Steven Newcomb: Indian people still fighting for their freedom

An indicator that our nations and peoples are not free is demonstrated by the deep, albeit understandable, concern over the Supreme Court’s acceptance of the case State of Michigan v. Bay Mills Indian Community, and the issue of Indian nation sovereign immunity. The context of that particular fight, and so many other conflicts in Indian Country, is the challengeable view that the U.S. has an unquestionable right to define of our existence and seal our fate in whatever manner it chooses. This in turn is premised on the U.S.’s claim that our original independence as nations has been permanently “reduced” or “diminished” by “discovery.”

An example of this presumption is found in the 1987 Supreme Court ruling Oliphant vs. Suquamish Indian Tribe. By then it had been 20 years since Clyde Warrior’s speech. Chief Justice Rehnquist wrote the opinion for the Court. He said of Indian nations: “Their rights to complete sovereignty, as independent nations, [are] necessarily diminished.” The brackets tell us that the chief justice had replaced an older word in the original quote with the word “are.” The sentence that Rehnquist was quoting and revising is from Johnson v. M’Intosh: “Their rights to complete sovereignty, as independent nations, were necessarily diminished by the original fundamental principle that discovery gave title to those who made it.” (emphasis added)

And although Chief Justice Rehnquist premised his claim that Indian independence had been “diminished” on the above sentence from Johnson, Rehnquist did not make the “right of discovery” explicit. In Johnson, Chief Justice Marshall based the Court’s claim that Indian independence had been diminished on the “right of discovery.” Marshall said that right “was confined to countries then unknown to all Christian people,” using several English royal charters to illustrate the point.