Images of U.S. military Veterans braving blizzard conditions to stand in solidarity with Standing Rock in opposition to the Dakota Access Pipeline (DAPL) are powerful. One photo shows a wheelchair bound Veteran in the blizzard conditions. A photo of veterans kneeling in a building at Standing Rock and asking for forgiveness from Native peoples is also deeply poignant. Yet despite those heart-felt acts by U.S. Veterans, the institutionalized system of oppression called U.S. federal Indian law is still being used on a daily basis by the United States against our nations and peoples with no end in sight for generations to come.
The American Empire’s imperial domination of our Original Nations in the name of “progress,” “civilization,” and “Manifest Destiny,” with all its genocidal and greed-driven fury, is the historical context for the birth of U.S. federal Indian law and policy. That U.S. system of ideas and behaviors is rooted in the attempted annihilation, and, to a great extent, the successful forced dispossession, of our Nations, for the political power and economic gain of the United States. As a consequence, the U.S. system of government treats our Nations as if they exist only as inferior, lower-level, and dominated “tribal” nations, rather than as full-fledged ones. When will we learn that “tribe” and “tribal” are pejorative and depreciating terms that serve the interests of the colonizers?
The U.S. Supreme Court ruling Thomas v. Gay (1898), which is still active U.S. legal precedent, provides a powerful example of how the American Empire’s system of oppression has been used and is still being used against us. In that decision, the Supreme Court said that when a conflict exists between an act of Congress and an Indian nation’s treaty with the United States, “the act of Congress must prevail as if the [Indian] treaty were not an element to be considered.” Even though the treaty is a bi-lateral agreement between two independent nations at the time it is made (I’ll leave aside the likelihood of coercion and fraud on the part of the U.S.), the U.S. spin doctors work to distort that document to suit the U.S.’s dominating will. “God Bless America.”
The United States treats the 1851 and 1868 treaties of Fort Laramie between the U.S. and the Oceti Sakowin (Seven Council Fires of the Great Sioux Nation) as if those documents are not to be considered, unless they are viewed in the context that emerges from the bogus doctrine of Christian Discovery and Domination. The United States does not regard the boundaries set forth in those two Fort Laramie treaties to be the boundary line between two separate countries or separate nations which exist independent of one another. Why? Because the United States insists on maintaining its claimed right of domination over the Oceti Sakowin and the other Great Plains Nations based on the U.S. government’s claimed right of Christians to oppress non-Christians into submission. (See 1954 U.S. legal brief in Tee-Hit-Ton v. United States).
Those two Fort Laramie treaties are being treated by the United States as if they do not exist, even though the U.S. Constitution declares such ratified treaties to be the Supreme Law of the Land. Chief Justice John Marshall said in the Johnson v. M’Intosh ruling that when it comes to American Indians, if it is necessary for the economy of the United States, the law of the land can be changed. If it is necessary to fulfill the economic needs of the United States. In Marshall's words, “the law of the land” is a matter of pretending that the colonizers' claim to have "discovered" an already inhabited country is equivalent to “conquest” (a right of domination over) of that country.
The UN Declaration on the Rights of Indigenous Peoples says (in the fourth paragraph of its preamble) that all doctrines, laws, and policies premised on the notions of superiority—such as found in Johnson v. M’Intosh (1823) and Tee-Hit-Ton Indians v. United States (1955)—are "invalid, morally repugnant, and socially unjust." Nevertheless, the United States, “the Land of the Free,” maintains to this day its claimed right of domination in relation to our Nations is valid. We can be certain that it will steadfastly continue to do so.
Many U.S. military veterans feel bad about the unjust way in which United States has dealt with our Original Nations. This was demonstrated by thousands traveling to Standing Rock and experiencing such difficult conditions. Yet, unfortunately, their heart-felt emotions and their sense of contrition do not change to the slightest degree the system of ideas and arguments being used by the U.S. against our nations and peoples based on the Doctrine of Christian Discovery and Domination.
The powerful gesture of solidarity expressed by U.S. military veterans does not change the dominating manner in which the U.S. Supreme Court, and the lower level U.S. courts have written about and will continue to write about and decide our issues. The overall idea-system of U.S. federal Indian law itself is designed to keep its foundational concepts and arguments insulated and protected from being overturned by any fundamental reform. It’s our task to reveal those dominating patterns based on the claim of Christian “discovery” and directly challenge them.
The Environmental Impact Statement that the Army Corps has said it will conduct with regard to the Dakota Access Pipeline will be completed within the broader context of the system of domination that the United States uses against the Oceti Sakowin (Seven Council Fires of the Great Sioux Nation), against the Standing Rock Sioux Tribe, against the Cheyenne River Tribe, and other Great Plains Nations. Additionally, the U.S. Historic Preservation Act itself is premised on the Doctrine of Christian Discovery and Domination: Section 106 of that Act, is specifically designed for “ethnic groups” within the United States, rather than for our Pre-American Nations which pre-date the United States. The use of that act and the Section 106 process does nothing to address the overall unjust context of the U.S.’s system of oppression used against our Nations.
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 is a producer of the documentary movie, The Doctrine of Discovery: Unmasking the Domination Code, directed and produced by Sheldon Wolfchild (Dakota), with narration by Buffy Sainte-Marie (Cree). The movie can be ordered from 38Plus2Productions.com