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Sepulveda ñ ëfather of racismí ñ continues to haunt Supreme Court doctrine

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Juan Gines de Sepulveda, the ìFather of Modern Racismî and apologist for Spanish wars against Natives of ìthe Indies,î requires more than one editorial, or book. So do his great antagonist Bartolome de Las Casas, the passionate defender of American Indians, and the great debate over the humanity of Indians at Valladolid in 1550. Continuing discussion is necessary because the positions of that 500-year-old debate, not yet settled, continue to haunt Indian nations.

De las Casas could claim a moral victory, simply for the fact that the Spanish King and Holy Roman Emperor Charles V were troubled enough by his protests to summon the debate. But Sepulvedaís many fans maintained that he carried the day in the practical upshot and the continuing influence of his doctrine of ìnatural slavery.î Thereís a strong case that Sepulveda is the dark force behind Supreme Court holdings of tribal dependency, which live on today in the extra-constitutional doctrine of congressional ìplenary powerî over Indian affairs.

The dispute between Sepulveda and de las Casas had actually gone on for a decade before the royal commission convened at Valladolid. Sepulveda wrote a treatise in 1533 called ìDemocrates Primus,î or the conformity of military doctrine to the Christian religion, justifying the wars of Charles V. De las Casas and his fellow Dominicans actually living in the Americas protested that the Spanish conquests there, far from just, were tyrannically cruel. (As bishop of Chiapas, de las Casas had infinitely more ìfield experienceî than Sepulveda, who had never been to America and possibly never even met an Indian.) Greatly annoyed by de las Casasí ìscandalous and diabolicalî attacks, Sepulveda responded in 1544 by writing a dialogue in Latin called ìDemocrates Secundus,î or ìThe Just Causes of the War against the Indians.î Both men were summoned to make their case to the Commission at Valladolid.

Sepulveda repeated the main points of his dialogue, and the point that concerns us is his assertion that Spaniards had a natural right to rule over Indians because in nature, superior entities had dominion over inferior ones. ìFor the same reason, the husband holds dominion over his wife, the adult over the infant, the father over his son,î his character Democrates told his incredulous interlocutor. Sepulveda bolstered his case with extensive defamation of the ìrude natureî of the Indians, including accusations of cannibalism and equally implausible assertions of Spanish gentility. (Historian Lewis Hanke notes with amazement that Sepulveda cited the Spanish armyís sack of Rome in 1527 as an example of its benevolence; the rest of Europe considered it an atrocity worse than the attacks of the Visigoths.)

This argument was a self-interested excuse for economic exploitation, and Sepulveda shares responsibility for the subsequent evil history of racial slavery. But in Sepulvedaís terms, it had a flip side. The allegedly superior master was supposed to rule for the benefit of the slave. (The dialogue used the example of domestic animals.) The greater prudence and wisdom of the Spaniard was to be used for the welfare of the Indian, to provide him with the implements of civilization and the benefits of Christianity.

In rebuttal, de las Casas presented the Valladolid Commission a massive brief on the achievements of the Indian civilization, which he said compared favorably with classical antiquity and even with Spain. But subsequent generations paid more attention to Sepulveda.

The idea of the Indian as ward of the superior European took root in Supreme Court doctrine with Chief Justice John Marshallís famous definition of tribes as ìdependent domestic sovereigns.î The word ìdependentî could have two meanings. It could refer to the relation between a smaller sovereign and a dominant ally, a common situation which international lawyers held did not diminish the sovereign rights of the smaller party. Or it could mean a sort of welfare dependency. Marshall himself used the term both ways. In Cherokee Nation v. State of Georgia, he elaborated that the tribes ìare in a state of pupillage. Their relation to the United States resembles that of a ward to his guardians.î

ìThey look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father.î

Chief Justice Roger Taney, Marshallís successor and later author of the disastrous Dred Scott decision upholding slavery, continued the theme in his 1846 decision United States v. Rogers. The federal government ruled ìover this unfortunate raceî in ìa spirit of humanity and justice,î endeavoring ìby every means in its power to enlighten their minds and increase their comforts, and to save them if possible from the consequences of their own vices.î

This language might seem an artifact of the Andrew Jackson era, but it was extended some 40 years later in a way that has a continued, and in fact expanding, impact on federal law. The 1886 case of United States v. Kagama upheld federal jurisdiction over Indian territory, even though a state government had been established around it. But Justice Samuel Miller acknowledged that he could cite no written provision of the Constitution to support this ruling. Instead, he derived it from Marshallís ìstate of pupillage.î

ìThe Indian tribes are the wards of the nation,î Miller wrote. ìThey are communities dependent on the United States, dependent largely for their daily food, dependent for their political rights. Ö From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them, and the treaties in which it has been promised, there arises the duty of protection, and with it power.î

This power of protection, Miller concluded, resided in the federal government because it was necessary and because it didnít reside anywhere else, not because it was provided in the Constitution. His argument might seem nebulous, not to say circular, but it is the source for the Supreme Courtís current approach to Indian law. Tribal sovereignty is fine up to a point, says the court, but Congress has the final say. If Congress ordains that states can tax a reservationís economy or take jurisdiction on its territory, then thatís the law. Why is this so? Because the tribes are wards of the government.

It might come as a shock that this assertion of practically unlimited federal power has no basis in the Constitution, treaty relations or any coherent political theory. Professor Frank Pommersheim calls it ìa blatant contradiction of the Lockean notion of limited government sovereignty.î He continues that the high courtís use of the doctrine seems ìespecially crabbed and destabilizing, and of questionable constitutional validity.î

The true origin of this alleged power harks back to ìthe White Manís Burden,î as defined by Marshall and Taney. They in turn present the paternalistic face of Gines de Sepulveda. The authority of the European over the Indian has its ultimate source in his distorted version of Aristotleís doctrine of natural slavery.

Sepulvedaís tendentious and ignorant argument was stoutly attacked in his own time, in the name of universal humanity and Indian sovereignty. It would seem totally untenable in our own day. Yet it lives on in Supreme Court rulings. Just as the ìdoctrine of discoveryî is actually a doctrine of Christian discovery, congressional ìplenary powerî is disguised version of the power of the guardian over the ward, that is, of the master over the ìNatural Slave.î

Itís shameful enough that the Supreme Court should invoke this doctrine with such little reflection. Like its other principles of Indian law, it is discredited, illogical and invalid to begin with. But the shame of the court is more overwhelming because there do exist sound and logical basic principles for tribal relations with the United States which the court has been reluctant to acknowledge. We will be turning to these principles next.

Juan Gines de Sepulveda, the ìFather of Modern Racismî and apologist for Spanish wars against Natives of ìthe Indies,î requires more than one editorial, or book. So do his great antagonist Bartolome de Las Casas, the passionate defender of American Indians, and the great debate over the humanity of Indians at Valladolid in 1550. Continuing discussion is necessary because the positions of that 500-year-old debate, not yet settled, continue to haunt Indian nations.De las Casas could claim a moral victory, simply for the fact that the Spanish King and Holy Roman Emperor Charles V were troubled enough by his protests to summon the debate. But Sepulvedaís many fans maintained that he carried the day in the practical upshot and the continuing influence of his doctrine of ìnatural slavery.î Thereís a strong case that Sepulveda is the dark force behind Supreme Court holdings of tribal dependency, which live on today in the extra-constitutional doctrine of congressional ìplenary powerî over Indian affairs.The dispute between Sepulveda and de las Casas had actually gone on for a decade before the royal commission convened at Valladolid. Sepulveda wrote a treatise in 1533 called ìDemocrates Primus,î or the conformity of military doctrine to the Christian religion, justifying the wars of Charles V. De las Casas and his fellow Dominicans actually living in the Americas protested that the Spanish conquests there, far from just, were tyrannically cruel. (As bishop of Chiapas, de las Casas had infinitely more ìfield experienceî than Sepulveda, who had never been to America and possibly never even met an Indian.) Greatly annoyed by de las Casasí ìscandalous and diabolicalî attacks, Sepulveda responded in 1544 by writing a dialogue in Latin called ìDemocrates Secundus,î or ìThe Just Causes of the War against the Indians.î Both men were summoned to make their case to the Commission at Valladolid.Sepulveda repeated the main points of his dialogue, and the point that concerns us is his assertion that Spaniards had a natural right to rule over Indians because in nature, superior entities had dominion over inferior ones. ìFor the same reason, the husband holds dominion over his wife, the adult over the infant, the father over his son,î his character Democrates told his incredulous interlocutor. Sepulveda bolstered his case with extensive defamation of the ìrude natureî of the Indians, including accusations of cannibalism and equally implausible assertions of Spanish gentility. (Historian Lewis Hanke notes with amazement that Sepulveda cited the Spanish armyís sack of Rome in 1527 as an example of its benevolence; the rest of Europe considered it an atrocity worse than the attacks of the Visigoths.)This argument was a self-interested excuse for economic exploitation, and Sepulveda shares responsibility for the subsequent evil history of racial slavery. But in Sepulvedaís terms, it had a flip side. The allegedly superior master was supposed to rule for the benefit of the slave. (The dialogue used the example of domestic animals.) The greater prudence and wisdom of the Spaniard was to be used for the welfare of the Indian, to provide him with the implements of civilization and the benefits of Christianity.In rebuttal, de las Casas presented the Valladolid Commission a massive brief on the achievements of the Indian civilization, which he said compared favorably with classical antiquity and even with Spain. But subsequent generations paid more attention to Sepulveda.The idea of the Indian as ward of the superior European took root in Supreme Court doctrine with Chief Justice John Marshallís famous definition of tribes as ìdependent domestic sovereigns.î The word ìdependentî could have two meanings. It could refer to the relation between a smaller sovereign and a dominant ally, a common situation which international lawyers held did not diminish the sovereign rights of the smaller party. Or it could mean a sort of welfare dependency. Marshall himself used the term both ways. In Cherokee Nation v. State of Georgia, he elaborated that the tribes ìare in a state of pupillage. Their relation to the United States resembles that of a ward to his guardians.îìThey look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father.îChief Justice Roger Taney, Marshallís successor and later author of the disastrous Dred Scott decision upholding slavery, continued the theme in his 1846 decision United States v. Rogers. The federal government ruled ìover this unfortunate raceî in ìa spirit of humanity and justice,î endeavoring ìby every means in its power to enlighten their minds and increase their comforts, and to save them if possible from the consequences of their own vices.î This language might seem an artifact of the Andrew Jackson era, but it was extended some 40 years later in a way that has a continued, and in fact expanding, impact on federal law. The 1886 case of United States v. Kagama upheld federal jurisdiction over Indian territory, even though a state government had been established around it. But Justice Samuel Miller acknowledged that he could cite no written provision of the Constitution to support this ruling. Instead, he derived it from Marshallís ìstate of pupillage.îìThe Indian tribes are the wards of the nation,î Miller wrote. ìThey are communities dependent on the United States, dependent largely for their daily food, dependent for their political rights. Ö From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them, and the treaties in which it has been promised, there arises the duty of protection, and with it power.îThis power of protection, Miller concluded, resided in the federal government because it was necessary and because it didnít reside anywhere else, not because it was provided in the Constitution. His argument might seem nebulous, not to say circular, but it is the source for the Supreme Courtís current approach to Indian law. Tribal sovereignty is fine up to a point, says the court, but Congress has the final say. If Congress ordains that states can tax a reservationís economy or take jurisdiction on its territory, then thatís the law. Why is this so? Because the tribes are wards of the government.It might come as a shock that this assertion of practically unlimited federal power has no basis in the Constitution, treaty relations or any coherent political theory. Professor Frank Pommersheim calls it ìa blatant contradiction of the Lockean notion of limited government sovereignty.î He continues that the high courtís use of the doctrine seems ìespecially crabbed and destabilizing, and of questionable constitutional validity.îThe true origin of this alleged power harks back to ìthe White Manís Burden,î as defined by Marshall and Taney. They in turn present the paternalistic face of Gines de Sepulveda. The authority of the European over the Indian has its ultimate source in his distorted version of Aristotleís doctrine of natural slavery.Sepulvedaís tendentious and ignorant argument was stoutly attacked in his own time, in the name of universal humanity and Indian sovereignty. It would seem totally untenable in our own day. Yet it lives on in Supreme Court rulings. Just as the ìdoctrine of discoveryî is actually a doctrine of Christian discovery, congressional ìplenary powerî is disguised version of the power of the guardian over the ward, that is, of the master over the ìNatural Slave.î Itís shameful enough that the Supreme Court should invoke this doctrine with such little reflection. Like its other principles of Indian law, it is discredited, illogical and invalid to begin with. But the shame of the court is more overwhelming because there do exist sound and logical basic principles for tribal relations with the United States which the court has been reluctant to acknowledge. We will be turning to these principles next.