Doctrine of Discovery

03. Northwest Ordinance & Indian Nations | Indigenous Sovereignty | Sovereign’s Handbook

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By Johnny Liberty

The Northwest Ordinance is the first full declaration of the U.S. government policy regarding the Indian nations. It was a policy developed during a couple of centuries of Indian/colonial relations and reflected the good intentions of European Common law. 

The same doctrine was embodied in the act of August 7, 1789, as one of the first declarations of the U.S. Congress under the new Constitution. 

“The utmost good faith shall always be observed toward the Indians,  their lands and property shall  never be taken from them without their consent;  and in their property rights and liberty, they shall never be invaded or disturbed…” ~ Northwest Ordinance, 1787

The Common law maxims embodied in the ordinance were in direct confrontation with the overwhelming desire to take the land from the Indians though, and forty short years later, the covetous intentions of the federal and state governments became apparent.

“The Discovery doctrine is a concept of public international law expounded by the U.S. Supreme Court in a series of decisions, most notably Johnson v. McIntosh in 1823. Chief Justice John Marshall justified the way in which colonial powers laid claim to lands belonging to sovereign indigenous nations during the Age of Discovery. Under it, title to lands lay with the government whose subjects explored and occupied a territory whose inhabitants were not subjects of a European Christian monarch. The doctrine has been primarily used to support decisions invalidating or ignoring aboriginal possession of land in favor
of colonial or post-colonial governments.” ~Johnson v. McIntosh (1823) 

Indian Removal Act & Genocide

U.S. President Andrew Jackson signed the Indian Removal Act (1830) into law. It was not overtly coercive, as it authorized the federal U.S. government to send negotiators to the Indians who would bargain for and promise to pay for Indian land if the natives chose to sell it.  In practice though, it was a disaster, and with the encouragement of powerful individuals and state governments who coveted the territories, Indian resistance to enforcing the Act was met with military force.

Cherokee Nation, Georgia & Indian Law

During those days, the Cherokee Nation held a vast area of land within the borders of Georgia state. Considered the most civilized of the tribes, the Cherokees had adopted a representational form of government and a constitution patterned after that of the United States. 

Every indication pointed to the fact that they intended to remain a sovereign nation on their ancestral territory and that they had no plans to disappear to the lands west of the Mississippi.

However, the State of Georgia was impatient to gain possession of the Cherokee’s lands and decided to proceed on its own. It arbitrarily created counties, superimposed their artificial borders over the historical Cherokee territory, and forced the foreign jurisdiction of Georgia state laws onto the Cherokee nation.

When the Cherokees attempted to redress their grievances about the matter before the U.S. Congress they were shunned, so they hired attorney William Wirt who took the issue directly to the U.S. Supreme Court. 

Chief Justice John Marshall said the court did not have jurisdiction in the case of Cherokee Nation v. Georgia (1831) on the grounds that Indians were not truly foreign nations, because they were classified separately under the Commerce Clause of the U.S. Constitution. 

He coined a new term for the occasion, “domestic, dependent nations”. He further asserted that individual Indians were in a “state of pupilage”, that is, wards of the government, and they only retained limited aspects of sovereignty through the treaties that had been signed.

Justice Smith Thompson vigorously dissented arguing that the U.S. Supreme Court did have jurisdiction. He argued that the Cherokee Nation should be considered a foreign state, an independent and sovereign nation, because the government had always dealt with the Cherokee Nation as a foreign state when entering into treaties. He did not agree with the Court’s interpretation of the commerce clause as excluding indigenous people from foreign statehood.

Justice Thompson also delineated the characteristics of a legal sovereign nation as it is still accepted in international law today. A sovereign nation must occupy a fixed territory with a population over which it exercises exclusive jurisdiction, and there must be a stable organization to administer its affairs and meet its international obligations.

The ink was hardly dry on Justice Marshall’s opinion when Samuel A. Worcester, a citizen of Vermont, was arrested by the Georgia militia for residing on Cherokee land without a license. The charges reflected the laws of the day: “…residing within the limits of the Cherokee Nation without license or permit from his excellency the Governor…”

Samuel A. Worcester was found guilty and sentenced to four years in the state penitentiary. Worcestor v. Georgia (1983) was appealed to the U.S. Supreme Court where it was argued that the Georgia law was unconstitutional and therefore void because it violated U.S. treaties and the sovereign status of the Cherokee Nation. 

In a dramatic departure from the decision in Cherokee Nation v. Georgia, the court agreed and reversed Worcester’s conviction. This time, Justice Marshall writing for the majority said: “The Indian nations had always been considered as distinct, independent, political communities, retaining their original natural rights, as the undisputed possessors of the land, from time immemorial.”

Furthermore, according to Story’s Commentaries on the U.S. Constitution, “There were Indians, also, in several, and probably in most, of the states at that period, who were not treated as citizens, and yet, who did not form a part of independent communities or tribes, exercising general sovereignty and powers of government within the boundaries of the states.”

Law of Nations & Indian Law

Under international law and a settled doctrine under the “Law of Nations” is, that a weaker nation does not surrender its independence – its aboriginal right to self-determination and self-government – by simply associating with a stronger power, or receiving its protection.

A weaker nation, in order to provide for its security, may place itself under the protection of a more powerful state, without stripping itself of the right to govern, and consequentially, cease to be a state.

Even though the court had drastically altered its stance in Worcester v. Georgia, it was the Cherokee Nation  v. Georgia majority opinion that was ultimately favored in subsequent Indian relations – much to the detriment of those classified as “domestic, dependent nations” and “wards of the government”.

References:

  1. Special thanks to Estar Holmes for writing this section Northwest Ordinance & Indian Nations.
  2. Wikipedia | Northwest Ordinance1797, Act of August 7, 1789.
  3. Wikipedia | Johnson v. M’Intosh (1823).
  4. Wikipedia | Indian Removal Act (1830).
  5. Wikipedia | Cherokee Nation v. Georgia, 30 U.S. (5 Peters) (1831) coined the term “domestic, dependent nations, Indians were “wards of the government” and only retained limited sovereignty through signed treaties.
  6. Justice Thompson is but one of hundreds of dissenting U.S. Supreme Court opinions that did not prevail or become law, but were correct in its legal and moral reasoning. Majority decisions may have become the supreme law of the land from a constitutional perspective, but not necessarily a moral or legally correct decision that adheres to the intent of the founders or the U.S. Constitution; Wikipedia | U.S. Constitution, Article I, Section8 states that, Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes plainly and clearly determining that Indian tribes were separate from the federal government, the states, and foreign nations.
  7. Wikipedia | Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
  8. Wikipedia | Story’s Commentaries on the U.S. Constitution (1833).
  9. North American News Service, Summer ‘96, p.63.

Source: Sovereign’s Handbook by Johnny Liberty (30th Anniversary Edition), Volume 1 of 3, p.84-87

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03. Native Sovereignty & Doctrine of Discovery | Indigenous Sovereignty | Sovereign’s Handbook

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By Johnny Liberty

Self-determination is the deciding by a people of a nation what form of government they shall have without reference to the wishes of any other nation….the people have a range of choices from total assimilation within another nation, territory status, autonomy, statehood, free association, commonwealth to total independence and sovereignty.” ~ Francis Anthony Boyle, Attorney

The right of a people to self-determination is a cardinal principle in modern international law commonly regarded as a jus cogens rule. All people, based on respect for the principle of equal rights and fair equality of opportunity, have the right to freely choose their sovereignty and international political status with no interference.

Indigenous “Native sovereignty” is a necessary precursor to continue our exploration of “sovereignty” as it relates to the united states of America. Prior to our discussion in the last chapter, many people had only learned about “sovereignty” in the context of indigenous First People’s struggles to reclaim their inherent rights to self-determination, their right to just and fairly administered treaties and the recognition of First People’s culture, language and nations under international law. 

Manifest Destiny & Spiritual Debt

The Power structures of both Western and Eastern nations cannot continue to desecrate or ignore indigenous people’s rights to “Native sovereignty”, to allow First People’s nations to co-exist amidst our destructive pursuit for land, wealth, gold and resources. What was once considered the “manifest destiny” of colonial “Sovereign Powers structures” are now, and justly so, finished.

Today, there are no more continents or native people left to conquer or vanquish. The last frontiers on this ever shrinking planet are not outside of us, but the pursuit of higher consciousness, as well as achieving economic, social, political and environmental justice for all the people. 

To manifest these last frontiers, we must not only include indigenous nations, but learn how to live sustainably on the earth in our last noble quest for self-determination and “sovereignty for all the people”. 

We the People of the united states of America have a spiritual debt to the indigenous people in this country, and of the earth, that can never be repaid except with humility and gratitude. 

We the People must acknowledge the terrible transgressions and genocides of our forefathers and foremothers for us all to be healed. No sincere happiness can be found in these united states of America or any other European nation until this healing work is done. 

Western civilization and the Roman Catholic Church is riddled with centuries of deeply ingrained guilt and shame for the horrible deeds done in the name of religion and the name of “progress”. This all must be healed to restore “sovereignty for all the people”. 

Perpetual Slavery for Indigenous Native People

Forty years before Christopher Columbus set foot in the Americas on behalf of Spain, Pope Nicholas V gave express permission by issuance of the papal bull Romanus Pontifex (1455) to King Alfonso of Portugal to claim and capture lands in West Africa “to capture, vanquish, and subdue, the Saracens, Pagans, and other enemies of Christ…to take all their possessions and property, and to put them into perpetual slavery.”

With this document, and its predecessor in Roman law, terra nullus, Pope Nicholas V essentially declared war against all non-Christians throughout the world. 

“This Doctrine of Discovery, an ancient doctrine of the Christian world, still serves as the foundation of federal Indian law in the United States.” ~ Steven T. Newcomb

After Pope Alexander VI heard of Columbus’ successful “discovery” to the America’s on behalf of Spain he promptly issued the Inter Cetera papal bull on May 3, 1493 in which he declared that “the Catholic faith and Christian religion be everywhere increased and spread and that barbarous nations be overthrown and brought to the faith itself.”

Pope Alexander VI called on the monarchs of Spain and Portugal to subdue and convert all native lands and possessions. In essence the Pope decreed under papal law that unconverted heathens had no rights whatsoever to self-determination. Even if the indigenous tribal chiefs signed a peace treaty, it was considered non-binding because they were non-entities under the “Canon law”. 

Thus generations of treaties with indigenous people have been routinely dishonored, and native people still suffer great injustice at the hands of their conquerors to this very day. 

The roots of religious persecution and racism go long and deep in the united states of America, and around the world. There can be no religious justification for genocide, or the annihilation of any indigenous culture in the eyes of Source or God. If ones religion does not teach and practice the Golden rule, then religion has nothing to offer us.

No Separation of Church and State

The U.S. government is believed to have conducted its affairs in accordance with separation of Church and State. This is not true, however, with regard to the indigenous people of North America.

The U.S. Supreme Court formally wrote the “Doctrine of Discovery” into the laws of the United States in the case of Johnson v. McIntosh (1823). Chief Justice John Marshall wrote: “Discovery gave title to the government, by whose subject, or by whose authority it was made, against all other European governments.”

This doctrine has been primarily used to support decisions invalidating or ignoring aboriginal possession of land in favor of modern colonial governments such as in the case of Sherrill v. Oneida Nation (2005). 

Furthermore, in the case of County of Oneida v. Oneida Indian Nation of N.Y. (1985), “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”.

Today, very few people realize that the legal distinction between Christians and aboriginal people (i.e. indigenous people, Native American, First People, Indians) is still incorporated in the U.S. Constitution as the “law of the land”. 

Based on this ancient “Doctrine of Discovery”, and the federal law based upon it, the United States government continues to deny indigenous people the recognition of their inherent tribal sovereignty and treaty rights in their own ancestral homelands of North America with a singular exception that Indian Territory (i.e., Reservations) is not subject to state or local taxes.

“Indian people are still denied their rights simply because they were not Christians at the time of European arrival.” ~ Steven Newcomb

Natural Law Rights & Inherent Sovereignty Under International Law

Indigenous people still have unalienable, natural law rights to inherent sovereignty as independent nations under international law. This principle has never been refuted in American law, despite numerous treaties being dishonored or ignored.

The indigenous people of North America never lost or surrendered their inherent sovereignty, but were conquered and subdued to the point of annihilation through the horrible genocide of the U.S. military and private mercenaries. Indigenous lands were essentially taken by force and stolen, then sold to private individuals and corporations by the federal U.S. government. 

Many indigenous people, dispirited and dispossessed by the genocidal actions against their families and tribes, were forced to submit to the federal U.S. government under the stewardship of the Bureau of Indian Affairs (BIA) of the federal U.S. government. Crazy Horse was one of the last free Indians to ride the plains and preferred death instead of submitting to white rule and forced to live on a reservation.

Indigenous people can still reclaim their native and tribal sovereignty by disengaging from federal U.S. government benefit programs if they can restore economic, legal and political sovereignty over their own affairs as an independent nation such as the Onondaga People of New York.

“The Onondaga people have consistently rejected the notion of changing from our traditional chiefs to become a ‘tribal’ or switch to an elective government. The Onondaga have remained steadfast despite the many efforts by the United States and the Bureau of Indian Affairs to change us.” 

Indian tribes exercising powers of self-government under the jurisdiction of the federal U.S. government are limited by the U.S. constitution. 

Tribal Governments As Sovereign Nations

Whereas tribal governments who choose to function as sovereign nations can still do so, but incorporated tribes must revoke their corporate charters to reclaim their inherent sovereignty or be subject to the municipal law of the District of Columbia (D.C.) like any other U.S. state. 

Tribal members with Bureau of Indian Affairs (BIA) numbers similar to SSN’s, they must revoke those numbers to reclaim their inherent sovereignty.

Eventually, tribal governments could dissolve their corporation, then break all in voluntary contractual relationships with the state and federal U.S. government except for diplomatic and trade relationships. 

For those tribal members who are also U.S. citizens, perhaps one can restore inherent sovereignty on non-tribal land by updating land patents land and declaring “allodial” titles on those lands.

Vatican Must Rescind Doctrine of Discovery & Provide Reparations with Land

One of many steps to bring this immoral, though legal, system of colonization, exploitation and genocide to its conclusion as a tragic part of human history, is for the “Doctrine of Discovery” to be formally rescinded by papal decree with reparations provided in land. The Pope and the Vatican are the third largest land owner in the world with over 177,000,000 acres.

An Open Letter to the Pope has been written to the Pope many times by many people and religious organizations, although he has so far ignored the request. 

In 2012, the United Nations Economic and Social Council Permanent Forum on Indigenous Issues called for a mechanism to investigate historical land claims based on the discovery doctrine.

In 2009, the Episcopal Church repudiated the Doctrine of Discovery as did the Unitarian Universalist Association in 2012. Other religious groups – the Christian Church (Disciples of Christ), the World Council of Churches, New York Yearly Meeting of the Religious Society of Friends, the United Methodist Church, to name a few – have also repudiated it. 

But the Vatican has refused to publicly address Catholicism’s role in bringing about the Doctrine of Discovery, or revoke the papal bulls that articulated it.

Indigenous Economic Sovereignty

For purposes of economic development and improving conditions on the reservations in Indian Territories, casino gambling as a tourist attraction, and other sustainable industries such as wind and solar power, could be an economic means toward economic sovereignty. Any environmentally destructive industry such as uranium mining should be shut down.

Tribal governments who have already built casinos could continue to operate them for a limited time for the purposes of economic development, then shut them down and convert the facilities to tribal use such as offices, schools or hospitals. Funds generated by these indigenous enterprises could be used to rebuild infrastructure and a balanced relationship with the land.

Any indigenous enterprises that remain could be integrated into a “Sovereign Trust” on behalf of the indigenous nation. This could be a legal instrument for implementing sovereignty in all tribal nations, and having them recognized internationally by establishing self-government under the Law of Nations.

The federal U.S. government recognizes indigenous sovereignty in economically and legally. Consider this excerpt from an affidavit of a former, high-level CIA operative who was responsible for developing a copy of the Inslaw software on the Cabazon reservation.

“The Cabazon Band of Indians are a sovereign nation. The sovereign immunity that is accorded the Cabazons as a consequence of this fact made it feasible to pursue on the reservation the development and/or manufacture of materials whose development or manufacture would be subject to stringent controls off the reservation.” ~ Michael J. Riconsciuto

Indigenous sovereignty movements are afoot in many of the stronger native cultures in Africa, the Americas, Asia, Europe and Oceania such as the Haida people. 

There are over 5,000 distinct indigenous cultures in the world, often nations within nations, that have not been recognized by the 193 member states of the United Nations (UN) as sovereign nations with the unalienable rights of self-determination. The UN estimates the indigenous population at over 370 million people spread out over 20% of the planet. 

May all indigenous people restore their cultural traditions and native languages,  self-reliance and self-sufficiency on the land.

In hindsight may we remember, according to Charles C. Mann, author of 1491, indigenous people were the “persecuted survivors of a recently shattered culture…not a people without history incapable of change.”

References:

  1. Wikipedia | Dr. Francis Anthony Boyle; Infoplease | Indigenous Peoples of the World.
  2. Wikipedia | Right of Self Determination.
  3. Wikipedia | Discovery doctrine; Special thanks to Stephen Newcomb for his monumental research on the Doctrine of Discovery, the papal decree by Pope Nicholas V sourced in part from an essay, A Matter of Religious Freedom and Five Hundred Years of Injustice by Steven Newcomb | Philharmonie PDF | Apolegetica Historia Sumaria by Bartolome de Las Casa (1530)—a conquistador who repented his actions against indigenous people who became a Jesuit priest; Indigenous Law Institute
  4.  Ibid; Pagans and the Promised Land (2008) by Stephen Newcomb | Amazon | We the People of the Dominated Native Nationscommentary on assimilating native people into We the American Peopleby Stephen Newcomb.
  5. Wikipedia | John Marshall quote from an essay, A Matter of Religious Freedom and Five Hundred Years of Injustice by Steven Newcomb.
  6. Wikipedia | City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005) held that repurchase of traditional tribal lands 200 years later did not restore tribal sovereignty to that land. 
  7. Wikipedia | Oneida v. Oneida Indian Nation of N.Y., 470 U.S. 226, 234 (1985)(Oneida II) and Oneida Indian Nation of N. Y. v. County of Oneida, 414 U. S. 661, 667 (1974) (Oneida I).
  8. Indian Country Today | See also: Birgil Kills Straight by Maria Braveheart Jordan commentary on intergenerational trauma and native suicides; Indian Country Today | Quote from an Open Letter to Pope John Paul II.
  9. Wikipedia | Crazy Horse; Wikipedia | Crazy Horse Memorial; This author remembers being the last free Indian Crazy Horse in another lifetime.
  10. Wikipedia | Onondaga People are one of the original five nations of the Iroquois. The Cayuga and Seneca have territory to their east and the Oneida and Mohawk to their east. The Haudenosaunee Councils have remained sovereign; Onondaga Nation
  11. Cornell Law | 25 USC §1302 – Constitutional rights.
  12. An “allodial” title is a sovereign title with no superior claim to such land.
  13. Counterpunch | Open Letter to the Pope to repudiate the Doctrine of Discovery by Deacon Joe Beasley; HuffPost | Nuns Blast Catholic Church’s Doctrine of Discovery That Justified Indigenous Oppression; Amah Mutsun | Religious Society of Friends Letter to Pope Francis Re: The Doctrine of Christian Discovery; Fountain of Light | Refute the Doctrine of Christian Discovery.
  14. Wikipedia | UN calls for mechanism to investigate historical land claims.
  15. National Catholic Reporter | Doctrine of Discovery: A scandal in plain sight.
  16. Wikipedia | Indian Gaming Act of 1988;  300 tribes in 27 states.
  17. Defrauding America by Rodney Stitch (1994), p.389.
  18. Wikipedia | Haida People; The Dominion | The Struggle for Haida Gwaii; Haida Nation | Constitution of the Haida Nation.
  19. Wikipedia | Unrecognized tribes in the Unites States; Wikipedia | List of historical unrecognized states and dependencies; UNPO | InfoPlease | Indigenous People of the World | Unrecognized Nations: Travels to Countries That Do Not Exist; Amazon
  20. Wikipedia | Quote sources from 1491: New Revelations Before Columbus, p.10; Amazon

Source: Sovereign’s Handbook by Johnny Liberty (30th Anniversary Edition), Volume 1 of 3, p.76-81

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