‘This land is your land, this land is my land’ – or is it? How the Doctrine of Christian Discovery annihilated native rights.

The goal here is to acknowledge the truth about our history and what really happened. The truth is important because without it we will continue to live in a cocoon of silent lies that hurts everyone.

In 1823, Chief Justice John Marshall wrote the Supreme Court decision in Johnson v. McIntosh, which concluded that colonial land succession rights were superior to native rights. The bases for the superior rights of colonial succession were papal edicts and a British monarch’s order that were issued more than 300 years before the Supreme Court decision. The Court’s decision was both curious and questionable for a new country that had separated church and state and thrown off the yoke of a monarchy. Yet, those were precisely the sources that Marshall used to prohibit “legal rights” to native succession.

At issue in the case was the simple question of whether a Native American could transfer title to private property to an individual. Author and law school professor Eric Kades and others suggest that the very nature of the lawsuit is suspect since there was no actual conflict of title because the lands did not overlap one another. This suggests that the case is one of theory and not of actual fact.

Author Steve Newcomb explains the basis of the decision this way. In 1452 and 1455, Pope Nicholas V issued edicts that gave Portugal the right “…to invade, capture, vanquish and subdue…to reduce [the native peoples] to perpetual slavery…to take away their possessions and property.” Pope Alexander VI gave the same rights to Spain in 1493 following the first voyage of Christopher Columbus. In 1495, King Henry VII issued an order authorizing John Cabot to claim lands for England if the lands “discovered” were occupied by heathens and infidels and had not been claimed by other Christian nations.

Attorney Tonya Gonnella Frichner (Onondaga Nation), president and founder of the American Indian Law Alliance, spoke about the Doctrine of [Christian] Discovery at the United Nations in 2011. She said, “What we have found is that the doctrine of discovery has been institutionalized in the laws and policies on national and international level(s) and lies at the roots of the violations of the indigenous people’s human rights, both individual and collective.”

Mark Charles, who spoke at the University of North Dakota, stated that Canada, Australia and New Zealand have also cited Johnson v. McIntosh to justify their taking of native lands. Fundamental to the Doctrine of Discovery is the idea that indigenous peoples are inferior. Even more fundamental is the idea that they are savages and that “civilized” people are superior. Although Johnson v. McIntosh is taught in law schools, the doctrine is an unwritten chapter of American history. But, it is not an unwritten chapter for American Indians who began suffering the pain of the decision long before it was written. Charles also said that whites are also traumatized because they carry the intergenerational pain of the perpetrator. Michael Hendrickson, a co-author of this article, believes that Charles is right and says, “I can hardly even talk about the Sand Creek massacre which occurred in my state of Colorado without totally choking up.”

Subsequent writings about the decision and later court decisions were couched in additional curious language, including the idea that the indigenous people were not in fact nations at all and thus did not have standing with respect to the land. Henry Wheaton, the court reporter for Marshall’s court, said that the natives had lost their sovereignty when the lands were “discovered” and thus only retained a right to occupancy.

How is it possible that the American Indians were not sovereign nations when treaties were negotiated with them? What was their standing in the treaties if not as a nation?

In fact, if you research the treaties, the word “Nation” was repeatedly used in reference to Indian tribes.

The bottom line is that the lands were stolen and subsequent legal decisions were simply rationalizations of the European conquest. Of course, neither stealing nor conquest is a legal basis for possession and both have been outlawed in modern times, most significantly by the United Nations. The way the lands were taken needs reconciliation or as Mark Charles put it, we need “conciliation” – meaning resolution.

When we sit and look into each other’s eyes and listen to each other’s hearts, we come to a different conclusion – a conclusion that says we are all brothers and sisters and just perhaps ‘this land belongs to you and me’. The idea of reconciliation can begin with a simple concept – that the resources of Earth belong to everyone and that they ought to be used in a way that honors all life.

‘There was a big high wall that said private property but on the backside it didn’t say nothin,’ – Woody Guthrie

Mike Hendrickson – Contributing Writer