Seeing the Round Corners

March 12, 2018

ABRAHAM LINCOLN AND THE AMERICAN INDIAN –

THE DOCTRINE OF DISCOVERY

“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

Few people in America and the world for that matter realize the control religion and religious leaders have had over America and its population since discovery of America in 1492. The American Indians were looked on as heathens and as being godless, and were never consulted much less asked about their religion.

The white explorers “regardless of the country of origin, showed no respect for the American Indians, and were so presumptuous as to refer to the land of America as “unoccupied lands” when discovered even though they were occupied by Indians, but “unoccupied by Christians.”

Before we take up the idea of “From Doctrine of Discovery to Domestic Dependent Nations,” a 2012 Conference Room Paper on the Doctrine of Discovery 11th Session of the United Nations Permanent Forum on Indigenous Issues (the Paper) was released with an abstract emphasizing important points about “continuing impacts on Indigenous Peoples and Redress for Past Conquests (articles 28 and 37 of the United Nations Declaration on the rights of Indigenous Peoples)”:

An overly narrow and limited focus on the term “discovery” misses a deeper point about the domination and dehumanization of Indigenous nations and peoples, and violence against indigenous women, all of which are illustrated by the document Dum diversas issued by the Holy See in 1452.
The language of the papal bull issued by Pope Nicholas V to King Alfonso V of Portugal purported to authorize the king to “invade, capture, vanquish and subdue. . .ball Saracens and pegans, and other enemies of Christ ...to reduce their persons to perpetual slavery...and…to take away all their possessions and property.”
In such language we find all the conceptual and behavioral “seeds” of present day domination and dehumanization that are being alluded to by the phrase “continuing impacts on Indigenous Peoples.”
What has impacted and continues to impact indigenous nations and peoples is not “discovery,” but the centuries of domination and dehumanization of originally free peoples throughout the world.
The term “doctrine of discovery” alludes to the search by dominating monarchies of Western Christendom, during the so-called “Age of Discovery,” for non-Christian lands and people that had not yet been forced under a regime or condition of domination in Africa, Asia, the Americas, and Oceania.
The resulting patterns and regimes of domination has manifested past and present abusive and deadly violence against Indigenous women.

The Paper was intended to accomplish several goals, but careful reading shows the false and groundless basis for the Doctrine of Discovery in U. S. law.

To point out that an overly narrow and limited focus on the term “discovery” results in missing the deeper point about the dehumanization and domination of indigenous nations and people.
To demonstrate the domination and dehumanization have been and continue to be global in scope and have had destructive impacts on Indigenous nations and peoples for more than five centuries in every region of the world, and continues to do so.
To introduce the concept of Indigenous Intemporal Law as a counterpoint to European Intemporal Law (“the lawfulness of an action must be determined according to the law existing at that time and not according to the law when a subsequent dispute arises.”)
To critique the concept of “conquest” by recognizing that the term “past conquests” in the UNPFII subtheme is a synonym for “past dominations.”
To argue that those who today apply archaic Christian European concepts and standards to Indigenous nations and peoples ought to be called upon to identify any basis upon which originally free and independent nations and peoples may be legitimately considered subject to such concepts and standards without their permission.
Behind the phrase “Doctrine of Discovery” is an international problem of domination and dehumanization that has proved terribly destructive for Indigenous peoples throughout the globe.

Valerie Taliman stated in her series on Murdered and Missing Aboriginal Women in Canada (2010), “Domination and dehumanization are forms of violence inflicted on peoples termed “indigenous,” and are, in part the result of what might be termed “conceptual violence,” which results in behavioral violence. This is particularly evident in the dominating and dehumanizing treatment of Indigenous women, and of women generally throughout the world.

The American Indians’ claims of being sovereign nations has long been a thorn in the side of the U. S. Government. An 1831 U. S. Supreme Court case, Cherokee Nation v. Georgia, used the principle of “discovery” as its premise to establish that the Cherokee Nation (and by implication all Indian nations) “may, perhaps,” be deemed a “domestic dependent nation.” The consequence of this was the federal government’s interpretation that “treaties made with Indian nations did not recognize Indian nations as free of U. S. control.

The labeling of Indians nations as “domestic dependent nations” subject to the federal government’s absolute legislative authority, known in the law as ‘plenary power.’” Through extension by the federal government, the ancient doctrine of Christian discovery and its subjugation of “heathen” Indians came to be “a mythical doctrine that the U. S. Constitution allows for governmental authority over Indian nations and their lands.”

Here is how such a mythical doctrine – plenary power – over Indians, “a power that was never intended by the authors of the Constitution has been used in the United States:”

Circumvent the terms of solemn treaties that the U. S. entered into with Indians nations, despite the fact that all such treaties are “supreme Law of the Land, anything in the Constitution notwithstanding.”
Steal the homelands of Indians peoples living east of the Mississippi River, by removing them from their traditional ancestral homelands through the Indian Removal Act of 1835.
Use a congressional statute, known as the General Allotment Act of 1887, to divest Indian people of some 90 million acres of their lands. This act, explained John Collier (Commissioner of Indians Affairs, was an indirect method, peacefully under the forms of law, of taking away the land that we were determined to take away but did not want to take it openly by breaking the treaties.
Steal the sacred Black Hills from the Great Sioux nation in violation of the 1868 Treaty of Fort Laramie which recognized the Sioux Nation’s exclusive and absolute possession of their lands.
Pay the Secretary of the Interior $26 million for 24 million acres of Western Shoshone lands, because the Western Shoshone people have steadfastly refused to sell the land and refused to accept the money. Although the Western Shoshone Nation’s sovereignty and territorial boundaries were clearly recognized by the federal government in the 1863 Ruby Valley Treaty, the government now claims that paying itself on behalf of the Western Shoshone has extinguished the Western Shoshone’s title to their lands. (FYI: Modern day theory of eminent domain is also based on this principle. When government agencies condemn private property and the property owner refuses to accept the “appraised value,” the government deposits the money with the court and the property no longer belongs to the private owner. The practice is especially rampant when highways are built.)

The Johnson v. McIntosh and Cherokee Nation v. Georgia cases are just but two cases as examples of how the U. S. Government has disregarded the underlying, hidden rationale of “Christian discovery,” rationale to further the “heathen” indigenous peoples of the Americas are “subordinate to the first Christian discoverer,’ or its successor.

Thomas Jefferson once wrote, “When the state uses church doctrine as a coercive tool, the result is “hypocrisy and meanness.

James Madison wrote, “Religion is not in the purview of human government. Religion is essentially distinct from civil government, and exempt from the cognizance; a connection between them is injurious to both.”

Steve Newcomb closed his paper on the Doctrine of Discovery with this statement: “Unfortunately, the United States Supreme Court’s use of the ancient Christian Doctrine of Discovery to circumvent the Constitution as a means of taking Indian lands and placing Indian nations under U. S. Control, has proven Madison and Jefferson right.

Newcomb also wrote that by bringing the American people, especially the Christian right together, will say a lot to the world community about just how seriously the United States takes its own foundational principles of liberty, justice and religious freedom.

Newcomb suggested that the Doctrine of Discovery should have long ago been declared unconstitutional because it is based on a prejudicial treatment of Native American/American Indian people simple because they were not Christians at the time of European arrival.

Newcomb’s opinion: “By penalizing Native people on the basis of their non-Christian religious beliefs and ceremonial practices, stripping them of most of their land and most of their sovereignty, the Johnson v. McIntosh ruling stands as a monumental violation of the “natural rights” of humankind, as well as the most fundamental human rights of indigenous peoples.”

This series on Lincoln and the American Indian has been long, but hopefully, the reader will will read and re-read it to see what history has wreaked on the American Indian and be willing to help when the powers that be begin the movement of getting the Johnson v. McIntosh declared unconstitutional so that American Indian can finally “begin to create a lifestyle based on the first indigenous principle: Respect the Earth and have a Sacred Regard for All Living Things.”

These questions come to mind:

How can this country leave in place a principle established by a European Pope in the 1400’s, and allow it to be the controlling factor for American Indian law all these centuries?

How can this country allow a principle that says American Indians did not exist in the 1400’s merely because it was assumed they were not Christians?

The reader's comments or questions are always welcome. E-mail me at doris@dorisbeaver.com.