Early one recent morning, I was at the Denver airport, waiting to catch a flight back to the Kumeyaay Nation territory, now commonly called “San Diego.” While walking toward the gate for my flight, I saw the Tattered Covers bookstore. I decided to go in and see if I could find anything interesting. After browsing for a few minutes I spotted My Own Words, a book written by U.S. Supreme Court Justice Ruth Bader Ginsburg. I paid for the book and walked to my gate.
When I began to leaf through Justice Ginsburg’s book while waiting to board my flight, it occurred to me that today is the five hundred and twenty-fourth year since Cristobal Colón first invaded the Taino island of Guanahani. How ironic, I thought, to purchase Justice Ginsberg’s book on the anniversary of Columbus’s first voyage to the Caribbean.
The same doctrine of Christian discovery and domination that Columbus had used to claim various non-Christian islands was used by Justice Ginsburg as the backdrop for her legal opinion in City of Sherrill v. Oneida Indian Nation of New York (2005). The very first footnote of her opinion of City of Sherrill is “the doctrine of discovery.” I looked to see whether Justice Ginsberg discusses the City of Sherrill ruling in her book and I found nothing.
The only section of Justice Ginsburg’s book that seems somewhat related is titled “Human Dignity and Equal Justice Under Law.” The subtitle of that section is, “Brown v. Board of Education in International Context.” It’s an address on racial equality that Justice Ginsburg delivered in South Africa, just nine months after her City of Sherrill ruling based on racist, religiously bigoted ideas and arguments traced back to the era of Columbus and the Vatican papal bulls of the fifteenth century. Justice Ginsburg fails to mention any of this in her book. She concludes that section of her book as follows:
To sum up, Brown both reflected and propelled the development of human rights protection internationally. It was decided with the horrors of the Holocaust in full view, and with the repressive regimes in the Soviet Union, Eastern Europe, and South Africa a then-current reality. It propelled an evolution yet unfinished toward respect, in law and in practice, for the human dignity, of the world’s people.
When Justice Ginsburg invoked the doctrine of discovery in her City of Sherrill ruling, she was not basing her ruling on “human dignity.” She was citing to a racist and religiously bigoted doctrine that dominates our nations and dehumanizes our peoples on the basis of the Bible and Christianity. Evidence of this form of reasoning is found in the wording and arguments contained in a legal brief that the U.S. Justice Department submitted in 1954 to the U.S. Supreme Court in the case Tee-Hit-Ton Indians v. United States. That U.S. legal brief argued that the Tee-Hit-Ton Indians should not receive monetary compensation for a taking of their timber because “the Christian nations of Europe acquired jurisdiction over the lands of heathens and infidels.”
1954 was the same year the Supreme Court handed down its decision in Brown v. Board of Education, which Justice Ginsburg says has done so much to advance “respect” and “human dignity.” Yet, importantly, not one word of her book addresses the disrespectful and dehumanizing arguments that the U.S. Justice Department put forward that very same year against our Original Native Nations on the basis of the Bible and Christianity.
Although Justice Ginsburg’s speech in South Africa was about the U.S. justice system supposedly working to end racial discrimination in the United States with its 1954 decision in Brown v. Board of Education, I do not consider our Original Nations to be part of a “racial minority.” Our nations long predate the United States of America. Our nations are pre-American. We are the pre-invasion nations. We are the pre-American nations and peoples on the Turtle Island continent.
The doctrine of Christian discovery and domination is tied to Christian imperialism and colonialism. Chief Justice John Marshall called the United States, “this our wide-spreading empire.” As a matter of fact, Justice Ginsburg sits on the Supreme Court of the “American empire,” a phrase that Chief Justice John Marshall employed in his 1820 ruling titled Loughborough v. Blake. The hidden context for the American empire is the doctrine of Christian discovery and domination which was clearly expressed judicially in 1823, in the ruling Johnson & Graham’s Lessee v. M’Intosh, on the basis of the Judeo-Christian tradition.
At the time of the 1954 U.S. legal brief in Tee-Hit-Ton v. United States, the U.S. Solicitor was Simon Sobeloff, a key member of the group of men who drafted that legal brief based on Christianity and the Bible. Sobeloff was a man of the Orthodox Jewish or Hebrew faith, a religious tradition to which Justice Ginsburg also subscribes, and the Hebrew narrative of the Chosen People Promised Land narrative is the Old Testament backdrop for the 1954 U.S. legal brief.
This connection between the Old Testament Chosen People-Promised Land narrative and the United States legal system is in part demonstrated by the fact that the U.S. Justice Department, in its 1954 legal brief in Tee-Hit-Ton Indians v. United States, cited to Genesis 1:28 and the book of Psalms from the Old Testament. The Justice Department said that it was documenting the way in which, and the basis upon which, the Massachusetts legislature had, in the 1600s, claimed jurisdiction over the lands of heathens and infidels.
A question arises: Why didn’t Sobeloff and Ginsburg on the basis of their Jewish faith, refuse to use the racist and religiously bigoted doctrine of Christian discovery and domination against our nations? Sobeloff has passed on but Justice Ginsburg has the opportunity to explain herself, and explain why, when it comes to our Original Nations, the United States operates as if there is no separation of the Judeo-Christian religion and the U.S. political and legal system with regard to heathen, infidel, and gentile nations?
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.