As we approach July 4th, the challenge remains of understanding how so-called separation of church and state is not reflected in the foundations of U.S. law as well as government claims of sovereignty and title to the land comprising what is today called the United States. Shawnee/Lenape scholar Steven Newcomb has been researching and analysing this contradiction since the late 1980s.
His research and critical analysis focuses on the claim of the right of domination of non-Christian peoples by intellectuals of the Christian European world, beginning in the 15th century. In May, he wrote an essay responding to the statement by the Vatican repudiating the Doctrine of Discovery:
On 30 March 2023, the Vatican Dicastery for Culture and Education, and the Dicastery for Promoting Integral Human Development, issued a “Joint Statement” on the “Doctrine of Discovery.” The Vatican stopped short of a revocation of the 4 May 1493 papal bull, issuing instead a “repudiation of the doctrine of discovery.”
On 3 May 2023, “In response to the Papul Bulls issued 530 years ago (3 and 4 May 1493)”, Newcomb published “Revoke the Papal Bulls – A View-from-the-Shore Analysis of the Vatican’s 30 March 2023 Statement on the Doctrine of Discovery”. The opening establishes the framework of this critique:
The context begins with the free existence of our Native nations and peoples, extending back to the beginning of our time through our oral histories and traditions, contrasted with the system of domination that was carried by ship across the ocean and imposed on everyone and everything.
28 February 2023 is the 200th year mark of the U.S. Supreme Court ruling Johnson v. M’Intosh, a decision written for a unanimous Court by Chief Justice John Marshall. The patterns of domination found in Vatican papal bulls were adopted into United States law beginning with this case. As Newcomb writes in the Conclusion of Revoke the Papal Bulls:
Evidence of those religious domination patterns is found in the distinction made in the Johnson ruling by Chief Justice John Marshall between “Christian people” and “natives, who were heathens,” and in his claim of United States “ultimate dominion” [domination]” over “heathen” Native nations and their lands. The U.S. Supreme Court has made the 15th century claims of a right of domination foundational to U.S. federal anti-Indian law and policy, and the claim of the “plenary power” of Congress over “Indians.” This must be changed if there is to be any rightful relationship between the descendants of the colonizers and Indigenous nations and peoples today.
In, Johnson v. M’Intosh and the Missing Cover of the Jigsaw Puzzle (13 Apr 2023), Newcomb writes, “we need to acknowledge the contrast between the free existence of our Native nations and the system of domination expressed in Vatican papal decrees and other documents that the Christian European world carried by ship across the ocean, with an intention of imposing the contents of their mental world on everyone and everything they encountered.” Concerning this intention, the point is made in endnote 4:
See generally the Vatican papal bulls from 1452 to 1493 and the Latin language version of the John Cabot Charter of 1496. The intention [to] establish domination is found in, for example, the Latin language of the papal bull of May 4, 1493, which refers to lands “discovered and to be discovered,” [at the bottom of p.77] “que sub actuali temporali aliquorum dominorum Christianorum constitute non essent” (which translates as “not under the actual temporal domination (“dominio”) of any Christian dominators” (“dominorum Christianorum” )). This leads to the inference that the goal was to establish Christian domination in any geographical locations where it did not yet exist.
The Johnson v. M’Intosh ruling is filled with language and the mind set highlighting seminal foundations of U.S. law.
On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an *573 ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency....
... discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession....
*574 In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it....
The right of discovery given by this 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, *577 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.
The same principle continued to be recognised. The charter granted to Sir Humphrey Gilbert, in 1578, authorizes him to discover and take possession of such remote, heathen, and barbarous lands, as were not actually possessed by any Christian prince or people. This charter was afterwards renewed to Sir Walter Raleigh, in nearly the same terms....
*591 However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So, too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants ...
In Pagans in the Promised Land: Decoding the Doctrine of Discovery (2008), Newcomb addresses the extravagant pretension Marshall blithely asserts above.
These observations raise a curious paradox for the United States. Before one can presume, as the Johnson ruling does, that indigenous nations ceased being free and independent as a result of Christian European mental activity (categorization), it is first necessary to explain how originally independent indigenous peoples had become subject to the mental activities of the Christian Europeans to begin with. Once we posit that the indigenous peoples were independent of the mental activity of the Christian Europeans, then Christian European mental activity could not have caused independent indigenous peoples to be subject to Christian European mental activity. So then what caused indigenous peoples to cease being rightfully free and independent? The answer is nothing did. Indigenous nations and peoples continue to this very day to be rightfully free and independent of the United States and of the mental activity of U.S. government officials. However, federal Indian law is predicated on the view that the U.S. government has a legitimate plenary authority of dominion over American Indian nations on the basis of the “extravagant pretension” that Christian people discovered heathen lands during the so-called Age of Discovery. (pp.112-13)
While the religious foundation of U.S. law by “Christian Discovery” is seldom explicitly stated or acknowledged, remaining largely hidden below conscious awareness, the Supreme Court continues to justify the U.S. domination system with such rulings as that of City of Sherrill v. Oneida Indian Nation (2005). While avoiding the word “Christian,” the first notation by Supreme Court Justice Ruth Bader Ginsburg in Footnote #1 does acknowledge the legal justification of Vatican papal bulls for the claim of sovereignty over and domination of Original Free Nations and Peoples of this continent:
Under the “doctrine of discovery,” Oneida II, 470 U. S. 226, 234 (1985), "fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign — first the discovering European nation and later the original States and the United States," Oneida I, 414 U. S. 661, 667 (1974).
Steven Newcomb ends his 3 May 2023 essay with the urgent call to heal our world by revoking the patterns of domination and their lethal impacts on all life throughout Mother Earth.
We at the [Indigenous Law Institute], in solidarity with Original Nations and Peoples, will continue to call upon the Holy See to not simply “renounce” the “doctrine” inherent in the papal bulls, but to abandon the papal bulls themselves by revoking them. We do this as part of our effort to publicize and challenge the patterns of domination globally and to challenge the patterns of domination expressed in the Johnson v. McIntosh ruling and in other legal decisions that are based on Johnson into the 21st century.