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Abstract

How the Supreme Court has betrayed the national rights of the Native Nations in constitutional law with a bad faith interpretive stance toward the treaty obligations of the United States; an interpretive stance that paved the way for the Trail of Tears and that constitutes the foundation of "federal Indian law" to this day.
Arguments over Genocide
and “federal Indian law”
© Steven Schwartzberg, 2021.
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The land I am speaking from i want to acknowledge as part of the
traditional homelands of the nations of the Council of the Three Fires—
the Potawatomi, the Odawa, and the Ojibwa—as well as the nations of
the Illinois Confederacy—the Peoria and the Kaskaskia—and others
including the Miami, Menominee, and Ho-Chunk nations, here in
Chicago.
My name is Steve Schwartzberg and in return for your attention for just
about an hour—if you are a non-Native Nations person—I promise to
change or at least deepen your view of the history of the United States’
relations with the Native Nations of this continent. In particular, I will
show how the Supreme Court has betrayed the national rights of the
Native Nations in constitutional law through a bad faith interpretive
stance toward the United States’ treaty obligations to these nations—a
bad faith interpretive stance that paved the way for the Trail of Tears in
the 1830s and that constitutes the foundation of “federal Indian law” to
this day. According to this bad faith interpretive stance any treaty signed
with a Native Nation is not really binding because “the sovereign” can
(allegedly) abrogate it at will. There is, in other words, a repudiation of
sovereign equality and a denial of the meaning of treaty obligations at
the foundation of “federal Indian law.” If you are a member of one of
these Native Nations, you already know the most important part of what
I want to convey far better than I do, although I hope you will find here
some new and useful information.
There is reason to think that we are on the cusp of another moment like
Brown v. Board of Education when a system of institutionalized
prejudice—embodied in what the Supreme Court had claimed for
decades was the law of the land—was revealed as a system of racism
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!!
and bigotry at odds with the Constitution and human rights. After this
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podcast, it will be clear why “federal Indian law” is another such racist
and bigoted system—one that has been in existence for nearly two
hundred years—in which “the sovereign” can allegedly do whatever it
wants to those sovereign nations that it deems “dependent” and
“domestic,” regardless of what treaties say, because of “the sovereign’s”
supposed superiority.
In Vasquez v. Hillery, in 1986, the Supreme Court suggested, in an
opinion by Justice Thurgood Marshall that precedent to be overturned
must be shown to be “outdated, ill-founded, unworkable, or
otherwise legitimately vulnerable to serious reconsideration.” This
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podcast will leave no doubt that the precedents on which “federal Indian
law” rests are outdated, ill-founded, unworkable, and a violation of the
intentions of the framers of the Constitution and the meaning of the text.
A word about my credentials: I have a BA from Reed College, an MA
from the Fletcher School of Law and Diplomacy, and a PhD in history
from Yale University. In 2018, I ran for Congress—unsuccessfully—in
the Illinois 5th District as a Bernie Sanders supporter. I have spent much
of the past ten years researching and writing a book manuscript titled:
“Arguments over Genocide: The War of Words over Cherokee Removal
in the Congress and the Supreme Court.” In the course of my research, I
have learned that these arguments over genocide from the 1820s and
1830s—these arguments over what would become the Trail of Tears—
are all still highly relevant. While the arguments of the opponents of
genocide have largely been forgotten, the arguments of the advocates of
genocide and their appeasers continue to determine the law, policy, and
conduct of the United States to this day.
With hope in helping to build what Martin Luther King, Jr. called the
beloved community—and with trust in the grace any such effort requires
—we will reimagine and radically revise our relations to the land and to
each other including to all of the peoples on whose land we abide. “We
have no right over the Indians, whether within or without the real or
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pretended limits of any Colony,” the Pennsylvania lawyer and
constitutional framer James Wilson told the Continental Congress in July
1776: “Grants made three thousand miles to the eastward, have no
validity with the Indians.” This podcast tells a story that indicates why
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the American people must return to such a stance and that explores in
depth some of the arguments we will have to overcome.
There were three paths that the United States could have followed after
its founding with regard to the Native Nations; paths that still persist.
Call the first path the path not taken. This is the path that the new nation
more or less started out along of acknowledging the national rights of
the Native Nations—the path informed by the American revolutionary
jurisprudence of the constitutional framer James Wilson and his allies.
In a famous political pamphlet in 1774, Wilson declared that “All men
are, by nature, equal and free” that “no one has a right to any authority
over another without his consent” and that “all lawful government is
founded upon the consent of those who are subject to it.” Wilson
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recognized that the Native Nations had never consented to be governed
by the United States. He believed that the American people had claimed
such powers as they asserted a right to possess under the law of nations
while recognizing the equal right of all other nations, including the
Native Nations, to do likewise.
The second path is the path taken: the path of the reactionary reversion
to a particularly pernicious version of the doctrine of “Christian
discovery” as the supposed basis of land title in the United States and as
the basis of an alleged American authority over the Native Nations. This
was the path taken by Chief Justice John Marshall and a unanimous
Supreme Court in Johnson v. McIntosh in 1823 and reiterated—after its
premises were challenged by the Cherokee Nation—in Cherokee Nation
v. Georgia, in 1831, and reiterated again in Worcester v. Georgia, in
1832. That path, combined with the pressure of brutal Georgian
aggression, and the appeasement with which Georgian aggression was
met, led to the establishment of the legal system of domination and
dehumanization that made possible the Trail of Tears and its aftermath.
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The third path is a path barely imagined: the path of seeking to learn
from the Native peoples what they considered sacred rather than seeking
to teach them what the newly independent republic’s citizens considered
sacred. This is the path of seeking to live with them on their lands
according to their laws and to act and be in a world informed by their
worldview. It involves conduct that the peoples on the shore might
reasonably have expected of the invaders—conduct along the lines of
“when in Rome, do as the Romans do.” Those who saw themselves as
Christians among the invaders were unwilling to do this. Their heirs and
successors may yet acknowledge that the original free and independent
nations of Turtle Island were far closer to the values Christianity alleges
as its own than the societies of Christendom and its successors have
been.
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Here it is necessary to make a comment not about the invader state, but
about the people who see themselves as loyal to that state or as loyal to
the United States Constitution, and who acquiesce in that state’s conduct
toward the Native Nations. This is a comment about who this people
has been in its conduct—not in its aspirations, but in its history. What
needs to be said is that this is a people whose state has committed both
genocide and attempted genocide; a people whose state has consistently
broken the people’s word. This is a people, in other words, that over the
centuries has not only been murderous—in the conduct toward the
Native Nations that it has tolerated—but a people that appears incapable
of maintaining trustworthy, consensual, and reciprocal relationships with
the Native Nations to this day.
I want to say something about why this has been the case. I am not
trying to talk about all of the reasons: the desire for domination, the
greed, the religious bigotry, the racism, the belief in “superiority”
however defined—(especially among those who think of themselves as
benevolent)—but just the part of the story that concerns the collective
amnesia of this people when it comes to the arguments of those
Americans who were opposed to the genocide of the 1830s. I do not
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claim that if everybody in America knew these arguments the American
people would suddenly wake up and become a trustworthy people
seeking consensus and reciprocity in their relationships with the Native
Nations and adhering to all of the requirements of their treaties with
these nations. I do not imagine that they would immediately oppose
their government’s spurious claims of jurisdiction and plenary power
over the Native Nations. But I think knowledge of these arguments
against genocide—although they are rooted in what the theology
professor Tink Tinker (Osage) calls Eurochristian culture—may be
helpful in the struggle for justice. And let me be clear: by justice I
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mean the right of the Native Nations to their original free and
independent existence.
Here are two of these Eurochristian arguments against genocide. The
first is from Senator Asher Robbins of Rhode Island in the debate in the
United States Senate in 1830 over the Removal Bill: “The Indian is a
man, and has all the rights of man. The same God who made us made
him, and endowed him with the same rights; for ‘of one blood hath he
made all the men who dwell upon the earth.’” The second is from an
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essay by the lawyer, publicist, and Congregationalist Jeremiah Evarts
whose articles were read by perhaps half a million people in 1829-1830
in a country with a total population of less than thirteen million: “The
people of the United States are bound to regard the Cherokees and other
Indians, as men; as human beings, entitled to receive the same treatment
as Englishmen, Frenchmen, or ourselves, would be entitled to receive in
the same circumstances.”
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Now the reason why these arguments against genocide were defeated, I
maintain, is not to be found in the text of a Constitution that promised
that all treaties were part of the supreme law of the land, but in a
betrayal of that Constitution by the executive branch, and by the
legislature, and by the judiciary—all at the instigation of the state of
Georgia—and their adoption of the dishonest doctrine of Christian
discovery in place of the requirements of constitutional law. As
Georgia’s Senator John Forsyth championed their position in 1830, he
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suggested that the European powers had already taken the decision long
ago: “All Christendom seems to have imagined that, by offering that
immortal life, promised by the Prince of Peace to fallen man, to the
aborigines of this country, the right was fairly acquired of disposing of
their persons and their property at pleasure.”
10
The importation of this vicious and dishonest doctrine into U.S. law was
largely the work of John Marshall in Johnson v. McIntosh in 1823, as
Steve Newcomb (Shawnee-Lenape), the co-founder and co-director of
the Indigenous Law Institute, has shown in his brilliant book, Pagans in
the Promised Land. According to the Supreme Court’s ruling in
11
Johnson—a ruling that forms the foundation of U.S. property law—the
mere presence of representatives of a “Christian people” on this side of
the Atlantic “necessarily diminished” the sovereignty of the “heathens”
—the Native peoples—and gave to the discoverers and their heirs and
successors an “ultimate dominion” whereby they claimed a “title” to the
land and a “right” to a “degree of sovereignty” over the Native peoples
to vest in their government.
12
John Marshall was less forthcoming than Senator Forsyth when it came
to the “right,” which the latter explicitly claimed, of “disposing” of the
Native persons and their property “at pleasure.” Marshall recognized
that something that he called the Indian title of “occupancy” stood in the
way, but by adopting the mythology of Christian discovery—by
claiming a spurious “ultimate dominion” in the United States—Marshall
ensured that this Indian title wasn’t much of an obstacle to genocide.
13
Such title could become an obstacle to genocidal conduct on the part of
the state of Georgia, in Marshall’s mind, but was no obstacle at all to
genocidal conduct on the part of the United States. In the end,
Marshall’s premises and Forsyth’s were much the same. As Forsyth put
it: “The lands, the streams, the woods, the minerals, all living things,
including the human inhabitants, were all the property of, or subject to,
the Government of the fortunate navigator, who, by accident or design,
first saw the before unknown country.”
14
6
!!
In the debate in the United States Congress in 1830, Senator Theodore
Frelinghuysen of New Jersey gave voice to an alternative mythology
that conflicted with the doctrine of Christian discovery. Like Marshall’s
account in Johnson, Frelinghuysen’s account before the Senate was a
mythological one. But unlike Marshall, Frelinghuysen offered a version
of the past that was compatible with a measure of respect for the national
rights of the Native Nations in American constitutional law.
Frelinghuysen naively maintained that the United States had dealt
honorably with the Native peoples: “It is a subject full of grateful
satisfaction, that, in our public intercourse with the Indians, ever since
the first colonies of white men found abode on these Western shores, we
have distinctly recognized their title, treated with them as owners, and in
all our acquisitions of territory, applied ourselves to these ancient
proprietors, by purchase and cession alone, to obtain the right of the
soil.” As New York Congressman Henry Storrs made the point—in
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countering Georgia’s claims to have acquired its lands by “discovery”
and “conquest”—“There is not a foot of land now held by Georgia, for
which we cannot produce, from authentic history, her title by purchase
from the Indian nations.” Much the same argument was made by the
16
plaintiff in Johnson v. McIntosh: “In short, all, or nearly all, the lands in
the United States, is holden under purchases from the Indian nations.”
17
The choice between these two mythologies—the choice between a
doctrine of discovery that left the discoverers with no obligations to the
Native peoples, except maybe an obligation to cultivate or impose
“Christianity and civilization” among them, even if this meant driving
them a thousand miles across the Mississippi, and a claim of traditional
land purchases from the Native Nations that implied an obligation to
honor the treaty promises that had been made in exchange for land—was
the choice before the United States in the 1820s and 1830s. The choice,
in other words, was between believing that such title as the United States
possessed derived from purchase and cession from the rightful owners or
believing that it derived from “grants” made three thousand miles away
by the King of England because some Christians had once set eyes on
the land. As a matter of the historical record, both the “purchase” by
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treaties and the issuing of “grants” had been engaged in by the invader
state—in combination—but now the United States would choose which
one was determinative in its law, policy, and conduct.
And let us be perfectly clear: in choosing the doctrine of discovery the
United States adopted the legal foundation for genocide—the foundation
of a “federal Indian law” that was never made nor approved by the
Native Nations but rather one imposed upon them. Indeed, a “federal
Indian law” whose sole “principle” seems to be that the Native Nations
are subject to having the United States impose domination upon them.
Before this—in George Washington’s day—as the historian Colin
Calloway reminds us, “the government dealt with Indians as foreign
nations rather than domestic subjects.” This “federal Indian law”
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remains in effect to this day in a situation analogous to one that can
hardly be imagined—a Germany today in which the anti-Semitic
Nuremberg laws were still on the books and enforced.
Before what law professor Peter d’Errico calls this “federal anti-Indian
law” began to be created out of thin air by the Supreme Court in 1823,
the treaty rights of a Native Nation in constitutional law were the same
as the treaty rights of any other foreign state with regard to its treaties
with the United States. That all a foreign state in the sense of the
Constitution was to the framers was another nation possessing dominion
—and that the Indian Tribes qualified as such—is clear from President
Washington’s successful appeal to the Senate of the United States in
1789 to establish the practice of ratifying treaties made with the Indian
Nations: “It doubtless is important that all treaties and compacts formed
by the United States with other nations, whether civilized or not, should
be made with caution and executed with fidelity.” The issue, in other
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words, was simply one of good faith versus bad faith: were treaties with
a Native Nation worth the paper they were printed on? The issue was
not obscure to the Senate which agreed to Washington’s appeal. It was
the very different choice of President Andrew Jackson, and of the
Congress of 1830, and of the Supreme Court, both in 1823 and again in
1831—it was their very different choice to adopt bad faith with regard to
8
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treaties—that is the foundation of “federal Indian law” and the
legislation that led to the Trail of Tears.
Genocide is defined, in the United Nation’s convention on the subject of
9 December 1948, in terms of “acts committed with intent to destroy, in
whole or in part, a national, ethnical, racial or religious group, as
such.” Speaking before the United States Senate on 15 April 1830,
20
Georgia’s Senator Forsyth claimed of the Cherokee Nation that “If their
separate existence as a tribe is destroyed by State legislative enactments,
the control of the Government of the United States, even over the
commerce with them is at an end.”
21
Before the horrific deaths of the Trail of Tears, the state of Georgia—by
legislative enactments—had already engaged in genocidal acts against
the Cherokee Nation on territory Georgia claimed (falsely) as its own.
These acts—explicitly intended to destroy the Cherokee Nation’s
“separate existence as a tribe”—and Georgia’s spurious claims to lands
that were in fact guaranteed to the Cherokee Nation by treaty, were soon
emulated by the states of Alabama and Mississippi as they also
“extended” the jurisdiction of their states over the Native Nations that
they claimed were “within” their borders. As one Georgia law put it in
1829: “after the first day of June next, all laws, ordinances, orders and
regulations of any kind whatever, made, passed, or enacted by the
Cherokee Indians, either in general council or in any way whatever, or
by any authority whatever of said tribe, be, and the same are hereby
declared to be null and void and of no effect, as if the same had never
existed.” This fanatic exercise of what Georgia claimed were its
22
“states’ rights” rested on a fanatic belief in a sovereign power allegedly
acquired by Georgia from the British Crown which, in turn, allegedly
acquired it from Christian discovery.
To coercively deny a peaceful people, or a group of peaceful peoples,
their dominion by “legally” destroying their governments, invading their
homelands, and depopulating them is sufficient to justify the term
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genocide and would be even if the deaths of large percentages of these
peoples’ fellow nationals were not involved. That some of the Native
Nations “agreed”—under extreme duress—to “remove” across the
Mississippi should not obscure the vicious reality of the Trail of Tears.
Moreover, at least some of those who urged this genocide knew full well
—in advance—that it would be utterly horrible for the Native Nations.
In September 1831, President Andrew Jackson was ineffectually warned
by his Secretary of War, Lewis Cass, that without adequate preparations
“great sufferings must be encountered upon the journey, and many will
doubtless perish.” The French author Alexis de Tocqueville, who
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shortly afterwards personally witnessed some of the Choctaw Nation
crossing the Mississippi in late 1831, wrote in Democracy in America: “I
was the witness of sufferings which I have not the power to portray.”
24
As the historian A. J. Langguth notes, rough calculations show that one
in five Choctaw nationals, perhaps more, did not survive. This
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genocide was then repeated with nation after nation over the course of
the 1830s in a gruesome endeavor extirpating some eighty thousand
people from their homelands; an endeavor which consumed tens of
thousands of lives and took up more than forty percent of the federal
budget in 1836 and again in 1838.
26
And let us be clear, all of this followed from a bad faith approach to
America’s treaty obligations that continues to be maintained by the
Supreme Court to this day—a bad faith interpretive stance whereby
treaties are considered as not being binding on “the sovereign.”
Georgia’s Senator Forsyth was simply unusually blunt in championing
the doctrine of Christian discovery in 1830 and—on that basis—
dishonestly attacking American treaty obligations: “That the President
has made, with the advice and consent of the Senate, various contracts
with Indians and called them treaties, is not to be denied. That various
contracts have been made with Indians, by States and individuals, under
the superintendence of the United States, is certain; they have been
submitted, too, to the Senate, voted upon as, and have been called,
treaties. What I assert is, that these instruments are not technically
treaties, supreme laws of the land, superior in obligation to State
10
!!
constitutions and State laws. Can it be believed that the stern jealousy of
the State Governments gave to the United States the power to use a
miserable fragment of the population of a State, to extend, indefinitely,
their authority, and narrow that of the State Government?... How, then,
can a contract made with a petty dependent tribe of half starved Indians
be properly dignified with the name, and claim the imposing character
of, a treaty?”
27
John Marshall’s language was more polite, and the language of the
Supreme Court today even more so, but they continue to assert the
doctrine of discovery and—on that basis—continue to claim that the
Native Nations are “dependent” and “domestic” and that treaties with
them can (allegedly) be broken by the Congress at will. Citing a 1985
28
case—Oneida County v. Oneida Indian Nation—which, in turn, cited
Johnson v. McIntosh, Associate Justice Ruth Bader Ginsberg wrote for
the majority in 2005, in City of Sherrill, explicitly relying on the
doctrine of discovery to deny that the Oneida Nation could reacquire
sovereignty over lands they had once owned by purchasing those lands
on the open market. In her first footnote in the 2005 case, Ginsberg
29
quoted the 1985 case as follows: “fee title to the lands occupied by
Indians when the colonists arrived became vested in the sovereign—first
the discovering European nation and later the original States and the
United States.” That this could simply be untrue, and a claim in
30
violation of the Constitution, and at odds with the American
revolutionary jurisprudence that informed it, doubtless did not even
cross her mind.
The premises of the doctrine of discovery were directly challenged by
the Cherokee Nation in early 1831. At the very beginning of their Bill
before the Supreme Court, the Cherokee Nation made intellectual
mincemeat of the idea that “discovery” or “conquest” had any bearing
on their situation and their rights: claiming, “That, from time
immemorial, the Cherokee nation have composed a sovereign and
independent state, and in this character have been repeatedly recognized,
and still stand recognized by the United States, in the various treaties
11
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subsisting between their nation and the United States. That long before
the first approach of the white men of Europe to the western continent,
the Cherokee nation were the occupants and owners of the territory on
which they now reside; deriving their title from the Great Spirit, who is
the common father of the human family, and to whom the earth belongs.
That on this territory they and their ancestors, composing the Cherokee
nation, have ever been, and still are, the sole and exclusive masters, and
governed, of right, by no other laws, usages and customs, but such as
they have themselves thought proper to ordain and appoint.”
31
The European monarch who affected to grant this territory, the Cherokee
Nation continued, had no title to it whatsoever. The only pretended title
was what has been called a title by first discovery, a title that was not
true in point of fact as the Cherokee and other Indian nations had
discovered and occupied it long before the first European ship had
ventured to cross the Atlantic Ocean. Indeed, the land belonged to them
probably far beyond the period when the British islands, themselves the
residence of heathen savages and barbarians, became prey to a heathen
conqueror from Rome. Even this pretended title by discovery has never
been claimed, by the European sovereigns themselves, to give a right to
oust the Indian proprietors from their possession. The utmost length to
which they have carried the unjust pretensions derived from their alleged
discovery has been the claim that the first European discoverer has the
prior and exclusive right to purchase these lands from the Indian
proprietors, as against all other European sovereigns; “a principle settled
among themselves for their own convenience, in adjusting their mutual
accounts of rapine on the western world; a principle to which the Indian
proprietors have never given their assent, and which they deny to be a
principle of the natural law of nations, or as in any manner obligatory on
them.”
32
The Cherokee Nation noted, further, that in the words of the Treaty of
Holston of 1791: “The United States solemnly guarantee to the
Cherokee nation, all their lands not hereby ceded” and asked the
12
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Supreme Court to honor the guarantee and issue an injunction with
which to put an end to Georgia’s genocidal conduct.
33
John Marshall’s rejection of this request—his rejection of the truth that
the Cherokee Nation is a sovereign foreign state toward whom the
United States has binding treaty obligations, in his opinion in Cherokee
Nation v. Georgia, and his fraudulent claim that they were instead a
“domestic” and a “dependent” nation—was a tacit authorization to the
other branches of the federal government to commit their genocide,
which they proceeded to do. “If it be true,” Marshall concluded, “that the
Cherokee Nation have rights, this is not the tribunal in which those
rights are to be asserted. If it be true that wrongs have been inflicted, and
that still greater are to be apprehended, this is not the tribunal which can
redress the past or prevent the future.”
34
To reach that position, Marshall had to deny legal meaning to the treaty
obligations of the United States to the Native Nations; had to pretend—
just as Forsyth did—that treaties with the Native Nations were somehow
not really treaties; not really the supreme law of the land. Marshall did
this by studiously ignoring the obligations of these treaties—even when
their central importance was pointed out to him by the Cherokee
Nation’s lawyers—and by denying these nations standing. The report of
the House Committee on Indian Affairs of 24 February 1830 may help to
clarify how Marshall rationalized his own decisions in his own mind.
The trick behind treaties with the Native Nations, the committee
explained, “was, to appear to do nothing, which concerned the Indians,
either in the appropriation of their hunting grounds, or in controlling
their conduct, without their consent.” “These treaties were, therefore,
35
but a mode of government, and a substitute for ordinary legislation.”
36
Treaties with a Native Nation were, in effect, as far as Marshall was
concerned, little more than a means of “quieting the alarms” of the
Native peoples with regard to their land so as to more easily separate
them from it.
37
13
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Treaties signed with any Native Nation, from this perspective, were not
ultimately binding, but rather designed to deceive trusting peoples into
thinking that good faith in sovereign equality was present where it was
not and to convince them that their ownership of and authority over their
land was recognized—indeed guaranteed—when the intention was to
dispossess them as soon as it was feasible.
The contrast with the constitutional framer James Wilson’s jurisprudence
could not be sharper. A disregard for the binding character of treaties
and engagements, a disregard for the rights of others, was, Wilson
maintained in his law lectures in 1790-1791, weak as well as wicked. It
is a truth certain in the law of nature, Wilson insisted, that he who has
made a promise to another has given to that other a perfect right to
demand the performance of the promise: “A state, which violates the
sacred faith of treaties, violates not only the voluntary, but also the
natural and necessary law of nations; for we have seen that, by the law
of nature, the fulfillment of promises is a duty as much incumbent upon
states as upon men.”
38
Wilson’s jurisprudence held that treaties were part of the supreme law of
the land and could not be abrogated by the Congress—certainly not
without “just cause.” It held that the American people are meant to be
what he called “sovereigns without subjects”—united by a Constitution
that makes provision for the rights of other nations in constitutional law
and in the law of nations to be respected. According to this Wilsonian
39
jurisprudence, neither the Congress nor the states inherited the powers of
the British Crown or the British Parliament—including any of the
imaginary powers allegedly derived from “discovery.” Rather the new
nation articulated such powers as it sought to claim under the law of
nations and distributed them institutionally as it wished.
40
One of the Cherokee Nation’s lawyers was a former Attorney General of
the United States, William Wirt. In a letter to former President James
Madison of 5 October 1830, Wirt indicated that he thought the doctrine
of Johnson v. McIntosh “the strangest absurdity. It is said they have no
14
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other title than that of having chased their game over them.”420 But Wirt
did not publicly demolish this absurdity before Marshall’s face as he
should have done. The closest he came to it was to draw an implicit
parallel between Georgia’s pretensions and the pretensions Marshall had
advanced in Johnson—between Georgia’s make believe that the
Cherokee Nation was “within” Georgia and Marshall’s make-believe
that the Cherokee Nation was “within” the United States. Marshall’s
make-believe, Wirt implicitly suggested, was no more sound than
Georgia’s. Indeed, both rested their make-believe on the same
pretensions, the same premises. Noting that the first company that
crossed the Atlantic under the charter by which Georgia claimed its
rights was led by General Oglethorpe, and arrived in 1733, Wirt
proceeded to mock Georgia’s pretensions with a telling piece of
authentic history drawn from a book that Marshall himself had authored:
“According to the present claim of Georgia, all the lands within the
limits of that charter belonged to these colonists; and they had nothing
more to do than to take possession and to claim the allegiance of the
Indians as a conquered people, and a part of the subjects of his Britannic
majesty. Had any such arrogant pretension been set up, this conquered
people, the lords of the forest, could, and probably would have crushed
the puny colony with as much ease as they could have crushed the
serpents’ eggs around them. But General Oglethorpe understood the
charter as his sovereign understood it. ‘A treaty was held with the Creek
Indians, to whom the lands were admitted to belong, and the cession of a
considerable tract was obtained from them.’ 1 Marshall’s Life of
Washington, 226.”
41
Wirt could have gone on to publicly contrast the truth of lands being
acquired by treaty with John Marshall’s “extravagant pretension” of
converting discovery into conquest. But he was too deferential to be
42
so direct and too polite to hammer on the “strange absurdity”—the glass
jaw—of Marshall’s doctrine until it shattered.
15
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Marshall’s pretended “ultimate dominion” over the Native Nations in
Johnson was an evil fantasy at odds with the history of the country, with
the truth of generations of treaties with these nations, and, especially,
with the Treaty Supremacy Clause of the Constitution; an evil fantasy of
the past that became an accurate description of the genocidal future it
established. When another of the Cherokee Nation’s lawyers, John
Sergeant, addressed the Supreme Court he argued that there was no way
consistent with good faith to deny the United States’ treaty obligations to
the Cherokee Nation and stressed in particular the bad faith that would
be involved in claiming that a treaty with them was somehow not a
treaty or that they were somehow not a treaty partner who has a right to
pursue their rights in the Supreme Court. This was before Marshall’s
dishonest term “domestic dependent nations” was coined for exactly that
dishonest purpose. In effect, Sergeant demonstrated—in advance—that
any such usage could only rest on bad faith.
“These, then, are treaties made in pursuance of the constitution. They are
in full force. They stand in the statute book, with all the sanctions of
treaties with foreign states; and we are in the possession and enjoyment
of the benefits derived from them. Can we under these circumstances
deny that which they necessarily import? [In other words, can we deny
that we have already received land and that our treaty-partners have a
right to hold us to what we promised in return, namely the guarantee of
their remaining land?]. Can we, consistently with any right rule of
interpretation, or with the common obligations of good faith, call in
question the character of the party, announced and admitted on the face
of the instrument itself especially when by so doing we impair or take
away from [them] the stipulated advantages of [their] compact? [In other
words, can we cast doubt on the fact that the Cherokee Nation are a
sovereign foreign state with whom we have a treaty relationship when
we have established a treaty with them that indicates that they are? And
can we deny them the standing to pursue their rights in court simply by
calling them something other than a foreign state?] If it were morally or
politically admissible, is it judicially possible, while the government
16
!!
acknowledges, as it continues to do, the existence and binding
obligations of these treaties?”
43
The answer to these rhetorical questions should have been a resounding:
“No.” Under Marshall’s leadership, the majority of the Supreme Court
answered: “yes.” With that decision, the moral character of every treaty
that had ever been signed in good faith with a Native Nation was
betrayed. Far from Wilson’s position that treaties were sacred, a
majority of the Supreme Court held that treaties with a Native Nation
had little practical value because discovery made every Native Nation
“domestic” and “dependent” and as such (allegedly) deprived them of
standing. Such treaties could, in Marshall’s view, have had meaning
44
for other branches of the U.S. government. But even there, he was
inclined to the perspective that might made right among the nations of
the world or, as he actually put it in one case in 1829, “the right remains
with the strongest.”
45
In other words, every treaty that the American people had entered into
with a Native Nation was—from Marshall’s interpretive stance—not
binding, and, in effect, was entered into by the United States in bad faith
as a form of deliberate deception. This position—this interpretive stance
—is repugnant: repugnant to who any people wants to be and repugnant
to the Constitution. It is foulness generating worse foulness. It would be
repugnant even if it had not led directly to genocide. And yet it remains
the interpretive stance that the Supreme Court uses to this day with two
modifications. The Court adds two significant additional lies to its
foundational dishonesty about treaties not being binding on “the
sovereign”: first, it proclaims that the United States is in some sort of
“trust relationship” with the Native Nations and, second, it proclaims
that it is interpreting treaties as they would have been understood by
these nations when they were signed. In fact, the trust in any treaty
relationship is the trust that the treaty will be adhered to and this is
precisely what the “trust relationship” as the Supreme Court defines it
denies whenever “the sovereign” wishes to deny it. The original
46
Native understanding of any treaty was that it would be adhered to on
17
!!
both sides in good faith. There was no understanding that the American
side thought that it could lie its way out of any of its commitments by
appealing to the doctrine of Christian discovery and the “ultimate
dominion”—the sovereignty—it supposedly conveys.
Under the system of domination and dehumanization that the Supreme
Court has established, the Native Nations do not even have a property
right in their own soil—their lands can be taken by the United States at
will. From 1887 to 1934, under the terms of the Dawes Act, around an
47
additional 100 million acres of Native land was effectively stolen by the
Congress. During those years, and even more recently, a system of
48
indoctrination was imposed in schools explicitly designed to “kill the
Indian in him, and save the man”—explicitly designed, in other words,
for cultural genocide. The Congress of the United States, in the
49
Supreme Court’s perverse view of the world, has plenary power and
with it can allegedly destroy a Native Nation or break any treaty
obligation to a Native Nation, simply on its “say so.” That comment—
50
that Congress’ “say so” is sufficient—is actually a quote from Associate
Justice Neil Gorsuch’s widely praised but poorly understood majority
opinion in McGirt v. Oklahoma in 2020. The Congress’ historic
exploitation and oppression—and especially its land thieving—
continues to this day with the Congress having recently decided to sell
sacred Apache land to a copper mining company threatening to destroy
what is known as Oak Flat through yet another bad faith interpretation of
a treaty. Similarly, the Fort Laramie Treaty of 1868 set apart particular
51
lands “for the absolute and undisturbed use and occupation of the
Indians herein named.” It is only by means of still another bad faith
52
interpretation of a treaty that the attempt is being made to construct the
Dakota Access Pipeline across these lands. A good faith interpretation
of Anishinaabe treaty rights to hunt, fish, and gather wild rice would
preclude the Canadian corporation Enbridge’s Line 3 pipeline.
53
As recently as 1978, in United States v. Wheeler, the Supreme Court
actually claimed that tribal sovereignty “exists only at the sufferance of
Congress and is subject to complete defeasance.” This absurd
54
18
!!
position, so full of genocidal brutality—and so much at odds with the
law of nations and with constitutional law—has yet to be officially
repudiated.
Law professor Elizabeth Reese (Nambé Pueblo) has emphasized how far
away from the fulfillment of promises the Supreme Court threatens to
take us at every turn: “The victory for tribal jurisdiction in McGirt is
hopefully as much a rejection of the fear of tribal governance as it is in
keeping with the plain text of the law. Time will tell. Every time a case
with large implications like McGirt reaches the Supreme Court, many
people tied to tribal governments in one way or another are quietly
afraid. There is always the fear that the Court will make bad (that is, ill-
informed) law. But the great, omnipresent fear is that the Court or
Congress will finally do away with tribes. The tragedy—and the
injustice—would be that after all these years, and all the blood, ink, and
tears spilled, the United States will nonetheless finally do away with
Indian tribes, not because it knows what they are like, but because it
doesn’t.”
55
I want to say that we—speaking here for the people whose acquiescence
sustains the despicable conduct of the invader state—should return to the
position of the Pennsylvania lawyer and constitutional framer James
Wilson who told the Continental Congress in July 1776 that “We have
no right over the Indians, whether within or without the real or pretended
limits of any Colony. They will not allow themselves to be classed
according to the bounds of Colonies. Grants made three thousand miles
to the eastward, have no validity with the Indians.”
56
As for the Constitution, and its promise of making all treaties part of the
supreme law of the land, that is a promise for the conduct of the United
States that should be redeemed. In the words of the Constitution: “all
Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding.” It is this language, in
57
19
!!
conjunction with the Constitution’s grant of original jurisdiction to the
Supreme Court in all cases arising under treaties and in all cases in
which a state of the union is a party and in all cases involving disputes
between individual states and foreign states, that I have called the Treaty
Supremacy Clause. As James Wilson told the Pennsylvania ratifying
convention in 1787: “This clause, sir, will show the world that we make
the faith of treaties a constitutional part of the character of the United
States; that we secure its performance no longer nominally, for the
judges of the United States will be enabled to carry it into effect, let the
legislatures of the different states do what they may.”
58
John Marshall had the opportunity to do just that—to uphold
constitutional law—in Cherokee Nation v. Georgia, and was too bigoted
and too cowardly, too wedded to the doctrine of Christian discovery and
too afraid of the Georgia legislature, to do so. To their credit, Justices
Smith Thompson and Joseph Story dissented and recognized the
obligation of the United States to respect the Cherokee Nation’s treaty-
guaranteed dominion over its own land. That is the position that a law-
59
abiding American people would adopt with regard to every Native
Nation: that the United States has no lawful jurisdiction or authority over
them—that it is bound by its treaties. As Albert Beveridge, Marshall’s
biographer, acknowledged more than a hundred years ago: Marshall
“could easily have decided in favor of the wronged and harried Indians,
as the dissent of Thompson and Story proves.”
60
Those opponents of removal who embraced Marshall’s decision in
Worcester v. Georgia the following year, because it seemed a slap at
Georgian aggression—and those who do so to this day—are unwittingly
embracing the premises of the advocates of genocide and their
appeasers, and embracing the system of domination and dehumanization
to which their efforts gave rise, with one slight qualification: they are
merely asserting, often without realizing it, that it is the federal
government rather than the states that has the “right” to destroy a Native
Nation. Worcesters seeming regard for what has come to be called
61
“tribal sovereignty” in the face of Georgian aggression was a sleight-of-
20
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hand on Marshall’s part—an illusion—without a shred of real respect
behind it.
Andrew Jackson’s claim that Marshall’s decision in Worcester was
“stillborn” was accurate, particularly since the missionary Samuel
Worcester—who had been sentenced to hard labor by Georgia for being
on Cherokee territory without first taking a loyalty oath to Georgia—
accepted a pardon from Georgia’s governor rather than pursue the issue
further in the Supreme Court. Before this, the Governor of Georgia
62
publicly said that he would hang Worcester before he would release him
on orders from the Supreme Court—before he would submit to “this
decision made by a few superannuated life estate Judges.”
63
The ineffectual rebuke to Georgia involved in Worcester should be
distinguished from the injunction on behalf of the Cherokee Nation’s
exercise of its national rights that the dissent of Smith Thompson and
Joseph Story indicated the Cherokee Nation was entitled to. That
injunction would have involved real respect for the Cherokee Nation’s
genuine independence as a sovereign foreign state—real respect for its
treaty-guaranteed dominion over its own land—real respect that the
Native Nations are entitled to in constitutional law, as Thompson’s and
Story’s dissent proves.
And yet the adoption of such real respect toward the Native Nations by
the United States today would only be the beginning of a movement
toward justice. It would be movement in terms of U.S. law, but not yet
in terms of Native law. The theologian Vine Deloria, Jr. (Standing Rock)
has written about the tension between “the spiritual owner of the land”
and “the political owner of the land.” Even if the United States were to
64
recognize the national independence of each of the 326 land areas that
are administered as reservations on about 56 million acres of Turtle
Island, even if the United States were to share or turn over stewardship
and governance of the roughly 800 million acres of so-called “public
lands” to the Native Nations, this tension would remain for the American
people have yet to learn from the spiritual owner of the land what the
21
!!
land is for—in the sense of both what the land wants and in terms of
what is involved in right relations with the land. Justice requires us to
65
do so. So does our own need for well-being; our own need for
reconnection with the deeper meanings of what it is to be human.
66
One of the deepest flaws in the founding documents of the United States
is not immediately apparent in the texts—it is the fact that “we the
people” did not include all of the people. Generations of reformers and
revolutionaries have sought the full and equal inclusion of people of
color, women, and working people in all American institutions and many
of their heirs and successors are still struggling toward this goal. And
yet the beloved community, if we succeed in realizing it, will involve
much more than inclusion and equal dignity. Among other things, it will
also involve many independent and interdependent nations sharing this
continent (and this world) on the basis of consensus, reciprocity, and
trustworthy conduct toward one another—on the basis of shared respect
for each and all.
We are obliged, if we truly want to be law-abiding, not only to keep our
word in our treaties, but to respect the international laws and usages that
prevailed among the Native Nations of Turtle Island before the European
invaders arrived. We are obliged to respect the land as our grandmother
Earth and to respect the unity and equality of all living beings in a
beloved community for whom the “all” of which the founders of the
United States spoke has been transformed into the “all” in the “all our
relations” of whom the peoples of the Native Nations speak.
James Wilson was one of the most progressive of the founders of the
United States and perhaps the single most important architect of the
Constitution. He spoke with hope of the prospects for political and moral
improvements in the society—the prospects for a more harmonious
unity. One of the strategies for realizing the beloved community involves
grafting our hopes for progress onto the hope that Wilson expressed for
an American society in which: “All will receive from each, and each will
receive from all, mutual support and assistance: mutually supported and
22
!!
assisted, all may be carried to a degree of perfection hitherto unknown;
perhaps, hitherto not believed.”
67
From the perspective of those on the shore when the invaders from
Europe arrived, we must all hope to find our way back to the balance—
the “degree of perfection”—that was present on Turtle Island before that
arrival. Our future as the beloved community involves a restoration of
that balance between our ancestors and our descendants, between
ourselves and every living being. That is at the heart of what progress
and restoration must mean: that deep harmony and the maintenance of
balance are realized together for all.
The United States has done the Native Nations irreparable and ongoing
harm; harm beyond the human ability to fathom. It has done so on the
basis of the doctrine of Christian discovery; on the basis of the
argument, in John Forsyth’s terms, that for the United States (or even for
the state of Georgia)—having informed the newly discovered Native
peoples about Christ’s promises—the “right” of “disposing” of the
Native persons and their property “at pleasure” somehow followed. Or,
in John Marshall’s terms, that America—having been discovered by
representatives of a “Christian people”—somehow from this discovery
the United States acquired an “ultimate dominion” over the Native
Nations. Such arguments for genocide, or at least for a “right” to commit
genocide—are the arguments from which genocide and the appeasement
of genocide in the 1820s and 1830s followed. They remain the
foundation of “federal Indian law.”
In 1829 and 1830, there was considerable public opposition to the
government’s planned abuse of Indian rights—including its planned
abuse of the national rights of the Native Nations. Tens of thousands of
petitions flooded the Congress in opposition to “removal.” The final
vote in the House of Representatives was 102 to 97. Cognizant of the
depth of public opinion on the other side, Georgia Congressman Thomas
Foster sought to justify rejection of it: “We cannot shut our eyes to the
fact that there is a strong and powerful feeling in favor of the Indians,”
23
!!
Foster acknowledged, “which pervades an extensive portion of this
country, the influence of which is very perceptible in this House.” But,
he asserted, it was “the very kind of feeling which is most calculated to
mislead the judgment.”
68
Here, again, in contrast, are two now familiar arguments against
genocide in a somewhat larger context. The first is from Senator Asher
Robbins of Rhode Island:
“It is said … that the Indian is an inveterate savage, and incapable of
civilization. Admitting this to be the fact, which I by no means do
admit, what has it to do with the question, whether his nation is sui juris,
and competent to make a treaty. Is the Indian right less a right because
the Indian is a savage? Or does our civilization give us a title to his
right? A right which he inherits equally with us, from the gift of nature
and of nature’s God. The Indian is a man, and has all the rights of man.
The same God who made us made him, and endowed him with the same
rights; for ‘of one blood hath he made all the men who dwell upon the
earth.’ And if we trample upon these rights, if we force him to surrender
them, or extinguish them in his blood, the cry of that injustice will rise to
the throne of God and there, like the blood of Abel, will testify against
us. If we should be arraigned for the deed before his awful bar, and
should plead our boasted civilization in its defence, it would, in his sight,
but add deeper damnation to the deed, and merit but the more signal
retribution of his eternal justice. As to the civilization of the Indian, that
is his own concern in the pursuit of his own happiness; if the want of it
is a misfortune, it is his misfortune; it neither takes from his rights nor
adds to our own.”
69
The second argument against genocide is from the lawyer, publicist, and
Congregationalist Jeremiah Evarts:
“The people of the United States are bound to regard the Cherokees and
other Indians, as men; as human beings, entitled to receive the same
treatment as Englishmen, Frenchmen, or ourselves, would be entitled to
24
!!
receive in the same circumstances. Here is the only weak place in their
cause. They are not treated as men; and if they are finally ejected from
their patrimonial inheritance by arbitrary and unrighteous power, the
people of the United States will be impeached and condemned for
treating the Indians, not as men, but as animals.... In this matter, we
cannot offer even the sorry plea of prescription in crime, as an
extenuation of our guilt. The precedents, in our own country, are all
against us. For two hundred years the Indians have been treated like
other men, as to the acknowledgement of their rights and the
interpretation of treaties made with them.”
70
“History furnishes no parallel case of palpable injustice and cruelty,
committed, or allowed, by the mass of the inhabitants of a great country,
after ample time for deliberation,” Evarts wrote in November 1830 on
the cusp of the Trail of Tears. “Nothing of this kind has ever yet been
71
done, certainly not on a large scale, by Anglo-Americans,” he had
observed the year before: “To us, as a nation, it will be a new thing
under the sun. We have never yet acted upon the principle of seizing the
lands of peaceable Indians, and compelling them to remove. We have
never yet declared treaties with them to be mere waste paper.” And
72
shall we, Evarts asked in 1830, “in this early age, of our growing Nation,
after exhibiting to the world most illustrious examples of public virtue,
suddenly cast away, as a worn-out Government, all regard to our
national character, all respect for the opinions of mankind, all respect for
ourselves, all consideration of our permanent interests, and all fear of
God, the Avenger of the oppressed?”
73
It is striking that, since the 1830s, there has yet to be another mass
mobilization in the United States of progressive opinion and activists on
behalf of the national rights of the Native peoples. Other causes have
waxed and waned and waxed again. But the embers of the fire of
concern for the national rights of others have only been stirred into
flame for peoples who are seen as outside of what the United States
claims (falsely) as its “sovereign territory.” As a matter of justice, law,
74
25
!!
and politics it is high time for this to change, particularly if human life
on the planet is to survive.
It is to be hoped that the successes of the Native peoples—as they
recuperate their original free and independent existence—will
reverberate in American society and in the wider world as well. The
American people, and indeed all the peoples of the planet, have a vital
interest in the successes of the Native Nations’ endeavors in this regard.
As the “political owners” grow in their understanding of what is sacred
to the “spiritual owners”—as they see the societies that the latter
(re)build on their own lands, especially once their rights as sovereign
foreign states in American constitutional law are respected—one can
expect that the American people will want to adopt and adapt these
successes. With greater willingness to learn, and with hundreds of
Native Nations to learn from, who can doubt that the world as a whole
will benefit?
On 24 September 2018, the Yakama Nation submitted a “friend of the
court” brief, in the case of Washington State Department of Licensing v.
Cougar Den, Inc, calling on the Supreme Court to “repudiate the
doctrine of Christian discovery and its racist foundations as the basis for
federal Indian law.” Noting that the true foundation of the United
75
States’ relations with the Yakama Nation was a treaty, the Yakama
Nation argued that the courts of the United States have systematically
attempted to undermine the Yakama Nation’s treaty rights by imposing
an imaginary prior relationship sourced in the doctrine of “Christian
discovery.” The Supreme Court, the Yakama Nation charged, has
76
“judicially manufactured an extra-constitutional congressional plenary
authority to abrogate treaties and regulate Native Nations. This
manufactured authority rests on the false assertion that our sovereignty
and free and independent existence were ‘necessarily diminished’ upon
Christian European arrival on the North American continent.” The
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Supreme Court ruled on the issue without daring to even mention the
Yakama Nation’s arguments against “Christian discovery;” arguments
that a law-abiding Supreme Court would adopt.
26
!!
A major reason why it is so difficult to see what should be done is a false
sense of our “sovereign territory” that those of us who are Americans all
grew up with. We think, if the idea occurs to us at all, that recognition
of the rights of the Native Nations would mean making a map of “our”
land look like a patchwork of hundreds of distinct territories. But it is
not “our” land. It does not belong to us. We share this continent with
Native peoples whose legal and moral claim to dominion over it is far
stronger than our own. We are essentially guests rather than hosts on
this continent and our conduct as guests toward the true hosts has been
despicable. A major reason for our failure to think and act responsibly is
an excessive belief in the virtue and rights of our own “civilization.” A
preliminary step toward responsibility of thought is freeing our
collective mind of the amnesia that the domination system generates and
relies upon. Here it may be helpful to remember our own founding
creed. For those Americans who believe that government derives its just
powers from the consent of the governed must recognize that the Native
Nations have never consented to be governed by the United States.
Are the American people now capable of making a choice for James
Wilson’s constitutional jurisprudence in the face of the Supreme Court’s
betrayal of constitutional law or can they, perhaps, even make a choice
for something better? They—and all of us—are in need of more than the
simple honesty and self-restraint that has been almost completely
lacking in the history of the United States’ conduct towards the Native
Nations since the 1830s. The American people are a people who are also
in need of liberation—liberation from the moral corruption that has
come from our embrace of systematic mendacity in our relations with
the Native Nations as well as our liberation from what the poet and
Native activist John Trudell (Santee Dakota) succinctly calls “tech-‘no-
logic’-civilization.” This is a message that the Native Nations have
78
been conveying in clear and accessible language for many years.
Drafted by the scholar and Native activist John Mohawk (Seneca), and
carefully reviewed and revised by the Haudenosaunee Council of Chiefs,
27
!!
the Basic Call to Consciousness of 1977 was a wake-up call to
humanity. Decades before the climate crisis was on anyone’s lips, as
law professor Peter d’Errico has observed, the Basic Call to
Consciousness warned that industrial exploitation and destruction of the
Natural World threatened the survival of life on Earth: “The way of life
known as ‘Western Civilization’ is on a death path, and its culture has no
viable answers....The air is foul, the waters poisoned, the trees dying, the
animals are disappearing. We think even the systems of weather are
changing…[remember this quote is from 1977]… The people who are
living on this planet need to break with the narrow concept of human
liberation and begin to see liberation as something that needs to be
extended to the whole of the Natural World. What is needed is the
liberation of all the things that support life—the air, the waters, the trees
—all the things that support the sacred Web of Life.” This includes
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sharing in a sense of unity and equality with all our relations—all living
beings—and treating them with respect rather than attempting to
selfishly exploit them. It involves seeking a balance that reaches seven
generations forward into the future as well as back to our ancestors in
the past.
In a famous sentence, John Marshall claimed that “Conquest gives a title
which the courts of the conqueror cannot deny.” In fact, far from being
80
unable to deny a fraudulent claim of conquest on the part of the so-called
“conqueror,” the Treaty Supremacy Clause of the Constitution mandated
that the judges of the Supreme Court adopt such a position of denial
toward any claim at odds with America’s treaty obligations to the Native
Nations. The heart of Marshall’s fraudulent claim in Johnson—a claim
adopted in violation of his oath of office—was exclusively a product of
Marshall’s turgid imagination without foundation in law or fact. This
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was the assertion that “discovery” somehow is “conquest”—that
“discovery,” in Marshall’s words, “gave also a right to such a degree of
sovereignty as the circumstances of the people would allow them to
exercise.” In other words, they had a “right” to dominate subject only
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to a Native capacity for resistance with their “degree of sovereignty”—
(an absurd and self-contradictory concept)—varying according to the
28
!!
strength of that resistance. Or to put it more bluntly: we Americans will
seem to sign treaties with you in good faith, but actually we are just
biding our time until we can rule over you directly. We will calm your
alarms over your property now, so as to be better able to separate you
from it later. We will enjoy a small “degree of sovereignty” over you
today (at least in our own minds), while you are powerful, but tomorrow
we will enjoy a greater “degree of sovereignty” until we can finally
overwhelm you. This is the “conquest” that Marshall claimed the courts
of the so-called “conqueror” could not deny—the attempted conquest of
the Native Nations by a bad faith interpretive stance toward the treaty
obligations of the United States and the betrayal of the Constitution.
This is the systematic mendacity—the Big Lie at the foundation of
“federal Indian law”—that pervades the entire structure: the Big Lie that
Christian discovery gives any sort of “right” over the Native Nations at
all.
As New York Congressman Henry Storrs responded to the same
dishonest nonsense when it appeared in the 24 February 1830 report of
the House Committee on Indian Affairs: “I deny that our English
ancestors, who first colonized these States, ever countenanced that
disregard of Indian rights, or carried into practice that system of injustice
to the Native inhabitants, which has been asserted in the report of the
Committee on Indian Affairs.” Emphasizing that it was essential to
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title by conquest to actually make use of the rights granted by the laws
of war, Storrs noted that this had not been done: “Have we taken away
their lands, abolished their governments, and put them in subjection to
our government? If this has not been done, (and history shows that it
has not,) it is too late now to say that there has been a time when we
might have done it. So far from claiming to exercise this right, we have
closed our hostilities by treaties ever since we became an independent
Government, and both parties were restored to their original condition”
—in other words the military situation at the end of every conflict was
such that each side was restored by the adoption of a treaty to their
original condition as an independent and sovereign foreign state—
“except on points which treaties provided for.”
84
29
!!
The framers of the Constitution recognized that they did not have
“ultimate dominion” over all of the territory “within” the boundaries
claimed by the United States as a result of the treaty of peace with Great
Britain. They recognized the prior claim of the Native Nations to
dominion over their own territories—territories guaranteed to them
explicitly or implicitly in the treaties they had signed and would sign
with the United States. And so it is essential (pace Marshall) to
acknowledge that “conquest,” as law professor Joseph William Singer
has observed, “is not something that happened in the distant past which
cannot be corrected.” On the contrary, it is something that never
happened and thus, I would add, is no basis at all for any valid claim to
title in the United States. Rather, as Singer observes, the Supreme Court
is still “attempting to conquer Indian nations now by its failure to protect
tribal property rights and inherent sovereignty.”
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This attempted “conquest” of the Native Nations is the unconstitutional
activity that the United States Supreme Court has been engaged in since
1823—the illegal activity that masks itself as “federal Indian law.” It is a
violation not only of the Constitution but also, as New York
Congressman Henry Storrs noted, of the laws of war themselves.
“Federal Indian law” is a base and cowardly fraud and those Supreme
Court justices who participate in that fraud to this day do so because—
knowingly or unknowingly—they have accepted the arguments of the
advocates of genocide and their appeasers and forgotten the truths
articulated by those who were—and who remain—opposed to genocide.
30
!!
This work may circulate freely with acknowledgement of copyright. I am indebted to conversations with Peter
1
d’Errico and Steve Newcomb and JoDe Gaudy that have helped to clarify my thinking, especially about the doctrine
of “Christian discovery” and the domination and dehumanization system it sustains.
Peter d’Errico quotes the law professor Stacy Leeds that “an Indian law Brown v. Board of Education decision”
2
will require open discussion of United States notions of racial supremacy and the “the perceived inferiority and
dependency of Indian people.” See Peter d’Errico, Federal Anti-Indian Law: The Legal Entrapment of Indigenous
Peoples (manuscript, July 2021), pp. 193-94.
Vasquez v. Hillery, 474 U.S. 254, 266 (1986).
3
James Wilson, Notes of Debate, 26 July 1776, Journals of the Continental Congress, Vol. 6, 1774-1789, p. 1078.
4
On Wilson generally, see Kermit L. Hall and Mark David Hall, editors, The Collected Works of James Wilson in two
volumes (Indianapolis: Liberty Fund, 2007); William Ewald, “James Wilson and the American Founding,” The
Georgetown Journal of Law and Public Policy, Vol. 17, No. 1 (Winter 2019), pp. 1-21; John Mikhail, “The
Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers,” Virginia Law Review,
Vol. 101, No. 4 (June 2014), pp. 1063-1103. According to his biographer, Charles Page Smith, Wilson played the
leading role in the early formulation of Indian policy in the Continental Congress: “If the positions he held and the
frequency with which he appeared on committees concerned with Indian affairs are an index, he was until his
departure from Congress in 1777 the most active and influential single delegate in laying down the general outline
that governed the relations of Congress with the border tribes.” Charles Page Smith, James Wilson: Founding
Father, 1742-1798 (Chapel Hill: University of North Carolina Press, 1956), p.72.
James Wilson, “Considerations on the Nature and Extent of the Legislative Authority of the British Parliament,”
5
1774, in Hall and Hall, eds., The Collected Works of James Wilson, Vol. 1, pp. 4-5.
See Vine Deloria, Jr., God is Red: A Native View of Religion third edition (New York: Putnam, 2003).
6
See Tink Tinker, panel discussion of 14 April 2021 on the volume, Miguel A. De La Torre, et al., editors, The
7
Colonial Compromise: The Threat of the Gospel to the Indigenous World View (Fortress Academic Press, 2020),
https://www.youtube.com/watch?v=LAzjr_IMRxc (accessed 4 May 2021).
21 April 1830, United States Senate, 21st Congress, 1st Session, Register of Debates, p. 376.
8
Jeremiah Evarts, “What are the People of the United States bound to do in regard to the Indian question,” 27
9
November 1830, text in Francis Paul Prucha, ed., Cherokee Removal: The ‘William Penn’ Essays and Other Writings
by Jeremiah Evarts (Knoxville: University of Tennessee Press, 1981), pp. 282-283.
15 April 1830, United States Senate, 21st Congress, 1st Session, Register of Debates, p. 333.
10
See Steven T. Newcomb, Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Golden,
11
CO: Fulcrum Publishing, 2008), especially pp. 73-102. I am deeply indebted to the clarity with which Newcomb
“decodes” and presents Johnson. See also the extraordinary one-hour documentary film that he co-produced, “The
Doctrine of Discovery: Unmasking the Domination Code,” https://vimeo.com/ondemand/dominationcode
Johnson v. McIntosh 21 U.S. (8 Wheat.) 543, 574-77, 587 (1823).
12
Johnson v. McIntosh 21 U.S. (8 Wheat.) 543, 574 (1823).
13
15 April 1830, United States Senate, 21st Congress, 1st Session, Register of Debates, p. 333.
14
9 April 1830, United States Senate, 21st Congress, 1st Session, Register of Debates, p. 312.
15
15 May 1830, United States House of Representatives, 21st Congress, 1st Session, Register of Debates, p. 1008.
16
Johnson v. McIntosh 21 U.S. (8 Wheat.) 543, 563 (1823).
17
31
!!
Collin G. Calloway, The Indian World of George Washington (Oxford: Oxford University Press, 2018), p. 2.
18
George Washington, Message to the Senate of September 17, 1789 Regarding Treaties with Native Americans,
19
http://avalon.law.yale.edu/18th_century/gw006.asp (accessed 22 September 2016).
Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, https://www.un.org/
20
en/genocideprevention/documents/atrocity-crimes/
Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genoc
ide.pdf (accessed 15 September 2019).
15 April 1830, United States Senate, 21st Congress, 1st Session, Register of Debates, p. 336.
21
Quoted in Theda Perdue and Michael D. Green, The Cherokee Removal: A Brief History with Documents second
22
edition (Boston: Bedford/St. Martin’s, 2005), p. 76.
Lewis Cass to Andrew Jackson, September 1831, text in Daniel Feller, Laura-Eve Moss, Thomas Coens, and Erik
23
B. Alexander, editors, The Papers of Andrew Jackson (Knoxville: The University of Tennessee Press, 2013), Volume
9, p. 541.
Alexis De Tocqueville, Democracy in America tr. Henry Reeve (New York: Scatcherd and Adams, 1839), Volume
24
1, p. 338.
A. J. Langguth, Driven West: Andrew Jackson and the Trail of Tears to the Civil War (New York: Simon and
25
Schuster, 2010), pp. 165-166.
Claudio Saunt, Unworthy Republic: The Dispossession of Native Americans and the Road to Indian Territory
26
(New York: W. W. Norton, 2020), pp. 308-309.
15 April 1830, United States Senate, 21st Congress, 1st Session, Register of Debates, p. 336. Emphasis added
27
See Footnote 1 in Ruth Bader Ginsburg’s opinion in City of Sherrill v. Oneida Indian Nation of N. Y., 544 U.S.
28
197 (2005). See also Neil Gorsuch’s opinion in McGirt v. Oklahoma, 2020, https://www.supremecourt.gov/
opinions/19pdf/18-9526_9okb.pdf (accessed 20 August 2020). See also note 44 below.
Oneida County v. Oneida Indian Nation, 470 U.S. 226 (1985)
29
City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005).
30
“The Bill filed on behalf of the Cherokee Nation vs. The State of Georgia,” in Richard Peters, The Case of the
31
Cherokee Nation Against the State of Georgia (Philadelphia: James Kay, 1831), p. 3.
Ibid, p. 4.
32
“Treaty with the Cherokee,” 2 July 1791. | 7 Stat., 39. | Proclamation, 7 February 1792, https://
33
avalon.law.yale.edu/18th_century/chr1791.asp (accessed 19 March 2021).
Cherokee Nation v. Georgia U.S. 30 (5 Pet.) 1, 17, 20 (1831). Emphasis added.
34
The House Committee on Indian Affairs, “Removal of Indians,” Report No. 227, 24 February 1830, pp. 4-5, the
35
House of Representatives, 21st Congress, 1st Session. Emphasis added.
Ibid, p. 8.
36
Johnson v. McIntosh 21 U.S. (8 Wheat.) 543, 597 (1823).
37
James Wilson, “Chapter IV. Of the Law of Nations,” in Hall and Hall, editors, The Collected Works of James
38
Wilson, Vol. 1, p. 547.
32
!!
Chisholm v. Georgia 2 U.S. (2 Dall.) 419, 471 (1793).
39
As Randall E Barnett notes, “Chisholm shows that the bold assertion that states inherited the power of kings
40
(subject only to express constitutional constraints) was rejected by four of the five Justices when the issue first
arose.” Randall E. Barnett, “The People or the State: Chisholm v. Georgia and Popular Sovereignty,” Virginia Law
Review, Vol. 93, No. 7 (November 2007), p. 1758. It may be objected that the “decent respect to the opinions of
mankind” did not include the opinions of those later referred to in the Declaration of Independence as “merciless
savages.” Perhaps not. But there can be no doubt that the Treaty Supremacy Clause of the Constitution was
intended by the framers to apply to treaties with the Native Nations. The Declaration of Independence, https://
www.archives.gov/founding-docs/declaration-transcript (accessed 14 November 2020).
“Argument of Mr. Wirt,” in Peters, The Case of the Cherokee Nation, p. 116. To be fair to Wirt’s pugnacity, he did
41
interpolate the words: “to whom the lands were admitted to belong” into the text of his quote from Marshall. In the
original, Marshall showed no awareness of the implications of his writing “a treaty was held with the Creek Indians,
from whom the cession of a considerable tract was obtained.” John Marshall, The Life of George Washington,
Volume 1 (n.c.: Bibliobazaar, 2007), p. 195.
Johnson v. McIntosh 21 U.S. (8 Wheat.) 543, 591 (1823)
42
“Argument of Mr. Sergeant,” in Peters, The Case of the Cherokee Nation, p. 50.
43
In fact, Article 3, Section 2, of the Constitution explicitly gave the Supreme Court original jurisdiction in all cases
44
arising under treaties and thus there was no basis for denying the Cherokee Nation standing even if it was somehow
“domestic” and “dependent.” Indeed, for the framers of the Constitution, even an individual foreign national or an
individual American citizen could sue a state. See James Wilson’s opinion in Chisholm v. Georgia 2 U.S. (2 Dall.)
419, 456, 471 (1793). There was no basis for any state’s claim to “sovereign immunity” in the Constitution. A
dishonest state—bound by a treaty or a contract—that refused to honor its agreement was, to Wilson, no different
from a dishonest merchant: “The latter is amenable to a court of justice. Upon general principles of right, shall the
former, when summoned to answer the fair demands of its creditor, be permitted, Proteus-like, to assume a new
appearance, and to insult him and justice by declaring ‘I am a Sovereign state?’ Surely not.” American citizens were
meant to be “sovereigns without subjects” who were “equal as fellow citizens, and as joint tenants in the
sovereignty.” Some of the proponents of the Eleventh Amendment attacked Wilson’s views, but that Amendment
denied rights to individual persons and had no bearing on the rights of the collective legal entities known as “tribes”
in the Constitution. Peter d’Errico has shown in a succinct and powerful fashion that Cherokee Nation v. Georgia
was wrongly decided. See Peter d’Errico, Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples
(manuscript, July 2021), pp. 101-111.
Foster & Elam v. Neilson, 27 U.S. 253, 306-307 (1829).
45
The best treatment of the “trust relationship,” and of “federal Indian law,” is in Peter d’Errico’s forthcoming book,
46
Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples (manuscript, July 2021).
Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279-280 (1955).
47
https://www.nps.gov/articles/000/dawes-act.htm (accessed 19 March 2021).
48
Richard Henry Pratt, founder of the Carlisle Indian Industrial School, quoted in Peter d’Errico, Federal Anti-
49
Indian Law: The Legal Entrapment of Indigenous Peoples (manuscript, July 2021, p. 64.
McGirt v. Oklahoma, 2020, https://www.supremecourt.gov/opinions/19pdf/18-9526_9okb.pdf (accessed 20
50
August 2020).
33
!!
Treaty with the Apache, 1 July 1852, https://avalon.law.yale.edu/19th_century/apa1852.asp (accessed 25 June
51
2020). This treaty contains the phrase that the Apache people were “under the laws, jurisdiction, and government of
the United States of America,” as if intending that the law of conquest would apply, while actually depending on the
Apache to govern themselves and relying upon a treaty to effect that object. Even through the filter of the
dishonesty of the American side, one can see an obligation on the United States, if it were to pass any law affecting
the Apache, to do so only if it was “conducive to the prosperity and happiness of said Indians,” and promising, “this
treaty is to receive a liberal construction, at all times and in all places, to the end that the said Apache Indians shall
not be held responsible for the conduct of others, and that the government of the United States shall so legislate and
act as to secure the permanent prosperity and happiness of said Indians.” See also, Herb Yazzie, “Renounce Racist
Christian Discovery Doctrine,” Navajo Times, 24 May 2021, https://navajotimes.com/opinion/columns/guest-
column-renounce-racist-christian-discovery-doctrine/ (accessed 29 June 2021).
The Fort Laramie Treaty of 1868, https://avalon.law.yale.edu/19th_century/nt001.asp (accessed 7 July 2021). See
52
also, Native Knowledge 360, “Treaties Still Matter: The Dakota Access Pipeline,” https://americanindian.si.edu/
nk360/plains-treaties/dapl (accessed 7 July 2021).
For background and links to the texts of some of the relevant treaties, see: https://www.mprnews.org/story/
53
2016/02/01/explaining-minnesota-ojibwe-treaties (accessed 9 August 2021). See also https://
mncourts.libguides.com/c.php?g=509384&p=3483460 (accessed 9 August 2021).
Elizabeth A. Reese, “The Other American Law,” Stanford Law Review, Vol. 73 (March 2021), p. 636.
55
James Wilson, Notes of Debate, 26 July 1776, Journals of the Continental Congress, Vol. 6, 1774-1789, p. 1078.
56
The Constitution of the United States, https://www.archives.gov/founding-docs/constitution-transcript (accessed
57
24 June 2020).
“Remarks of James Wilson in the Pennsylvania Convention to Ratify the Constitution of the United States,
58
1787,” in Kermit L. Hall and Mark David Hall, editors, The Collected Works of James Wilson in two volumes
(Indianapolis: Liberty Fund, 2007), Vol. 1, p. 246.
Cherokee Nation v. Georgia U.S. 30 (5 Pet.) 1, 80 (1831).
59
Albert Jeremiah Beveridge, The Life of John Marshall four volumes in two (Boston: Houghton Mifflin, 1944),
60
Volume 4, p. 546. https://babel.hathitrust.org/cgi/pt?id=uc1.$b292;view=1up;seq=1234 (accessed 12 August
2016).
Even as acute an observer as the historian Claudio Saunt has mistakenly described Worcester as “a complete legal
61
victory for the Cherokees.” Claudio Saunt, Unworthy Republic: The Dispossession of Native Americans and the
Road to Indian Territory (New York: W. W. Norton, 2020), p. 163.
Quoted in Matthew L. Sundquist, “Worcester v. Georgia: A Breakdown in the Separation of Powers, American
62
Indian Law Review, Vol. 35, No. 1 (2010-2011), pp. 246, 239-255. Jill Norgren, The Cherokee Cases: The
Confrontation of Law and Politics (New York: McGraw-Hill, 1996), pp. 128-130.
Quoted in Norgren, The Cherokee Cases, p. 122.
63
Vine Deloria, Jr., God is Red: A Native View of Religion third edition (New York: Putnam, 2003), p. 75.
64
For a related view on the importance of indigenizing the so-called “public lands,” see Melissa K. Nelson, “Time to
65
Indigenize Lands and Water Conservation,” 22 December 2020, Sierra: the National Magazine of the Sierra Club,
https://www.sierraclub.org/sierra/2021-1-january-february/feature/time-indigenize-lands-and-water-conservation
(accessed 3 January 2021).
Calvin Luther Martin, The Way of the Human Being (New Haven: Yale University Press, 1999)
66
34
!!
James Wilson, “Chapter III. Of the Law of Nature,” in Kermit L. Hall and Mark David Hall, editors, The
67
Collected Works of James Wilson in two volumes (Indianapolis: Liberty Fund, 2007), Vol. 1, p. 542.
17 May 1830, United States House of Representatives, 21st Congress, 1st Session, Register of Debates, p. 1031.
68
21 April 1830, United States Senate, 21st Congress, 1st Session, Register of Debates, p. 376.
69
Jeremiah Evarts, “What are the People of the United States bound to do in regard to the Indian question,” 27
70
November 1830, text in Francis Paul Prucha, ed., Cherokee Removal: The ‘William Penn’ Essays and Other Writings
by Jeremiah Evarts (Knoxville: University of Tennessee Press, 1981), pp. 282-283.
Jeremiah Evarts, “Present State of the Indian Question,” 24 November 1830, text in Francis Paul Prucha, ed.,
71
Cherokee Removal: The ‘William Penn’ Essays and Other Writings by Jeremiah Evarts (Knoxville: University of
Tennessee Press, 1981), p. 281.
Jeremiah Evarts, Essay No. XXIV, 19 December 1829, text in Prucha, ed., Cherokee Removal, p. 195.
72
Jeremiah Evarts, “Present State of the Indian Question,” 24 November 1830, text in Prucha, ed., Cherokee
73
Removal, pp. 279-280,
On the counterproductive consequences of some American efforts at coercive democracy promotion in Latin
74
America, and for a history of how some of these efforts came to be discontinued, at least for a time, on the basis of
popular support for the national sovereignty of others, see Alan McPherson, The Invaded: How Latin Americans and
Their Allies Fought and Ended U.S. Occupations (Oxford: Oxford University Press, 2014).
On Writ of Certiorari to the Supreme Court of Washington, Brief of Amicus Curiae Confederated Tribes and
75
Bands of the Yakama Nation in Support of Respondent, No. 16-1498, p. 6, Washington State Dept. of Licensing v.
Couger Den, Inc., 188 Wash. 2d 55, 392 p. 3d, 1014, affirmed (2018). https://www.supremecourt.gov/DocketPDF/
16/16-1498/64580/20180924115810387_36893%20pdf%20Yakama%20Nation%20br.pdf (accessed 29 July 2020).
Ibid, p. 5.
76
Ibid, p. 6.
77
John Trudell, “What it Means to be a Human Being,” 15 March 2001, The Women’s Building, San Francisco,
78
radio TUC (Time of Useful Consciousness), broadcast quality recordings (two parts): http://www.radio4all.net/files/
tuc@tucradio.org/44-2-JohnTrudellONE_2014.mp3. http://www.radio4all.net/files/tuc@tucradio.org/44-2-
JohnTrudellTWO_2014.mp3 There is a transcript: https://ratical.org/many_worlds/JohnTrudell/
HumanBeing.html#s2 (accessed 19 March 2021).
Akwesasne Notes, ed. Basic Call to Consciousness [1978] (Summertown, TN: Book Publishing Company, 2005),
79
pp. 90-91. Peter d’Errico, Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples (manuscript, July
2021), p. 271.
Johnson v. M’Intosh 21 U.S. (8 Wheat.) 543, 587-591 (1823).
80
Much the same conclusion has been reached by Steve Newcomb who writes: “we might say that it was by means
81
of the imaginative processes (thought processes) of Marshall’s mind, based on his interpretation of history, that the
original rights and existence of the Indians were imaginatively diminished and, to that extent, mentally negated.”
Newcomb, Pagans in the Promised Land, p. 103. As Stuart Banner notes: “If anyone was guilty of ‘converting the
discovery of an inhabited country into conquest,’ it was John Marshall in Johnson v. M’Intosh, not the British
colonists or their government.” Stuart Banner, How the Indians Lost their Land: Law and Power on the Frontier
(Cambridge: Harvard University Press, 2005), p. 187.
Johnson v. McIntosh 21 U.S. (8 Wheat.) 543, 587, 591-92 (1823). Emphasis added.
82
15 May 1830, United States House of Representatives, 21st Congress, 1st Session, Register of Debates, 1007.
83
35
!!
Ibid, pp. 1010-1011.
84
Joseph William Singer, “Law and Property,” Northwestern University Law Review, Vol 86, No. 1 (Fall 1991), p.
85
30.
36
!!
ResearchGate has not been able to resolve any citations for this publication.
James Wilson and the American Founding
  • William Ewald
William Ewald, "James Wilson and the American Founding," The Georgetown Journal of Law and Public Policy, Vol. 17, No. 1 (Winter 2019), pp. 1-21;
Considerations on the Nature and Extent of the Legislative Authority of the British Parliament
  • James Wilson
James Wilson, "Considerations on the Nature and Extent of the Legislative Authority of the British Parliament," 5 1774, in Hall and Hall, eds., The Collected Works of James Wilson, Vol. 1, pp. 4-5.
The Indian World of George Washington
  • Collin G Calloway
Collin G. Calloway, The Indian World of George Washington (Oxford: Oxford University Press, 2018), p. 2.
Message to the Senate of September 17, 1789 Regarding Treaties with Native Americans
  • George Washington
George Washington, Message to the Senate of September 17, 1789 Regarding Treaties with Native Americans, 19
The Cherokee Removal: A Brief History with Documents second 22 edition
  • Michael D Perdue
  • Green
Quoted in Theda Perdue and Michael D. Green, The Cherokee Removal: A Brief History with Documents second 22 edition (Boston: Bedford/St. Martin's, 2005), p. 76.
Driven West: Andrew Jackson and the Trail of Tears to the Civil War
  • A J Langguth
A. J. Langguth, Driven West: Andrew Jackson and the Trail of Tears to the Civil War (New York: Simon and 25
The Dispossession of Native Americans and the Road to Indian Territory
  • Claudio Saunt
  • Unworthy Republic
Claudio Saunt, Unworthy Republic: The Dispossession of Native Americans and the Road to Indian Territory 26 (New York: W. W. Norton, 2020), pp. 308-309.
See Footnote 1 in Ruth Bader Ginsburg's opinion in City of Sherrill v. Oneida Indian Nation of N
See Footnote 1 in Ruth Bader Ginsburg's opinion in City of Sherrill v. Oneida Indian Nation of N. Y., 544 U.S. 28 197 (2005). See also Neil Gorsuch's opinion in McGirt v. Oklahoma, 2020, https://www.supremecourt.gov/ opinions/19pdf/18-9526_9okb.pdf (accessed 20 August 2020). See also note 44 below.
Of the Law of Nations
  • James Wilson
James Wilson, "Chapter IV. Of the Law of Nations," in Hall and Hall, editors, The Collected Works of James 38