Steven Newcomb: The origins of federal Indian law and policy

Deep in the psyche of the dominating society is an archetype of domination that results in an unnoticed “operating system” of domination in the English language that is used against our nations and peoples. One of the manifestations or expressions of that “operating system” of domination is called “U.S. federal Indian law and policy.” There are innumerable examples of domination that we can point to, such as “property,” which has been defined as “the first establishment of socially approved domination over some part of the natural world.” Another is “civilization,” “the forcing of a cultural pattern on a population to whom it is foreign.”

The language system of U.S. law generally, and of U.S. federal Indian law more narrowly, tells us that the kind of “title” which the United States accords to “Indian” nations “is not a property right.” In other words, the United States defines “aboriginal title” in a manner that makes it seem impossible for our nations to ever contradict the “title of domination” posited as rightfully belonging to the U.S. system of “civilization” (domination).

The United States has accorded an Ideal title of domination to itself in relation to our original “Indian” nations. Webster’s Unabridged Dictionary defines the noun “ideal” as “a conception of something in its highest perfection,” and, “one regarded as exemplifying an ideal and often taken as a model for imitation.” Johnson v. M’Intosh from 1823 expresses this Ideal, title for the United States, which Chief Justice Marshall called “ascendency,” “ultimate title,” ultimate dominion,” and “absolute title,” and which Associate Justice Story called “perfect title.” By contrast, Reverend Jedidiah Morse, in his 1822 Report to the Secretary of War regarding Indian nations, said Indian title and jurisdiction are “both imperfect in their kind.” They also conceived of the U.S. title as “permanent” and the Indian title “temporary.”

The title of domination is the ideal model for the United States. By contrast, the United States defines “Indian title,” “original title,” or “aboriginal title” as indicating a mere space and right of temporary “occupancy,” which is all that is conceptually remaining after the colonizing powers claim, seize, or arrogate a right of domination to themselves. Or, as Marshall put it “they asserted the ultimate dominion to be in themselves.” As a result of the United States’ successful construction of a world of domination, our nations are deemed in that world to exist in subjection to “U.S. sovereignty and independence.”