There are some things we have not very often thought about or reflected upon because we have lacked the vocabulary necessary to name and think about those things. Many of my columns are an effort to name and think about “the usual” in an unusual manner, and to reframe certain issues in a way not typically considered.
An example is an effort over the years to focus the reader’s attention on the original free and independent existence of our ancestors. It is my contention that our original free existence as nations and peoples has tremendous political and other types of significance.
It is commonplace in Indian country to invoke “sovereignty,” a sixteenth century term of monarchy developed by Jean Bodin to defend the French monarch’s claim of divine and therefore absolute power. However, using the political term “sovereignty” is not the same as explicitly pointing out the irrefutable fact that we were originally free and independent of any Christo-European claims of a right to non-Indian governmental domination over our nations, or dominium over our traditional territories.
When we presume that the United States has “plenary power” over our nations, our original free existence is no longer a factor because it is no longer in our focus. Our original free existence is put out of focus by the presumption that the U.S. has the ultimate right to control the existence of our nations and peoples. And, so long as we passively stay in “the U.S. has plenary power over Indian nations” conceptual frame of reference, we never get around to developing an alternative viewpoint.
The start of an alternative viewpoint and set of arguments is our original free existence, which provides us with the potential and the ability to respond to dominating claims of federal plenary power, or “overriding sovereignty” over Indian nations. (The concept of “overriding sovereignty” was expressed by the U.S. Supreme Court in the 1978 Oliphant v. Suquamish decision.)
The claim of U.S. plenary power over Indian nations is a conceptual formula of domination that is not typically recognized as such. Far too many of us have been conditioned or programmed to needlessly accept that claim. As a result of our quiet acceptance of non-Indian federal Indian law thinking, we spend almost no time developing a set of arguments to contest and challenge U.S. doctrines of dominance. The U.S. claim of plenary power over Indian nations, and other manifestations of domination, constitute “the gigantic gorilla in the room” in Indian Country that most of us spend almost no time addressing.
In my view, we have spent too little time reflecting upon the full significance of our original free existence. Here’s an argument that Indian country is not using: “As a consequence of our original free existence we shall forever possess a fundamental right to live free of U.S. domination over our nations and peoples.”
The question is, when will we begin invoking our original free existence as a means of challenging the dominating underpinnings of U.S. federal Indian law and policy? Those underpinnings are premised on the Christian “Right of Discovery,” which is a conceptual system of Christian warfare against non-Christians which was woven into federal Indian law by the U.S. Supreme Court.
The actual phrase “right of discovery” appears only once in the 1823 U.S. Supreme Court ruling Johnson v. M’Intosh. “The right of discovery,” wrote Chief Justice John Marshall for a unanimous Supreme Court, “was confined to countries then unknown to Christian people.” Such countries unknown to Christians were inhabited by nations and peoples that had never been baptized. From a Christian viewpoint, the unbaptized existence of our ancestors was of political and legal significance.
Through a Christian lens, lands inhabited by unbaptized people were by definition empty because they were empty of Christians, and of Christian claims of “sovereignty” (domination). Christians defined unbaptized peoples as politically nullus (‘non-existent’) as far as “sovereignty” was concerned, and thus were deemed disqualified from being able to resist Christian claims of ascendancy. According to nineteenth century scholars Francis Lieber and Burke Aaron Hinsdale, the term nullus was applied to “a heathen, pagan, infidel, or unbaptized person.”
For the Catholic / Christian world, baptism was the main feature or characteristic of humanity. We know this because in order to be “human” one had to have been baptized. Without it, one had no claim to be regarded as human, and the Christian nations of Europe undertaking their colonizing expeditions had no obligation to treat in a humane manner those who were not baptized. As Lieber put it, unbaptized peoples could not even appeal to Christians for “sympathy with bodily suffering.”
Today the U.S. continues to claim a dominating power over our originally free and independent nations and peoples based on the Christian Right of Discovery. Stated differently, the United States claims an overriding sovereignty over our nations and peoples on the basis of our ancestors not having been baptized.
So, then, what is our counter-argument? What words and arguments shall we use to powerfully respond to the little known contention about baptism that undergirds U.S. law and policy? Here’s the start of a response: “Nonsense.”
Steven Newcomb (Shawnee,Lenape) is co-founder and co-director of the Indigenous Law Institute, author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008), and the Indigenous and Kumeyaay Research Coordinator for the Sycuan Band of the Kumeyaay Nation.