Seeing the Round Corners

February 26, 2018



“Again, were we to inquire by what law or authority you set up a claim [to our land], I answer none! Your laws extend not into our country, nor ever did. You talk of the law of nature and the law of nations, and they are both against you.” – Corn Tassel (Cherokee) 1785

   Last week’s column closed by asking this question:  

In the name of all things decent and moral, how has the United States allowed the Doctrine of Discovery to maintain its “ultimate dominion” over the lands of America during the Age of Discovery, and that upon “discovery,” the Indians lost “their rights to complete sovereignty as independent nations, and only retained a right of “occupancy” in their lands?

While the religious right insists that America is a “Christian Nation” and was founded to be a Christian Nation, careful reading of the Constitution rebuts that overall theory.

As a reminder, the Constitution mentions religion only twice:

  • The First Amendment bars laws “respecting an establishment of religion or prohibiting the free exercise there of”; and
  • Article VI which prohibits “religious tests” for public office.

   The Founding Fathers were believers in religion themselves, but were very aware of what church-state partnerships and church-state unions created in Europe, and wanted to prevent such from happening in America.

“True faith did not need or want the support of government,” was the argument made against “narrow Christian language traditionally employed by nations with state churches.” Thomas Jefferson wrote the Declaration of Independence which includes generic religious language that all religious groups of the day would respond to  – “unalienable rights endowed by our Creator.”

Jefferson, James Madison and their allies were among Virginia’s established church. They as a group “helped pass the Virginia Statute for Religious Liberty, a 1786 law guaranteeing religious freedom to all.”

Justice John Paul Stevens wrote in his 1985 Wallace v. Jaffree ruling:  “When the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or not at all.”

Steve Newcomb, a Shawnee-Lenape Indian, is completing a book on his ten-year study of U. S. federal Indian law and international law dating back to the early days of Christendom, titled Pagans In The Promised Land:  Religion, Law and the American Indian.

Newcomb writes in an article for the Indigenous Law Institute that the same year the Johnson v. McIntosh decision was handed down, James Madison wrote:  “Religion is not in the purview of human government. Religion is essentially distinct from civil government, and exempt from its cognizance; a connection between them is injurious to both.”

But the U. S. Supreme Court has not always abided by the Founding Fathers’ intentions and declarations. In 1823, Chief Justice John Marshall writing for a unanimous court “quietly” adopted the Christian Doctrine of Discovery. Here are Marshall’s observations from the celebrated case of Johnson v McIntosh:

  • Christian European nations had assumed “ultimate dominion” over the lands of America during the Age of Discovery and that upon “discovery”, the Indians had lost “their rights to complete sovereignty, as independent nations, and only retained a right of occupancy” in their lands;
  • In other words, Indian nations were subject to the ultimate authority of the first nation of Christendom to claim possession of a given region of Indian lands;
  • the United States upon winning its independence in 1776 became a successor nation to the right of “discovery” and acquired the power of “dominion” from Great Britain;
  • when Marshall first defined the principle of “discovery,” he used language phrased in such a way that it drew attention away from its religious bias, stating that “discovery gave title to the government, by whose subject, or by whose authority the discovery was made against all other European governments”;
  • discussing legal precedent to support the court’s findings, Marshall specifically cited the English charter issued to the explorer John Cabot, in order to document England’s “complete recognition” of the Doctrine of Discovery;
  • paraphrasing the language of the charter, Marshall noted that Cabot “was authorized to take possession of lands, notwithstanding the occupancy of the natives, who were heathens, and at the same time, admitting the prior;” and
  • the Court affirmed that United States law was based on a fundamental rule of the “Law of Nations”  – that it was permissible to virtually ignore the most basic rights of indigenous “heathens,” and to claim that the “unoccupied lands” of America rightfully belonged to discovering Christian European nations.

   Newcomb points out, it is important to understand that, as Benjamin Munn Ziegler sets forth in the International Law of John Marshall, the term “unoccupied lands” referred to the lands in American which when discovered were “occupied by Indians” but “unoccupied by Christians.”

Newcomb further concludes:  “Most of us have been brought up to believe that the U. S. Constitution was designed to keep church and state apart. Unfortunately, with the Johnson decision, the Christian Doctrine of Discovery was not only written into U. S. law but also became the cornerstone of U. S. Indian policy over the next century.”

Seeing the Rounder Corners will be off next week, but will return on March 12 with how the Indians nations came to be deemed “domestic dependent nations.

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