We are able to think back to a time when our ancestors were living entirely free from and independent of ideas developed across the Atlantic Ocean in a place called Christendom. We know that our Native ancestors were in no way subject to Christian ideas before the Christians sailed across that ocean to our part of the world, which many of us know as Turtle Island. Because the Christian Europeans were not physically here on Turtle Island, their concepts, ideas, and arguments were not here either. This leaves us with a mystery. On what basis did the invading colonizers first assume that our free nations and our ancestors were subject to the ideas and arguments of the Christian world? To what extent are those ideas still being used today centuries later by the United States?
In his Commentaries on the Constitution of the United States, published in 1833, U.S. Supreme Court Justice Joseph Story asked a related question. He asked how the British Colonies got title to the soil of the North American continent. His question not only assumed that the British colonies had title to the soil of the continent, it also assumed, as Story said, that the colonizing powers obtained a “title” by their own “assertion” that they had a “complete title” to and “absolute dominion” over the soil of what from our ancestors’ perspective was the soil of our national territories. Story traced those ideas back to a papal bull of the fifteenth century and to royal charters of England and Great Britain.
Most people fail to realize that men such as Joseph Story and John Marshall spent a great deal of their time thinking about such matters. They did so because they had to develop a rationale for asserting that the Christian colonizers from Europe had a right to the soil of the continent that was superior to whatever right our original nations and our ancestors thought they had. Men of ideas such as Story and Marshall, whose job it was to persuade, undoubtedly knew there was a slight chance that someday in the distant future, we, the descendants of our Native ancestors, might try to go back through the record of the ideas of the colonizers and trace their mental “steps.”
A few of us have been working for decades on that retrospective with the goal in mind of not only understanding but of also now at long last directly challenging the ideas and arguments that were “laid down” by the ancestors of the colonizing society who sailed to Turtle Island from Western Christendom.
Based on decades of intensive and diligent research, we now know that the Christian European thinkers dreamed up out of their heads the idea that the representatives of Christendom could enter someone else’s country and mentally, verbally, and ceremonially make the assertion that the monarch they represented had an “absolute dominion” over the country they had located by ship. They further assumed that their mental, verbal, and ceremonial assertion would become “true” because the Christian thinkers dreamed it up in their minds and treated it as “true” thereby sustaining it over time.
The idea that they as colonizers had a complete title to and absolute dominion over the soil of the territories of our Original Nations, a point that Story, Marshall, and other white men claimed on behalf of the United States, became “true” and a “reality” for the colonizers and for the United States simply because those ideas were collectively treated as “true” and as a “reality.” Since this was all happening in the colonizers’ own language at the time, when such assertions were initially made, our ancestors had no understanding of the specific nature of the colonizers’ bizarre views. Some of our ancestors such as Tecumseh did try to challenge the colonizers’ thinking based on the original free existence of our nations.
The recent controversy over the Dakota Access Pipeline traces back to that process of reality-construction and the ability of the United States government to simply declare a given reality into existence. But there is something rather surprising in the historical record that most people know nothing about. It is surprising because it is language that still ought to be benefitting Native nations.
Take for example, “An Act to provide a temporary Government for the Territory of Dakota, which Congress passed in March of 1861.” Surprisingly, the Territory of Dakota did not include any Indian territory that had not been ceded or surrendered by treaty by an Indian nation.
But “all such [Indian] territory,” says the Dakota territorial act, “shall be excepted out of the boundaries and constitute no part of the Territory of Dakota, until said tribe shall signify their assent to the President of the United States to be included in said Territory.” To this day, the Oceti Sakowin (Seven Council Fires) and the Ihanktuwana Dakota Nation (“The Fires of the Great Sioux Nation”) have never given their assent to the President of the United States to have their Oceti Sakowin territory included in the Territory of Dakota.
That congressional act for the Territory of Dakota also stated that “nothing in this act. . . shall be construed to impair the rights of person or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians…” To this day those rights remain unextinguished by treaty.
This being the case, one has to wonder, “Why is the above wording in the ‘Act to provide a temporary Government for the Territory of Dakota’ not being used by the Standing Rock leadership or by their attorneys in an effort to defend the Ihunktuwana Standing Rock Dakota and the Oceti Sakowin?” In my view, this is very likely because the leadership at Standing Rock has not been informed about the significance of the Dakota territorial act. Yet unless they begin to press the United States government on this point, the protective language in the Dakota territorial act will continue to be ignored and not invoked.
The Act to establish the Territory of Dakota is considered to be part of the fundamental organic law of the United States. This means it is foundational to the entire system of the United States. The above wording favorable to the Oceti Sakowin (“the Great Sioux Nation”) comes from the 1787 Northwest Ordinance, “The utmost good faith shall always be observed toward the Indians, and in their property, rights, liberty they shall never be invaded or disturbed, unless in just and lawful wars declared by Congress.” The adoption of the Northwest Ordinance was the very last act of the Continental Congress, and the very first act of the new Congress under the U.S. Constitution of 1789. The language found in the territorial acts for Dakota, Iowa, Oregon, Nevada, to name but a few, traces back to that language in the Northwest Ordinance.
However, there is another parallel track of U.S. organic law that follows the Domination Model of the Vatican papal bulls. This is where the argument about “absolute dominion” over the soil in U.S. federal Indian law comes from, beginning with the Johnson v. M’Intosh ruling of 1823. The Domination Conceptual system of Christendom that stems from the Vatican documents has been used by the United States government as a way of getting around the organic law of the Northwest Ordinance which is language found in the Act to establish the Dakota Territory.
In March 1958, the Standing Rock Sioux Tribe beat the Army Corps of Engineers in U.S. District Court when the Army Corps attempted to take lands of the Oahe Dam project. Entirely ignoring the Act for the Temporary Government for the Territory of Dakota, the U.S. District Court said that Congress had the power of eminent domain over the treaty lands of Standing Rock. However, Congress had not exercised that power so Standing Rock was handed the win. In September 1958, Congress passed an act to allow the Army Corps of Engineers to take over slightly more than 2,000 acres for the Oahe Dam project without Congress ever once taking into account the language in the Territory of Dakota act that no Indian land shall be excepted out of the Territory of Dakota.
The Domination Model basis upon which Congress gave the Army Corps a green light to proceed to taking over the lands of the Standing Rock Nation was revealed by the U.S. Justice Department in a legal brief that it submitted to the U.S. Supreme Court four years earlier, in 1954, in the case Tee-Hit-Ton Indians v. United States. The Justice Department argued that the Tee-Hit-Ton people were not entitled to compensation for a taking of their timber because the “Christian nations” had asserted “jurisdiction” over the lands of “heathens” and “infidels.” The U.S. Justice Department even cited a papal decree dating back to the year 1344, in 1954! The papal bulls of domination resulted in a conceptual system of domination and dehumanization being used against our Original Nations, and that is the context for the current dispute and controversy at Standing Rock and the Dakota Access Pipeline.
Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery(Fulcrum, 2008). He is a producer of the documentary movie, The Doctrine of Discovery: Unmasking the Domination Code, directed and produced by Sheldon Wolfchild (Dakota), with narration by Buffy Sainte-Marie (Cree). The movie can be ordered from 38Plus2Productions.com.