New Studies by Native American Scholar Document
the Role of Christianity in Historic Oppression

by Fred Whitehead

Last autumn I read in the Mid-October issue of the paper News from Indian Country, a lead article by Valerie Taliman, "Delegation wants Vatican to revoke the Cetera Bull." This began with a quotation from Steven Newcomb, a Shawnee/Lenape legal scholar: "Indian people are denied their rights in United States laws simply because they were not Christians at the time of European arrival." Along with Birgil Kills Straight, a Lakota from Kyle, S.D., and other participants from Central and South American who spoke for indigenous rights, Newcomb spoke at a panel during the Parliament of World Religions in Chicago last summer.

The article continued that this presentation "was the first time that many people heard about the undeniable relationship between the theft of Native lands and the Catholic Church's ancient doctrines which instructed Christians 'to capture, vanquish, and subdue' enemies of Christ--including Native peoples--and to take away all of their property and possessions." The Indigenous Law Institute called on Pope John Paul II to revoke the original Papal Bulls which authorized Catholic sovereigns to seize lands of the heathen. So far as I know, the present Pope has made no response.

Subsequently I exchanged a letter or two with Newcomb, who is working on a book to be entitled Pagans in the Promised Land: Religion, Law, and the American Indian. He also sent a short essay, A Matter of Religious Freedom, which he published in 1992, giving an overview of his research, as well as important references, notably a volume edited by Frances Gardener Davenport, European Treaties bearing on the History of the United States and its Dependencies to 1648 (Washington, D.C.: Carnegie Institution, 1917). This should be available in college and university libraries, as well as a few other larger public libraries.

The origins of this Papal doctrine may be traced to the conflicts between Christians and Moslems in the 15th century. King Alfonso of Portugal had caused his armies to do battle with the "Saracens" in Africa, and extended his operations to Guinea. Pope Nicholas V, in the Bull Romanus Pontifex (January 8, 1455) acknowledged the contributions of Alfonso and his son Prince Henry to the "cause": "...many Guineamen and other negroes, taken by force, and some by barter of unprohibited articles, or by other lawful contract of purchase, have been sent to the kingdoms. A large number of these have been converted to the Catholic faith, and it is hoped, by the help of divine mercy, that if such progress be continued with them, either those peoples will be converted to the faith or at least the souls of many of them will be gained for Christ." Such was the ideology of the birth of the infamous Slave Trade.

Pope Nicholas then directed his attention to the rest of the world, authorizing King Alfonso "to invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever, and other enemies of Christ wheresoever placed, and the kingdoms, dukedoms, principalities, dominions, possessions, and all movable and immovable goods whatsoever held and possessed by them and to reduce their persons to slavery."

Immediately upon hearing of Columbus' "discoveries," King Ferdinand and Queen Isabella of Spain dispatched the news to Pope Alexander VI (a notable reprobate), who issued a Bull, Inter Caetera (May 3, 1493), greeting their recent victory over the Moslems in the siege of Granada, but also noting the prospects for New World "gold, spices, and very many other precious things of divers kinds and qualities. Wherefore, after earnest consideration of all matters, as becomes Catholic kings and princes, and especially of the rise and spread of the Catholic faith, as was the fashion of your ancestors, kings of renowned memory, you have purposed with the favor of divine clemency to bring under your sway the said countries and islands with their residents and inhabitants, and to bring them to the Catholic faith." Alexander then "gave" the new territories to the Spanish king and queen, with the sole condition that no other Christian monarchs had previously held such a dominion. For anyone who might happen to oppose this authorization, Alexander stated: "Should anyone presume to do so, be it known to him that he will incur the wrath of Almighty God and of the blessed apostles Peter and Paul."

The slaughter of Native Americans that then commenced was chronicled by Father Bartholomé de las Casas, in his Destruction of the Indies, and other works. Entire peoples were exterminated; literally millions were slain in conquests of Peru, Mexico and so on. Many who were not butchered by the sword died of appalling epidemics. All of this rapidly grew into the "Black Legend" of Spanish and Portugese atrocities, and was made much of in British propaganda, cheap editions of Las Casas, including gruesome illustrations, were widely distributed.

From a legal standpoint, these Papal documents were important because they fit into a theory of the fight of Discovery. A distinction was made between Discovery and Occupancy, as if these lands had been inhabited by wild animals instead of human beings. That is, a bear or a lion might be said to occupy or live in a territory, but did not and could not have title to it. That indigenous tribes occupied territory could not be denied, but they had no rights, which could be authorized only by papal authority. This legal background is discussed at considerable length in Steven Newcomb's recent essay, "The Evidence of Christian Nationalism in Federal Indian Law: The Doctrine of Discovery, Johnson v. McIntosh, and Plenary Power," in the New York University Review of Law & Social Change (Vol. 20,1993, No. 2). "This Article," Newcomb writes, "brings to the forefront an issue that has not been articulated previously: should the United States continue to assert a plenary dominion over Indians and an underlying vested property right in Indian lands based on the historical fact that Indian peoples were not Christians at the time of European arrival? Should Indian nations and people be denied under United States Law their rights to 'complete sovereignty' and an exclusive right of territory in their lands on the basis of Christianity?"

As Newcomb summarizes it, "Johnson v. McIntosh dealt with the validity of a grant of land made by the Chiefs of the Illinois and Piankeshaw Nations to private colonial individuals. The ruling, long acknowledged to have been based on the discovery doctrine, served as the conduit to place into United States law the concept of Christian discovery and dominion. Chief Justice Marshall introduced these concepts in an opaque fashion, carefully avoiding any explicit acknowledgment of the religious basis of the ruling. As a result, most jurists, legal scholirs, and federal Indian law practitioners have overlooked the religious underpinnings of the Johnson decision." Newcomb proceeds to give a brilliant review of the entire context of competing national interests regarding "new" territories in the early modem period. Among Catholic sovereigns, the Pope could mediate disputes, but what would happen with the rise of the new Protestant powers, who did not acknowledge his authority?

In his review of the legal background of imperial expansion, Marshall noted: "On the discovery of this immense continent, the great nations of Europe were eager to appropriate it to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency." Marshall then cited British King Henry VII's commissions to the Cabots in 1496, "to discover countries then unknown to Christian people, and to take possession of them in the name of the King of England." The formula authorizing dominion over the heathen was repeated in subsequent British charters, cited by Marshall, who concluded that the authority of the federal government had to take precedence over Indian territorial rights.

Newcomb then cites numerous additional legal authorities who supported Marshall's views. For instance, Joseph Story was a friend of Marshall's and also a Supreme Court Justice. In his Commentaries on the Constitution of the United States (1833), Story wrote approvingly of Alexander VI's 1493 Bull as a legal precedent, and concluded that "discovery gave title to the government...being once established, it followed almost as a matter of course, that every government within the limits of its discoveries excluded all other persons from any right to acquire the soil by any grant whatsoever from the natives." Other distinguished jurists concurred, up to and including the present day, and these are duly cited by Newcomb.

An important point that he makes is that in recent scholarship, the religious nature of the conflict has been obscured. Thus, scholars have tended to tactfully refer to "European" authority, omitting the "Christian" content of the original charters, etc. That is, Newcomb provides a welcome and quite fundamental corrective to what actually happened in history. Furthermore, he contends, with the force of truth in his words, that the Marshall decision "carried powerful implications for Indian peoples that transcended the question of their title. In all subsequent cases involving Indian issues, the Court continued to assume as a fundamental principle that Indian rights to complete sovereignty, as independent nations had, in a sense, evaporated after 'discovery.'" Newcomb observes that many court decisions after Marshall's time "would avoid mentioning Christian dominion," but that "it was to become the true basis of later United States assertions of plenary power over the American Indian. Under this fiction Indian nations are said to be subject to the legislative authority of the United States."

I have cited Newcomb's text at length here because it is necessary to show his language and his argument in detail. Among his other points is the observation that citing Christian dominion or a religious rationale for territorial rights clearly contradicts the First Amendment of the Constitution, separating Church and State. He refers to various legal scholars who argue that the doctrine of Discovery is so deeply rooted in precedent that "it is too late to question the foundations of federal Indian law." In response, Newcomb contends that it is never too late to correct such a grievous and fateful error. "It is to contend,' he says, "that Indian nations ought to learn to accept a judicial pretention based on religious and cultural prejudice that asserts that their rights to complete sovereignty and to territorial integrity may be impaired, diminished, denied, or displaced simply because they were not Christian people at the time of European arrival to the Americas. It is to accept the preposterous idea that federal Indian law will forever rest on the foundation of a subjugating Christian ideology."

Newcomb's writing style in this remarkable essay is far and away superior to most legal literature. Perhaps the author's background in rhetorical theory and communication has given him a particular skill in this respect. He clearly elucidates a great deal of difficult material, demonstrating how fundamental these arguments have been for 500 years. His level of sophistication is indeed impressive; I found this to be so with many Native American activists and thinkers I have met. For instance, at one point, Newcomb cites Rousas J. Rushdoony's Institutes of Biblical Law -- one of the key texts of the Christian Reconstructionist movement, which would have the entire government of the United States placed under Christian laws (of their interpretation, of course). That Newcomb has a number of allies in the Indian community is suggested by his appendix, a 1992 communiqué on discovery, heathens, slavery and religious freedoms, issued by the Traditional Council of Indian Elders and Youth at the Sapa Dawn Center, Yelm, Washington.

[Note: the issue of the law review in which Newcomb's article appears is entirely devoted to "The Native American Struggle: Conquering the Rule of Law," with many other essays of similar interest. The price is quite reasonable, at $6.00 from The New York University Review of Law & Social Change, 110 W. 3rd Street, New York, NY 10012.

DOCUMENT SOURCE: Whitehead, Fred. "New Studies by Native American Scholar Document the Role of Christianity in Historic Oppression." Freethought History." #9/1994. ISSN# 1071-7269.

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