In his recent column, “The Long Road to ‘Free and Independent’ for Indian Nations,” Steve Russell says, “My ICTMN colleagues are fond of ‘free and independent’ as a description of the once and future status of Indian nations.” The phrase that Russell did not use in his title or his comment about his ICTMN colleagues is “free and independent of domination,” which is the way I prefer to frame the issue our nations and peoples are facing.
In his column, Mr. Russell hangs his hat in on the word dependent and claims, “As long as we remain dependent in fact, discussions of sovereignty are for amusement only.” But the argument that I’m in the habit of making, that our nations are rightfully free and independent of U.S. patterns of domination, is in no way nullified by the observation that our nations, as a result of centuries of the domination we are seeking to end, have been, to a great extent, made economically dependent on the United States.
Judge Russell places himself in a peculiar role by appearing to counter the argument that our Indian nations and peoples are rightfully free and independent from U.S. patterns of domination. It makes him appear to be saying to Indian nations: “You might as well just accept U.S. patterns of domination over your lives because it has succeeded in making your nations dependent on the United States.” In other words, you are foreclosed from effectively fighting against such domination because of its deleterious effects.
Furthermore, the Supreme Court ruling Worcester v. Georgia (1832) clarifies that Indian nations being “dependent” on the United States has to do with a kind of relationship, and not a rightful political identity. In Worcester, Chief Justice Marshall, writing for a majority of the Supreme Court, called the Indian nations “the neighboring nations,” and said of them:
Not well acquainted with the exact meaning of words, nor supposing it to be material whether they were called the subjects, or the children of their father in Europe; lavish in professions of duty and affection, in return for the rich presents they received; so long as their actual independence was untouched, and their right to self government acknowledged, they were willing to profess dependence on the power which furnished supplies of which they were in absolute need, and restrained dangerous intruders from entering their country: and this was probably the sense in which the term was understood by them.
The Court said our ancestors were not particularly interested in the exact meaning of words such as “dependence” in the colonizers language, so long as our ancestors’ “actual independence was untouched.” Furthermore, the Court said that the probable understanding of the word “dependence” by our independent Indian nations was, “dependence on that power that would be able to ‘furnish supplies’ and ‘restrain dangerous intruders from their country.'” The Court in Worcester expressed additional language acknowledging the correctness and accuracy of the term “nations” with reference to our political identity:
The very term "nation," so generally applied to them, means "a people distinct from others." The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words "treaty" and "nation" are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense.
With regard to our Delaware (Lenape) Nation’s 1778 treaty with the United States, Chief Justice Marshall said in Worcester: “This treaty, in its language, and in its provisions, is formed, as near as may be, on the model of treaties between the crowned heads of Europe.” Our generation of writers and thinkers ought to be powerfully invoking the Supreme Court’s explicit acknowledgment of our political identity as originally free “nations of the earth.” But “free” from what? We are still rightfully free and independent of the metaphorically constructed and religiously premised framework of Christian Discovery and Domination.
In Cherokee Nation v. Georgia (1831), the U.S. Supreme Court used the phrase “domestic dependent nations” to characterize the relations between Indian nations and the United States. Additionally, the Court said part of the context for that phrase was the United States’ habit of asserting “a title” to Indian lands “independent of their [the Indians’] will.” The assertion of a U.S. title to Indian lands was clearly articulated by the Court’s 1823 ruling Johnson & Graham’s Lessee v. M’Intosh, which means that the phrase “domestic dependent nations” in Cherokee Nation is correctly understood within the context of the Johnson v. M’Intosh.
More than a century later, in Alcea Band of Tllamooks v. United States (1946), Justice Stanley Reed said in a dissenting opinion that Johnson v. M’Intosh had expressed the theory “that discovery by Christian nations gave them sovereignty over and title to the lands discovered.” It was on the basis of that claimed “right” of Christian sovereignty and title that Chief Justice Marshall said of the Indian nations in Johnson: “Their rights to complete sovereignty, as independent nations, were necessarily diminished, by the original fundamental principle that discovery gave title to those who made it [the discovery].” This, then, was the first claim by the Supreme Court that the political identity of Indian nations had been diminished by “the right of discovery,” which pinpoints a key to the U.S. system of domination used to this day against our nations and peoples.
A documented expression of the “right of discovery,” said the Court, was the charter that King Henry VII issued to John Cabot and his sons in 1496. What the Supreme Court termed the “right of discovery” in Johnson was premised on what James A. Williamson explained was behind the Cabot charter, namely, “the law of Christendom that all Christians were in a state of war with all non-Christians.”
All these elements, when combined together, enable us to discern the Christian religious backdrop to the Supreme Court’s statement that the United States asserts “a title” to Indian lands “independent of their [the Indians’] will.” Granted the United States has gotten away with using its metaphorically constructed system of domination to make our nations “dependent” on the United States. But to say us discussing our right to be free from that imposed domination system is “for amusement only,” so long as that dominating system continues to make our nations dependent on the United States, seems strange indeed.
That is one bizarre sense of “amusement.”
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).