In 2012, at the UN Permanent Forum on Indigenous Issues, Kate Gumley, then Head of the Australian Delegation, delivered an intervention titled “The Doctrine of Discovery.” The first paragraph of the document demonstrates how skillfully the Australian government side-stepped the issue of domination. “The key agenda item for discussion this afternoon,” the Australian government’s statement began, “is the ‘doctrine of discovery’, an international public law concept which has received the attention of this forum because it directly addresses the question of lawful conquest during the period of colonisation [sic].” (emphasis added)
The Australian government officials who drafted the statement failed to identify the question that Indigenous Peoples’ representatives were raising by calling for a focus on the so-called “doctrine of discovery.” What the state of Australia framed as “lawful conquest” is, in actuality, nothing other than a claim by state governments to possess a right of domination in relation to our original nations and peoples.
If we had been provided the opportunity, we could have asked the Australian government: Do invaders have the right to dominate other nations on their own lands and in their own territories? On the basis of what frame of reference or standard of judgment might we answer? Are we obligated by some strange loyalty to the invaders and their descendants to answer such questions only from the viewpoint of their invasive mindset or standards of judgment?
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Unfortunately, the UN Permanent Forum on Indigenous Issues does not lend itself to specific and extended dialogue with the government representatives of any given state, such as Australia. If I had been able to enter into a dialogue with the delegates for the government of Australia about their intervention, I would have asked them, “’conquest’ in what context, and ‘legal’ in what context and from whose viewpoint?”
Take, for example, the idea of conquest as a claim of “victory” in the context of an unwarranted invasion of the lands and territories of a given Original Nation from the continent of Australia. At the time of the invasion, the Original Nation of that place was living its own way of life, in its own country, in its part of the world, minding its own business. The invaders’ purpose is to take over that country and to control or kill off the invaded nation by waging war against those who comprise it. Today’s descendants of the invaders are calling the resulting system of domination “lawful conquest.”
In actuality, the foreign invasion and its aftermath are illegitimate. The present day descendants of the invaders are attempting to frame domination as being “legal.” They do this in an effort to make the invasion and its inter-generational aftermath seem acceptable from the colonizers’ viewpoint. One tactic of the invaders and their descendants is to only judge or evaluate the political and other outcomes from their own perspective. Just as fundamentalist Christians consider theirs to be the one and only true religion, the invaders’ descendants now consider their “take” on “legality” to be the one and only true “take” on “legality.”
Legal philosopher Steven L. Winter points out that every category and every doctrine, which includes “the doctrine of discovery,” “relies on a mental picture of the forms of human association that are right or realistic” in a given situation. So far as the invaders’ descendants’ mental pictures are concerned, the Christian European invasion and resulting domination are both right and realistic based on Christianity and Bible. The invaded Original Nations are deemed to have no fundamental right to contest or challenge the resulting system of domination.
By shutting out the interpretive frameworks of Original Nations, it becomes possible for the invaders’ descendants to stand up at the United Nations, with the political identity of a state of domination, and pretend that the system of domination that emerged as a result of the genocidal invasion committed by their ancestors is “a legal conquest.” Part of the way in which the Australian government cloaks and masks this picture of invasion and its aftermath is by using euphemisms (nice sounding words and terms for terrible acts) such as “the legacy of European settlement” (i.e., invasion, domination, extermination, and dehumanization) and “work toward a reconciled future.”
Talk of “a reconciled future” is a future in which those who have been invaded and dominated for generations will have reconciled themselves to permanently living under the system of domination—in this case, the system called “the state of Australia.” The construction and manifestation of that domination system is what the Australian government now euphemistically terms “legal conquest,” thereby claiming the dominating outcome to be a valid one.
Until we make the domination system of states explicit, that system will continue to destroy entire ecosystems and create the problems we need to resolve and fix. Replicating a destructive system in the name of becoming “reconciled” to that system is not a recipe for healing or success. It merely creates what Gregory Bateson called “the double bind” (damned if we do, damned if we don’t). It is not sufficient to say what we are in favor of. We must contrast what we are in favor of with what we are against; the contrast creates a deeper insight and reveals the double bind.
In James C. Scott’s Domination and the Arts of Resistance (1990), author Barrington Moore is quoted as saying that “one main cultural task facing any oppressed group is to undermine or explode the justification of the dominant stratum [pattern].” What is the justification for the domination of our original nations and peoples? In U.S. federal Indian law, as graphically illustrated by Standing Rock and the Dakota Access Pipeline, it’s a Christian-premised Empire having a Manifest Destiny to subdue the earth and dominate all living things for profit. It’s time to reject systems of domination as being inadmissible and invalid—refusing to accept them as “legal conquest.” No DAPL! Mni Wiconi. Water is Life.
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.