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Rethinking Indian Law 30 Years Later

In 1982, the National Lawyers Guild published a book entitled Rethinking Indian Law. It was, in part, a collaborative effort between the Guild and Tim Coulter of the Indian Law Resource Center (ILRC). In an essay contributed by the Indian Law Resource Center, Mr. Tim Coulter said that an assertion had been made in the 1800s “that the right of discovery gave the discovering nations and later the United States the absolute rights of property and dominion over Indian lands.” Mr. Coulter said that this was “a warped misuse of the original discovery doctrine.”

According to Mr. Coulter, there was an “original conception” of the right of discovery and a “subsequent misuse” of that doctrine. The two versions can be best understood, he said, by comparing quotations from two major opinions by the Supreme Court: Johnson v. M’Intosh and Worcester v. Georgia (1832). In support of his theory, Mr. Coulter selectively quoted from the 1823 ruling Johnson & Graham’s Lessee v. M’Intosh.

Mr. Coulter then used a quote from Worcester v. Georgia, in which Chief Justice John Marshall was dismissive of the idea that merely sailing ships along the coast could give the sponsoring monarchy or country a claim of “dominion” over the entire continent. By combining his selected quotes from the Johnson and Worcester rulings, Mr. Coulter made it seem as if, by the time of the Worcester ruling, the Supreme Court had not advanced the idea that “discovery” had resulted in the first “discoverer” asserting or assuming “dominion” in relation to the Indian lands of the continent.

What Coulter chose not to include in his account were the U.S. Supreme Court’s repeated use of “dominion” and “ultimate dominion.” The following statement from the Johnson ruling exemplifies the language that Mr. Coulter did not select for comparison with language from Worcester:

While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives.

Next Mr. Coulter turned to the 1842 Supreme Court ruling Martin v. Waddell, making it seem as if Martin was the very first time the U.S. Supreme Court had expressed the claim that mere “discovery” had resulted in “the discoverer” claiming a title of “dominion” over the Indian lands of the continent:

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…the Indian tribes in the new world were regarded as mere temporary occupants of the soil, and the absolute rights of property and dominion were held to belong to the European nation by which any particular portion of the country was first discovered.” In Waddell the Supreme Court further said that the ‘territory’ that the Europeans occupied “was disposed of by the governments of Europe at their pleasure, as if it had been found without inhabitants.

Perhaps because it would have been fatal to the argument he was developing, Mr. Coulter neglected to mention that the Martin ruling referenced Johnson v. M’Intosh as an authoritative source for the above language about “dominion.” This is demonstrated by the statement in Martin that the "territory" the Europeans occupied “was disposed of by the governments of Europe at their pleasure, as if it had been found without inhabitants.”

The Martin Court further said: “The discoveries made by persons acting under the authority of the government were for the benefit of the nation… [T]he Crown, according to the principles of the British constitution, was the proper organ to dispose of the public domains, and upon these principles rest the various charters and grants of territory made on this continent. The doctrine upon this subject is clearly stated in the case of Johnson v. McIntosh, 8 Wheat. 595.”

Clearly, when the Martin Court used the Johnson ruling as an authoritative source, the justices did not believe that they were “misusing” the concepts of “discovery,” “temporary occupants of the soil” and “absolute rights of property and dominion” found in Johnson. Contrary to Mr. Coulter’s claim in Rethinking Indian Law, the 1842 Martin opinion was the Court’s further application of the claim made by the Court in Johnson that ‘discovery’ by “Christian people,” gave them the right to claim “ultimate dominion” on the continent. This was the same Johnson Court which posited that Indians’ rights had been “wrested from them” by conceptualizing them as "heathens" with a “mere right of occupancy.”

As Henry Wheaton wrote in his Elements of International Law (1836) regarding the Doctrine of Discovery: According to the European ideas of that age [of discovery], the heathen nations of the other quarters of the globe were the lawful spoil and prey of their civilized conquerors…. It thus became a maxim of policy and of law, that the right of the native Indians was subordinate to that of the first Christian discoverer.”

Now that the 11th session of the United Nations Permanent Forum on Indigenous Issues (which met from May 7 to 18) focused on theme of the Doctrine of Discovery for its 11th session, it is imperative that we develop a counter argument to refute the view that the first “Christian people” to “discover” lands inhabited by non-Christians (“heathens”) have the right to assert or assume the “ultimate dominion” (“right of domination”) to be in themselves relative to the original free and independent nations and peoples of the continent and the hemisphere.

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 (2008), and a columnist for Indian Country Today Media Network.