Return to Indigenous Law Institute home pageRapid City - The ancient practices of Indian religion turned Steve Newcomb's sense of reality completely around. But if he succeeds in doing the same for the Vatican and U.S. Indian law, it will be through the modern scientific method.
That method involves seeing a result - for instance: congressional plenary power over Indian country despite clear language in the U.S. Constitution that treaties "shall be the supreme law of the land" - and reasoning backward from it to find how it came about.
Now, any detective novelist can tell you it's not easy getting from an inexplicable murder in the Rue Morgue to an ape free on the streets of Paris (as the first detective story - an offshoot of the scientific method - proved).
But if you're a young Shawnee-Delaware student of U.S. Indian law, your problems are compounded.
Ask Mr. Newcomb, who had come to law school from a troubled youth - Los Angeles, drugs - out of a sense of obligation to the elders whose teachings and ceremonies had rescued him.
"When I got there, I realized the laws were set up in such a way that Indians would always be set up to lose in the long run."
Many American Indian lawyers have proved that it's possible and effective to work within the legal system, of course. But it's a system that proceeds by precedent, weight and duration of established opinion, what has gone before. Especially in school, where mastering the case law of court practice is the first priority, the deck is slacked high and deep against new thinking. Mr. Newcomb was soon disillusioned with law school.
"When Europeans got here what did they have? Claims. Now what do they say Indians have? Claims. How did everything get reversed? ... Through a very gradual and intricate drafting of rules."
But he persisted in his iconoclastic view that the deck of Indian law stacked up to a house of cards. And he continued to search the stacks for the origins of U.S. Indian law, even while boning up on case law.
Two simple words from the important Johnson vs. McIntosh case of 1823 sent him "regressing with anguish into the obscurity of causes," in the eloquent words of a modem essayist - a "deconstructionist," appropriately enough.
For Mr. Newcomb's researches have led him to attempt the "deconstruction" of U.S. Indian law and its underpinnings in papal bulls (or official decrees of the popes).
Those telltale two words in U.S. Chief Justice Chief Justice John Marshall's 1823 opinion are Christian people. Mr. Newcomb was curious about why they were there - why the distinction?
Through 10 years of research, he has tracked back from these words in their context to the genesis of Indian dispossession, the Doctrine of Christian Discovery, two 15th century papal bulls, and undergirding it all a Christian-heathen distinction Judge John Marshall "did a masterful job" of smuggling into Johnson vs. McIntosh.
The case is indeed key to later legal decision-making on Indian land issues, said Frank Pommersheim, a University of South Dakota law professor specializing in Indian law. It introduced into U.S. jurisprudence the Doctrine of Discovery, which had authorized the European "discoverers" to claim for the crowns of Europe and their cross those lands not already occupied by Christians.
The significance of this doctrine in law, Mr. Pommersheim said, is that it placed title to native lands in the hands of the "discoverers" without denying the native right to occupancy and possession. Johnson vs. McIntosh is the foundation of federal policy that Indians can inhabit and possess reservation land but not sell it (barring federal approval), since actual title is held in trust by the government for this use and this occupancy, he said.
"Pursuant to Johnson vs. McIntosh, the ultimate title to those lands resides with the United States government, and that tracks all the way back to Johnson vs. McIntosh. "
Mr. Newcomb tracks Johnson vs. McIntosh back to the Doctrine of Discovery, but with a twist. He calls it the Doctrine of Christian Discovery, because it denies sovereignty to non-Christians.
"That's the key point here," Mr. Newcomb said. "If it's not in the possession of any Christian lords, they have the right to go in and take the land. That was the principle that John Marshall adopted into a United States Supreme Court decision."
The chief justice's opinion leaned on English charters of exploration, among them the one granted by Henry VII to John Cabot in 1496. Cabot's charter, and those of English explorers after him, contained a language of subjugation derived from papal decrees of the mid- to late-15th century.
A bull of Pope Nicholas V, in 1452, permitting the king of Portugal "to go to the western coast of Africa, and to ... 'capture, vanquish and subdue the Saracens (Muslims, apparently from their long residence in the ancient Sarras region of southern France, now the city of Marseilles), pagans and other enemies of Christ, and put them into perpetual slavery and to take all their possessions and their property.'
"Portugal proceeded on those voyages on the western coast of Africa and had even been doing this before this time, but the moral authority was given them by the church to continue this. And (Portugal) made those discoveries, put people under slavery, and so started this whole tradition of discovery. So that by the time Columbus set sail, that whole tradition of conquest and discovery of non-Christian land was well-established."
In 1493, the year after Columbus blundered upon the Bahamas, the so-called Inter Cetera Bull extended the policies in effect on the west coast of Africa across the ocean to the Americas and their inhabitants, using the same violent language of subjugation to a crusading faith and European crown monarchs.
But it added something to the old bull, Mr. Newcomb noted. In an obvious attempt to forestall internecine warfare within Christendom, it forbid the taking of land already claimed or inhabited by Christians. Because Indians were not Christians the papal bulls set a precedent for dehumanizing Indians, Mr. Newcomb said.
"They were regarding Indians as something less than human. You didn't really come up to true human, to the true level of humanity, until you became Christian and adopted European culture. That was implied in all this."
And it would have mortal implications for Indians over the next five centuries. If the Inter Cetera Bull failed to prevent warfare among Christian nations, it positively encouraged warfare upon non-Christian populations.
For Inter Cetera Bull is a crusading exhortation for Christian voyagers to dispossess, enslave and make war against heathenish creatures outside the pale of Christianity. Mr. Newcomb considers it an official blessing on centuries of bloody vendetta against Indians of the Americas.
It helped inspire the macabre rationale of the requerimiento, for instance. Marauding Spaniards who encountered native inhabitants were under orders to reel off a litany of reckoning faith Christian truisms then demand instant allegiance to the Cross and the Crown. All this in a language historians doubt the natives understood well enough to interpret.
Indians who declined, hesitated or plain didn't understand were treated to the exact catalogue of threats contained in the Inter Cetera Bull - to make war, to enslave, to dispossess - according to the requerimiento statement published in David Stannard's American Holocaust.
Worse yet, Mr. Newcomb said, the impact of the Inter Cetera Bull and its 1452 predecessor extended throughout Christian Europe, and beyond it to the Netherlands and Russia. Each of these countries accepted the moral high ground afforded by the Inter Cetera Bull for seizing "heathen" land and converting - or in default of that killing - "heathen" populations.
"They didn't want to be left out," Mr. Newcomb said. "They also wanted to get rich on conquering."
Justice Marshall assured the United States would not be left out if there was ever any doubt, when he "incorporated the Doctrine of Discovery into case law to be the law of the land," in Mr. Pommersheim's words.
But except for the one telltale reference to "Christian people," Mr. Newcomb said, he left out the Christian-heathen distinction that had informed the original doctrine. The omission hides the Christian-based curtailment of native claims to sovereignty, not to mention humanity, he said. It's as if it took place for no reason, in the natural course of things, he added.
"When Marshall first defined that principle of discovery, he defined it: without mentioning any religion in there. So he was able to take this religious principle and in a sense rewrite it without any religion in there.
" ... Then when he goes further in his decision, he says that the United States adopted this principle of Christian discovery into U.S. law. Only he doesn't use the word Christian anymore. Now he drops it back out. This is how it's been covered up and hidden in the law all this time."
The result, he said, was to base future dealings with Indians on a view of their lands as "vacant" though occupied - occupied, that is, by "heathens," who didn't count as people, much less sovereign people, because they weren't Christian. Only Christians could occupy land as sovereign people, meaning such land was no longer "vacant." These seemingly strange distinctions go straight back to the Doctrine Of Christian Discovery and the papal bulls that buttress it.
"By using this to set up the premise in United States federal Indian law that Indian rights to complete sovereignty as independent nations were diminished on this principle of Christian discovery, what they have done then is to interpret Indian treaties according to this doctrine of Christian discovery instead of in terms of treaties entered into with fully sovereign independent nations."
Mr. Newcomb considers it a clean end run around the U.S. Constitution, which implicitly recognizes tribal sovereignty by directing that treaties "shall be the supreme law of the land" - no ifs, ands or buts about it until Johnson vs. McIntosh. Since then the courts have lumbered even further onto constitutionally thin ice, locating congressional 'plenary powers" over Indian country in the Constitution's commerce clause. Support for it there is so weak, Mr. Pommersheim said, that it's not even controversial anymore to suggest there is none.
Mr. Newcomb advocates a frontal attack on Johnson vs. McIntosh.
"Because nobody ever went back and challenged that first premise of the Christian-heathen distinction, they've been able to build up this house of cards. What we need to do now is begin to challenge that decision directly. Acknowledge - get the United States to acknowledge - that this is a violation of the fundamental human rights of Indian nations, simply because they were not Christians at the time of European arrival.
"What the Johnson vs. McIntosh decision sets up is the proposition that the United States may penalize Indian people simply because their religion isn't proper religion because it's a 'heathen' religion, because their way of life is a 'heathen' way of life ....
"They then used that term and that label to undermine the rights of Indian people, so they're penalizing Indian people on that basis. They then used that whole thing, this whole network ... to interpret the Indian treaties to say that the United States has the fee simple vested property interest title to all the Indian lands within the treaty boundaries ... and that the Indian people only have the right of occupancy within those boundaries."
Mr. Newcomb will begin his challenge in Geneva next spring - a challenge to the spirit of a church rather than to the letter of the law.
At a conference to draft a global Earth Charter, Lakota activist Birgil Kills Straight, who is on the agenda will join him in an appeal to Vatican representatives, he said.
They will ask the papal representatives to consider revoking the Inter Cetera Bull that sanctioned Christian claims to superiority over non-Christians encountered in the Americas.
The ideal time for renouncing the papal edicts will be 1993, Mr. Newcomb said. The United Nations has declared it the Year of Indigenous People (after deferring to fears that so designating 1992 would take the shine off the Columbus quincentennial).
And the quincentennial of the Inter Cetera Bull, issued after Columbus' return from his first voyage to the Bahamas, comes up in May of 1993. Along with Mr. Kills Straight, Mr. Newcomb hopes to persuade the Vatican that May 1993 or shortly thereafter is the appropriate time to renounce the Inter Cetera Bull.
The church can regain the moral high ground on human rights as regards the people indigenous to its "New World" crusading grounds, Mr. Newcomb said.
"I think it has a lot of influence in the world community for moral suasion, and hopefully they will be willing to use that moral suasion in this case, to completely and formally turn their back on this old legacy of subjugation and say that it's time for indigenous nations to have their rightful place in the world community - no longer denied on the basis of simply because they weren't Christians at a certain time in history, they don't have the same rights as other people and nations in the world community."
Pulling the papal bull from under U.S. Indian law would be a start on toppling that house of cards, too, he is convinced.
Mr. Pommersheim agreed that Mr. Newcomb's research can be a helpful step toward a more just evolution of Indian law. Though he said precedent and the sheer duration of settled law count for a lot, so do attitudes, perceptions, and the historical record.
He cited the Supreme Court's landmark Brown vs. Board of Education ruling of 1954 that ended "separate but equal" laws that had been geared against blacks throughout the South.
Until that ruling, "separate but equal" had been considered all right, Pommersheim said. But with Brown vs. Board of Education, he added, "the Supreme Court comes to realize that separate but equal does not mean that ... It means unequal. That was ultimately found offensive to the Constitution and the Supreme Court ruled that it was improper."
In the same way, Mr. Newcomb is hoping the high court will someday come to realize the Constitution doesn't stutter, not even for Congress, when it states that "all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land ..."
Given the current orientation of the high court, Mr. Pommersheim isn't counting on it for such sociological jurisprudence on behalf of Indians in the near future.
But it could prove a valuable case Mr. Newcomb is building, he acknowledged. "Ultimately that could have some influence on the Court."
DOCUMENT SOURCE: Reynolds, Jerry. "Scholar calls on Pope to pull the bull from under U.S. Indian law." Indian Country Today. 29 Oct. 1992, sec. B1+.
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