SPECIAL ISSUE: The American Pathology Understanding the roots of oppression

Posted: September 10, 2004 — 11:34am EST

Behold in these pages this week an interesting and perhaps uniquely Indian discussion: perspectives on the roots of the American conquest mythology — seeking to understand the origins of the particular American belief that continues to justify the destruction of Native cultures and the taking of Native peoples' assets, particularly lands and political rights to independent cultural and economic self-governance.

This might be heresy to the "true believers" in America, but among Indian thinkers these days, as has been the case for many generations, the question of what drives the voracious American appetite to own the Indian world has always been an honorable one. As Indian cultures have their own creation stories and subsequent cultural and legal histories, so the fundamental culture of the American mainstream requires study and understanding. Every new Indian generation, believe it, will examine these questions in the ongoing search for understanding of the justifications for the theft of their lands, resources, freedoms and even identities, and in their continued quest for actual justice. The perspective of Oglala Chief Red Cloud, who said in the 1890s, "They made us many promises, but they only kept but one: They promised to take our land and they took it," remains a topic of discussion. (Consider, too, David Monongwe, Hopi elder, at the United Nations in 1977: "They say they took our land, but where did they take it?")

The old raiding cultures are somewhat understandable, where what might be called "theft" was conceived as part of honored traditions, depending on what is being taken and from whom. But the complete theft of possession or use of land and resources, the many brutal wars of contact and conquest, the forced abuse of people's labor, the usurpation of Native leadership in long-standing traditional communities — we submit that a piece of present-day America continues to believe and propagate the myth that great crimes committed against American Indians were and are somehow justifiable.

Question: How is it that courts and certain fundamental political opinion can justify the theft inherent in the usurpation of Indian properties?

For Native nations who still hold lands and are working to hold onto their sovereign territories and add new parcels of land to their peoples' destinies, this is always a good discussion. Tribal peoples rarely forget any unjust loss of lands or resources that once were properly owned and managed by their own people. The more unjust the theft or taking of the resource, the more it is remembered and often continually claimed throughout history.

We highly recommend these pages this week as a good historical foundation to ponder. American policy makers, tribal leaders, legal and historical scholars, high school and college students, Indian opinion leaders, indeed, all of our readers, please take it for the weekend and deepen your historical and cultural understanding of the deeply ingrained and presumably religious justifications of the dispossession of American Indian peoples.

Prominent Indian Country Today columnist Steven Newcomb, a primary researcher in this area, leads the way by examining the metaphors that have been prevalent in forming America's perspective of the Indian world. Newcomb cites research by Steven L. Winter that "the mind functions largely by means of metaphors." The question that Newcomb follows through is the extent to which these metaphors have led to thoughts and, this is critically important, behaviors that exhibit dehumanizing and pathological tendencies. Writes Newcomb: "Cognitive theory posits that how we conceive (think) of something predetermines how we will behave toward that thing. Thus, the imaginative American conception of Indians as 'beasts of prey' led to very specific kinds of pathological behavior consistent with that mental image (thought, or idea)." Such behavior was demonstrated in the abuse and killing of Indians while compulsively stealing massive amounts of their lands and resources writes Newcomb. Remarkably, the irrational thinking that enabled such injustices to occur still serves as the foundation of federal law dealing with American Indians.

Preeminent scholar of world cultural history and American Indian philosopher John Mohawk points us to the "peculiarly American version of Christianity," which induced the self-identification of early Americans as new Israelites, "a Chosen people," entitled by virtue of discovery to "all the riches of the world." Mohawk links this belief to the version of American nationalism currently constructed by the neo-conservative wing in America. Mohawk: "Here you find the roots of America's go-it-alone, treaty-breaking, empire building, xenophobic us-against-them psychology." Most Americans don't believe the mythical credo of manifest destiny, says Mohawk, but the much louder true-believer minority is always ready to take the reins of power. These intimidate the media who do not analyze whether things are true or not, as much as whether they reinforce the mythical claim of American "infallibility." Mohawk warns that while the most Americans, who are capable of thinking through such issues, "Rational America" as he describes them, are nonetheless "dangerously tolerant of it."

Other contributors land on the "Doctrine of Discovery," which emerges from the concept of "the chosen people" gaining title to lands and resources by right of claiming it from the "heathen" or non-Christian peoples. This, amazingly, is the doctrine that defines the fundamental American legal policy with American Indians known as American Indian Law. "The entire Western Hemisphere was deemed to be terra nullius — 'vacant land,'" according to contributing columnist Steven McSloy. McSloy writes, "Americans thought themselves, "the 'chosen people,' with a 'Manifest Destiny' to own the continent." Christian sects and religions diversified and warred among each other, confounding everything even more. From a traditional Indian spiritual perspective, one complaint is central: fundamentalist Christians will claim that only through Jesus can a human being be "saved" — i.e., have spiritual life, after death. This denies the direct, Creator or Creation-driven belief systems, prayers and practices of traditional non-Christian ceremonies, which are very seriously prescribed and practiced in Indian country.

This discussion might seem dull to some, but Indian leaders call for it because the fundamentals of the thinking that has historically been arrayed against Native peoples is formidable and remains active. We can only educate ourselves if we aspire to accurately communicate with those who deny our histories, cultures and identities. We hope it is also refreshing to those Americans who in recent years have felt beaten over the head by the loud and nationally prominent Christian political missionary movement. There are a lot of assumptions worth challenging in the Christian-based argumentation aimed at Indian circles. A humble step back from arrogance of Western cultural beliefs in these matters, not to mention the intellectual chasm that renders these beliefs groundless, remains a welcome gesture.

Newcomb: On America's pathological behavior toward Native peoples

Posted: September 10, 2004 — 11:31am EST by: Steven Newcomb / Columnist / Indian Country Today

According to Steven L. Winter, in his book "A Clearing in the Forest: Law, Life, and Mind" (2001), recent findings in cognitive science (study of the human mind) reveal that the mind functions largely by means of metaphors and other cognitive operations. Metaphor is thinking of one thing in terms of something else. As Winter explains, cognitive science has revealed that all thought is innately imaginative, and metaphor is one of the ways that human beings use the imaginative power of human thought.

But the question arises, are some metaphors and other mental processes more likely to lead to thoughts and behavior that are dehumanizing and pathological? For example, if one group of people thinks of and dehumanizes another group of people as "beasts," or sub-human, isn't this likely to lead to negative, perhaps even heinous behavior towards the people being labeled? Is it correct to consider such negative thoughts and behavior to be pathological?

Take the example of George Washington thinking of and referring to Indians as "savages" and "beasts." In 1783, Washington wrote that, "the gradual extension of our settlements will as certainly cause the savage, as the wolf, to retire." By retire he meant, move away or be killed. Both "the savage" and "the wolf" were described by Washington as, "beasts of prey, tho' they differ in shape." This is an example of Washington using the imaginative power of thought in a dehumanizing, and, arguably, pathological manner.

Cognitive theory posits that how we conceive (think) of something predetermines how we will behave toward that thing. Thus, the imaginative American conception of Indians as "beasts of prey" led to very specific kinds of pathological behavior consistent with that mental image (thought, or idea).

For example, American troops — at Washington's instruction — carried out a scorched earth policy against the Seneca Nation by destroying entire towns and vast food supplies. In some cases, American troops skinned the bodies of the Seneca people who had been killed. The troops would skin the bodies "from the hips downward to make boot tops or leggings." Since the Seneca killed were imagined or conceived of as "beasts," they could, without any twinge of American conscience, be skinned like wild beasts.

Greed was a powerful motive for this kind of thought and behavior towards the Seneca and other Native nations: Millions of acres of land and all the material wealth those lands represented. Genocide can be good for business.

That Hitler exhibited a pathological mentality and behavior toward Jews, which was reflected in their mass annihilation at the hands of the Nazis, is taken for granted by most people. Fewer people would be of the opinion that the United States, over the course of its history, has exhibited a pathological mentality and behavior toward American Indian nations and peoples. Yet who could deny that skinning human beings such as Washington's soldiers did to the Seneca people reflects some kind of pathology?

If a child kills cats and blows up frogs with firecrackers, is this the sign of a balanced and well-adjusted human being? Or is such behavior indicative of deep emotional and perhaps mental pathology? Serial killers often start out with these "small killings" and eventually begin killing other human beings. The pathology that the future serial killer exhibits in childhood becomes fully manifested in heinous acts of murder in adulthood.

By way of analogy, during its "infancy" and "youth" the United States started out killing off Indians, while compulsively stealing massive amounts of lands and resources from Native nations. Over the course of its entire lifespan the United States has continued to exhibit compulsive pathological behavior toward Native peoples.

Because the people of the United States understandably desire to view their country in a positive light, they tend to conveniently overlook or deny the U.S.'s reprehensible thought and behavior towards Native nations. The subject of U.S. genocide against American Indians is conveniently swept under the rug, so to speak, and in mainstream media we never see a discussion of the possibility of an American pathology towards Native nations and peoples. Being able to avoid this uncomfortable subject makes it a lot easier on those wishing to extol the virtues of the United States without contradiction.

When one thinks about it, it would seem that the American empire's mental and behavioral pathology toward Native nations has passed through different phases.

One phase was the outright killing of Indians from the Ohio Valley to the gold fields of California, and everywhere in between. Another phase was the U.S.'s never-ending kleptomaniacal compulsion to steal Indian lands and resources. (Recent passage of the Western Shoshone bill is evidence that this phase is still ongoing). Yet another phase was the U.S.'s efforts to destroy the economic and political independence of Native nations, to destroy Native languages, cultures, and to destroy our ability to live our respective spiritual traditions in our sacred places. Is this compulsively destructive mentality and behavior toward Native peoples evidence that the U.S. society has a deep and underlying illness (pathology)? Or is it just "the American way," along with apple pie and the American flag?

America's pathological mentality and behavior toward Native nations has old cognitive roots that can be traced back many centuries. Take for example one of Cristobal Colon's favorite passages from the Bible: "O clap your hands, all ye nations: shout unto God with the voice of joy, for the Lord is high, terrible: a great king over all the earth. He hath subdued the people under us: and the nations under our feet & God shall reign over the nations."

From a Native perspective, one could say that applying the above way of thinking to indigenous peoples is pathological because it led to a brutal and hierarchical structuring of the physical and social world. Core metaphorical concepts in the above passage include the concept of "the Lord" being "high and terrible." Those who subscribed to this viewpoint, felt justified in conducting themselves as European "lords" who were "high and terrible." This attitude is exemplified by the Spaniards' use of vicious dogs to hunt down Indians and tear them apart, or conquistadors cutting off an Indian's hand for not "handing" the Spaniards an imposed quota of gold.

The metaphors in the above passage resulted in thinking of indigenous peoples as destined to be "subdued" because "the Lord … hath subdued" them. Once they were viewed as destined to be "subdued," the indigenous peoples were then also viewed as destined to exist forever "under" the representatives of "the Lord." The Christian Europeans then viewed the indigenous peoples as existing "under" their "feet," meaning, subject to Christian European authority. Many similar conceptual patterns form the basis of America's present day pathological mentality and behavior towards Native nations and peoples. A "reality" constructed on the basis of such cognitive patterns is a "reality" of domination.

America's mental and behavioral patterns of pathology toward Native nations generally remain at an unconscious level of awareness in society. This means that although these patterns do exist, the average person is usually oblivious to this fact. It is up to us to identify these cognitive and behavioral patterns of domination, and suggest what ought to be done about them.

If we accept that there is such a thing as an American pathology toward Native nations and peoples, it stands to reason that we ought to search for ways to heal this pathology. Such a task is extremely difficult because of the extent to which America's cognitive and behavioral patterns of domination toward Native nations and peoples seem to be inextricably woven into the social, legal, political, and economic fabric and institutions of the United States. The pathology then becomes manifested through largely taken for granted and seemingly "normal" everyday activities, such as federal legislation and policy decisions, Supreme Court and other court rulings, state legislation and policy decisions, National Labor Relations Board decisions and so forth.

Ironically, history suggests that for centuries the cultures and cognitive systems of indigenous peoples contain transformative and healing alternatives to the American pathology. Although we must be cautious to refrain from romanticizing Native cultures, it is fair to say that the traditional worldviews and conceptual systems of indigenous nations and peoples contain healing metaphors and values that stand in stark contrast to the Euro-American system of thought and behavior.

One clear example of how indigenous societies have influenced the world in the political realm is the extent to which the model of the Iroquois Confederacy influenced many of the founders of the United States such as Benjamin Franklin. "From America have emerged the cornerstones of the political philosophy that has transformed the world," wrote German Arciniegas in his book "America in Europe" (1980). The indigenous worlds — concepts, technologies, medicines, foodstuffs, etc., — of the Americas had a transforming effect on the dank and oppressive medieval culture of Christendom. Seeing examples of indigenous democracies of North America, eventually led European intellectuals to envision the possibility of a different kind of political order based on "liberty," without monarchy.

The French thinker La Boetie related the following: "If by chance different people are born today, who are not accustomed to servitude nor fear liberty, and they are bidden to choose between being slaves or living in freedom ... there is not doubt that they will be more inclined to obey reason than to serve other men." Such ideas flew in the face of the rigid hierarchical structuring of European society; and such ideas became a catalyst that transformed the world by giving voice to a concept unknown in medieval Christendom: "to be free."

Indigenous representatives have consistently provided insightful commentary on the taken for granted norms of European societies. Early on, such commentaries influenced European political philosophers and other Enlightenment intellectuals. What was normative for the Christo-European world was generally seen as pathological from an indigenous perspective. That this is so is reflected in a story related by the French essayist Montaigne about a time when King Charles of France thought that the splendor of his court might have greatly impressed some visiting Indians. When the king asked them for their opinion, the Indians made two key observations.

As German Arciniegas tells the story: "… they found it strange that so many older men, bearded and well armed, like the ones who make up his Majesty's entourage, rendered obedience to the monarch, who is a child, and that they should not choose instead the eldest among them to command them. Secondly, that among the people there should be a privileged half that enjoyed every luxury and comfort, while the other half were beggars who implored at the doors, wasting away from hunger and poverty. It seemed strange to them that this half that suffered such great injustice should not fly at the rich one's throats and set fire to their houses." Was this prescient of the French Revolution?

The American empire's pathological mentality and behavior toward Native nations is predicated upon very old deep-seated metaphorical concepts transplanted from Europe, such as lordship, monarchy, dominion, domination, subjugation, subduing, exploiting, and the desire to profit as much as possible from all aspects of life. Native commentators have long noted that greed and lust for power lie at the heart of American pathology. Chief Joseph of the Nez Perce remarked: "My father was the first to see through the schemes of the white man, and he warned his tribe to be careful about trading with them. He had suspicion of men whom seemed anxious to make money."

Indigenous knowledge systems contain thousands of years of accumulated ecological wisdom, and the political heritage of a free and independent existence. Perhaps these indigenous conceptual and behavioral systems are able to provide a healing alternative to American and Western pathology. If given a chance, perhaps indigenous knowledge and wisdom will be able to teach human beings how essential it is for us to harmonize our thoughts and our behaviors with the natural rhythms and ecological systems of Mother Earth, for the benefit of our future generations and all living things.

Steven Newcomb is the Indigenous Law research coordinator at Kumeyaay Community College (located on the reservation of the Sycuan Band of the Kumeyaay Nation), co-founder and co-director of the Indigenous Law Institute, and a columnist for Indian Country Today.

Mohawk: Mythological America is an unjust society

Posted: September 10, 2004 — 11:28am EST by: John C. Mohawk / Columnist / Indian Country Today

The roots of America's persistent injustices to its indigenous peoples, and to other peoples generally, are found in what can best be described as the peculiarly American version of Christianity. You could hear references to this phenomenon in recent political conventions, in references to President Ronald Reagan's allusions to a "city upon a hill," which is a reference to John Winthrop's sermon of 1830. In that work, Winthrop called upon the Puritans to act as though God was living among them and asserted that they were his chosen people, that the eyes of "all people are uponn us," and "... that the Lord our God may blesse us in the land whether wee goe to possess it ..." These Englishmen who were about to land in "New England" were claiming the God of Israel, that they were somehow modern Israelites, a "chosen people," chosen to possess the earth.

To the rest of the Christian world, such words must sound like heresy. You can tell you are a member of an irrational, potentially dangerous group when your beliefs are such that if you were the only person in the world who held such beliefs, you would be universally declared as mentally challenged. John Winthrop believed that God had blessed a small band of English religious misfits and political refugees with the right to all the riches in the world. It is an endless entitlement, not restricted to New England, not, apparently restricted to land or money. When God gives you an entitlement, you cannot do wrong, because everything you do is in pursuit of God's will. And everything leads to paradise or utopia. Reason does not impact this argument.

The fact is the ancestors of these Englishmen were barbarians and do not appear in the Bible, their source of holy scriptures. In that source can be found no reference to white people, and no offer of blessings by God to Northern Europeans that they are urged in the name of Christ or Yahweh to aggressively seize the earth. It is a belief system which is not subject to rational discourse or historical reasoning. If you were the only individual in the world who believed it, you would be subject to institutionalization. But this pattern of belief is one of the pillars of American nationalism, the one embraced by George W. Bush. He can't deny it, but no one asks him in public about it.

It is somewhat trendy these days to state that there are two Americas. John Edwards, the democratic vice presidential candidate, says this: One America for the wealthy and privileged, and one for everybody else. Edward Hacker says there are two Americas: One white, one black, separate and unequal. I also find two: Mythological America which embraces unquestioningly the old mythologies of the "city upon a hill" and its invitation to empirical excesses, and Rational America which embraces rational discourse, the rule of law, and the sense that it is possible for a great country to make mistakes but is also possible to correct things when mistakes are made.

Mythical America (like mythical Islam) can do no wrong. Of course, when you are doing God's will, you cannot make mistakes. Anything done in the name of the nation is done in the name of God. As long as that form of nationalism is in ascendance, justice for "others" will be off the table. This is at the heart of why it was and is possible to steal a continent, and to continue to take whatever desirable things Indians have. It can be such a powerful myth that even in the current presidential debate, what John Cairo said 35 years ago about American military behavior in Vietnam is not talked about in terms of whether what he said is true but whether it re-enforces the myth of infallibility. When God makes you his chosen people, when you have a claim to all the world's riches and the right to use force to take it, your sacred mission is empire.

Shortly after 9/11, George W. Bush made a reference to America being embarked on a new crusade. It was a moment of unintended honesty and he quickly corrected himself because some in his entourage know what the idea of crusade evokes. In the first Crusade, the Christian soldiers marched on Jerusalem in 1096. We hardly ever hear what happened there, but in recent weeks the images of Iraqi fighters cutting off heads of innocent people stirs memories of the times when Christian armies used catapults to fling Moslem heads over walls of cities. During the early crusades, the crusaders roasted and ate babies, according to the Christian historians of the day. They massacred almost all the Jews and Moslems in Jerusalem when the city fell. God's work sometimes takes strange turns. Americans don't hear those stories, but Moslem children do, as they are likely to hear stories about what happened in Abu Graib prison.

The American pathology finds its roots in a myth-centered nationalism which entertains a claim that God intended his chosen people to have whatever they want. The majority of Americans do not believe this, and those who do believe it carry on their discourse somewhat hidden from the mainstream, but the mainstream is dangerously tolerant of it. Here you find the roots of America's go-it-alone, treaty breaking, empire building, xenophobic us-against-them psychology. At the end of that road are dangerous enterprises involving over-reaching for the fruits of empire. Empires, essentially, cannot be sustained. France, Spain, England, China, Japan — all had empires, none could keep them. Each had some kind of rationalization to explain why they deserved to pursue world domination which failed them in the end.

The non-mythological (actually less mythological is more accurate) more rational rule-of-law cooperate-with-one's-allies America is locked in a struggle with its evil twin and seems to lack some of the energetic enthusiasm of the latter. What I call here Rational America is a significant majority of the American people who don't believe in holy wars and who do believe their politicians are capable of making mistakes. It is important that Rational America get its bearings because the last time mythological Islam and mythological Europe clashed it was a slugfest which lasted centuries. Europe, which had looked to the Holy Land as its plunder destination, was arguably losing when it stumbled upon the Americas and five centuries of plunder and exploitation elsewhere. Modern Europe appears to have no desire to pick up where the struggle left off, but would certainly be willing to be a partner in building rational solutions which are not founded on religious mythologies and right wingnut fantasies of grandeur. Rebuilding a more rational society would mean building a just society. At the moment, it is not clear the United States is going to go in that direction.

John C. Mohawk Ph.D., columnist for Indian Country Today, is an author and professor in the Center for the Americas at the State University of New York at Buffalo.

McSloy: 'Because the Bible tells me so' Manifest Destiny and American Indians

Posted: September 10, 2004 — 11:23am EST by: Steven Paul McSloy / Co-chair / Native American Practice / Hughes Hubbard & Reed LLP

The conquest of the earth, which mostly means the taking it away from those who have a different complexion or slightly fatter noses than ourselves, is not a pretty thing when you look into it too much. What redeems it is the idea only. An idea at the back of it; not a sentimental pretense but an idea; and an unselfish belief in the idea — something you can set up, and bow down before.

- Joseph Conrad,
'The Heart of Darkness'

Why were American Indian lands taken? The easy answer, of course, is that the Europeans wanted land and the Indians had it. But why did the Europeans think they could take it? We are told that the first settlers of America were moral and religious people. Why then did even the first poor and hungry Pilgrims, pious people with no military power whatsoever, believe that they were entitled to dominion over Indians and their lands?

In thinking about the encounter between American Indians and Euro-Americans, the question is one of means: How were American Indian lands taken? The answer is not, as it turns out, by military force. The wars, massacres, Geronimo and Sitting Bull — all that was really just cleanup. The real conquest was on paper, on maps and in laws. What those maps showed and those laws said was that Indians had been "conquered" merely by being "discovered." As put by Supreme Court Chief Justice John Marshall in the famous case of Johnson v. McIntosh, "[h]owever extravagant the pretension of converting the discovery of an inhabited country into conquest may appear, if the principle has been asserted in the first instance ... if a country has been acquired and held under it; ... it becomes the law of the land, and cannot be questioned."

This Discovery Doctrine was the "idea of it," as Conrad put it, and it is appropriate that Conrad also spoke of "bowing down before" the idea. For though Johnson v. McIntosh was a judicial decision made by the government of a secular republic committed to the separation of church and state, the Supreme Court's adoption of the Discovery Doctrine was merely the latest invocation of a concept that had been born at the very beginning of the Judeo-Christian tradition, on the first page of the Bible, in the Book of Genesis. This concept had, long before John Marshall, been used by the Jews, the Catholics and the Protestants to justify the dispossession of indigenous peoples.

But before getting into the deeper roots of the Discovery Doctrine, what exactly is it that Johnson v. McIntosh says? The Johnson case is the foundation of all United States law regarding Indians, and what it says is that by virtue of discovery, the Europeans (and by succession, the Americans) have dominion and sovereignty over Native peoples, lands and governments. The New World, on paper, was legally "vacant" — terra nullius or vacuum domicilium in Latin. Title to all Indian land is thus held by the discoverer, and Indian people are subject to the overriding political sovereignty of the discoverer. How was this justified? In Chief Justice Marshall's words:

[T]he character and religion of [the New World's] inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy. To leave them in possession of their country was to leave the country a wilderness ...

[A]griculturalists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from [their] territory ...

[E]xcuse, if not justification, [could be found] in the character and habits of the people whose rights ha[d] been wrested from them ...

The potentates of the Old World ... made ample compensation to the inhabitants of the new, by bestowing upon them civilization and Christianity.

How is it that in 1823 when Johnson v. McIntosh was written, a time when less than one-quarter to one-third of the United States was settled and hundreds of Indian nations lived free and independent, the Discovery Doctrine was already so firmly entrenched in the western legal tradition that Marshall was merely applying it, not inventing it?

The answer is because the land of Canaan was inhabited.

When Abraham began the long march of civilization ever westward, leaving Ur of the Chaldees to go west across the River Jordan to Canaan, he, like Marshall, needed a reason for dispossessing the Canaanites who lived there. The reason, according to the Bible, was that God had given the land to Abraham's people, the Canaanites notwithstanding. As God said through Joshua, "I gave you a land on which you had not labored, and cities which you had not built, and you dwell therein." (Joshua 24:13)

In the Bible, wars of extermination were sanctioned against local inhabitants who stood in the way of the "chosen people." Speaking of Joshua's war with the city of Hazor, the Bible tells us: "They smote all the souls that were therein with the edge of the sword utterly destroying them. There was not any left to breathe and he burnt Hazor with fire." (Joshua 11:11)

The Lord's gift, and the actions taken by the Hebrews to realize it, were justified on the grounds that the indigenous inhabitants were idolaters, cannibals and human sacrificers, neither civilized nor of the true faith. Some ancient Hebrew apologists also advanced terra nullius arguments, claiming that Canaan was uninhabited; that is, that the land of Canaan had no Canaanites. Others claimed that the Canaanites had stolen the land from ancestors of the Hebrews, and thus that the Hebrews were the original occupants.

All of this was by way of legalistic apologetic, for as a matter of faith, according to the Bible, the Jews believed that Canaan was their destiny and, in fact, it was a manifest one. They were the "chosen people," the inheritors of God's covenant with Abraham, who had himself inherited God's promise to Adam, made on the first page of the first Book of the Bible, where God said, "Let us make man ... and let them have dominion over the ... earth ... Be fruitful and multiply, and fill the earth and subdue it; and have dominion ... over every living thing." (Genesis 1:26 — 28)

This promise was renewed to Noah after the Flood, with the further provision that: "[t]he fear of you and the dread of you shall be upon every beast of the earth ... upon everything that creeps on the ground ... into your hand they are delivered." (Genesis 9:2) Man was given power over God's creation, and also the right to name God's creatures: "[O]ut of the ground the Lord God formed every beast of the field and every bird of the air ... and whatever [Adam] called every living creature, that was its name." (Genesis 2:19) Man was thus given the power of the Word, and it is a straight line from Adam's naming of the animals to Christopher Columbus' mistakenly naming all the indigenous peoples of two continents as "Indians."

The people of Abraham were the "chosen people." The colonizing religions of the Old World — Judaism, Christianity and Islam — all trace back to Abraham, and through him to Noah and to Adam, in order to inherit this "chosen" status and thus to inherit the earth and dominion over it. Judaism and Christianity trace to Isaac, Abraham's son by his wife Sarah, whereas Islam traces to Ishmael, Abraham's son by his servant Hagar. As it is written in the Book of Psalms, God said, "Ask of me, and I will make the nations your heritage, and the ends of the earth your possession." (Psalms 2:1-11)

Jesus Christ brought forth a new Covenant, but it was with the old "chosen people," who needed to accept Christ as the Messiah to remain "chosen." The early Christian writer Justin Martyr made this clear when he was confronted by a Rabbi who asked, "What is this? Are you Israel?" The Martyr answered, "yes." On the basis of Christ's Covenant, the medieval Popes formalized and legalized the Church's jurisdiction over the entire world, Christian and heathen alike. They further undertook to grant and take heathen lands notwithstanding their inhabitation. Various Papal Bulls were issued to Catholic sovereigns, the most notorious being the 1493 Inter Cetera Bull dividing the world between Spain and Portugal and sanctioning their actions to "subdue the said mainlands and islands and their natives and inhabitants, with God's grace and to bring them to the Catholic faith."

The Protestant translation of the Discovery Doctrine was simply that, a translation of the basic doctrine into the language of the Reformation, meaning the repudiation of Papal supremacy. Protestant kings, therefore, ruling by divine right, were in their own minds as free as the Pope to grant and charter new lands, and all Christian nations had a destiny to fulfill God's covenant and undertake the continuing move westward begun by Abraham.

In 1492, therefore, when the Christian kings of Europe, in Justice Marshall's words, "conducted some of [their] adventurous sons into this western world," they believed, as a religious matter, that whatever they found belonged to them as the "chosen people." The entire Western Hemisphere was terra nullius — "vacant land." If beings were found there who seemed human, but were not Christian, then they were, in the words of one colonial writer, "little superior, in point of Civilization, to the Beasts of the Field," a formulation neatly tied to the mandate in the Book of Genesis that the sons of Adam shall have dominion over "every beast of the field." (Genesis 2:19)

Being practical men, as they could not realize upon their "extravagant and absurd" claims, as Justice Marshall called them, for fear of military defeat by the Indians, and, in their own way, perhaps even concerned for Native people, the Europeans recognized that Native people had some rights to occupy and use their land. But it was nonetheless clear to the Europeans that Native people did not own their land and thus that the Indians had no power to sell it or otherwise to convey title. The land was owned, and title was held, by the Christian king whose explorers "discovered" it.

The English Crown's charters to Cabot, Gilbert and Raleigh were nearly identical to the Pope's Bulls in commissioning expeditions to "heathen and barbarious lands." Pilgrim and Puritan sermons were replete with references to God's covenant with them, and their divine mission, their "errand into the wilderness," their "manifest destiny." Such a belief is all the more remarkable given the Pilgrims' famous dependence upon Indian peoples for food and the means to farm, celebrated today as Thanksgiving. This was rationalized by the Pilgrims through the belief that Indian hospitality was due not to the Indians but to the workings of the Pilgrims' God. As historian Wilcomb Washburn noted, "[w]e read frequently such statements as 'God caused the Indians to help us with fish at very cheap rates.'" The Puritans called America "Canaan," meaning the land of promise — God's promise. Civilization moved west, and with it the Cross, even going out into the Pacific as Hawaii was subdued by the United States Marines. A year later, President McKinley told the nation of how it was revealed to him in prayer that it was America's responsibility to bring Christianity to the "little brown brothers" of the Philippines.

Chief Justice Marshall was thus heir to an ancient religious tradition. This theory of a God-given dominion over Native peoples' lands, held by a divine king tracing himself back to Adam, however, sounds a little old-fashioned, even medieval, and by 1823 the United States had overthrown a king and put "We the People" on the throne. But the principle remained: The sovereign federal government, as successor to the English Crown, held dominion over, and title to, all Indian lands. Marshall, writing as a secular judge, was careful in enshrining the Discovery Doctrine as the basis for United States Indian law to avoid explicitly endorsing its religious and covenantal roots. But that was all he left out. All the other ideas about vacant land, savagery, lack of civilization, heathenism, nomadic hunters without a conception of property, all were deployed to strip Indians of their rights. Americans were the new "chosen people," with a "manifest destiny" to own the continent.

Later Supreme Court decisions were not nearly as careful to hide the roots of federal power over Indians. For example, in 1877 in Beecher v. Wetherby, the Court stated that when dealing with Indians, "[i]t is to be presumed that ... the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race."

Federal Indian Law, therefore, rests on ancient religious ideas about the rights and powers of the chosen people, which principles are so deeply embedded that no one even questions "why" anymore. Congress' plenary power over Indian people and the United States' ownership of Indian lands are just seen as givens, and the laws affecting Indians are made without constitutional or judicial restraint.

Steven Paul McSloy is co-chair, Native American Practice, at Hughes Hubbard & Reed LLP in New York City where he specializes in corporate and finance matters involving Indian nations. He was formerly general counsel of the Oneida Indian Nation of New York and a professor of American Indian law. The views expressed herein are the author's personal views and do not represent in any way official positions of Hughes Hubbard & Reed LLP or the Oneida Indian Nation of New York.

A longer version of this article appeared in Volume 9 of the St. Thomas Law Review.