“To Trace the Origin of Federal Indian Law is a difficult Task”—Felix S. Cohen
“Law is a Product of the Human Mind”–Steven L. Winter
The concepts and ideas that make up and constitute U.S. federal Indian law originated where all ideas originate, in the human mind. Not just any humans created those ideas, however. Our indigenous ancestors did not create the ideas now called U.S. federal Indian law. The descendants of European colonizers created the ideas you’ll be reading if you pick up, for example, The Handbook of Federal Indian Law, by Felix Cohen. It is not clear to me why Felix Cohen had any difficulty grasping a key point: the origin of federal Indian law is the mind of the White Man.
The mind of the White Man created the ideas that have been used and continue to be used to oppress our nations. When the colonizers invaded our traditional territories, they had thinkers whose job it was to plan, and plot, and scheme. There have been centuries of such thinkers. These brilliant minds were trained from a very young age to think about the best practices and most effective means of overrunning our lands and territories, and of imposing on our nations and peoples limiting vocabulary and ideas that would create a dominating reality system that could be used to contain and disempower our nations. Today we are living with the outcome of that destructive legacy.
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Our ancestors did not have the benefit of knowing the mentality of the colonizers in detail. Most of our ancestors did not have the benefit of going over the written record of the colonizers, and, based on that survey, formulating arguments in English, or French, or Spanish that could be used to identify and fundamentally challenge the colonizers’ silences and most deeply hidden assumptions.
When our relatives were forced as children into the White Man’s boarding schools of domination, the controlling pedagogy was designed to “kill the Indian and save the man.” They were being taught to imitate and emulate the “God Bless America” mental patterns of the colonizers rather than challenge those patterns. “The Indian” who was slated to be killed off was the one who would have been best qualified to fundamentally challenge the agenda of the colonizing White Man. Instead, America’s imperial system of domination wanted to devour our ancestors during their childhood by forcing them through the empire’s intestinal tract (render them colon-ized) so they could be assimilated into (digested by) the Body Politic of the Empire, and end up living quietly within the Body of the Empire, held captive, so to speak, in “the belly” of the beast.
As children, our ancestors were forced into the boarding schools in an effort to strip them of everything that would hold our nations together. Our nations were to be and were taken apart at the seams. For the most part, our nations were not even spoken of as nations. Instead, our ancestors were taught to speak of our nations as “tribes” or as lower-order “tribal nations.” After generations, this self-disempowering vocabulary has become an ingrained part of the fabric of our colonized existence.
Our languages, which our ancestors had developed and evolved over millennia, were to be, so to speak, suffocated. This was to be accomplished by not allowing our childhood ancestors to “breathe a word” of their own language. Vicious and psychologically damaging punishments and ridicule were inflicted on those children who spoke their own Mother tongue, the most natural thing in the world to do. The colonizers’ warped plan was to make certain that we would never be able to speak the words, think the thoughts, or know the teachings of our ancestors. To a great extent that program succeeded; only to some extent has it failed.
Because of the legacy of the boarding schools of domination, the cliché “you need to get an education” never means you need to learn the language and traditional knowledge system of your own pre-American Nation. It has come to mean “you need to get a White Man’s education” by learning to think in the mental patterns of the colonizers’ Western European system, in keeping with the system of federal Indian domination (“law”). No one has yet explained how mastering and maintaining the dominating system of ideas used against our nations, is supposed to liberate our nations.
Today, despite all that has happened, we now have the benefit of hindsight. We have the benefit of being able to examine the historical record and the structure of the White Man’s arguments and mental processes. We have the ability to use cognitive theory, which explains the operations of the human mind, to examine the concepts and ideas that make up or constitute the U.S. federal Indian law system of domination which has been and continues to be used against our nations and peoples.
The U.S. federal Indian system of domination assumes that our nations and peoples are subject to the mind of the White Man. But if we ask, “On what basis is it assumed that our nations are subject to the mind of the White Man?, the circular answer is, “On the basis of the mind of the White Man.” So how did we get into the predicament in which we find ourselves? Simple. The mind of the White Man has been able to construct the ideas and arguments that have been used to create the impression that our Nations are rightfully subject to the mind of the White Man. If we make no effort to challenge this, then we have simply resigned ourselves to our own fate.
If we allow ourselves to become mentally conditioned to live our lives on the basis of the White Man’s conceptual system, we will continue to be mentally imprisoned by that conceptual system, which will continue to be called “the law.” Our reluctance to challenge the mental activities of the White Man has resulted in us treating the prevailing ideas of the White Man as “the law.” It’s “their law.” As our nations and peoples began to use English as our primary means of communication, at the same time that our own languages were being set aside and no longer used because of the boarding schools, we were internalizing in our own minds the very dominating assumptions that are still being used today to disempower our nations.
We need a different approach and a different kind of conversation about the federal Indian law system of domination, an approach that calls into question and challenges the most basic assumption that our nations are subject to the mind of the White Man simply because the mind of the White Man has thought so and because he has said so on the basis of the doctrine of Christian discovery and domination.
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.