In a recent ICTMN column “Dangerous Dissent in Michigan v. Bay Mills Indian Community” (June 14, 2014), I condemned the dissent written by Justice Clarence Thomas in the recently decided Bay Mills case. (He was joined by Justices Alito, Ginsberg, and Scalia). I also said that the majority decision in that case works in favor of the Bay Mills Indian Community.
I would have been more precise to have written that a five justice majority decided the Bay Mills case in a way that, to some extent, works in favor of the Bay Mills Indian Community. That result sounds good on the surface. In fact, in a recent interview, Odawa law professor Matthew Fletcher said that the Bay Mills decision ought to be considered perhaps Indian Country’s biggest win in some twenty-five years.
Fletcher’s statement is ironic, though, given the extent to which the majority decision in Bay Mills works to the detriment of Indian nations. In fact, the majority opinion explicitly affirms the “subjection” of “Indian tribes” to the “plenary power” or “plenary control” of the United States.
My previous column decried the fact that the dissenting justices in Bay Mills tacitly acknowledged the conceptual system of domination that has been, and continues to be, used by the United States against our nations and peoples. The evidence I cited is the following sentence from the Thomas dissent: “Despite the Indian Tribes’ subjection to the authority and protection of the United States Government, this court has deemed them ‘domestic dependent nations’ that retain limited attributes of their historic sovereignty.” (emphasis added)
Since the majority decision in Bay Mills is being characterized by some as a big win for Indian country, one might assume that the majority opinion did not use the same racist, conceptual system of domination as the dissent does. Yet, as a matter of fact, the majority and the dissent both used the word “subjection” to characterize the relationship of the United States with Indian nations.
As the majority statement in section II of its ruling: “‘Indian tribes are ‘domestic dependent nations’” that exercise ‘inherent sovereign authority.’” However, the majority then said: “As dependents, the tribes are subject to plenary control by Congress.” Then, in their concluding paragraph, the majority repeats this thinking: “As ‘domestic dependent nations,’ Indian tribes exercise sovereignty subject to the will of the Federal Government.” (emphasis added).
The issue before the Court in the Bay Mills case was whether the state of Michigan could sue the Bay Mills Indian Community in operating an off-reservation casino, or whether Bay Mills possessed “sovereign immunity” from Michigan’s lawsuit. The majority wrote that Indian “tribes” do have “inherent sovereignty,” and further says that “sovereignty implies immunity from lawsuits.” However, the majority continues by explaining its intended meaning of the phrase “subject to the will of Congress”: “Subjection means (among much else) that Congress can abrogate that [tribal sovereign] immunity as and to the extent it wishes.” (emphasis added)
In other words, the majority characterized our originally free and independent nations as “domestic dependent nations” that are deemed “subject to the will of the Federal Government.” How coincidental, then, that both the majority Kagan opinion and the Thomas dissent use the word “subjection,” and thereby acknowledge the conceptual system of domination being used against our originally free and independent nations and peoples. Domination is the correlative of subjection, and vice versa.
The final paragraph of Justice Kagan’s opinion, reads: “As ‘domestic dependent nations,’ Indian tribes exercise sovereignty subject to the will of the Federal Government. Cherokee Nation, 5 Pet., at 17.” At page 17 of the Cherokee Nation decision, which Justice Kagan cited, we find tacit reference to the Doctrine of Christian Discovery: “They [the Indian nations] may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases.” (emphasis added) Once again, as is the case with Professor Fletcher, we find indigenous legal scholars accepting the over-reaching and self-serving manipulations of the U.S. Supremen Court, utilizing the entire body of its self-created federal Indian law to reinforce U.S. colonialism in our homelands.
Johnson v. M’Intosh, decided just eight years prior to Cherokee Nation, presumed that “the right of discovery” was a basis upon which the United States asserted a title to all Indian lands of the continent. To illustrate the “principle” of discovery, which the Court said had “diminished” the complete sovereignty and independence of Indian nations, Marshall provided the following explanation based on the royal charter issued in 1496 to John Cabot and his sons:
In this first effort by the English government to acquire territory on this continent we perceive a complete recognition of the principle [of discovery] which has been mentioned. The right of discovery given by this [Cabot] commission is confined to countries ‘then unknown to all Christian people,’ and of these countries Cabot was empowered to take possession in the name of the King of England. Thus asserting a right to take possession notwithstanding the occupancy of the natives, who were heathens, and at the same time admitting the prior title of any Christian people who may have made a previous discovery.
Based on the “discovery” of “heathen” lands by “Christian people”—as illustrated by the John Cabot charter and by many other royal charters—Chief Justice Marshall said in Johnson that Indian “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].”
Fast-forward to 2014, when the majority (supposedly “good”) decision in Bay Mills calling our nations “domestic dependent” is based on the Johnson Court’s racist presumption of a “diminishment” of our original independence based on “an original, fundamental principle of discovery” of “heathen” lands, by “Christian people.” Christian “discovery,” and what Chief Justice Marshall called “the pretension of converting the discovery of an inhabited country into conquest,” provided the basis for the Supreme Court saying of Indian nations in Cherokee Nation v. Georgia in 1831: “They may, more correctly, perhaps, be denominated domestic dependent nations.”
Now one hundred and eighty three years later, we find a majority of the Supreme Court in Bay Mills continuing to use Marshall’s “domestic dependent nation” language based on ‘Christian discovery’ and the Supreme Court’s “extravagant pretension” of conquest against our nations. Those conceptual elements form a central premise of the Bay Mills ruling, namely the idea of Indian nations existing in “subjection” to, or “subject to the will of the Federal Government.” Those ideas also form the basis for the dissent’s characterization of our “subjection to the United States Government.”
The following quotation from the preamble of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) aptly describes the domination system used against our Nations and Peoples by the United States, premised on Johnson v. M’Intosh and a so-called “discovery” of the lands of “heathens” by “Christian people” and a “pretension” of conquest: The UNDRIP reads: “Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust.” All of U.S. federal Indian law, root to branch, from Johnson to Bay Mills is a violation of this provision of the UNDRIP. And, yet, the U.S. government now has the arrogance to advance its federal Indian law and policy system of domination and subjection, through the UNDRIP at the United Nations, as a “model” for the world.
Steven Newcomb (Shawnee, Lenape) is the co-founder and co-director of the Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery. He has been researching and writing about U.S. federal Indian law and policy and international law since the early 1980s.