I completed a research paper on the issues of modern Native American Country and how those issues came to be. I’ve edited it to be more palatable, and the following article is the result.
The modern-day American Indian tribe is commonly alienated and misunderstood by American-culture at-large. Other than issues raised by sports teams’s mascots, few Indian issues are discussed or mentioned. The larger problems of economic dependence, high unemployment, and poverty are ignored. No prominent figureheads for the Indians exist in national media, so awareness of these issues is often low. While troubling, this situation is neither surprising nor contemporary. America’s approach to dealing with Indian tribes has been one of ignorance and disrespect, not of understanding and civility. Part of this is because of a lack of education with respect to Indian history and culture. Most Americans might still believe that poverty is simply “how Indians are supposed to live,” and that Indians have always been a communal culture that reject private property. These ideas have not been rejected in mainstream thinking, and continue to see credence. The root of these Indian issues is not modern or contemporary, but established within colonial-period law – laws that, if they were to be properly examined in present-day, would be condemned as racist, religiously discriminant, and autocratic. These laws were strongly influenced by anachronistic Christian thinking, such as 15th century papal bulls. Prior to their entrance into formal law, the same Christian thinking was employed by early American colonists.
Before investigating the Christian justifications of European colonists, it would be helpful to consider the Indian perception of land rights and private property. One of the major misconceptions of our contemporary popular beliefs on Indian culture is that they have a different understanding of property rights than Westerners. We see this being used as an excuse as to how Indians allowed themselves to be taken advantage of during the colonial period. The thinking goes that if Indians properly recognized how colonial Americans saw property rights, then they would have been able to defend their tribes and their land better, make smarter deals and business decisions with the colonials, and perhaps even profit from the new trade. Not only is this line of thinking naïve, it represents an ignorance towards the historical culture of Indians pre-European contact. Indians in fact understood perfectly well the idea of private property, and “all Indian assets except for land were privately owned, and truly communal property was scant among Indians”. Even land, however, was considered tribal property, not to be shared between separate tribes.
One way this evidence of understanding manifests is in tribal treatment of agricultural products. Almost all Indian tribes were primarily agricultural prior to European contact, and so had extensive legal systems that dealt with the product of agriculture. These systems included property rights that protected any productions and assets that individuals and families might create, even on the tribal “communal” land. Wealthy and large Indian families had rights to farm more land than smaller, poorer families. Farming rights were even passed down after generations. Again, these private usufructuary rights were held by private parties, despite the “communal” ownership of the land itself.
Not only were property rights respected within Indian tribes, but so were the ideas of entrepreneurship and personal wealth. Wealthy Indian families took pride in being able to throw lavish feasts, called “potlatches,” that helped their family gain fame and social standing. In light of this, the Western misunderstanding of Indian property rights becomes more and more confusing. Miller suggests that this was a “purposeful strategy in which Euro-Americans chose to ignore Indian property rights and economic abilities because they wanted to justify taking those rights and assets for themselves”. This does seem far more likely, because even if ownership of land was truly “communal,” with no idea of private property outside of a tribe’s ownership, the actions taken by colonialists are not justified. The actions simply change from conquest over an Indian person to a conquest over an Indian tribe. As such, the Western understanding of Indian property rights is clearly flawed. There is still a gap in the thinking, one that must be filled with a proper justification for taking tribal lands.
At first, justifications by American colonists were weak and unsatisfying. One popular method of reasoning was that since Genesis 1:28 commands Christians to “be fruitful, and multiply, and replenish the earth, and subdue it,” colonials had a God-given right to the land. Indians were seen as savages, capable of neither replenishing the earth nor subduing it. The colonists, of course, overlooked the fact that Indians had already subdued the land, by engaging in extensive agriculture to produce the majority of their diet. Facts such as these did not cross the mind of the new Americans, who were desperately searching for whatever justifications they could muster. Christianity provided a safe backdrop, against which all arguments became moot; who could dissent with God? This attitude became dominant. Indeed, when Indians fought back against the intruding and presumptuous colonials, some were indignant that the Indians would dare fight to “dispossess us of the land, which the Lord our God hath given to us”. But the rough sketch of this argument still bothered some, and there was no real legal basis or precedent for the domination of the Indians.
Finally, the justification was completed in the 1823 Supreme Court case of Johnson v. M’Intosh. In this case, Chief Justice Marshall wrote in his opinion for the unanimous court that America had power of dominion over the lands of Native Americans, and that, by being discovered, Indians had lost their rights to complete sovereignty as independent nations. This power of dominion was acquired from Great Britain when the United States declared their independence in 1776. Of course, Marshall tried to frame the argument’s language in a way that ignored its inherent religious bias, but by tracing the legal precedent used by Marshall to its roots, the nature of the argument is exposed. In his argument, Marshall cited the English charter of John Cabot the explorer. That charter authorized Cabot take possession of any lands “notwithstanding the occupancy of the natives, who were heathens,” but also to “admit the prior title of any Christian people who may have made a previous discovery.” That English charter, in turn, was justified by the archaic “Christian Law of Nations,” which asserted that Christian nations have an inherent divine right to claim absolute title and ultimate authority over newly discovered non-Christian inhabitants and their lands (although, the discoverer must concede to the prior title of any Christians who discovered the land first). This argument still seems flawed, and without basis, until the very root is reached: the 1452 papal bull by Pope Nicholas V that declared war against “all non-Christians throughout the world, and specifically sanctioning and promoting the conquest, colonization, and exploitation of non-Christian nations and their territories”. A decree as powerful and expansive as this bull could be used to justify thousands of atrocities, and this is what happened. Among other things, this papal privilege was expressly used by Portugal to traffic in African slaves, and later by Spain’s Christopher Columbus in his travels to the American Caribbean.
So, in following the relevant precedents of the 1823 court decision, the religious bias becomes incredibly conspicuous. The Doctrine of Discovery, as this argument is now known, became part of United States law. Simply put, it implies that it is legally permissible to ignore any rights of indigenous heathens, as long as one acknowledges prior title claims by Christians. Church and State were kept strictly separate in almost every aspect of American law, but the Christian Doctrine of discovery was made the cornerstone of America’s policy towards Indians.
There was now legal precedent for any discriminatory and violent actions towards Indians. Americans concerned with the legality of their actions could simply cite the Supreme Court decision itself and ignore the contradictory nature of the Christian-based argument. The Marshall court decision also laid the groundwork for future decisions against Indian interests, like in the 1831 case Cherokee Nation v. Georgia. The court decided that the Cherokee nation (and by implication, all Indian nations) was not fully sovereign, but rather a “domestic dependent nation”. In the same decision, the Court compared the relationship between the federal government and Indian Country to that of a “guardian” and his “ward”.
The Christian Doctrine of Discovery had been extended and codified into America’s policy towards Indians, and the U.S. had complete plenary power over Indian nations and tribes. This policy was used to make legal the federal governments multiple reneges on treaties entered with Indian nations. If an Indian nation is not a legitimate entity, and is domestically dependent upon the United States government, then the U.S. actually made treaties with itself, and thus has the power to negotiate with itself to change the terms of those treaties. One of the worst outcomes of the Cherokee Nation v. Georgia decision was the Indian Removal Act of 1835. Just four years after declaring all tribes to be dependent nations, the federal government forced all Indians east of the Mississippi to move west. Similarly, the General Allotment Act of 1887 divested Indians of 90 million acres of tribal land, in a blatant land-grab that used the Johnson v. M’Intosh decision to justify itself. No Christian-specific rules or doctrines had to be cited for these actions to be justified – the precedent was directly established by the Supreme Court decisions.
Given the history of American relations with Indian Country, it is almost understandable how mistaken beliefs can still be held. The entirety of American Indian policy is almost built on treating Indians as inferior, initially by virtue of their heretical nature, and then, after taking away any land and assets that would allow them to be economically independent, by virtue of the dependence upon the federal government. At first glance, it can be hard to look at Indian Country and see any possibility of independent success, but that is a direct consequence of the absolutely horrible situation American policies have placed them. When Euro-American colonists and the modern American public wonder why the peoples they have dominated, conquered, and lorded over have fallen into poverty, it becomes an exercise in cognitive dissonance. This poverty then becomes a further justification for America as a guardian over Indian Country, saying that Indian tribes are fundamentally dependent upon the federal government. Indians have not always lived in poverty, and poverty is not the “Indian way of life,” as shown by the economically stable activities of agriculture and hunting carried out by tribes prior to colonial contact. Perhaps with non-discriminatory federal policies and less bureaucratic oversight, Indian tribes will be able to raise themselves out of poverty. This can only happen, though, if the current legal precedents with respect to Indian affairs are completely thrown out the window, and problems are judged with a fresh and contemporary legal eye.
Works Cited
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Henson, Eric C. The State of the Native Nations: Conditions under U.S. Policies of Self-determination: The Harvard Project on American Indian Economic Development. New York: Oxford UP, 2008. Print.
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Kades, Eric. “History and Interpretation of the Great Case of Johnson v. M’Intosh.” Law and History Review 19.1 (2001): 67. William & Mary Law School Scholarship Repository. Web. 6 May 2014.
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Miller, Robert J. Reservation “capitalism”: Economic Development in Indian Country. Robert J. Miller. Lincoln, NE: U of Nebraska, 2013. Print.
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Newcomb, Steve. “Five Hundred Years of Injustice:.” Five Hundred Years of Injustice. Indigenous Law Institute, n.d. Web. 07 May 2014. http://ili.nativeweb.org/sdrm_art.html.
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