possession.” The “standards” he planted in the soil were physical flags, but those flags also symbolized Christendom’s ideas and standards of judgment which Colón and other invaders intended to impose on the newly “discovered” land, and on the free and independent non-Christian nations and peoples already existing here.

In 2005, the U.S. Supreme Court extended Christendom’s idea of “standards” in the case City of Sherrill v. Oneida Indian Nation of New York when it wrote: “[We] hold that ‘standards of federal Indian law and federal equity practice’ preclude the Tribe [the Oneida Indian Nation] from rekindling embers of sovereignty that long ago grew cold.” A traditional council fire was the background frame of reference for the Court’s phrase “rekindling embers of sovereignty,” and “a dying fire” is the frame of reference for the term “embers.” The Court’s use of the word “embers” and its allusion to the idea of a “dying fire,” calls to mind a fire “going out” or being “extinguished.” Similar imagery is at play when an “aboriginal title” of Indian “occupancy” is said to have been “extinguished.” The two senses of “extinguishment” are related because once aboriginal title was said to be “extinguished,” it generally followed that the council fire of the Original Nation was no longer to be found on that land because the people had been removed from their traditional territory.

The Supreme Court’s use of the words “rekindling” and “embers” evokes an idealized mental image of an Original Nation’s Council Fire. It implies a backstory that, by implication, has the Supreme Court writing the obituary of the Oneida Nation, and, by extension, for every one of our Original Nations. The Court seems to be saying :

Once upon a time, your people had a fully ignited fire of sovereignty as a free and independent nation, but our ancestors succeeded in putting out that fire. They did so by extinguishing it to the point that only the embers of your dying council fire remained. Then, after a time, even those embers grew cold as the remaining heat of your council fire gradually subsided and went out. Our ancestors successfully extinguished your fire of national sovereignty, and they built an idea-system called federal Indian law which was designed to make it impossible for your nation to ever reignite your council fire of sovereignty as an independent nation or people. We inherited from our predecessors that federal Indian law idea-system and its standards and we fully intend to continue using it against you.

From one generation to the next, the colonizing nations of Christendom passed the dominating ideas, values, and standards of judgement that they purported to “plant” in the soil of our original nations’ territories. Today the United States continue to impose those dominating ideas, values, and standards of judgment upon our original nations and peoples. Behind the Court’s usage rests a key presumption: Our original free nations are now regarded by the United States as being subjectto the mental processes (ideas and standards of judgment) of the U.S. government as a whole, and of the U.S. Supreme Court in particular. It is by means of those mental processes (in the form of ideas and court rulings) that the United States purports to “hold” our nations captive, and to “hold” to the judgment that the United States has successfully “extinguished” our council fires of national independence.

The Supreme Court also used the doctrine of discovery as the context for what it said about the “embers of sovereignty” in City of Sherrill. Footnote number one reads: “Under the ‘doctrine of discovery,’. . . ‘fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign.” The footnote continues: “first the discovering European nation and later the original States and the United States.” Justice Ginsberg drew this language from the 1974 decision Oneida Indian Nation v. County of Oneida (414 U.S. 661), and the wording from the 1974 ruling states:

It very early became accepted doctrine in this Court that, although fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign -- first the discovering European nation and later the original States and the United States -- a right of occupancy in the Indian tribes was nevertheless recognized.

In the 1974 Oneida Nation ruling that Justice Ginsberg used in Sherrill, the Supreme Court went on to point out that in United States v. Santa Fe Railroad Company (1941), it had unanimously and “succinctly summarized the essence of past cases in relevant respects.” In Santa Fe Railroad the Court stated:

‘Unquestionably it has been the policy of the Federal Government from the beginning to respect the Indian right of occupancy, which could only be interfered with or determined by the United States.' Cramer v. United States,261 U. S. 227. This policy was first recognized in Johnson v. M’Intosh, 8 Wheat. 543, and has been repeatedly reaffirmed. 

So, Justice Ginsberg’s reliance on the doctrine of discovery in City of Sherrill v. Oneida Indian Nation of New York leads us directly to the 1823 Supreme Court ruling Johnson & Graham’s Lessee v. M’Intosh. That Supreme Court decision traces back to the ceremonial planting of Christian “standards” in the soil of our nations, and serves as the cornerstone of the “standards of federal Indian law” that Justice Ginsberg, for a majority of the Court, make it impossible for the Oneida Indian Nation, and, by implication, any other original nation to rekindle its fire of independence.

In other words, the “standards of federal Indian law” to which Justice Ginsberg refers in City of Sherrill, are traced to what Chief Justice Marshall called “The right of discovery” in Johnson v. M’Intosh. The Supreme Court said the claimed “right of discovery” (and “ultimate dominion”) was exclusive to Christian people when the Court said it was a right “confined to countries then unknown to all Christian people.”Embedded in the decision City of Sherrill v. Oneida Indian Nation of New York is the idea that the “standards” of Christian domination (which Marshall termed “ascendancy”) preclude our Original Nations of the continent from rekindling their Council Fires of independence and preclude them from being recognized as nations entitled to live and exist free and independent of the claimed right of Christian domination. The concepts, metaphors, and categories dreamed up by the U.S. Supreme Court, regarding rights of “ascendency” and “ultimate dominion” (domination) need to be rejected, repudiated and disestablished. At a minimum, as part of our work to emphasize and actualize the right of our nations to live free from all forms of domination, we need to be developing powerful arguments against such false claims.

Steven Newcomb (Shawnee, Lenape) is 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). He is a Producer of the documentary movie “The Doctrine of Discovery: Unmasking the Domination Code,” Directed and Produced by Sheldon Wolfchild (Dakota), with narration by Buffy Sainte-Marie (Cree).