The concept of civil society is traced to the ancient Roman Empire. Today we find this concept in the phrase “civil disobedience.” That phrase communicates the idea that there are people willing to “disobey” the imposed “civis” or “civil order” of the American society, which was founded as the American Empire. Saying there are Native people willing to “disobey” communicates the problematic idea that the so-called civil order of “America” is valid and deserves to be obeyed by Native Nations that empire has and continues to colonize.
The militarized police, with their rubber bullets and mace, are at the Dakota Access Pipeline project in the territory of the Oceti Sakowin (“Seven Council Fires of the Great Sioux Nation”) to facilitate the further corporatization of Oceti Sakowin Nation lands. The police and U.S. National Guard are there to reinforce the imperial order of America. Their role is to reinforce by violence, and by the threat of violence, the habit of obedience, both mental and physical, to the American Empire’s state of domination in relation to our Original Nations.
The very idea that our Native Nations continue to exist in the full political sense of Nationhood, with a right to live within the protection of its own national territorial integrity, free from American domination, defies the logic of the American Empire with its gluttonous appetite for both soil and oil.
We must never forget that our Nations predate “America.” As far as I’m concerned, we as Native Peoples are pre–Americans. Our Nations are the original pre–American Nations. We predate the American Empire’s predation as a predator state. Our Nations predate all the various states that form the political system of the United States.
As far as the American Empire is concerned civil obedience to its ideas and arguments of dominance must be continuously reinforced.
Those ideas and arguments have been created for the economic benefit of the American Empire, at the expense of our Nations, and it seems that many of us have unfortunately bought into the idea that the ideas and arguments of the American Empire are “the law” instead of merely ideas the United States regards as “their law.”
We are able to think back to a time, not so long ago, when we were living free and independent of foreign domination as the Original Nations of the continent. Here’s a powerful point that most people have never considered: Because of the original free existence of our Nations in these lands, the ideas and arguments of the first colonizers of Christendom were void in our territories from the moment they were initiated.
The Latin phrase that explains this, void ab initio nemo dare potest quod non habit, as Larry Green from Grand River Six Nations so kindly informed me recently, means “void when initiated, you can’t give what you don’t possess.” The popes in Rome and the monarchs of Christendom did not possess a right of domination in our nations’ territories to grant. There was no such thing as a valid exercise by Christendom of a right of domination over our Nations and our lands. Every one of the so-called “ceremonies of possession” in the territories of our nations were void when they were conducted.
Unfortunately, we as pre-America inhabitants have been placed under something of a hypnotic spell. We have been conditioned to internalize and accept without question certain nonsensical assumptions and ideas brought from Western Europe to our part of the Earth. For this reason we seem to have missed a key point: The Vatican papal bulls and monarchical royal charters purporting to grant dominion over us and our lands were void as soon as they were made, and the colonizers who made landfall in the territory of any of our Original Nations gained nothing by those bulls and charters. We need to be saying this at every opportunity.
Those monarchs and the papacy had no valid authority outside of their own territories. As soon as their supposed authorization (by papal bull or royal charter) reached our shores, that authorization was a nullity. Why? Because the monarch’s representatives were outside the monarch’s own territoriality and outside the monarch’s own jurisdiction and territory and outside the jurisdiction and “territory” of the Roman Catholic Church. No monarch of Christendom had any rightful authority in a non-Christian Nation or a non-Christian territory.
As Pre-America Nations, we have been lacking powerful counter-arguments based on an accurate understanding of law and history. We need to develop counter-arguments that make clear the false nature of the colonizers’ narratives. Lies built on top of lies are still lies no matter how sensible they have been made to appear through a false label of “the law.” Chief Justice John Marshall admitted to the lie at the root of federal Indian law in the Johnson v. M’Intosh ruling when he wrote of the “…extravagant the pretension of converting the discovery of an inhabited country into conquest [domination].” Adam Smith admitted to the falsehoods built into the colonizers’ narratives when he pointed out that colonizing countries that arrived at the “Americas” had merely declared a “fictitious title” to the lands of the Original Nations in the places being colonized.
Joseph Story asked, “How did the British colonies acquire title to the soil of the continent? His answer was “discovery.” However, the correct answer from the viewpoint of the pre-America Nations, and based on the principle of void ab initio is this: “The crown and the colonies never did acquire a valid title to the soil of the continent.” They pretended to have acquired a valid title to the soil of the continent by means of the fictitious claim of having “discovered” lands that belonged to our Original Nations.
We’ve been going about this all wrong. We have been acting as if the colonizers’ ideas and arguments are valid. To the extent we have accepted their “federal Indian law” lies as valid, we have been living a self-subordinating delusion. It’s a self-imposed bad dream from which, fortunately, we have now begun to awaken. The ideas and arguments of the colonizers, based on the Bible, Christianity and Christendom, were never valid; and those ideas and arguments are therefore not valid today: void ab initio nemo dare potest quod non habit.
We need attorneys who are willing to make these argument on behalf of the water protectors arrested at the Dakota Access Pipeline colonization site. We need to be calling into question the taken for granted false assumptions upon which U.S. federal Indian law was founded.
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.