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Separation of Church and State? Not When Indians are Concerned

The ugly face of the 1955 U.S. Supreme Court decision in Tee-Hit-Ton v U.S. appeared recently in Plymouth County (MA) Superior Court, in Greene v. Pacheco, et al., a case challenging interference by the Town of Mattapoisett with Mashpee Wampanoag fishing rights.

Here's the quote: "'Aboriginal rights' are those derived from the 'legal theory that discovery and conquest gave the conquerors sovereignty over and ownership of the lands thus obtained' with the preservation of permissive right to use and occupy granted to the Native Americans."

Tee-Hit-Ton is ugly because it stands for the proposition that Indigenous peoples have no basic land rights. The case says Indians have only a "permissive right" to live on their own lands, and that the government may take Indian property at will and without compensation. The Court said the U.S. did not need the consent of the Tee-Hit-Ton in order to take their timber, and owed nothing to them for taking it, despite the 5th Amendment to the U.S. Constitution, part of the Bill of Rights, which says the federal government must pay "just compensation" if it wants to take property.

What is the basis for this ugly precedent? The answer is in the Brief filed in the case by the United States itself, a document that will shock many readers:

"…The Christian nations of Europe acquired jurisdiction over newly discovered lands by virtue of grants from the Popes, who claimed the power to grant to Christian monarchs the right to acquire territory in the possession of heathens and infidels.

"… Although the nations of Europe … ceased to recognize the Popes as the source of their titles to newly acquired lands, the new concept of title by discovery was based upon the same idea that lands occupied by heathens and infidels were open to acquisition by the Christian nations. As stated in Johnson v. McIntosh: 'The potentates of the old world found no difficulty in convincing themselves, that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence.'"

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On the basis of this argument, the Supreme Court Tee-Hit-Ton decision reaffirmed the Doctrine of Christian Discovery announced in 1823 in Johnson v. McIntosh: "It is well settled that…the tribes…held claim to…lands after the coming of the white man, under…permission from the whites to occupy…. This position of the Indian has long been rationalized by the legal theory that discovery and conquest gave the conquerors sovereignty over and ownership of the lands thus obtained." The Court quoted Johnson v. McIntosh, "that discovery gave an exclusive right to extinguish the Indian title."

After thus deciding that Indians are, by their nature, inferior to the colonial invaders, the Court rubbed salt into the wound by quoting Beecher v. Wetherby, another case involving a taking of Indian timber: "It is to be presumed that, in this matter, the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race." Apparently, for the white colonizers, Christian justice means "just us."

Some commentators say Christian Discovery is not the law of the United States any more; some say Christian Discovery was never the law of the U.S. Tee-Hit-Ton puts both those arguments to rest: It reaffirms Christian Discovery as the basis for U.S. law regarding Indian Nations; and it says this racist religious doctrine is still in full force and effect. It also says Indians as Peoples are not covered by the U.S. Constitution, which undermines the arguments of those who believe the Constitution 'protects' Indians.

The U.S. claims it has a separation between church and state. In the case of federal Indian law, however, exactly the opposite is true: state and religion are bound together at the roots. For anyone who believes in religious freedom, this is intolerable. For anyone who believes in property rights, it is also intolerable. For anyone who worries about the volatile mixing of government and religion around the world, it is seriously dismaying to find that the U.S., instead of being a beacon of freedom and rights, is still waging a holy war that might be compared to a jihad.

No court has over-ruled Tee-Hit-Ton or Johnson v. McIntosh. However, the time is ripe, especially in light of the U.N. Declaration on the Rights of Indigenous Peoples. The Tee-Hit-Ton decision is as bad as the old racist rule that Black people are "separate but equal." That law is now history; but federal Indian law is in the present. There's a challenge for Indian lawyers.

Peter d’Errico graduated from Yale Law School in 1968. He was staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services from 1968 to 1970, he taught Legal Studies at University of Massachusetts, Amherst, from 1970-2002, and is currently a consulting attorney on indigenous issues.