Preface

The Johnson v. McIntosh decision,[1] handed down by Chief Justice John Marshall in 1823, has long been heralded as one of the first federal Indian law cases to define the nature of land title for American Indians.[2]Complex and ambiguous in content and style, and now layered with over a century and a half of judicial application, the Johnson ruling has left a legacy that most scholars and Indian law practitioners unquestioningly refer to as the beginning point of federal Indian law.[3]

This Article contends that Johnson was premised on the ancient principle of Christian dominion and a distinction between paramount rights of “Christian people” and subordinate rights of “heathens” or non-Christians.[4] The Christian/heathen distinction found in Johnson constitutes the tacit, underlying basis of “all subsequent determinations of Indian right[s].” [5] For example, the Tennessee Supreme Court explained:

We maintain, that the principle declared in the fifteenth century as the law of Christendom, that discovery gave title to assume sovereignty over, and to govern the unconverted natives of Africa, Asia, and North and South America, has been recognized as a part of the national law, for nearly four centuries, and that it is now so recognized by every Christian power, in its political department, and its judicial, unless the case of Worcester has formed an exception in these states. That, from Cape Horn to Hudson Bay, it is acted upon as the only known rule of sovereign power, by which the native Indian is coerced; for conquest is unknown in reference to him in the international sense. Our claim is based on the right to coerce obedience. 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 were unjust usurpers; and that we, succeeding to their usurped authority and void claims to possess and govern the country, should in honesty abandon it, return to Europe, and let the subdued parts again become a wilderness and hunting ground.[6]

Similarly, in Johnson the Court found Indian rights “impaired”[7] simply because the indigenous peoples of North America were not Christians at the time of European arrival.

Revealing the Christian/heathen distinction as the basis of Marshall’s reasoning in Johnson makes it possible to understand why the relationship between the United States and native peoples has been almost impossible to define.[8] Although the Court used early Christian attitudes toward heathens and infidels to build the conceptual foundation of federal Indian law, this fact has become obscured over time. Today these attitudes exist in Indian law at a level that is seldom, if ever, explicit.[9] Such attitudes remain out of sight, below the level of conscious awareness. With few exceptions, they are never brought into contemporary discussions of federal Indian law.[10]

Making the distinction between Christians and heathens explicit in federal Indian law identifies the nonconstitutional basis of the United States’ plenary power over Indian peoples.[11] Although the standard interpretation of the plenary power doctrine erroneously traces its source to the United States Constitution,[12] in reality the doctrine of plenary power is a logical extension of John Marshall’s theoretical construct of Christian dominion,[13] which is found in the subtext of the Johnson ruling.[14]

This Article brings to the forefront an issue that has not been articulated previously: should the United States continue to assert a plenary dominion over Indians and an underlying vested property right in Indian lands based on the historical fact that Indian people were not Christians at the time of European arrival? Should Indian nations and peoples be denied under United States law their rights to “complete sovereignty”[15] and an exclusive right of territory in their lands[16] on the basis of Christianity?

Introduction

Vine Deloria, a highly regarded scholar of Indian affairs, has urged scholars and federal Indian law practitioners to uncover the “historical mythologies“ that have dominated federal Indian law since the time of the Johnson decision.[17] He observed that the “mythical, doctrinally determined history which is now entrenched in federal Indian law will be replaced with a more accurate history only with exceptional difficulty and hardship.“[18] Often, however, the new metaphors and terminology that emerge over the years prevent a more accurate portrayal of history. Describing the past in terms of contemporary metaphors can occasionally erect a linguistic facade that validates antiquated principles by allowing them to go unchallenged. For example, replacing the word Christian with the metaphor European when referring to the Age of Discovery obscures the religious basis of the discovery principle. One commentator has noted that:

The principle that lands inhabited by infidels were open to acquisition by Christians, a principle which, as we have seen was for a long time held by jurists and theologians, was acted upon by the European powers in extending their dominion over the lands that were discovered in the fifteenth and sixteenth centuries.... Later on the distinction was drawn between lands already occupied by Europeans and lands not so occupied, although in effect this was the same as the earlier distinction between Christian and non-Christian lands.[19]

Thus the obscurity that has been created makes it difficult to challenge the discovery principle on religious grounds.

Many scholars today also characterize dealings between Europeans and indigenous peoples during the early colonial period as having been governed by international law principles existing at the time. Coulter and Tullberg provide a prime example of the secularization of the discovery doctrine; the authors use the word “European“ to refer to the Age of Discovery even though the relevant documents of that time used the term Christian:

The doctrine of discovery came into existence with the rapid expansion of European empires in the fifteenth century. Its basic tenet—that the European nation which first ‘discovered’ and settled lands previously unknown to Europeans thereby gained the exclusive right to acquire those lands from their occupants—became part of the early body of international law dealing with aboriginal peoples.[20]

But when the term “international law“ is employed to refer to the discoveries made by the monarchies or nations of Western Europe during the fifteenth and sixteenth centuries, what is actually being referred to is Christian international law.[21] By omitting the word Christian from our description of that period in Western legal history, the relationship between the origins of federal Indian law and Christianity is secularized and obscured.[22]

By highlighting the connection between Christianity and the law of discovery, this Article will demonstrate that the Christian subjugation of non-Christian peoples is the underlying premise of the Johnson v. McIntosh ruling.[23] Indeed, once this premise is revealed, the relationship between the United States and Indians can be characterized accurately as the relationship between a “Christian nation“ (or the legal successor of a “Christian nation“) and historically “heathen,“ non-Christian peoples. Ever since Johnson, the federal government has used the Christian religion as a rationale to maintain its dominance over Indian nations-denying them their rights to complete sovereignty and territorial integrity--on the basis of a historic distinction between Christians and non-Christians.[24] Indian nations have been denied their most basic rights to sovereignty and territorial integrity simply because, at the time of Christendom’s arrival in the Americas, they did not believe in the God of the Bible, and did not believe that Jesus Christ was the true Messiah. This basis for the denial of Indian rights in federal Indian law remains as true today as it was in 1823.

1. [↩] 21 U.S. (8 Wheat.) 543 (1823).
2. [↩] Felix S. Cohen, Original Indian Title, 32 Minn. L. Rev. 47 (1947).
3. [↩] Two earlier Supreme Court rulings, Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), and New Jersey v. Wilson, 11 U.S. (7 Cranch) 164 (1812), also concerned the issue of Indian land title, although they, like Johnson, did not involve Indians directly. In neither case did the Court clearly define Indian title or United States/Indian relations. In Fletcher, however, the Court did say that Indian title “is certainly to be respected by all courts, until it be legitimately extinguished.” 10 U.S. (6 Cranch) at 142-43. Justice Johnson dissented and stated that the Indians west of Georgia retained a limited sovereignty and therefore held the absolute proprietorship of the soil. Id. at 146.
4. [↩] Johnson, 21 U.S. (8 Wheat.) at 577. The Oxford English Dictionary defines “heathen” as a word of “Christian origin” that is “applied to persons or races whose religion is neither Christian, Jewish, nor Moslem.” Oxford English Dictionary 75 (2d ed. 1989). Thus, “heathen” is a religious concept. While these are Christian-dominating words, for ease of reading they are not placed in quotation marks throughout this Article.
5. [↩] Wilcomb E. Washburn, Red Man’s Land/White Man’s Law: A Study of the Past and Present Status of the American Indian 66 (1971); see Russell L. Barsh & James Y. Henderson, The Road: Indian Tribes and Political Liberty 49 (1980).
6. [↩] State v. Foreman, 16 Tenn. (8 Yerg.) 256, 277 (1835) (emphasis added).
   [See also: page 3 and 5ff, Preliminary study of the impact on indigenous peoples of the international legal construct known as the Doctrine of Discovery, UN Economic and Social Council, 4 Feb 2010.
7. [↩] Johnson, 21 U.S. (8 Wheat.) at 574.
8. [↩] See Sharon O’Brien, Tribes and Indians: With Whom Does the United States Maintain a Relationship?, 66 Notre Dame L. Rev. 1461-62 (1991) (noting the difficulty of defining the relationship between Indians and the federal government).
9. [↩] See Robert A. Williams, Jr., The Algebra of Federal Indian Law: The Hard Trail of Decolonizing and Americanizing the White Man’s Indian Jurisprudence, 1986 Wis. L. REV. 219; Francis Jennings, The Invasion of America: Indians, Colonialism, and the Cant of the Conquest 60 (1975) (identifying this aspect of the Johnson ruling, when he observes of Marshall that, “[T]he chiefjustice of a country espousing separation of church and state could show no official concern about Indians’ lack of Christianity as criterion of [their] legal status.” (emphasis added)); see generally Robert A. Williams, Jr., The Amiercan Indian in Western Legal Thought: the Discourses of Conquest (1990).
10. [↩] Apparently no contemporary legal scholar other than Williams, supra note 9, has focussed on the Christian/heathen/infidel distinction in federal Indian law scholarship. See Geoffrey Lester & Graham Parker, Land Rights. The Australian Aborigines Have Lost A Legal Battle, But..., 11 Alta. L. Rev. 189, 196-200 (1973) (discussing the Christian/infidel distinction in early English crown law).
11. [↩] See Comment, Federal Plenary Power in Indian Affairs After Weeks and Sioux Nation, 131 U. PA. L. REV. 235, 247-50 (1982) (discussing how the assertion of plenary power over Indians falls outside the enumerated powers of the Constitution); see also Mark Savage, Native Americans and the Constitution: The Original Understanding, 16 Am.Ind. L. Rev. 1, 57-118 (1991) (documenting the lack of a constitutional basis for federal plenary power over Indian nations); Milner S. Ball, Constitution, Court, Indian Tribes, 1987 Am. B. Found. Res. J. 1, 59 (finding that there is no valid basis in the Constitution for the federal government’s exercise of plenary power over Indians).
12. [↩] Felix S. Cohen, Handbook of Federal Indian Law 170 (1st ed. 1942) (“The effective meaning of the term ‘wardship,’ in the sense of special subjection [of Indians] to congressional power, is to be found entirely in the realm of constitutional law.” [2nd column, 4th paragraph]).
13. [↩] In this Article, I use the word “dominion” in its Latin sense “dominium,” as explained by William Brandon in New Worlds for Old.
    The Old World idea of property was well expressed by the Latin dominium: from ‘dominus’ which derived from Sanskrit ‘domanus’—‘he who subdues’. ‘Dominus’ in the Latin carried the same principal meaning, ‘one who has subdued,’ extending naturally to signify ‘master, possessor, lord, proprietor, owner’. ‘Dominium’ takes from ‘dominus’ the sense of ‘absolute ownership’ with a special legal meaning of property right of ownership (So says Lewis and Short, A Latin Dictionary (1669 ed.)). ‘Dominatio’ extends the word into ‘rule, dominium,’ and...‘with an odious secondary meaning, unrestricted power, absolute dominium, lordship, tyranny, despotism.’ Political power grownfrom property—dominium—was,in effect, domination.
    William Brandon, New Worlds For Old 121 (1986) (emphasis added).
    Thus, the concept of “dominion,” traced back to its Latin origin, provides another dimension to the Johnson decision that should be taken seriously. It has been asserted that Marshall’s reference to dominion in the ruling
    extend[ed] only to an interest in land.... [Therefore] it did not extend any legal status to the Indians as political communities. With the single exception of the right of alienability of land, the original, indeed aboriginal sovereignty of the Indian nations is unimpaired by, and not included in, the concept of discovery.
    Howard R. Berman, The Concept of Aboriginal Rights in the Early Legal History of the United States, 27 Buff. L. Rev. 637, 650 (1978). While Berman may be correct, the courts have construed “discovery” as conferring on the “discovering” nation, or its successor, both governmental authority over Indian nations and a radical fee title to their lands. See the discussion of United States v. Rogers, 45 U.S. (4 How.) 567, 570-71 (1846), infra text accompanying note 104.
14. [↩] See infra text accompanying notes 151-76.
15. [↩] Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 574 (1823).
16. [↩] See Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 285 (1955) (“Indian occupation of land without government recognition of ownership creates no rights against taking or extinction by the United States protected by the Fifth Amendment or any other principle of law.”).
17. [↩] Nell J. Newton, Introduction, 31 Ariz. L. Rev. 193, 194 (1989) (summarizing Vine Deloria, Jr., Laws Founded in Justice and Humanity: Reflections on the Content and Character of Federal Indian Law, 31 Ariz. L. Rev. 203 (1989)).
18. [↩] Deloria, supra note 17, at 223.
19. [↩] Mark F. Lindley, The Acquisition and Government of Backward Territories in International Law 24-26 (1926) (emphasis added).
20. [↩] Robert T. Coulter & Steven M. Tullberg, Indian Land Rights, in The Aggressions of Civilization 185, 190 (Sandra L. Cadwalder & Vine Deloria, Jr. eds., 1984).
21. [↩] See Theodore D. Woolsey, Introduction to the Study of International Law (New York, Charles Scribner’s Sons, 5th ed. 1879):
    [W]e define international law to be the aggregate of the rules which Christian states acknowledge as obligatory in their relations to each other, and to each other’s subjects. The rules also which they unite to impose on their subjects, respectively, for the treatment of one another, are included here, as being in the end rules of action for the states themselves. Here notice,—
    1. That as Christian states are now controllers of opinion among men, their views of law have begun to spread beyond the bounds of Christendom, as into Turkey, China, and Japan.
    2. The definition cannot justly be widened to include the law which governs Christian states in their intercourse with savage or half-civilized tribes; or even with nations on a higher level, but lying outside of their forms of civilization.
    Id. at 3-4; see also Emmerich de Vattel, The Law of Nations; or, Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns at xlix n.1 (Joseph Chitty ed., Philadelphia, T. & J.W. Johnson Co., Law Booksellers, 1859) (1758) (“In cases of doubt arising upon what is the Law of Nations, it is now an admitted rule among all European nations, that our common religion, Christianity, pointing out the principles of natural justice, should be equally appealed to and observed by all as an unfailing rule of construction.”); 1 James Lorimer, The Institutes of the Law of Nations: A Treatise of the Jural Relations of Separate Political Communities at 113 (Edinburgh, William Blackwood & Sons, 1883-84) (observing that in international law “[p]lenary political recognition has hitherto obtained only between Christian nations”).
22. [↩] See generally Peter L. Berger & Thomas Luckmann, The Social Construction of Reality [at p.106 / p.54 in PDF] 89 (1966):
    Reification is the apprehension of human phenomenon as if they were things, that is, in non-human or possibly suprahuman terms. Another way of saying this is that reification is the apprehension ofthe products of human activity as if they were something else than human products-such as facts of nature, results of cosmic laws, or manifestations of divine will. Reification implies that man is capable of forgetting his own authorship of the human world, and further, that the dialectic between man, the producer, and his products is lost to consciousness. The reified world is, by definition, a dehumanized world. It is experienced by man as a strange facticity, an opus alienum over which he has no control rather than as the opus proprium of his own productive activity.
    When we historically lose sight of the fact that the people of Christendom created the doctrine of Christian discovery, we have reified, and thus obscured, that aspect of history. Papal bulls and royal charters of the discovery era used the terms “Christendom” and “Christian,” and not the terms “Europe” and “European.” Replacing the word “Christian” with the word “European” prevents an accurate telling of history by placing a more modern and secular term in the place of the word that was actually in use in the fifteenth and sixteenth centuries. The end result is to replace the actual, religiously based, conceptual framework of Christendom with a contemporary conceptual framework more characteristic of our time.
23. [↩] 21 U.S. (8 Wheat.) 543 (1823).
24. [↩] When the Court used Christian ideology as the foundation of what would later be called “federal Indian law,” it legitimized the persecution of Indian peoples on the basis of religion, simply because their traditional religions were historically regarded as heathen, pagan, or infidel.