Steven Newcomb: Religious doctrine guides Indian law and policy

A ship sails in a scene from The Doctrine of Discovery Unmasking: The Domination Code, a documentary co-produced by Steven Newcomb. Still image from YouTube

Steven Newcomb of the Indigenous Law Institute looks at the ways in which the Doctrine of Christian Discovery has influenced Indian law and policy:
On September 24, The New York Times reported that Pope Francis praised the United States for “devotion to freedom of liberty and religion.” Clearly, the pontiff does not know that it took until 1978 for Congress to pass the American Indian Religious Freedom Act. Such legislation was needed because of the legacy of the ancient Vatican papal bulls in U.S. law. That little known connection was made clear by Supreme Court Justice Joseph Story in his Commentaries on the Constitution of the United States (1833). Chapter One is titled, “Origin and Title to the Territories of the Colonies.” There, Story drew a direct connection between the Latin version of a 1493 papal bull and the 1823 U.S. Supreme Court ruling Johnson & Graham’s Lessee v. M’Intosh.

Paraphrasing Johnson v. M’Intosh, Story wrote: “The Papal authority, too, was brought in aid of these great designs [for Christian colonization]; and for the purpose of overthrowing heathenism, and propagating the Catholic religion, Alexander the Sixth, by a Bull issued in 1493, granted to the crown of Castile the whole of the immense territory then discovered, or to be discovered…so far as it was not possessed by any Christian prince.”

Story then connected that papal language to “the right of discovery” expressed by his friend Chief Justice John Marshall in the Johnson ruling. To this day, the Johnson decision defines the original Indian land title of our nations as mere “occupancy” in U.S. law, subject to a claim of what Story called “absolute dominion” as “a right acquired by discovery.” In other words, the U.S. Supreme Court claimed that a “pretension” of Christian discovery of non-Christian lands resulted in the colonizers giving themselves a right of domination to and over the soil. The U.S. Justice Department made this very argument to the U.S. Supreme Court in 1954, in the case Tee-Hit-Ton Indians v. United States. In its 1955 decision in Tee-Hit-Ton, the Supreme Court cited to Henry Wheaton’s Elements of International Law, “The heathen nations of the other quarters of the globe were the lawful spoil and prey of their civilized conquerors.”

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Steven Newcomb: Pope Francis and Indigenous Peoples (Indian Country Today 10/8)

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