In the 1901 U.S. Supreme Court case Barker v. Harvey, Alejandro Barker and other family members claimed a title to lands in California. The case describes the lands as being “within the limits of the territory ceded to the United States by the treaty of Guadalupe Hidalgo” of 1848. As plaintiffs, the Barkers claimed a right to the lands as against certain defendants whom the Barker case refers to as “mission Indians,” or “those regarded as having been, from 1769 to 1834,forced under the control of the Spanish Catholic mission system.”
The U.S. Supreme Court in Barker did not identify the Native defendants as representing the collective interests of any Indian nation such as the Cupeño, the Luiseño, or the Cahuilla. They were identified merely as individuals. The lands in dispute were those of “Warner Ranch.” Those lands were not identified in the Barker case as part of the traditional territory of any original nation of that geographical region.
The Barker ruling says that the Indian defendants did not claim “a fee in the premises.” In other words, they did not claim “ownership.” They only claimed “a right of permanent occupancy by virtue of the alleged fact that they are mission Indians, so called.” Evidently, at that time, during the 50 years since California had gained statehood, no Indian nation had ever asserted in a U.S. court a right to their national territory asan originalnation, relative to the lands in question. It would appear that to this day no Indian nation in California has ever argued in a U.S. court that it is a nation, with an existence which predates the Spanish invasion, and on that basis, advocated on behalf of its full nationhood and the full extent of its original territory, which it has never ceded or relinquished by a ratified treaty.
The Barker case did say that the Indian defendants claimed to have “been in occupation of the premises long before the Mexican grants, and, of course, before any dominion acquired by this [U.S.] government over the territory.” Yet built into the foregoing sentence is the following assertion: By means of the treaty of Guadalupe Hidalgo, the United States government acquired dominion over the territory that it gained from Mexico.
William Brandon has traced the origin of the word “dominion” to the Latin dominium. When he studied the etymology of the term, he found that “[p]olitical power grown from property—dominium—was, in effect, domination.” When the Supreme Court said that the United States had “acquired” dominion over the territory it acquired from Mexico, it was effectively saying that the United States had also acquired a political right of domination over that vast area, including the Indian territories. It was a claimed political right of domination first historically ascribed to Spain, and then to Mexico after it gained its independence from Spain. The United States’ presumed right of territorial domination was expressed by the Barker Court as a “change of sovereignty and jurisdiction.” That assumed the U.S. right of domination forms the political context for the Court’s decision in Barker v. Harvey.
The claim of a political right of domination by the United States has managed to escape detection because the United States never invokes or expresses its claim by the name “domination.” That presumed political right is only written about or spoken of by means of different forms of metonymy, which is a word or phrase that expresses some aspect or part of a greater whole of domination. Metonymies for the presumed right and system of domination include, “sovereignty,” “the sovereign,” “dominion,” “civilization,” “jurisdiction,” “territory,” “political power,” “absolute title,” and so forth. Those words and phrases enable the United States to invoke the presumed political right of domination by those words and phrases without ever explicitly using the word “domination.”
The noun “aboriginal” and the phrase “aboriginal title” are important examples of the manner in which a right of domination is automatically assumed. “Aboriginal” is an adjective that is derived from the noun “aborigine,” a word defined by Webster’s as “an indigenous inhabitant of a country: one of the native people esp. as contrasted with an invading or colonizing people.” Clearly, the words “invading” and “colonizing” are words for “domination” as contrasted with the original nations and peoples. To invade means “to enter in a hostile manner,” and “to overrun with a view to conquest or plunder.” It is, in other words, to forcibly enter and overrun another nation’s territory with a view on the part of the invaders to dominate the free nations or peoples being overrun.
Samuel Eliot Morison calls “colonization” “a form of conquest [domination] in which a nation takes over [dominates] a distant territory, thrusts in its own people, and controls [dominates] or eliminates the native inhabitants” (Oxford History of the American People (Oxford University Press, 1965, p. 34).
The prerogatives and rights ascribed to the dominant political system—rights of sovereignty, territory, and dominion, for example—are part of a structured whole that “reduces,” hems in, and contains the original free nations and peoples. This is accomplished by means of the words and phrases that constitute the U.S. system of domination applied to “Indians.” Ascribing “mere occupancy” to “the Indians” is a direct consequence of tacitly ascribing a right of domination to “the sovereign.”
Given the above information, how are we to read the ruling in Barker v. Harvey? Because the invading system of domination allowed the lands of Indian nations to be granted to an invading power, to colonizers of its own choosing, the territories of the original nations in the geographical area now called “California” have been gradually overrun and claimed by the colonizers as personal and public “property,” which is another word defined by the dominating society as a form of domination.
Instead of being candid about the domination process, the U.S. Supreme Court in the Barker case characterized what happened at Warner Ranch as: “Mexican authorities…found that the Indians had abandoned the land.” The Court said that the only claim “adverse” to the Barkers “was vested in the mission of San Diego” and that the Mexican system “had made an absolute grant [to Mexican land grantees], subject only to the condition of satisfying whatever claims the mission [of San Diego] might have.”
On the basis of the presumed right of domination, the U.S. Supreme Court asked, “How can it be said therefore that when the cession [of territory] was made by Mexico to the United States” by the treaty of Guadalupe Hidalgo, “there was a present recognition by the Mexican government of the occupancy of these Indians?” In asking that question, the Supreme Court was working from the viewpoint that there was no such thing as an Indian nation in California, just Indian persons or individuals. The Court in Barker only applied the word “nation” to Mexico, and claimed that the Indians “had abandoned their occupancy.”
Whatever title there was “outside of the Mexican nation was in the mission,” said the Court. An “absolute grant was made [by Mexico to the grantees] subject only to the rights of such mission.” In other words, by skillfully using the language of the domination system, the U.S. Supreme Court in Barker ascribed a greater right to the Spanish Catholic mission system that invaded Indian nations, and no rights at all to the original nations that were overrun and forced under domination as a result of that mission system.
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.