One seldom has an opportunity to converse with one of the brethren of the U.S. Supreme Court, as I did on August 31, 2006. Associate Justice Antonin Scalia was a guest of the University of San Diego School of Law, and on that day I attended a talk he gave at the law school on the topic of “Constitutional Originalism.”
At the outset, Scalia mentioned Justice Joseph Story’s Commentaries on the Constitution of the United States, chapter one of which is entitled the “Origin of Title to Territory of the Colonies” and is devoted exclusively to a discussion of the doctrine of discovery.
At a reception, I had an opportunity to talk with Justice Scalia. After saying hello and telling him my name, I asked: “I wonder if you might have ever read my law review article ‘The Evidence of Christian Nationalism in Federal Indian Law.’”
“No, what’s it about?” he responded.
I told him my article is about the U.S. Supreme Court ruling Johnson v. M’Intosh from 1823, a decision in which the Court said that the first “Christian people” to “discover” lands inhabited by “natives, who were heathens” have the right to assume the “ultimate dominion” over and title to the lands of the so-called “heathens.”
Given that Johnson v. M’Intosh was decided on the basis of the doctrine of discovery rather than the U.S. Constitution, I asked him how his guiding legal philosophy of “Constitutional Originalism” would relate to the Johnson decision. I asked him if the Court might ever consider overturning the decision.
Scalia said it was impossible to imagine an issuing ever coming up that would require the Court to address such a ruling; he also claimed in the same breath, however, that he had never heard of Johnson v. McIntosh. “I’ve never heard of it. I’ve never read it,” he said. He also said he’d never heard of the doctrine of discovery.
“Really?” I asked. “How could that be? The Court cited the doctrine of discovery just last Spring  in City of Sherrill v. Oneida Indian Nation of New York, and the Court cited the doctrine of discovery in footnote number 1.”
Rather than respond to my question and comment, he shifted the focus of the conversation by saying that the United States has dealt with the issue of “natives” in a quite different way than, for example, Australia or New Zealand. He summed up by saying that U.S. courts have come up with a principle for dealing with American Indians, which he expressed as, “quote unquote, a right of conquest.”
“Oh, that’s quite interesting,” I said, “can you point me to any court rulings that have actually said that? His only response was, “No, I can’t.”
“Well,” I asked, “suppose that it is true that the Johnson v. M’Intosh ruling declared that the discovery by ‘Christian people,’ of lands in inhabited by what Chief Justice Marshall referred to as ‘natives, who heathens’—and that’s a direct quote—how can such a decision be justified as the supreme law of the land in the United States, given the presumption of a separation of church and state, and given that the Christian religion is not to be preferred in U.S. law over other religions.”
To this, Justice Scalia replied without hesitation: “Then I’d say it’s no longer the law of the land if it ever was.” At this, I figured that I had taken enough of the justice’s time, told him “thank you,” shook his hand, and walked away.
I was struck by the gravity of what I had just heard and experienced. It was absolutely impossible for me to believe that, after twenty years of being seated on the U.S. Supreme Court, and dealing with a great many federal Indian law cases, Justice Scalia could have never heard of, and never read the Johnson ruling, a foundational Supreme Court decision in federal Indian law. I wondered how it could be that he had never heard of the doctrine of discovery.
What made the conversation all the more bizarre was that Justice Scalia, with a majority of the Supreme Court, cited the doctrine of discovery just sixteen months earlier, in the first footnote of City of Sherrill v. Oneida Indian Nation of New York. I wish now that I had asked him if he had ever read the other two rulings of the Marshall Trilogy, Cherokee Nation (1831) and Worcester v. Georgia (1832).
Sadly, Justice Scalia never responded to my letter apprising him of doctrine of discovery in the first Chapter of Justice Joseph Story’s Commentaries that Scalia cited during his talk, and telling him about the connection that Story made in his book between the doctrine of discovery, Johnson v. M’Intosh, and the Vatican papal bull of 1493.
Steven Newcomb (Shawnee/Lenape) is co-founder and co-director of the Indigenous Law Institute, author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008), and a columnist for Indian Country Today Media Network.