In his brilliant book The American Indian in Western Legal Thought (1990) Robert A. Williams says that Chief Justice John Marshall and the other justices of the U.S. Supreme Court “were well aware of the historical paternity of this bastardized” (illegitimate) doctrine of discovery. Williams quotes Chief Justice Marshall’s good friend Justice Joseph Story as saying European nations claimed on the basis of that doctrine:
an absolute dominion over the whole territories afterwards occupied by them, not in virtue of any conquest of, or cession by, the Indian natives, but as a right acquired by discovery. [emphasis added]
The title of the Indians was not treated as a right of property and dominion, but as a mere right of occupancy.
After informing his readers of Story’s view that colonizers claimed “an absolute dominion” as “a right acquired by discovery,” Williams could have asked: “What was the rationale for treating the title of the Indians as not being a right of property and dominion, but as a mere right of occupancy?” An accurate answer, using Justice Story’s own religious wording, is this: “The reason why the title of the Indians was treated as ‘a mere right of occupancy,’ and not as a right of property and dominion, is because the Christians were controlling the terms of the discussion by classifying the Indians as ‘infidels, heathens, and savages’.” Christians claimed the power to allow or disallow non-Christians “to possess the prerogatives belonging to absolute, sovereign, and independent nations.” They made this presumption on the basis of their claim of what Chief Justice Marshall called “an ascendancy,” which is defined as “controlling or governing power : domination.”
What is missing from Williams account is a follow up on Story’s explicit and bigoted religious language, or on Story’s specific acknowledgment that the claim of “absolute dominion” was not a claim made “in virtue of any conquest.” Instead, Williams refers to the doctrine of discovery’s “discourse of conquest,” and thereby contradicts Story’s disavowal. Also, Williams immediately shifts away from Story’s explicit Christian religious vocabulary—“infidels” and “heathens”—to secular vocabulary, such as “the superior rights of a European-derived nation,” “white society,” and similar non-religious expressions.
On what basis are we to decide whether the claimed “right of discovery” expressed by the U.S. Supreme Court in Johnson v. M’Intosh was advanced on Christian or secular grounds? Simple. Story tells us. Williams provides Story’s explanation of the religious basis of Johnson’s ruling, which Story played a part in deciding. For example, Story wrote at one point: “The territory over which they [the Indians] wandered… was, in respect to Christians, deemed as if it were inhabited only by brute animals” (emphasis added).
Williams’ phrases “European-derived nation” and “a white society’s will to empire” may be accurate as modern day characterizations of that earlier history, using today’s terminology of critical race theory. Yet those secular phrasings are not consistent with Story’s religious wording, e.g., “in respect to Christians,” and with the two bigoted religious metaphors he drew from the tradition of Christianity, i.e., “infidels” and “heathens,” which pinpoint the religious basis of the claimed right of discovery in the Johnson v. M’Intoshdecision. Furthermore, Story’s use of the word “heathens” corresponds with Marshall’s use of that word in the following phrase from Johnson v. M’Intosh, “notwithstanding the occupancy of the natives, who were heathens” as contrasted with the Supreme Court’s mention of “Christian people” and their claim of “ultimate dominion.”
Here’s the point: Christians claimed, in Joseph Story’s words, “an absolute dominion over whole territories” that were inhabited by those whom Christians defined and categorized as “heathens” and “infidels,” “savages,” and “brute animals.” Yet Professor Williams’ remarkable book does not direct his readers to this religiously premised conclusion, which seems so patently obvious given Story’s phrasing. The religious premise of a claimed Christian “right of dominion” (domination), based on a claim of “discovery” by Christians, becomes even more obvious when we examine Story’s book Commentaries on the Constitution of the United States, which was published in 1833, ten years after the Johnson v. M’Intosh ruling was decided. In Book I, Chapter I, § 5, Story wrote the following as his own paraphrasing of Marshall’s wording in the Johnson decision:
The European nations found little difficulty in reconciling themselves to the adoption of any principle, which gave ample scope to their ambition, and employed little reasoning to support it. They were content to take counsel of their interests, their prejudices, and their passions, and felt no necessity of vindicating their conduct before cabinets, which were already eager to recognize [sic] its justice and its policy. The Indians were a savage race, sunk in the depths of ignorance and heathenism. If they might not be extirpated for their want of religion and just morals, they might be reclaimed from their errors. They were bound to yield to the superior genius of Europe, and in exchanging their wild and debasing habits for civilization and Christianity they were deemed to gain more than an equivalent for every sacrifice and suffering. The Papal authority, too, was brought in aid of these great designs; and for the purpose of overthrowing heathenism, and propagating the Catholic religion, Alexander the Sixth, by a Bull issued in 1493, granted to the crown of Castile the whole of the immense territory then discovered, or to be discovered, between the poles, so far as it was not then possessed by any Christian prince.
Footnote 7, which Story inserted after the phrase “and for the purpose of overthrowing heathenism, and propagating the Catholic religion,” provides evidence that Justice Story used as one of his sources a Latin version of one of the papal bulls issued by Pope Alexander VI. Footnote 7 reads: “‘Ut fides Catholica, et Christiana Religio nostris praesertim temporibus exaltetur, &c., ac barbarae nationes deprimantur, et ad fidem ipsam reducantur,’ is the language of the Bull. 1 Haz. Coll. 3.” The Latin terms “deprimantur” and “reducantur” both translate to “reduce.” The original nations were to be reduced and subjected by Christian dominators (“dominorum Christianorum”).
When reading Justice Story’s Commentaries, the principle of discovery found in the Johnson v. M’Intoshruling is traced to the above Latin phrasing and other sections found in the papal bull of 1493, and to the actual language of royal charters issued by various monarchs. Story identified this connection between those old papal documents and the Johnson ruling. We know this because after quoting from one of the papal bulls of 1493, Story then wrote: “This principle, then, that discovery gave title to the government by whose subjects or by whose authority it was made against all other European governments…” Story drew that wording verbatim directly from Chief Justice Marshall’s language in the Johnson ruling, yet Story wrote it in his Commentaries without attribution and without quotation marks.
Additionally, Story uses the phrase “absolute dominion” which matches the Latin language of “dominio” and “dominorum Christianorum” from one of Pope Alexander VI’s papal bulls from 1493. Rob Williams seems to have missed a critical point: By means of Johnson v. M’Intosh the U.S. Supreme Court covertly incorporated into U.S. law and politics the idea of the domination of Christian dominators (the dominio of dominorum Christianorum), which is what Story called in English, “absolute dominion.” Given that this well-cloaked religiously premised principle of dominance has been used by the United States against our nations and peoples for two centuries now, isn’t it time to demand that the United States no longer use it against us?
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).