An Unstable Foundation: The Conquest Rationale in Federal Indian Law

It may be assumed that the colonizer will resort to any subterfuge to maintain the order of his domination of the colonized.

-Frantz Fanon

Discovery of America, 12th of May, 1492. From a Stamp engraved on Copper. Project Gutenberg text 10940.

Introduction

The concept of conquest is difficult to define, as in law it refers to lands acquired in a manner other than descent or inheritance (Black’s Law Dictionary). It is commonly understood to be acquired out of force. Robert A. Williams wrote on Columbus’s’ legacy that a system based in Colonization ultimately leads to a legal system based in discrimination (Getches, et al. 1993, 29). The United States has continually been an example of this genre of system through the denial of the Indigenous right to inherent sovereignty and self-determination, ancestral territories, and identity and personhood.

The use of conquest as a rationalization for multiple holdings in United States federal Indian law began has its historical basis in the doctrine of discovery. This doctrine has been intricately woven through Federal Law case by case to the modern era, so much so that the entire system is now held under an internationally unsound basis.

The three rationalizing principles federal Indian all have their basis in the conquest of the Americas. These are the Congressional plenary power doctrine, which gives congress exclusive power over matters involving Native Americans, the Trust doctrine, the Federal government is to act as a guardian over wards, Diminished Tribal Sovereignty doctrine, holding that tribes keep aspects of sovereignty not expressly stated in a treaty (Getches, et al. 1993, 30).

Historic Rationalization for Conquest

The intention of the papal bulls of Pope Innocent IV during Crusades in late 13 century, was to define the relationship between lawful Christians and the infidels (Churchill 2003, 2). It stated that the pope could order infidels to allow the Gospel be preached to them, because all rational creatures were made to worship God (Getches, et al. 1993, 45). This notion developed into the 1436 doctrine of discovery, which said the conditions for a Christian country discovering another would be that ownership of land was given only if it was uninhabited (territorium res nullius). It also said the title is recognized as belonging to indigenous inhabitants but that the exclusive right to trade would be reserved by the discovering country, in exchange for sharing the Christian gospel. The doctrine also said land could only be taken from indigenous peoples with their consent. This consent would be ideally through purchase and not force, and that if the first three requirements were not met and the land was taken by force it would be an invalid and unjust claim. Land gained through “just wars” was valid. If one or more conditions were met, however, the crown could use whatever force necessary to subdue the natives (Churchill 2003, 3).

This force manifested with the 1510 Requerimiento, which Columbus had his men deliver. This was a doctrine read aloud to Indigenous peoples, presenting to them the decision to either give up their ways peacefully or have them taken brutally by force (Stannard 1992, 258). It stated that the natives accept the Christian God and allow their preachers to preach on their lands. If they were to decline or take too long in their decision, it would be done by brutal force at the fault of the Tribes (Getches, et al. 1993, 49). This was not a fair informed consent either. Natives were chained prior to being read the doctrine, or it was whispered or shouted as they were fleeing. The Requerimiento was not spoken in any Native language and no interpreters available (Stannard 1992, 66).

The Marshall Trilogy and Indigenous sovereignty

In the case of Johnson v. McIntosh, Justice John Marshall held that the doctrine of discovery gives the United States title to the land. The Indigenous peoples were would maintain the right to occupy, use and possess land, although the United States would control the title and how the resources are used (Getches, et al. 1993, 65-66).

In Cherokee Nation v Georgia, the Cherokee attempted to sue the state of Georgia for creating legislation of removal and assimilation. The Supreme Court did not hear the case on its ruling it had no original jurisdiction, as the Cherokee was a dependent ward nation, under the guardian Federal government (Getches, et al. 1993, 105-110). In 1832, Worcester v. Georgia held that states had no authority over Indian groups, as they are distinct communities (Getches, et al. 1993, 113-121). The 1888 outcome of Ex Parte Crow Dog, which found in favor of Crow Dog and was beneficial for tribal sovereignty, led to the reassertion of the plenary power of congress. Unsatisfied with the Crow Dog holding, the Case of United States v. Kagama was used to enact the Major Crimes Act, to allow Federal jurisdiction of major crimes in Indian Country (Getches, et al. 1993, 158-160).

Treaty Violations

The 1903 Lone Wolf v. Hitchcock case brought against the United States by Kiowa chief Lone Wolf, who argued that the Medicine Lodge Treaty had been violated by congress. The Court declared that the "plenary power" of the United States Congress gave it authority to abrogate treaty obligations between the United States and Native American tribes (Getches, et al. 1993, 183-184) The decision contradicts the holdings of the Cherokee cases, which declare a more sovereign opinion of Indigenous Peoples in the United States. United States v. Winans (1905) was an important case as it set regulations regarding the way treaties interpretation. These canons of construction stated that a treaty must be analyzed as the Indians who had agreed to the treaty would have understood it, at the time it was drafted, and that the treaties must be interpreted in the Tribes favor. Through United States v. Winans, the Reserved Rights Doctrine was also established, which states that treaties are not rights granted to the Indians, but are already possessed (Getches, et al. 1993, 137-139).

Tee-Hit-Ton Indians v. United States (1955) is a United States Supreme Court case involving the Tee-Hit-Ton, a subgroup of the Tlingit people. The Tee-Hit-Ton sought compensation from Congress for lumber taken from lands they occupied. The court ruled against the Tee-Hit-Ton, citing Johnson v. McIntosh, that under the concept of conquest, any title to the land was extinguished when the land had been discovered and conquered (Getches, et al. 259-265). United States v. Dion in 1986 ignored the canons of construction, and allowed congress to abrogate treaty provisions in favor of Federal environmental Acts. As a result, American Indians were prohibited from hunting eagles. Justice Thurgood Marshall citied Lone Wolf v. Hitchcock stating that Congress retained the power to modify Indian treaties so long as it does so in clear and explicit terms (Getches, et al. 1993, 319)

Modern movements

In 2007, the United Nations created an intergovernmental declaration agreement on how indigenous people should be treated. This United Nations Declaration in the Right of Indigenous Peoples (UNDRIP) contains 46 articles describing how governments can protect the human rights of indigenous peoples.

The articles involve matters of self-determination, cultural identity and informed consent, life, liberty, culture and security, free from assimilation, removal an relocation (UNICEF 2013, 12-14). There are also articles related to culture, religion, language, education, media, employment, and land and resources. The United States originally voted against UNDRIP, along with Australia, Canada, New Zealand. All of these countries have recently decided to support the declaration (UNICEF 2013, 10).

In their 76th General Convention, the Episcopal Church repudiated the Doctrine of Discovery as fundamentally opposed to their Gospel and is negative toward the inherent rights that individuals and peoples have received from God. Their decision has been repeated by other groups, for example the Anglican Church of Canada in 2010, and the World Council of Churches in 2012 (Miller 2012).

Discussion

Robert Miller definition of conquest refers to the method Europeans used to acquire some lands through military victories, as well as the property and sovereignty rights Europeans claimed to acquire automatically with their “first discovery” (Miller 2012).

Robert Miller has suggested that the following actions may aid in the National reversal and elimination of the Doctrine of Discovery. The first suggestion is that the Permanent Forum on Indigenous Issues adopting an international research study of the effects of the Doctrine of Discovery on Indigenous peoples, to be completed by 2014. Next, to inform the global population of the UNDRIP, and to advocate it’s acceptance as national law. Miller urges all states to repeal laws and policies which have their basis in the Doctrine of Discovery. The education system must also adopt a curriculum which reflects the complete history of colonization. He also suggests more churches follow the Episcopal Church in repudiating the doctrine (Miller 2012).
Conclusion

The doctrine of discovery is losing its ground as justification. Conquest is no longer a valid justification for law. The first step of recognizing this failure has been reached; now is the time for education and advocacy, to change the deep ignorance of this country. Only then can the current fragile system be rebuilt to allow equal rights for all.


Sources:

Black’s Law Dictionary: http://thelawdictionary.org/

Chaffee, John. Repudiate the Doctrine of Discovery. Resolution D035. Committee: 09 – National and International Concerns. 2009. (http://www.doctrineofdiscovery.org/episcopalrepud.htm)

Churchill, Ward. Perversions of Justice: Indigenous Peoples and American Law. San Francisco, City Lights Books, 2003.

Miller, Robert. The Doctrine of Discovery: The International Law of Colonialism. Conference Room Paper 11th Session of the U.N. Permanent Forum on Indigenous Issues. 7-18 May 2012.

Stannard, David E. American Holocaust: The Conquest of the New World. New York: Oxford UP, 1993.

UNICEF. "United Nations Declaration on the Right of Indigenous Peoples for Indigenous Adolescents." UNICEF Human Rights Unit, New York, 2013. (http://www.unicef.org/policyanalysis/rights/files/HRBAP_UN_Rights_Indig_Peoples.pdf)

Venables, Robert W. American Indian History: Five Centuries of Conflict & Coexistence. Vol. 1. Santa Fe, NM: Clear Light, 2004.