Susan Shown Harjo's June 23 article in Politico, “The R-Word Is Even Worse Than You Think,” regarding the issue of the Washington, D.C. NFL team, was excellent. Yet, I wonder why the controversy is not generally connected and related to ‘the big picture’ in Indian Country. After all, the “Redskins” and team mascots issue is definitely one symptom of a much deeper cause; it is a cause which has been manifested in all areas of the society of the United States, all the way up to the U.S. Supreme Court.
That underlying cause is, in my view, the fact that the United States, as an American empire, was founded and built on the basis of the domination and dehumanization of our Original Nations and Peoples. Ms. Harjo illustrates this with a key sentence in her article. She traces the issue “back to the days when colonies, trade companies and some states issued bounty proclamations for exterminating Native American people and providing the bloody ‘red skins’ as proof of ‘Indian kill’.” She thereby illustrates the domination and dehumanization of our originally and still rightfully free Nations and Peoples.
The presumed right to dominate and dehumanize our Nations and Peoples is buried deep in the American psyche. Racism and Judeo-Christian religious bigotry against our Nations is woven deeply into the fabric of the political and legal institutions of the United States, and thus it’s not going away anytime soon. Allow me to provide a concrete example:
In the U.S. Supreme Court ruling Michigan v. Bay Mills Indian Community, handed down May 27, 2014, both the majority and the dissent of the Court explicitly used the word “subjection,” a term for domination, to refer to the United States government’s relationship with our originally free Nations and Peoples. What has been the response from Indian Country? The Court’s use of a framework of domination for its decision apparently hasn’t caused even the slightest emotional ripple among the leadership of Indian Country.
Not one major Indian organization came out and decried the majority of Supreme Court saying that subjection means the “subjection” of our Nations and Peoples to “the will of the Federal Government.” We also have not seen any public challenge of Justice’s Thomas dissent in Bay Mills (joined by Alito, Ginsberg, and Scalia) which said: “Despite the Indian tribes’ subjection to the authority and protection of the United States, this court has deemed them ‘domestic dependent nations’ that retain limited attributes of their historic sovereignty?”
It shouldn’t be that difficult to use the attention being dedicated to the “Redskins” and team mascot issue to also place public focus on a key fact: It is the U.S. government’s Old Testament premised claim of a right of Christian discovery and domination that has led to our Nations being defined by the Supreme Court as “domestic dependent nations.”
Both the majority and the dissent of the Supreme Court in Bay Mills quoted the phrase “domestic dependent nations” from Cherokee Nation v. Georgia (1831) decision. That phrase in Cherokee Nation traces to a sentence in Johnson v. M’Intosh (1823): “They [the Indian nations] occupy a territory to which we assert a title independent of their will…” Notice it doesn’t say that our nations existed free and independent in our own territories. Rather, it says that they ‘occupied’ “a territory” to which the United States asserted “a title.” The Supreme Court said the United States had asserted “a title of discovery” based on a claimed “right of discovery.”
Chief Justice John Marshall wrote for a unanimous Court in Johnson v. M’Intosh when he explained the basis for the United States asserting a form of title to the territories of our nations. Chief Justice Marshall, for a unanimous Court, said the nations of Europe had asserted a title to lands “then unknown to all Christian people” and said they “asserted title” by “asserting the right to take possession” of such non-Christian lands.
The lands of the “natives, who were heathens,” said Marshall, were subject to an assertion, by “Christian people,” of a right of possession. By common agreement among the European nations, only “the prior title of any Christian people who may have made a previous discovery” had to be admitted.
Joseph Story was an Associate Justice on the Supreme Court when the Johnson ruling was issued. He was also one of Marshall’s closest friends. Years later, in two of the many books Story wrote, he explained the reasoning of the Johnson decision. In his A Familiar Exposition of the Constitution of the United States, Story asked: “How, then, it may be asked, did the European nations acquire the general title, which they have always asserted to the whole soil of America, even to that in the occupancy of the Indian tribes?”
He responded: “The only answer, which can be given, is their [the European nations’] own assertion that they acquired a general title thereto in virtue of their being the first discoverers thereof, or, in other words, that their title was founded on the right of discovery.” In other words, the “discovering” European nations supposedly acquired the general title they asserted, simply by asserting that they had acquired that title. Bizarre.
Story’s phrase “the right of discovery” corresponds to Chief Justice Marshall’s use of that same phrase in the Johnson v. M’Intosh decision:
The right of discovery given this [John 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.”
Importantly, contrary to what so many contemporary scholars have written, Justice Story explained that “conquest” was not the basis for the assertion of the right of discovery. A different rationale was used, which Story expressed in his Commentaries on the Constitution of the United States (1833) in this way: “As [because they were regarded as] infidels, heathens, and savages, they [the Indians] were not allowed to possess the prerogatives belonging to absolute, sovereign, and independent nations.”
Thus, “the right of discovery” refers to “Christian people” having asserted the right to take possession of the lands of “heathens” (our free and independent non-Christian ancestors). The lands of non-Christians were deemed subject to a Christian nation’s assertion or claim of a right of possession, which included a presumed right of domination by “the sovereign.” This is what the Supreme Court called “the right of discovery.” Remarkably, both the majority and the minority opinions in Michigan v. Bay Mills Indian Community, by citing Cherokee Nation v. Georgia, which traces to Johnson v. M’Intosh, used the Christian right of discovery as the domination/subjection framework for their decisions in the year 2014.
The Christian nations of Europe, and their successors, imposed on our free ancestors concepts such as “infidels, heathens, and savages.” Story reveals that this dominating imposition of terminology was part of the rationale used by the U.S. Supreme Court to define the title of our Nations as “mere occupancy.” The imposition of those dominating and dehumanizing definitions also led to our Nations being defined, in Cherokee Nation v. Georgia , and most recently in the Bay Mills case, as “domestic dependent nations” based on the supposed right of Christian discovery.
As mentioned above, in Bay Mills, the majority said that “Subjection means…” the “subjection” of our Nations and Peoples to “the will of the Federal Government.” Story traces this exact pattern to the Christian “right of discovery” when he said that our ancestors, “have been deemed to be the lawful occupants of the soil, and entitled to a temporary possession thereof, subject to the superior sovereignty of the particular European nation, which actually held the title of discovery.” (emphasis added)
The Supreme Court in Bay Mills did not acknowledge that their use of the term “subjection” in 2014 traces directly to the Christian “subjection” of “heathens, infidels, and savages” from past centuries. It is our responsibility to draw attention to that fact. There is nothing stopping us from using the high profile focus on the “Redskins” and team mascot issue to focus attention on the racist and religiously bigoted reasoning that is being used against our Nations to this day by the U.S. government. Perhaps Indian Country would be riled up if the U.S. government used a mascot to depict its domination and subjection of our Nations, especially if that mascot depicted on the right of “Christians” to discover what Western Christendom regarded as the Old Testament biblical “Promised Land” of “North America.” While the U.S. Capitol Dome—which was built by Black slave labor—may not be the U.S. government’s mascot, it certainly is an apt and ever present symbol of its system of 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 has been studying U.S. federal Indian law and international law since the 1980s.