Steven Newcomb

The Dakota Access Pipeline and ‘the Law of Christendom’

Approval of the colonizing Dakota Access Pipeline project by the U.S. Army Corps of Engineers and the resulting conflict with the Standing Rock Sioux Nation has a historical context. That context consists of the ideas and mental patterns of Western Christendom which the United States has used and continues to use against our nations and peoples. Those ideas and patterns of argumentation are now being tacitly used against the Standing Rock Dakota and the Oceti Sakowin (Seven Council Fires of the Teton Nation) in the pipeline controversy.

The most foundational ideas and arguments that the United States is using against our nations are traced back to the days of Western Christendom, and to the language of domination found in the papal bulls and royal charters of the fifteenth and sixteenth centuries. The United States is treating the Standing Rock Dakota and the Oceti Sakowin in a disrespectful and coercive manner based on religiously premised concepts and arguments derived from what used to be called the international law of Christendom, or “the law of Christian nations.” Those ideas from the past continue to control the present for all of our original nations.

An example of that past thinking that continues in the present is found in Jedediah Morse’s “Report On Indian Affairs,” published in 1822. A Congregational clergyman, Morse delivered his report to U.S. Secretary of War John C. Calhoun, to Congress, and to President James Monroe. In the conclusion to his Report (p. 93), Morse characterized the Indian people as “a valuable part of that large body of heathen in our world, who are shortly to become the inheritance of our Redeemer,” at which point he cited to Psalms 2:8 in the Bible, which reads: “Ask of me, and I shall give to you the heathen for thine inheritance [property], and the uttermost parts of the earth for thy possession.”

In an earlier section (p. 67), Morse discussed “The nature of the Indian Titles to their lands.” He opened that section with: “The relation which the Indians sustain to the government of the United States, is peculiar in its nature. Their independence, their rights, their title to the soil which they occupy, are all imperfect in their kind” (Morse’s emphasis).

Imperfect is defined as “not finished or complete; lacking in something.” Why, in Morse’s view, was the independence of our original nations supposedly lacking? Morse put it this way: “Yet the jurisdiction of the whole country which they [the Indians] inhabit, according to the established law of nations, pertains to the government of the United States; and the right of disposing of the soil, attaches to the power that holds the jurisdiction” (Morse’s emphasis).

What Morse called “the established law of nations” is what Henry Wheaton, in his Elements of International Law (1836), called “the international law of Christendom.” One year prior to the publication of Wheaton’s book, Judge John Catron of the Supreme Court of Tennessee expressed the following ideas about the “law of nations,” and “the law of Christendom,” ideas that are now being used by the United States to assume sovereignty and dominion (a right of domination) over the Standing Rock Sioux Nation and the territory of the Oceti Sakowin:

We maintain that the principle declared in the fifteenth century as the law of Christendom, that discovery gave title to assume sovereignty [a right of domination] over and to govern the unconverted [infidel] natives of Africa, Asia, and North and South America, has been recognized as a part of the national law [law of nations], for nearly four centuries, and it is now so recognized by every Christian power in its political department and its judicial….Our claim is based on the right to coerce obedience. (State v. Foreman, Supreme Court of Tennessee, 1835)

On the basis of the ideas found in the international law of Christendom (the law of nations), Morse claimed that Indian title of the unconverted (unbaptized) was one of “mere occupancy.”

Morse’s report was delivered to the U.S. Department of War and other sectors of the U.S. government, not long before the U.S. Supreme Court handed down its 1823 decision in Johnson v. M’Intosh. In the Johnson ruling, Chief Justice Marshall worded Indian title precisely as Morse had, as “mere occupancy.” Marshall did so for a unanimous Supreme Court based on royal charters which purport to give rights of subjugation and dominion over non-Christian lands to “Christian people,” which Marshall, on behalf of the Supreme Court, italicized for emphasis at one point and contrasted with “natives, who were heathens.” Clearly, this is biblical language, especially given the Oxford’s English Dictionary’s definition of heathen as, “a word of Christian origin.”

Morse further wrote in his report: “The complete title to their [the Indians’] lands, rests in the government of the United States” (original emphasis). Notice that Morse’s use of “complete” contrasts with what he had written about the Indian title to the soil being “imperfect,” meaning “incomplete.” The title of the nations of Christendom, which Judge Catron called “every Christian power,” was regarded as “complete” or perfect (as in “perfect dominion”), whereas the title and independence of non-Christian “heathen-infidel” nations was regarded by the Christian powers as “imperfect” and incomplete.

So far as the U.S. government, including the Army Corps of Engineers, is concerned, the “heathen-infidel” Standing Rock Sioux Tribe and the Oceti Sakowin (“Great Sioux Nation”) may not contradict what the United States wants to do with the treaty-recognized territory of the Oceti Sakowin. This is because, based on the ideas of U.S. federal Indian law traced to Christendom’s law of nations, the original title of any “heathen-infidel” Indian nation is only an “imperfect title” of “mere occupancy” in the soil to which the U.S. claims a Christian “ultimate dominion.”

Justice Joseph Story in his Commentaries on the Constitution of the United States explained the religiously premised way of thinking used against our nations: “As [because they are] infidels, heathen, and savages, they were not allowed to possess the prerogatives belonging to absolute sovereign and independent nations.” Story in his Commentaries cited to Latin language from one of the papal bulls of 1493. What the U.S. never openly admits is that the doctrine of “mere occupancy” and “imperfect independence” for Native nations is based on the ancient law of Christendom traced to the Bible and to papal bulls of the Vatican.

When the great Oglala Holy Man Black Elk recounted how he and his people fled from U.S. soldiers by traveling above the U.S.-Canada boundary where the visionary Hunkpapa leader Sitting Bull was camped, Black Elk said, “The [U.S.] soldiers could not come to kill us there.” According to Christendom’s law of nations, the U.S. military had to respect as inviolable the Christian-held territorial dominion of the British crown. No such respect has ever been accorded to our original “heathen-infidel” Native nations and our territories by the nations of Christendom, such as the United States and Canada.

In my view, Dave Archambault II, Chairman of the Standing Rock Sioux Tribe, was arrested by North Dakota State Troopers as an exercise of what Tennessee Judge and later U.S. Supreme Court Justice Catron called “the right to coerce obedience.” As Judge Catron further stated of this right of coercion in State v. Foreman: “The claim may be denounced by the moralist. We answer it is the law of the land. Without its assertion and vigorous execution, this continent never could have been inhabited by our ancestors. To abandon the principle now is to assert that they [our ancestors] were unjust usurpers…”

That supposed right to coerce obedience to the paradigm of domination is conceptually rooted in the ancient political system and thinking of Western Christendom. Dakota resistance, allied with many other nations, provides the opportunity to bring the world’s attention to the fact that that bigoted religious form of reasoning and argumentation is still being used against our Original Nations by the United States, in this case in an effort to run the Dakota Access Pipeline through the territory of the Dakota Nation, the Standing Rock Sioux Tribe, and the Oceti Sakowin or “the Great Sioux Nation” without consent.

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.

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The Dakota Access Pipeline and ‘the Law of Christendom’

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