Consider for a moment the existence of any Original Nation of this continent that has had a relationship with its territory for countless generations. Let’s assume that the People of that Nation have lived for thousands of years in cultural, spiritual, and economic relationship with the lands and waters of their territory. They undoubtedly have words in their language to express their love and appreciation for the lands and waters that have sustained them, and the living soil of Mother Earth which has been enriched by the bones of their ancestors.
Now switch to a different mental image. It is an image of invaders arriving from far-away lands, possessing in their own minds a presumed authority to characterize, by defining in limiting terms, the kind of relationship they think the Nation already existing there has with the waters and soil of that place.
Given the context of the invasion, the People of a given Original Nation have some choices to make. They can choose to use their own words in their own language for characterizing their relationship with the lands and waters of their territory, from their perspective. Or they can choose to adopt the ideas concocted by the invaders in the invaders’ language for characterizing the relationship the invaders claim the people of the Original Nation have with their lands and waters. Or, the People of the Original Nation might attempt to simultaneously use, in contradictory fashion, their own terms and those of the invaders.
In the 1823, in the ruling Johnson v. M’Intosh, the U.S. Supreme Court presumed the right to characterize, in limiting terms, the kind of relationship the United States government thought the Original Nations of North America ought to have relative to the lands of those Nations. The Court defined that relationship as a “right of possession,” which it chose to metaphorically call “occupancy.”
According to the Court, the first “Christian people” to locate the lands of heathens and infidels were characterized as having assumed the “ultimate dominion” (sovereign domination) over those lands based on the “right of “discovery.” It was a right which the Supreme Court said “had been confined to countries then unknown to all Christian people.” In other words, Christians claimed a “right of discovery” only in relation to lands inhabited by non-Christian nations.
The Supreme Court’s act of imposing a limiting definition of “occupancy” on the Original Nations of the continent was based upon the Court doing so pursuant to a presumed or claimed Right of Reduction. The Court presumed a right to metaphorically “reduce” the free and independent status of our Nations by defining our independence as having been “diminished,” meaning ended. An example of this presumed Right of Reduction is found in the Latin concept of dominorum Christianorum, or “Christian dominator,” in the papal bull of May 3, 1493.
The Supreme Court’s dominating imposition of such definitions on our Nations was premised on a presumed right of “Christian people” to exercise the power of deprimantur, the Latin term Pope Alexander VI invoked when he called for our Original Nations to be reduced (or subjugated). That our ancestors were not Christians and the territories of our Nations were not possessed by any Christian prince were two justifications used by the pope for authorizing Christian monarchs to exercise a right of reduction and domination against our nations and peoples in perpetuity.
To my knowledge, one argument has never been made by the leadership of Indian Country, and that argument is this: The United States government does not now have, and has never had, any legitimate right to metaphorically impose limiting concepts of “occupancy” and “domestic dependent nationhood” on our Original Nations and Peoples.
By failing to explicitly challenge the subjection (domination) of our nations to such concepts as “occupancy” and “domestic dependent nationhood,” the leadership of Indian Country has tacitly accepted the United States’ presumed Right of Reduction, and made it seem as if we as the Original Nations of this continent are willing to accept the system of domination that has been imposed on our Nations and Peoples.
Chief Justice Marshall, who wrote the Johnson v. M’Intosh ruling, characterized our ancestors as “people whose rights have been wrested from them.” On a physical level, “wrest” is defined as “violently wringing or twisting movements.” But there is another meaning that is apt here: “to divert to an unnatural or improper use.” Wrest is also defined as “to distort,” meaning, “to change from a true or normal bearing, significance, or interpretation.”
Distort also leads to, “to twist out of the true meaning.” Given these ideas, combined with Marshall’s admission in Johnson that the Court’s decision employed “an extravagant pretention of converting the discovery of an inhabited country into conquest,” one thing becomes clear: The Supreme Court fabricated a litany of lies and interpretative distortions that have been used ever since 1823 in an effort to reduce and diminish our Nations and Peoples even further.
The dissent by Justice Thomas (joined by Alito, Ginsberg, and Scalia) in Michigan v. Bay Mills Indian Community, used the phrase “the Indian tribes’ subjection to the authority and protection of the United States” to name the domination system used against our Nations and Peoples. That dissenting opinion says in no uncertain terms that the four dissenters will be looking for one of their colleagues to join them so that they use the system of “subjection” to further diminish the strength of our Nations by overturning “tribal sovereign immunity.”
Now that we have been able to identify this system of domination, the question arises: When is Indian leadership going to begin directly challenging the lies and distortions that constitute the U.S. federal Indian law and policy system?
The last thing in the world that Indian leadership ought to be doing is advocating for the United Nations to formally recognize the U.S. system of domination, reduction, and interpretative distortions called “US federal Indian law and policy,” by advocating that the United Nations recognizing our Original Nations and Peoples as “US federally recognized tribes.” Yet that is precisely what appears to be happening in the United Nations, in relation to “the outcome document” being prepared for September’s High Level Plenary Meeting of the UN General Assembly.
Strangely, the effort to integrate the existing U.S. federal Indian law and policy system into the United Nations, and thereby “normalize” it internationally, is being done in the name of “reform” by supposedly “implementing” the UN Declaration on the Rights of Indigenous Peoples.
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 (2008, Fulcrum). He has been studying US federal Indian Law and International Law since the early 1980s.