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The legacy of religious racism in U.S. Indian law

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On Aug. 6, 2001, in Geneva, Switzerland, two high-level U.S. government officials testified before the United Nations Committee for the Elimination of Racial Discrimination (CERD). One was Ralph Boyd, Jr., U. S. Assistant Attorney for Civil Rights. The other was Mr. Lorne Craner, Assistant Secretary of State for Democracy, Human Rights and Labor. In addition to many other questions about race relations in the United States, the two U.S. representatives were also asked about some general principles of federal Indian law and specifically about the Western Shoshone people.

One question that the Committee asked the United States was "What is the United States position with respect to its 1863 treaty with the Western Shoshone Indians?" To answer this question, the U.S. representatives turned to the 1823 U.S. Supreme Court decision Johnson v. McIntosh. The U.S. representatives said the Johnson decision held that "as a result of European discovery, the Native Americans had a right to occupancy and possession." But "tribal rights to complete sovereignty were necessarily diminished by the principle that discovery gave exclusive title to those who made it."

What the U.S. officials did not tell the CERD is that the Johnson ruling is premised on a principle of religious racism. They did not tell the CERD the Johnson decision is based on a religiously racist viewpoint that white Christians are superior to heathen Indians. The U.S. officials failed to mention that the Johnson ruling contains the premise that the first "Christian people" (the Court's emphasis) to "discover" lands "inhabited by "natives, who were heathens" (the Court's language) have the right to assert "ultimate dominion" over the heathens.

In other words, there was a cloaked message in the United States' reply to the Committee's question: "We don't have institutionalized racial discrimination against American Indians in the United States. However, we do interpret the treaties we have made with them, such as the Western Shoshone treaty, on the basis of a religiously and racially biased Supreme Court ruling from the early 19th century." How would such a direct admission have sounded to the Committee established to work toward the elimination of all forms of racial discrimination? Instead of such candor, the U.S. officials carefully chose "European discovery" to characterize the Johnson decision.

By referring to "European discovery," the U.S. officials hid from the Committee the fact that in 1823 the Supreme Court made the doctrine of "Christian discovery" the Supreme Law of the Land in the United States. The Doctrine of Christian Discovery assumes that American Indian nations and people are racially and religiously inferior, and that the United States has the divine right to forever control and economically profit from our respective ancestral homelands.

Justice Joseph Story was on the Supreme Court when the Johnson decision was handed down. Story later very well summed up the religiously racist nature of the claim to a Right of Christian Discovery when he wrote, "As infidels, heathens, and savages, they [the Indians] were not allowed to possess the prerogatives belonging to completely sovereign, independent nations." Henry Wheaton, in The Elements of International Law (1836), explained the doctrine of discovery as follows: "The heathen nations of the other quarters of the globe were the lawful spoil and prey of their civilized conquerors." This attitude is embedded in the principle of ultimate Christian dominion found in the Johnson ruling.

The Right of Christian Discovery comes directly from the Old Testament of the Bible and is based on the story of the "covenant" between the deity of the Old Testament and the so-called "chosen people." The covenant was based on land. The land "promised" to the Hebrews by the Old Testament deity was already inhabited by the Canaanites, whom the Hebrews were commanded to dispossess. Eventually, this biblical story was transferred to the Americas. As the British international law scholar Henry Sumner Maine put the matter: "In North America, where the discoverers or new colonists were chiefly English, the Indians inhabiting that continent were compared almost universally to the Canaanites of the Old Testament."

Eventually, the story of the divine covenant between the Old Testament deity and the "chosen people" became part of the cultural and linguistic fabric of the United States. It is this biblical perspective that the U.S. Supreme Court inserted into the Johnson decision 180 years ago. The one difference is that the Court referred to the Covenant Tradition in terms of a distinction between "Christian people" and "heathens." The Supreme Court drew on the Right of Christian Discovery found in Vatican papal bulls of the fifteenth century and in English charters, all of which were premised on the view that all non-Christian lands throughout the world were destined to be taken over by Christians.

The historian B. A. Hinsdale said that the Right of Discovery was only valid with regard to lands "not possessed of any Christian prince, nor inhabited by Christian people." Of this religious principle, Hinsdale said: "Such was the origin of the Right of Discovery, the criterion to which the nations that divided the New World appealed in territorial controversies, and the ultimate ground of title throughout the United States."

That the United States relied on the Johnson decision to explain to the United Nations Committee on the Elimination of Racial Discrimination how the U.S. interprets the 1863 Ruby Valley treaty clearly demonstrates one thing. It demonstrates just how fundamentally important the Johnson ruling continues to be to the United States of America and to the entire structure of U.S. Indian law.

Without Johnson, the U.S. has nothing to justify its colonial hold on our nations and peoples. Even now in the 21st century, the Johnson ruling ? and the Old Testament Covenant Tradition ? serves as the legal and political framework within which the United States interprets our fundamental right of self-determination as well as all Indian treaties.

By the time the U. N. Committee on the Elimination of Racial Discrimination convenes again this summer, we ought to be prepared to challenge the Right of Christian Discovery in U.S. Indian law. We must call the United States to account before the world community for using the Johnson decision to undermine the political and legal rights of our respective nations and peoples. We need to powerfully challenge and ultimately liberate ourselves from the legacy of religious racism embodied in the Johnson ruling.