In 1974, Ralph A. Barney, Chief of the Indian Claims Section, Lands Division, in the U.S. Department of Justice, explained the concept of title that the Indian Claims Commission (ICC) had used in its work from 1946-1978. He began by mentioning “different concepts inherent in the nature of” different cultures. “The culture of the Europeans who discovered and later settled this continent was basically legalistic,” he said, particularly where land was concerned.”
In Barney’s view, from the European perspective: “Land was the subject of ‘ownership’ either by the monarch or his subjects, and ‘titles’ were the capstone of such ownership.” Barney then made the unequivocal statement that “‘[o]wnership’ in the sense of a legal right [to land] was unknown to the Indian.” (emphasis added) To support this assertion, Barney quoted Justice Hugo Black in the U.S. Supreme Court ruling Shoshone Indians v. United States:
Ownership meant no more to them [the Shoshone Indians] than to roam the land as a great common, and possess and enjoy it in the same way that they possessed and enjoyed sunlight and the west wind and the feel of spring in the air. Acquisitiveness, which develops a law of real property, is an accomplishment only of the “civilized.”
The idea of “acquisitiveness” is “an intense desire to obtain or possess something” which one does not already possess. Justice Hugo Black’s statement rested on the impossibility of Indian nations having an intense desire to obtain lands they already possessed and were living in cultural and spiritual relationship with for countless generations. It was therefore on an impossible basis that Justice Black, for the Court, framed the Shoshone as being disqualified from a true ‘ownership’ of their lands.
According to Black’s reasoning, a legal ownership of the land (often termed “fee title”) was only attributable to those Christian Europeans who arrived to North America with a burning desire to acquire and possess the lands of the Original Nations or peoples, or else attributable to the successors of those first Christian Europeans.
According to Barney, Indians were excluded from the category “ownership of land” because a European perspective restricted “ownership of land” to a “monarch or his subject.” This contains the presumption that the ideas, values, standards, and beliefs of our Original Nations were also excluded from any decision about the relationship of our nations to our lands and territories. Barney wrote from the viewpoint that only European ideas, values, standards, and beliefs were relevant to the discussion.
To further explain the rationale for excluding American Indian nations from “legal ownership” of lands, Barney turned to the idea that the Europeans had ‘discovered’ the North American continent.
When the Europeans ‘discovered’ the North American continent they found it inhabited by the Indians and the question of their rights aroused a great moral debate. Charles V of Spain sought the advice of the theologian Franciscus de Victoria, primary professor of sacred theology in the University of Salamanca, who suggested that since the aborigines “were true owners, before the Spaniards came among them, both from the public and private point of view,” they should be treated with to secure cessions of their lands.
Francisco de Victoria’s decision on moral grounds that the Indians were the “true owners” of their lands contradicted what Barney had previously said about “ownership” being restricted to European “monarchs and their subjects.” How did Barney escape this apparent predicament? He did so by simply ignoring Victoria and reaffirming the perspective about “ownership” being restricted to European monarchs.
Barney specifically said: “This view [of Victoria] obviously could not prevail if the European monarchs owned the land and could parcel it out to their subjects.” In other words, Barney was of the opinion that the idea of the Indians as the ‘true owners’ of their lands had eventually been dropped in favor of theidea that the ‘discovering’ monarchs “owned the land and could parcel it out to their subjects.” In Barney’s narrative, this had occurred for the United States in the 1823 Supreme Court ruling Johnson v. M’Intosh, a ruling that had settled a debate over the two possible views: 1. Ownership was restricted to “monarchs and their subjects,” or, 2. American Indians “were the rightful owners of the lands of the continent.”
As Barney put it: “From a long and detailed examination of the history of Indian relations in this country, Chief Justice Marshall concluded [in Johnson] that the legal title was in the United States Government and that the tribes had no right to sell and convey the land (at least, without governmental consent).” Notice that the phrase “legal title” matches what Barney had claimed about a “legal right” to land being “unknown to the Indians.”
However, the Indians could not be ignored, particularly in the early days when they were numerically far stronger than the few settlers huddled along the coast. From this developed the theory that while the “legal” title was in the discovering nations and later the United States, the Indians had a right of possession based on what was characterized as their “aboriginal title.”
The distinction above is between “legal title” and “a right of possession” based on what is called “aboriginal title,” which is defined as “occupancy” or a “right of possession.” Barney went on to state that in United States v. SantaFe PacificR. Co., the Supreme Court “had occasion to lay down the rule, which was later adopted by the [Indian Claims] Commission, as to what was necessary to establish Indian title.”
According to Barney’s narrative, the issue of Indian ownership had been decided by the ruling in Johnson v. M’Intosh, and as a result of that decision the Indian Claims Commission’s focus was restricted to a concept of Indian “occupancy” consistent with the Johnson ruling. As the Supreme Court said in U.S. v. Santa Fe Pacific Railroad: “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. This policy was first recognized in Johnson v. M’Intosh, 8 Wheat. 543, 5 L.Ed. 681, and has been repeatedly reaffirmed.” (emphasis added)
Barney then quoted the following language from the Santa Fe Pacific Railroad ruling to further explain that the Indian Claims Commission’s work—such as in the case “Indians of California”—had been limited to the issue of an Indian title of occupancy first articulated in Johnson v. M’Intosh: “Occupancy necessary to establish aboriginal possession is a question of fact to be determined as any other question of fact. If it were established as a fact that the lands in question were, or were included in, the ancestral home of the Walapais in the sense that they constituted a definable territory occupied exclusively by the Walapais (as distinguished from lands wandered over by many tribes), then the Walapai had “Indian title.” (emphasis added)
The U.S. concept of an Indian right of “occupancy” that the Indian Claims Commission relied on was a direct consequence of what Chief Justice Marshall called the “right of discovery” in the Johnson ruling. He further said that right was “confined to countries then unknown to all Christian people,” “notwithstanding the occupancy of the natives, who were heathens.”
Here’s the point: The process of the Indian Claims Commission was never legitimate. Why? Because the Indian Claims Commission conducted its work on the hidden religious premise of the Johnson ruling. It conducted its work based on a bogus claim of Christian “ultimate dominion,” based on the “extravagant pretension” that a Christian “right of discovery” had resulted in a right of Christian domination (“ultimate dominion”), which in turn had supposedly reduced our Original Nations down to a mere right of heathen “occupancy” in relation to our original and national territories.
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 has been studying federal Indian law and international law since the early 1980s.