At a hefty 560 pages, Walter Echo-Hawk’s noteworthy book In The Courts Of The Conqueror: The 10 Worst Indian Law Cases Ever Decided (Fulcrum, 2010) examines U.S. federal Indian law within the scope of ten U.S. Supreme Court rulings. Given the short space of this column, I will restrict my remarks to Mr. Echo-Hawk’s treatment of what I am fond of calling the Doctrine of Christian Discovery, and his analysis of the 1823 Supreme Court ruling Johnson v. M’Intosh.
In chapter three, Mr. Echo-Hawk refers to many U.S. legal cases that “describe Indians as ‘inferior,’ ‘ignorant,’ ‘savages,’ ‘heathens,’ or ‘uncivilized.’” Among these, he cites Johnson v. M’Intosh, which he says “approved the appropriation of title to all tribal land in the United States, because Indians are ‘heathens’ and ‘fierce savages.’”
Then, in chapter four, Echo-Hawk briefly deals with what he calls the “religious justification” argument—“that Christians have the right to take land from non-Christians.” He writes: “Since colonization brings Christianity to heathens, so the argument went, surely this benefit is payment enough for taking Indian land…This supposed right to simply take non-Christian land turned also upon the Eurocentric legal fiction that heathens lack property rights.”
Despite Mr. Echo-Hawk having just acknowledged in chapter three that Johnson v. M’Intosh contains a categorization of Indians as “heathens,” he subsequently contradicts himself in chapter four, by citing U.C.L.A. Law Professor Stuart Banner’s (author of How the Indians Lost Their Land: Law and Power on the Frontier, 2007) statement that the claim of a “right of Christians to take non-Christian lands is scarcely found” after the early seventeenth century. Following this thought, Echo-Hawk’s five page analysis of the Johnson decision in chapter four does not mention one word about the Christian/heathen language that Chief Justice John Marshall wrote into the Johnson decision in the early decades of the nineteenth century.
Echo-Hawk’s commitment to race theory is one possible explanation for him omitting the Christian religious content of the Johnson ruling. Because “religion” is a separate category from that of “race,” it seems that Echo-Hawk casts aside the Christian religious content of Johnson v. M’Intosh in favor of a race theory critique. Despite having pointed out in chapter three that Johnson used the argument “because Indians are ‘heathens,’ and ‘fierce savages’,” Echo-Hawk framed that argument in terms of “race”: “In Johnson, the Supreme Court referred to Indians as racially inferior people. Based upon the language employed by the Court for the next hundred years, that perception never changed.”
Echo-Hawk’s mention of “heathens” falls out of focus. His use of “racially inferior people” serves to draw the reader’s attention away from the fact that “heathen” is religious category. According to the Oxford English Dictionary, it is “a word of Christian origin.”
One might ask, “What difference does it make whether Johnson is said to be premised on Christianity or on racism?” Simple. The Johnson ruling cannot be based on Christianity without also being based on the Bible. There ought to be no place in federal Indian law for the idea found in Johnson v. M’Intosh on the basis of the Bible that American Indians have a mere title of “occupancy” because our ancestors were not “Christian people” when the Christian Europeans first invasively arrived and claimed to have “discovered” North America.
Unfortunately, Mr. Echo-Hawk seems oblivious to the fact that some metaphors, such as “heathen,” invoke a biblical religious paradigm, while others, such as “Eurocentric,” invoke a secular race paradigm. For example, when Echo-Hawk mentioned the “Eurocentric legal fiction that heathens lack property rights,” he was using the secular concept “Eurocentric” to characterize the biblical religious concept “heathens.”
In an article published in 1975 in the newspaper Akwesasne Notes (Vol. 7, No. 5), Vine Deloria Jr. wrote: “We still have a nebulous title to our lands which goes back to the 1500s and the basis of this title is that because Indians were not Christians, we had no capability of ever holding good land titles.” (original emphasis) Given that the religious rationale “because Indians were not Christians” has not disappeared from federal Indian law, a question needs to be addressed by authors such as Mr. Echo-Hawk: What is the source of their refusal to explicitly identify the Christian biblical rationale that to this day remains embedded in the conceptual structure of federal Indian law.
At a minimum, major books on federal Indian law published in the twenty-first century ought to explicitly pinpoint the Christian religious underpinnings of Johnson v. M’Intosh and of federal Indian law that Deloria was trying to get people to focus on thirty years ago, and throughout his illustrious career. That should not be too much to ask.
Steven Newcomb (Shawnee/Lenape) is the co-founder and co-director of the Indigenous Law Institute, author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery, and a columnist for Indian Country Today Media Network.