Steven Newcomb: Federal Indian law based on invented reality

On what basis has it been assumed that our nations were automatically subject to whatever new idea that the white man came up with? An answer is found in the Johnson v. M’Intosh ruling of 1823. There, Chief Justice Marshall created a contrast between “Christian people” and our Native ancestors, whom he characterized as “heathens” and “savages.” The Christian people “asserted the ultimate dominion” (right of domination) “to be in themselves,” Marshall said for the Court. The Christians regarded our free and independent ancestors to be a people “over whom the superior genius of Europe” claimed “an ascendancy,” which is, a claimed right of controlling or governing power, domination.

To this day U.S. federal Indian law is premised on the amazing assumption that an U.S. argument became reality as soon as the U.S. society mentally created that argument, such as the idea that our Native nations no longer had a right to remain free and independent of domination because of a supposed discovery by Christians. As soon as that argument was created, suddenly, within the white man’s self-contained mental universe, that argument began to be treated as ‘a fixed reality’ by the United States. It was then repeated and maintained by each new generation of U.S. government officials. It is still being upheld and maintained by U.S. governmental officials and used against our nations.

This relates to an astute observation made by my former professor C. A. Bowers. He says we need to become cognizant of the way metaphorical ideas from the past colonize and control the present. For our Native nations, this is precisely the role that is played by anti-Indian legal precedents in U.S. federal Indian law. The entire point of legal precedent in federal Indian law is to enable the racist and religiously bigoted ideas invented by the white man in the past to continue controlling our Native nations in the present. This use of legal precedent is referred to as stare decisis, “Let the decision stand.”