Peter d'Errico: Striking down the doctrine of discovery
"If the three strikes rule were applied to legal cases, a basic problem of federal Indian law would be solved: The doctrine of Christian supremacy – otherwise known as the Doctrine of Christian Discovery – would be out, and the game of American domination of indigenous nations would be over. I say this because the case of Johnson v. M’Intosh is guilty of four strikes. Here they are as I see them:

Strike one: Johnson v. M’Intosh was not a real controversy, but a collusive setup by the parties to win recognition of the real estate titles of the Illinois-Wabash Company. This was demonstrated by Lindsay G. Robertson in his 2005 book, “Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands.” Robertson studied the complete corporate records of the plaintiffs in the case and discovered they had arranged for the defendant to participate and were paying for the defendant’s lawyers. As Robertson points out, this violated the integrity of the judicial process at its core.

Strike two: Johnson v. M’Intosh incorporated religious racism into American law. The history of Christian religious racism is the subject of Steve Newcomb’s 2008 book, “Pagans in the Promised Land.” Newcomb excavates the entire chronology of “Christian Discovery,” showing its origins in Papal bulls and the Old Testament, its adoption by various Christian powers, and finally its entry into U.S. law. As Newcomb points out, the court’s adoption of Christian religious categories to decide Johnson v. M’Intosh violates the separation of church and state and subjugates indigenous peoples to the “Christian powers” and their political successors.

Strike three is the fact that the judge who wrote the decision in Johnson v. M’Intosh had a conflict of interest in the case. Chief Justice Marshall had personal and family interests in land speculation that were directly implicated by the court’s ruling. Clearly, Marshall was not impartial in his judgment in the Johnson decision. As Jean Edward Smith explains in his 1996 book, “John Marshall: Definer of a Nation.”"

Get the Story:
Peter d’Errico: Four strikes: Johnson v. M’Intosh is ou (Indian Country Today 1/11)

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