d’Errico: Sovereignty paths not taken
By
Peter d’Errico
|
| Full indigenous sovereignty exists in and around the foundation cases of federal Indian law, whether by denial or half-acceptance. |
When we look with a commitment to justice, we cannot avoid the conclusion that the Doctrine of Christian Discovery must be expunged from American law. The question is what doctrine might take its place? The short answer is indigenous sovereignty.
It is important to note the common law had long stated a sovereign may not alienate the territory of the nation. This means the actual decision in Johnson – that the Illinois Indians could not sell their lands to private individuals – could have been based on the common law “inalienability of sovereignty” rather than on the “extravagant pretension” that the Illinois Indians had no sovereignty. This would have acknowledged the Illinois Nation and the United States as legal equals.
Chief Justice Marshall, author of the Johnson opinion, subsequently supported the existence of indigenous sovereignty and questioned the idea of Christian Discovery, when he wrote the decision in Worcester v. Georgia eight years later. He referred to discovery as “absurd” and said colonizers could only acquire title “according to the common law” that a sovereign may only transfer lands to another sovereign.
So we see the principle of full indigenous sovereignty is built into two of the three founding decisions of federal Indian law: First as the path not taken, and second as a path partially taken. The path was not taken in Johnson because of a religious belief that violates the separation of church and state and demeans indigenous peoples. The path was partially taken in Worcester where it provided a tool for the federal government to block the state of Georgia.
The other foundation case, Cherokee Nation v. Georgia, shows how Marshall rationalized this approach. Having already created a peculiar and “absurd” doctrine in Johnson, Marshall said, “the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist nowhere else.” This is called pulling yourself up by your bootstraps.
The Cherokee Nation decision goes on to express “doubt” whether indigenous nations have full sovereignty and concludes they “may. … perhaps. … be. … domestic dependent nations” and “Their relation to the United States resembles that of a ward to his guardian.” This resemblance quickly became an axiom of federal Indian law, allowing the federal government to have its cake and eat it too – claiming superior title to both indigenous nations and the states.
The point to be remembered is that full indigenous sovereignty exists in and around the foundation cases of federal Indian law, whether by denial or half-acceptance. We need not look further than these cases to see the path not taken at the outset, a path supported by common law principles and by respect for indigenous nations.
| The core of federal Indian law is rooted in a legal doctrine that is not acceptable in American law, namely, religious supremacy. |
Justice Thompson’s dissent in Cherokee Nation shows the coherence and justice of the path not taken and is proof that the court was aware of the path: “Every nation that governs itself. … without any dependence on a foreign power is a sovereign state.” And a weaker state that allies with a stronger does not thereby cease to be “sovereign and independent.”
Justice McLean’s concurrence in Worcester shows the justices knew how significant their decision was. “This case involves principles of the highest importance, and may lead to consequences which shall have an enduring influence on the institutions of this country.” Indeed.
These cases, despite their built-in peculiarity and ambiguity, quickly became unquestioned by later judges. For example, in 1846, 14 years after Worcester, Justice Taney wrote in U.S. v. Rogers, “it would be useless to inquire whether the principle [of Discovery] is just or not.” This is the same Taney who said in the Dred Scott case (1857) that black people are “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far unfit that they had no rights which the white man was bound to respect.” At least he was consistent in his commitment to racist doctrines.
Later decisions elaborated the “peculiar” guardian-ward “resemblance” into a “trust doctrine” with “fiduciary powers.” This doctrine continues to be cited today without question about its basis and without pretense of actual fiduciary responsibility, as the Navajo coal case shows. The pretense and absurdity of the foundation become more glaringly obvious. The next question is, how long will Indian nations put up with it?
Peter d’Errico graduated from Yale Law School in 1968. Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968 – 1970. Taught Legal Studies at University of Massachusetts, Amherst, 1970 – 2002. Consulting attorney on indigenous issues.
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Wednesday, Nov 4 at 6:07 PM Mike Collis Chris Morris wrote ...
My Email is mikemorris@knet.ca and I would like to talk to Steven Newcombe or d'Ericco about talking to our People in what is now known as Northwestern Ontario Canada. I am hosting the Indigenous Sovereignty Forum-my own initiative and no big thing. However, I can reach many People, across Canada, as I use Wawatay Radio. Forum 3 is on Friday the 13th at 6:00-8:00 pm. CST. I need HELP - Please. Call me at (807) 535-2620. Thank You.
31602639 Inappropriate? Alert Us!Sunday, Jun 7 at 4:38 PM A Reader wrote ...
I think you're right, Pd. Maybe there are things to criticize about Worcester v. Georgia, but the court's contradicting itself when talking about "discovery" isn't one of them. I don't understand the angry eagerness of some people, like d'Errico, to throw stones at the Worcester case. It's the best supreme court decision in 200 years of federal Indian law, from tribes' point of view. If you don't like that decision, start taking your meds, because everything's all downhill from there.
23367614 Inappropriate? Alert Us!Sunday, Jun 7 at 7:14 AM Pd wrote ...
Marshall's phrase -- 'extravagant and absurd' -- is a swipe at Georgia's sea-to-sea claims. It echoes Johnson v. McIntosh, where Marshall uses 'extravagant' in regard to the sea-to-sea claims of Virginia. In Johnson, he also uses 'extravagant' to describe 'the pretension of converting the discovery of an inhabited country into conquest.' I am happy to accept the suggestion that Marshall's use of 'absurd' in Worcester is not aimed immediately at the 'discovery' pretense.
23352334 Inappropriate? Alert Us!Friday, Jun 5 at 10:29 PM Correction wrote ...
Try to understand that quote, anonymous. It shows Marshall rejecting Georgia's argument that discovery justified invading the Cherokee Nation's right of self-government and seizing Cherokee land. Marshall is explaining that discovery gave the US the right to purchase Indian land when the Indians were willing to sell, nothing more. He isn't calling discovery itself "absurd," as d'Errico claims.
23315337 Inappropriate? Alert Us!Friday, Jun 5 at 6:46 PM anonymous wrote ...
Correction for "Correction." In Worcester Marshall said "The extravagant and absurd idea, that the feeble settlements made on the sea-coast, or the companies under whom they were made acquired legitimate power by them to govern the [Indian] people, or occupy the lands from sea to sea, did not enter the mind of any man." A "Correction" is cool as long as there is a factual and actual basis for the correction.
23307452 Inappropriate? Alert Us!Wednesday, Jun 3 at 10:15 AM Gary Metallic, Migmaq Nation wrote ...
Mr Derricos story, paths Sovereignty Paths not taken,should be read by all indigenous nations seeking to revive their sovereignties and used as one of the road maps towards reasserting our sovereignties. Our Nation has long used the arguments Mr DERRICO speaks about, both in the domestic courts of the United States and Canada, but because of the refusal of these courts to apply the rule of law and instead use their judge made law, justice was denied to our people.
23150332 Inappropriate? Alert Us!Monday, Jun 1 at 8:57 PM Pd wrote ...
To Doug Sakiestewa: Greetings! Long time since we connected. Where are your Hopi Rambler ramblings? As for sovereignty concept 'gone astray,' see: http://www.umass.edu/legal/derrico/nowyouseeit.html
23044382 Inappropriate? Alert Us!Monday, Jun 1 at 3:34 PM Correction wrote ...
d'Errico is wrong when he says John Marshall in Worcester referred to the discovery doctrine as "absurd." What Marshall called "absurd" is Georgia's argument that discovery justified invading the Cherokee Nation's right of self-government and seizing Cherokee land. He further explained that all discovery gave the US was the right to purchase Indian land when the Indians were willing to sell, nothing more. Criticizing the foundational cases of Indian law is cool. Misrepresenting the cases isn't.
23027664 Inappropriate? Alert Us!Saturday, May 30 at 5:48 PM Michael Mack wrote ...
The biggest problem Indian country has yet to confront and articulate for its own ends is the fact that the U.S. legal institutions, educational institutions, religious institutions, in short every American institution - is based solely on lies. Although America claims a Judeo-Christian moral center its record demonstrates the contrary. The real America is like old tale of the "emperors' new clothes". Very few are willing to persistently tell the truth, i.e. "He isn't wearing any".
22946359 Inappropriate? Alert Us!Saturday, May 30 at 1:42 PM Toronto Tom wrote ...
see 'Lawyers and Indians': http://dissidentvoice.org/2009/01/an-identification-of-the-conflicted-relationship-between-the-indigenous-nations-and-the-legal-profession-in-north-america/
22939849 Inappropriate? Alert Us!Friday, May 29 at 10:13 PM Douglas L. Sakiestewa wrote ...
When we and you championed Indian civil rights in the 1960s against sovereign BIA, we were told Indian employees had no rights under the Civil Rights Act. Something must have been wrong as a sovereignty has that attitude today. We found all Indian res programs are poverty level programs for which I can not be entitled too as I am an assimilated Indian. Concepts of sovereignty has to be a basic misstatement or legal concept gone astray. I appreciate the comments. See my Hopi Rambler writings.
22917572 Inappropriate? Alert Us!Friday, May 29 at 7:22 PM Monacan2122 wrote ...
Mr. d’Errico, It is understood that the Justices falsely based their decision on the Discovery Doctrine when, in fact, the SOLE entity entitled to exercise this "theory", the English, NEVER invoked such. Therefore, It would be impossible for the United States to invoke that of which they had/have NEVER been entitled!
22910169 Inappropriate? Alert Us!Friday, May 29 at 12:11 PM Bizibayaash wrote ...
When was my Anishinabe Nation conquered? I must have missed it...
22885242 Inappropriate? Alert Us!Friday, May 29 at 11:56 AM Anonymous wrote ...
For What It's Worth ... merely going back to the 1940's. The United States by winning the war with Japan, i.e., negotiating its surrender, effectively conquered Japan. Yet the government of the United States in that case chose to inject a new Japanese Government. Other than the issue of treaty fraud, is there any difference between the "conquering" of the Original People of Turtle Island and the relationship between the US and Japan?
22884294 Inappropriate? Alert Us!Add a comment
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