"Statements of the United States of America on the
Draft UN Declaration on the Rights of Indigenous Peoples"
Director of Indigenous Law Institute, Kyle SD
(Note: The following paper was presented to the Oglala Tribal Council in August 1996 by the Indigenous Law Institute of Kyle, SD. Steve Newcomb, who prepared the document under supervision of various elders, is Shawnee/Lenape and originally resides in Eugene Oregon. The article was published in the Horse Nation Hotain [A publication of the Oglala Sioux Tribe Vice Presidents office - Milo Yellow Hair, Vice Pres] in 1996. After reviewing the document, the tribal council then resolved to adopt, approve, and fully support its contents via Resolution No. 96-76 in September 1996. The text is a response to US agents trying to coax Indian nations that they are "domestic and dependent" on the US.)
Introduction
The Draft UN Declaration on the Rights of Indigenous Peoples has been worked on and debated at the United Nations by hundreds of indigenous people for over a decade. Indigenous representatives from around the world have tried to forge a document that will, upon its adoption, present a set of standards to help protect Indigenous nations and peoples. Now that the draft has moved from the Working Group on Indigenous Populations to the UN Commission on Human Rights, the member states of the United Nations are more actively looking at the meaning of the draft Declaration. They are also discussing what effect the Declaration will have on states if and when it is adopted by the UN General Assembly.
At the recent July 23rd meeting held at the United States Department of State, US Representatives pointed out that a UN Declaration, once adopted, would not be legally binding on the United States or any other member state of the United Nations. With the Declaration in place, however, it is presumed that states would be much more likely to feel themselves obliged to observe the standards set forth in the document; states not living up to the standards of the Declaration could, perhaps, be prevailed upon to comply. Furthermore, a UN Declaration may later serve as the basis for a legally binding Convention or treaty.
When the United States called for a series of meetings between tribal council leaders and the Department of State, Department of Justice, and Department of Interior to discuss the draft Declaration, two things become apparent. First, the United States--after years of foot dragging on this issue--is now taking the draft Declaration on the Rights of Indigenous Peoples quite seriously. Second, the United States will now work on containing and limiting the interpretation of the draft Declaration. Mr. Seth Waxman of the Justice Department stated quite clearly at the July 23rd meeting that the Declaration must be made consistent with "domestic U.S. law", and, presumably, federal Indian law. The United States is also advocating that the Declaration be understood only in terms of "individual" rights rather than "group" rights. For the Oglala Lakota Nation, such a limiting interpretation of the Declaration is entirely unacceptable.
The Oglala Lakota Nation exists as a Nation, not as a mere "group" of "individuals". We were placed on this Earth by the Creator as a distinct Nation of people, with a responsibility to protect and care for the lands within our traditional territory, tens of millions of acres of which are now being illegally occupied by the United States of America, in violation of solemn and sacred treaties that our Nation entered into with the United States. If the declaration were understood to only protect the rights of the individual Indigenous persons, this would not be a meaningful remedy for the many problems that now afflict our Nation.
The Problem: State Claims of Dominion over Indigenous Nations and Their Territories.
Tim Coulter, of the Indian Law Resource Center, has stated, "the Draft Declaration has been controversial both because Indigenous peoples' rights arouse many ancient fears on the part of states around the world and because the Declaration prominently raises some important issues such as the rights of groups or communities of people." [1] ("The Draft UN Declaration on the Rights of Indigenous Peoples: What is It? What does It Mean?, T. Coulter, 1995, p.2). What are the fears Coulter refers to? This question can best be answered by first pointing to a little understood principle of International law that was spelled out by the Tennessee Supreme Court in 1835.
We maintain, that the principle declared in the fifteenth century as the law of Christendom, that discovery gave title to assume sovereignty over and to govern the unconverted natives of Africa, Asia, and North and South America, has been recognized as a part of the national law, for nearly four centuries, and that it is now so recognized by every Christian power, in its political department and its judicial, unless the case of Worcester has formed an exception in these states. That, from Cape Horn to Hudson Bay, it is acted upon as the only known rule of sovereign power, by which the Indian is coerced; for conquest is unknown in reference to him in the international sense. Our claim may be denounced by the moralist. We answer, it is the law of the land. Without its vigorous execution, this continent never could have been inhabited by our ancestors. To abandon the principle now, is to assert that they were unjust usurpers; and that we, succeeding to their usurped authority and void claims to possess and govern the country, should in honesty abandon it, return to Europe, and let the subdued parts again become a wilderness and hunting ground. [2] (State v. Foreman, 16 Tenn. 256,277., 1835)
If states such as the United States have "ancient fears" of Indian nations and peoples, perhaps it is because state pretensions of a right to assume sovereignty over and to govern Native Nations rest on such flimsy, preposterous, and wrongful grounds. Are such fears the result of states knowing that Indigenous nations and peoples truly have an inherent right to live free of state pretensions? Few people, especially those in the federal government, ever seem to stop and consider the original basis of the United States' claims of dominion over Indian nations and peoples. Perhaps they do not realize that the above stated international law of Christendom serves as the historical basis for U.S. claims of a "right" to coerce Indians into "obedience" to the plenary power of the United States of America.
Is the US one of the states of Christendom? Sir Robert Phillimore [3] (1 Int'l.. law, ed., 1879, p.555) pointed out that when the United States of America began "their career as an independent country" the firm determination was made by the leaders of the federal government "to fulfill the obligations of International Law as recognized and established in the Christian Commonwealth" of which the United States "had become a member." [4] (cited in Francis Wharton, "A Digest of the International Law of the United States," vol. 1., p. III. Published under the auspices of the United States Government)
That international law was historically developed by Christian states has been noted by a number of scholars. For example, James Crawford, in The Creation of States in International Law [5] (The Creation of States in International Law, James Crawford, 1978) observes, "International Law was regarded as the law existing between civilized nations. In 1859, the British Law Officers spoke of international law 'as it has been hitherto recognized and now subsists by the common consent of Christian nations'."
Chancellor Woolsey said, "We define international law to be the aggregate of the rules which Christian states acknowledge as obligatory in their relations to each other, and to each other's subjects." [6] (Cited in Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied by the United States, vol. 1., 1922, p.1); and L. Oppenheim, in International Law a Treatise, vol. 1, 2d., 1912, states: "There is no doubt that the Law of Nations is a product of Christian Civilization. It originally arose between the States of Christendom only, ad for hundreds of years as confined to these states." [7] (ibid, p.30). He further says:
"The Old Christian States of Western Europe are the original members of the family of nations, because the Law of Nations grew up gradually between them through customs and treaties. Whenever afterwards a new Christian state made its appearance in Europe, it was received into the charmed circle by the old members of the Family of Nations. It is for this reason that this law was in former times frequently called "European Law of Nations." But this name has nowadays historical value only, as it has been changed into "Law of Nations," or "International Law" pure and simple...The next group of States which entered into the Family of Nations is the body of Christian States which grew up outside Europe. All the American States belong to this group. And it must be emphasized that the United States of America have largely contributed to the growth of the rules of international law. [8] (ibid, p.32)
In the preface to his Elements of International Law, Henry Wheaton explained how he had "endeavored to trace the origin and progress of those rules of international justice so long acknowledged to exist, and which have been more or less perfectly observed by the Christian nations of modern Europe; which have been adopted by their descendants in the new world, from 'the first planting of European colonies in the American continents; and have been more recently applied to regulate the relations of the European and American nations with the Mohammedan and Pagan races of the other quarters of the globe." And, as Wheaton further explained, "That international law, common to all civilized and Christian nations, which our ancestors brought with them from Europe, and was obligatory upon us whilst we continued to form a a part of the British empire, did not cease to be so when we declared our independence." [9] (p. xvii, 6th ed., 1855, Lawrence's edition).
The above observations are of major importance when trying to understand why international law as it now stands does not already provide protection for Native nations and peoples. For as we shall now demonstrate, it is upon the distinction between Christian and heathen nations that the United States and other states have dealt with American Indian ad other Indigenous nations and peoples. It is secretly upon this same religious basis that the US now claims to have a plenary power of dominion over Indian nations and peoples, including the Oglala Lakota Nation. Unfortunately, this is the political and legal bedrock that the proposed draft Declaration does not even discuss let alone remedy.
The Doctrine of Christian Discovery and Dominion
In US v. Alcea Band of Tillamooks, 329 US 40, 55-57 (1946), Justice Stanley Reed (dissenting) explained the theory put forth in the US Supreme Court ruling, Johnson and Graham's Lessee v. McIntosh, (8 Wheat) 543 (1832). Discovery of the continent by "Christian Nations," explained Reed, "gave them sovereignty over and title to the lands discovered." (at 58). Henry Wheaton--a noted international law scholar, and US Supreme Court Reporter during the time the Johnson ruling was handed down-- explained how according to the doctrines of Christendom during the fifteenth and sixteenth centuries, "the heathen nations of the other quarters of the globe were the lawful spoil and prey of their civilized conquerors". [10] (ibid, p. 219)
In the Johnson ruling, Chief Justice Marshall, wrote for a unanimous Court when he stated:
"While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed as a consequence of this ultimate dominion, a power to convey the soil, while yet in possession of the natives. These grants have been understood by all [Christian Europeans], to convey a title to the grantees, subject only to the Indian right of occupancy. [11] (Johnson & Graham's Lessee v. McIntosh, 8 Wheat. 543, 1832, at 574)
This connection between the doctrine of an ultimate Christian dominion and the supposed discovery of a "heathen" continent by "Christian people" has been overlooked by most present day scholars. Yet, George Grafton Wilson, Professor of International law at Harvard University and the US Naval War College, did not fail to make the connection. As Wilson pointed out: "There were inhabitants on this continent when these Europeans arrived, but the Europeans while recognizing that these Indians had a right of occupancy of the land, affirmed that this right did not imply dominion on which might rest the power to convey title. England, France, Holland, Portugal, and Spain alike maintained that discovery of lands previously unknown to Christian people gave the Christian discoverer the right to take possession." [12] (From, "The Bacon Lectures on the Constitution of the United States, Given at Boston University 1928-1938", p. 214)
It is this very doctrine of Christian discovery, supposedly giving rise to a "right of possession" (or dominion), that has and continues to serve as the present basis of the US assertion of plenary power and dominion over Indian nations and peoples, including the Oglala Lakota Nation. How do we know that there is a connection between "Christianity" and the "ultimate dominion" to which Marshall refers above? In the ruling, Marshall explains:
"No one of the powers of Europe gave its full assent to this principle [of discovery] more unequivocally than England. The documents upon this subject are ample and complete. So early as the year 1496, her monarch granted a commission to the Cabots, to discover countries then unknown to Christian people, and to take possession of them in the name of the king of England. Two years afterwards, Cabot proceeded on this voyage, and discovered the continent of North America, along which he sailed as far south as Virginia. To his discovery the English trace their title. [13] (Lessee v. McIntosh, 8 Wheat 576)
In Leviathan, Thomas Hobbes stated that "the right of possession is called Dominion." [14] (Hobbes, Leviathan, Prometheus Books: 1988, ch. 15 p. 81, 1651.) Since the Christian "discovery" of "heathen" lands supposedly gave the discoverer the "right of possession", this was simply another way of saying that such a "discovery" gave the discoverer dominion over the so-called "heathen" lands. As Marshall continued in the Johnson ruling, he reiterated the Court's finding that the "Christian" discoverers had a right to take possession of (and assert dominion over) "discovered" countries, provided the countries were inhabited by "heathens":
In this effort made by the English government to acquire territory on this continent, we perceive a complete recognition of the principle [of discovery], which has been mentioned. The right of discovery given by this commission is confined to countries "then unknown to Christian people"; and of these countries Cabot was empowered to take possession in the name of the king of England. Thus asserting a right to take possession, notwithstanding the occupancy of the natives, who were heathens, and at the same time admitting the prior title of any Christian people who may have made a previous discovery. The same principle continued to be recognized. The charter granted to Sir Humphrey Gilbert, in 1578, authorizes him to discover and take possession of such remote, heathen and barbarous lands, as were not actually possessed by any Christian prince or people. This charter was afterwards renewed to Sir Walter Raleigh, in nearly the same terms. [15] (Lessee v. McIntosh, 8 Wheat 576-77, op.cit.)
Clearly in the Johnson ruling portrayed Christian discovery and dominion as the basis of European assertions of political and legal rights in the Americas. According to the Supreme Court, the rights of Indian nations "to complete sovereignty, as independent nations, were necessarily diminished by the original fundamental principle," that Christian discovery gave an exclusive title of sovereignty and dominion to the first Christian discoverer. [16] (ibid, at 574). We find the same explanation being made by Justice Joseph Story in his Commentaries on the Constitution of the United States. The colonizing nations of Christian Europe, said Story, "claimed an absolute dominion afterwards occupied by them, not in virtue of any conquest of, or cession by the Indian natives; but as a right acquired by discovery." [17] (J. Story, Commentaries on the Constitution of the United States. p. 135-36)
As for the political status of the Indian nations, Story remarked, "As infidels, heathens, and savages, they were not allowed to possess the prerogatives belonging to absolute, sovereign and independent nations." Hannis Taylor, who in the nineteenth century was the "Plenipotentiary of the United States to Spain," stated in his book, A Treatise on International Public Law, (1901), "the conclusion was generally and firmly established that the rights of the native infidel occupants were entirely subordinate to the paramount claims of the first Christian discoverers." [18] (Taylor, A Treatise on International Public Law, 1901. p.273)
The US Converts Christian Discovery into a Doctrine of "Conquest".
In the Johnson ruling, John Marshall said that the US would pretend that Christian discovery is the same as conquest. The first Christian people to "discover" a country inhabited by "heathens" thereby gained "dominion" over that country, just as conclusively as if the Christians had actually conquered and acquired the land from the heathens by force of arms. Marshall further said that even if this principle might seem extravagant to some, it becomes the law of the land on tow conditions: 1) if the doctrine is asserted and sustained, 2) if the property of Christian European society originates in and depends upon the principle. [19] (see Johnson at 591)
The Christian discovery-as-heathen-conquest doctrine is further clarified by other US Supreme Court rulings. In US v. Perchman 32 US 7, Pet. 51, 86-87 (1833), the court stated that it was the norm in the law of nations for "the conqueror...to displace the sovereign and assume dominion over the [conquered] country." And in Delassus v. US, 34 US 9 pet. 117 (1835), Marshall said, "the sovereign who acquires an inhabited territory, acquires full dominion over it..." Thus, by the "pretension of converting the [Christian] discovery of an inhabited [heathen] country into conquest" [20] (ibid), the US could assume dominion over the Indian nations and treat them as if their "rights to complete sovereignty, as independent nations" had been diminished by Christian discovery.
The Language System of Dominion
The Johnson ruling suggests that the States of Christendom had the goal of overtaking the lands of Native nations and peoples. It also suggests that the Christian states of Europe helped themselves achieve this goal by creating a language system that assumed monarchies and states to be supreme over all Native nations and peoples. This concept of supremacy is referred to as "dominion", and today we find the assumption of state dominion to always be reflected in state relations with Indigenous nations and peoples.
When states refer to themselves as "States," with a capital "S", or as Governments, with a capital "G", they are consciously using the capital letter as a coding device to indicate state dominion. States are fond of the word "indigenous" because it is almost universally spelled with a lower case "i". A lower case "i" is a language device used by states to indicate a subordinate or lower political status beneath the dominion of states. The United States will sometimes even go so far as to place a lower case "i" on the word "Indian", even though the word Indian, as a proper noun, is to be capitalized according to the standard rules of English.
The American government wants to make sure that the presumption of state dominion is not effectively challenged by the draft Declaration on the Rights of Indigenous Peoples. This is why the US is advocating that the draft Declaration be interpreted on the basis of individual human rights. If the American government succeeds in this effort, it will have historically gone from a full recognition of the inherent rights of Indians as fully independent nations, to the designation "tribes", or "domestic dependent nations", and now to a recognition of the human rights of mere "individuals".
The Original Free and Independent Political Status of Indian Nations
Justice Joseph Story, in his Commentaries on the Constitution of the United States, Vol. 1, 1833, commented upon the determination of all Indian Nations to maintain their free and independent way of life:
"There is no doubt that the Indian tribes, inhabiting this continent at the time of its discovery, maintained a claim to the exclusive possession and occupancy of the territory within their respective limits as sovereigns and absolute proprietors of the soil. The acknowledged no obedience or allegiance or subordination to any foreign sovereign whatsoever; and as far as they have possessed the means, they have ever since asserted this plenary right to dominion, and yielded it up only when lost by the superior force of conquest, or transferred by a volunteer cession." [21] (Joseph Story. Commentaries on the Constitution of the United States, vol. 1, 1833; p. 6)
Indian rights, said Story, "stood upon original principles deducible from the law of nature, and could not be justly narrowed or extinguished without their own free consent." [22] (Ibid) Given this plain and straightforward explanation, we must ask: How could completely free and independent Indian nations and peoples, such as the Oglala Lakota Nation, without ever knowingly giving their free and informed consent, validly come under the sovereignty and dominion of the United States?
The answer is that the US has gradually usurped such political power based on the political and legal framework of Christendom. According to that framework, the US, by a supposed right of Christian Discovery, has assumed sovereignty and dominion over all Indian nations living within the external geographical boundaries claimed by the United States. As Story further observed of the "discovery" doctrine:
"It may be asked, what was the effect of this principle of discovery, in respect to the rights of the natives themselves. In the view of Europeans it created a peculiar relation between themselves and the aboriginal inhabitants. The latter were admitted to possess a present right of occupancy or use in the soil, which was subordinate to the ultimate dominion of the discoverer. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their discretion. In a certain sense they were permitted to exercise rights of sovereignty over it. They might sell or transfer it to the sovereign, who discovered it; but they were denied the authority to dispose of it to any other persons; and until such a sale or transfer, they were generally permitted to occupy it as sovereigns de facto. But notwithstanding this occupancy, the European discoverers claimed and exercised the right to grant the soil, while yet in the possession of the natives, subject however to their right of occupancy; and the title in the soil to the grantees in perfect dominion, or, as is sometimes expressed in treatises of public law, it was a transfer of plenum et utile dominium. " [23] (ibid, p. 8)
Ever since the US began to make this assumption of "perfect dominion", federal writers have gone to great lengths to not contradict it. The word "domestic" is now used by the US federal government to depict the political status of Indian nations as being under the sovereignty and dominion of the US. Such logic is built on the following chain of propositions.
1) Indian nations were originally free, distinct, and independent, and their political status could not be narrowed or limited without their voluntary consent.
2) As nations, Indians have vested, pre-Christian European powers of self-government. These powers are not delegated from the US, but are instead original and inherent powers of self-government.
3) However, the christian-discovery-as-conquest doctrine, despite a lack of voluntary Indian consent, "renders" Indians subject to the legislative power of the US, and in substance terminates the independence of the Indian nations. Thereafter, Indians retain the powers of local self-government--no longer as free and independent nations, but as tribes--subject to the ultimate dominion of the United States.
Indians as domestic dependent nations
Today the US, on the basis of the above chain of propositions, says that Indian nations are "domestic dependent nations". For example, the Dept. of Justice recently issued a policy statement, which contains the sentence: "From its earliest days, the US has recognized the sovereign status of Indian tribes as 'domestic dependent nations'." [24] ("Department of Justice Policy on Indian Sovereignty and Government to Government Relations", cited as: 61 FR 29424, p. 2, June 1996. Signed by Attorney General Janet Reno on June 1, 1995) To support this contention, the policy statement cited the Supreme Court ruling Cherokee v. Georgia 30 US 5 Pet., which states:
"They [the Indians] occupy a territory to which we assert a title independent of their will...they and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the US, that any attempt [by foreign nations] to acquire their lands, or to form a political connexion with them, would be considered by all as an invasion of our territory, and an act of hostility."
To Marshall's charge that Indians were "completely under the sovereignty and dominion of the US", we might well ask, "How did completely free and Independent Indian nations, without giving their voluntary consent, ever come under the sovereignty and dominion of the United States?" One answer is that the US simply assumed it to be true, despite the fact that it wasn't, and proceeded to legislate and create policies on the basis of that assumption. Based on what already has been explained about the US being a member of the Christian Commonwealth, and about the doctrine of Christian discovery and dominion, we may translate the above passage of Cherokee Nation in the following way:
"Based on the doctrine of Christian discovery and dominion, the States of Christendom (foreign nations) consider the Indians to be so completely under the sovereignty and dominion of the US, that none of those Christian states would attempt to acquire lands from or enter into political connection with Indians living within the geographical boundaries claimed by the United States. They would not attempt to do so because, according to the international law principles understood and practiced by the family of Christian nations, such actions would be understood as an invasion of the territory of the United States."
Indeed, Linda S. Parker, in Native American Estate (1989) follows this exact line of thought in her explanation of the doctrine of discovery:
"Another European tenet know as the doctrine of discovery legalized appropriation of aboriginal lands. Under this concept, which was based on the law of nations, a Christian sovereign acquired exclusive jurisdiction over new territories discovered by his representative or subject. The moral or ethical right to hold title to such lands rested on preconceptions of the native inhabitants. Such expansion became legitimate when the Indians existed in a supposed state of barbarism and heathenism. According to this view, Indians, who were non Christian and by European standards uncivilized, held no property rights and existed outside of the sanction of morality and international law. By divine law the Christian imperial nations were superior and had the right to dominion and rule over non-Christian inhabitants and their territories." [25] (Linda S. Parker, Native American Estate, 1989. p. 3)
With one exception, Parker's explanation is accurate. In the case of the US, Indian peoples were recognized as having a limited right of "property" known as "occupancy", which as portrayed by the federal government as being under or beneath the Christian European claim of dominion and superior rule.
Today, representatives of the US say they prefer to simply focus on the text of the draft UN Declaration on the Rights of Indigenous Peoples without going into these earlier and more comprehensive matters. But to accept such a narrow focus would be the height of folly for Indigenous Nations and Peoples. It might imply that we have willingly consented to the above stated doctrines, and that we, as Oglala Lakota's, simply have "claims" to be accorded civil and political rights as individuals. It might also imply that we have voluntarily consented, which we never have, to live under the supreme dominion of the United States in keeping with the doctrine of Christian Discovery and dominion.
We reject such a narrow proposition. We would be remiss if we did not address and challenge the root and underlying reasons why Indian nations and peoples are lacking adequate protection in the area of international law. And, it would be a serious oversight on our part to ignore the true religious basis for State mistreatment of our nations and peoples. As historian B.A. Hinsdale pointed out in his essay, ÒThe Right of DiscoveryÓ, (1888): ÒIt is striking proof of the extent to which politics have become secularized that the jurists and moralists of the modern period who have discussed the subject say not a word about religion which was so prominent in such discussions three or four hundred years ago. The argument now is, the civilized man has a right to dispossess the savage, not the Christian, the infidel. [26] (In Ohio Archaeological and Historical Quarterly, Vol. II, 1888, p. 377)
Hinsdale further explained how this religious distinction became part of the political and legal framework of the United States:
The English possessions in America were not claimed by right of conquest, but of discovery, says Chief Justice Marshall, and such was the claim of the other powers that divided the New World. they had not seized the possessions of their enemies by force, but had occupied what belonged to nobody. Practically, discovery, when consummated, was conquest, but theoretically, it was something very different. An enemy overcome in battle was nullus according to Roman law, but another definition, and more consonant with the temper of the times was now adopted. This definition was supplied by the Catholic church.
The new definition of nullus was: a heathen, pagan, infidel, or unbaptized person. Paganism, which meant being unbaptized, says Dr. Lieber, deprived the individual of those rights which a true jural morality considers inherent in each human being. The same writer states that the Right of Discovery is founded on the principle that what belongs to no one be appropriated by the finder but this principle only becomes effective when supplemented by the Church definition of nullus. that definition supplied the lacking premise in the demonstration. Grant that nullus is the property of the [Christian] finder; that an infidel, and the argument is complete...Such was the origin of the Right of Discovery, the criterion to which the nations that divided the New World appealed in territorial controversies, and the ultimate ground of title throughout the United States.
Because the concept of res nullus and the doctrine of Christian discovery and dominion lie buried in the Johnson v. McIntosh ruling, the federal government continues to assert on that basis, without our free consent, that the Oglala Lakota Nation is a "domestic dependent nation." Accordingly, several questions arise: Will the US cease to make such erroneous claims about our Nation if and when the draft UN Declaration is adopted? Is the US now willing to unequivocally reject the doctrine of Christian discovery and dominion? Or will it choose to maintain its religiously based claim of dominion over Indian nations and peoples before the eyes of the world community?
The Oglala Lakota Nation, Its Lands and Territory
In Worcester v. Georgia (6 Pet 515, 1932), Chief Justice Marshall characterized Indian nations in the following way:
"America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world." (at 542)
The Indian nations, among which the Oglala Nation must be counted, "had institutions of their own, and governed themselves by their own laws." At the time of the Louisiana purchase, said John Marshall in the Johnson ruling, the country known as Louisiana was "almost completely inhabited" by Indians who "are in fact independent" The Oglala Lakota Nation was among those nations described as in fact free and independent.
Since the Oglala did not cease to be a free, independent, sovereign nation when it entered into treaty relations with the United States, and since they did not surrender their free and independent political status by accepting the protection of the US, the only reasonable conclusion we can arrive at is this: The Oglala Lakota Nation continues to this day to be fully entitled to maintain its inherent right to a free and independent political status as a nation.
Protection
Regarding the concept of protection, the US Supreme Court explained in Worcester, that Indian nations had previously accepted the "protection" of Great Britain. But with "the extinguishment of the British power in their [the Indians] neighborhood, and the establishment of that of the US in its place," eventually the Cherokees declared "that they were under the protection of the US, and no other power. They assumed the relation with the US, which before had subsisted with Great Britain." (at 555) The Court further said of this relationship:
"This relation was that of a nation claiming and receiving the protection of one more powerful; not that of individuals abandoning their national character, and submitting, as subjects, to the laws of a master." (ibid)
The meaning of the word "protection", said Marshall, was quite limited. The "Indian nations were, from their situation, necessarily dependent on some foreign potentate, for the supply of their essential wants, and for their protection from lawless and injurious intrusions into their country. That power was naturally termed their protector." (id) The same is true of the relationship between the Oglala Lakota Nation and the United States. Even after accepting the protection of the US, the Oglala Lakota Nation retained its free and independent political status. And, in return for the cessions of land from the Oglalas, the US pledged and obliged itself to supply the essential wants of the Oglalas, and to always protect them from lawless and injurious intrusions into their country.
When the Oglala Lakota Nation entered into treaty relations with the United States of America, the relationship established was that of two nations, both retaining their national character and neither "submitting as subjects to the laws of a master." The Oglalas believed that they would always be protected in their liberty as a nation, and to always be able to maintain their own way of life, free from lawless and injurious intrusions into their country. To quote John Marshall once again, "Protection does not imply the destruction of the protected." (at 552) The Oglalas have never knowingly agreed to the destruction of our sacred way of life, under the pretext of US "protection".
In fact, the Supreme Court of the United States acknowledged that when one nation accepts the "protection" of another nation, this does not mean that the nation accepting "protection" loses its independence:
"...the settled doctrine of the law of nations is, that a weaker power does not surrender its independence--its right to self-government, by associating with a stronger [nation], and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of self-government, and ceasing to be a state. (Worcester v. Georgia, at 560)
Henry Wheaton, in Elements of International Law, said of Indian Nations regarding this point:
"The British crown considered them as nations, competent to maintain the relations of peace and war, and of governing themselves under its protection. The United States, who succeeded to the rights of the British crown, in respect to the Indians, did the same, and no more; and to protection stipulated to be afforded to the Indians, and claimed by them, was understood by all parties as only binding the Indians to the United States, as dependent allies. A weak power does not surrender its independence and right to self-government, by associating with a stronger and taking its protection. This was the settled doctrine of the Law of Nations; and the Supreme Court therefore concluded and adjudged, that the Cherokee nation was a distinct community, occupying its own territory, with boundaries accurately described, within which the laws of Georgia could not rightfully have any force, and into which the citizens of that State had no right to enter but with the assent of the Cherokees themselves, or in conformity with treaties, and with acts of Congress." (p. 54)
Based on the same logic, federal claims of sovereignty and dominion over free and independent Indian nations also could not rightfully have any legitimate force within the territories of the Indian nations, without the consent of the Indian nations themselves. Today, however, we can look back at history and see that the US has turned this principle upside down by wrongfully contending that the federal government may unilaterally impose its political and legal standards on the Oglalas.
Based on those imposed standards, the United States now contends that vast amounts of Oglala Lakota lands--particularly the sacred Black Hills--became "public lands" of the US by unilateral federal action. To this argument the Oglalas respond: "Given that neither the Oglalas nor their allied nations have ever voluntarily consented to relinquish their Black Hills in a treaty with the United States, on the basis of what pretension does the United States say that the lands of the Oglalas or their allied nations are part of the public lands of the United States?"
Part of the fundamental organic law of the US supports the Oglalas. In the Northwest Ordinance (1790), the Congress of the US under the Articles of Confederation, declared:
"The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity, shall from time to time, be made for preventing wrongs being done to them, and for preserving peace and friendliness with them."
On the face of the above language, the United States clearly stated their pledge to honor and respect the Indians in the possession of their liberty, their lands, and their property. But, carefully buried in the title of the Ordinance is the possibility of an altogether different attitude regarding Indian lands: "An Ordinance for the Government of the Territory of the United States North-West of the River Ohio." The implication being that, pursuant to the 1783 Treaty of Paris between Great Britain and the United States, the Indian lands northwest of the Ohio River were the "Territory of the United States".
During the 1814 treaty negotiations between Great Britain and the United States, leading up to the treaty of Ghent, the American commissioners stated in a letter to the British commissioners: Òthe recognition of a boundary gives up to the nation in whose behalf it [the boundary] is made, all the Indian tribes and countries within that boundary. Such was the US interpretation, of the definitive Treaty of Paris of September 3, 1783.
From the US viewpoint, Indians living within the region extending from the northwest side of the Ohio River to the Mississippi River were living or "inhabiting within the dominions of" the United States[ ] As a result of the 1783 treaty, said the American commissioners, the US claimed "the entire sovereignty over the whole territory, and all the persons embraced within the boundaries of their dominions." Based on this interpretation of historical events, the American commissioners characterized Indians in that region as residing within the territory of the United States.
Yet the American commissioners did acknowledge that the Indians were "so far independent that they live under their own customs, and not under the laws of the United States." And, "the lands where they inhabit or hunt, are secured to them by boundaries defined in amicable treaties between the United States and themselves; and that whenever those boundaries are varied, it is also by amicable and voluntary treaties, by which they receive from the United States ample compensation for every right they have to the lands ceded by them."
Regarding the idea that the Indian nations were "dependent," the American commissioners said:
"They are so far dependent as not to have the right to dispose of their lands to any private persons, nor to any power other than the United States."
The British commissioner responded to this comment by saying that the Indians must have had the power and the right to dispose of their lands to anyone, otherwise why would the US have had the Indians pledge in the Treaty of Greenville that they would only dispose of their lands to the US. Obviously, they had the right to sell their lands to whomever they pleased, but had limited themselves by their own pledge in a treaty.
The American commissioners also characterized the Indian nations as being "under the protection of the United States, and not that of any other Power."[ ] But, as we have already explained, "protection" simply meant that the US committed itself to supply the essential wants of the Indians, and to not allow any whites to intrude into the Indian country. Besides, the limitations mentioned by the American commissioners are more sensibly viewed as limitations placed on non-Indians.
If, as the American commissioners acknowledged, the Indians were not living "under the laws of the United States," they could not possibly be prohibited by US law from disposing their lands to private non-Indians. Furthermore, it was the Christian states themselves that had agreed, based on their own customary international law, not to purchase lands from Indians living within the boundaries claimed by another Christian European state. This was a limit the states placed on themselves, not a limitation they placed on the Indians. In any case, the American commissioners acknowledged the Indians as living independently "within the territory of the United States".
Great Britain wanted to place in the Treaty of Ghent a buffer zone in Indian territory between the United States and Canada. The United States refused. The British commissioners accused the "American Government" of a spirit of expansionism, and of, in effect, declaring that "all Indian nations" within the boundary of the 1783 Treaty of Paris are American "subjects," living there at the permission of the United States.
To this charge, the American commissioners responded by openly stating the intention of the United States to colonize all the lands in the possession of the Indians, within the external boundaries claimed by the US, pursuant to the 1783 Treaty of Paris. By stating that the "lands and property" of the Indians "shall never be taken from them without their consent", and by using the phrase "justice and humanity" the commissioners seemed to be hinting at the Northwest Ordinance. But they went on to declare:
"The United States, while intending never to acquire lands from the Indians than peaceably, and with their free consent, are fully determined, in that manner, progressively, and in that manner, progressively, and in proportion as their growing population may require, to reclaim from the state of nature every portion of the territory contained within their acknowledged boundaries. In thus providing for the support of millions of civilized beings, they will not violate any dictate of justice and humanity; for they will not only give to the few thousand savages scattered over that territory an ample equivalent for any right they may surrender, but will always leave them the possession of lands more than they can cultivate, and more than adequate to their subsistence, comfort and enjoyment, by cultivation. If this be a spirit of aggrandizement, the undersigned are prepared to admit, in that sense, its existence; but they must deny that it affords the slightest proof of an intention not to respect the boundaries between them and European nations, or of a desire to encroach upon the territories of Great Britain."
What the American commissioners were describing was the concept of imperium, or "a dominion, state or sovereignty that would expand in population and territory and increase in strength and power." This was the spirit to which the commissioners were alluding when they stated that the United States would never consent to the "dismemberment of their empire." As Historian Richard Van Alstyne aptly points out, the US was conceived of by its founders as an empire destined to colonize all the lands of free and independent Indian nations from the Atlantic to the Pacific. To this day, the US has never disavowed its intention to take over all Indian lands within the external boundaries claimed by the US.
Insight into the American commissioners" use of the word "peaceably", to describe the method by which the US would acquire land from the Indians provided by a quote from President Theodore Roosevelt in his book The Strenuous Life:
"Our course our whole national history has been one of expansion...That the barbarians recede or are conquered, with the attendant fact that peace follows their retrogression or conquest, is due solely to the power of the mighty civilized races which have not lost their fighting instinct, and which by their expansion are gradually bringing peace into the red wastes where the barbarian peoples of the world hold sway."
The Colonial Policy of the American Empire
That the US has been engaged in colonizing every portion of Indian lands located within the boundaries claimed by the United States, from the Atlantic to the Pacific, was quietly stated on a marble column, erected by act of Congress in 1938, in Marietta Ohio. An inscription on the column reads: "Here with the founding of this Nation's first colony and establishment of the first American civil government west of the thirteen original states, began the march of the USA across a continent to the Western sea."
The marble column was erected as part of the one hundred fiftieth anniversary of the Northwest Ordinance. In honor of that event, Congress passed H. Resolution 208 on August 2, 1935, which described the Northwest Ordinance as making "a complete change in the method of governing new communities formed by colonization." And in History of the Ordinance of 1787 and the Old Northwest Territory, a book prepared by the congressionally created "Northwest Territory Celebration Commission" in 1937, the Northwest Territory is described as, "The first Colony of the United States." A passage in the book reads: "Here with America's start westward to the other sea, was born a colonial policy unique in all the world; One of America's contributions to Governmental progress."
In his History of the Formation of the Constitution of the United States (1884), the eminent historian George Bancroft devoted chapter six to "The Colonial System of the United States." By "colonial system", Bancroft meant the Northwest Ordinance, for it was according to the terms of that document, he observed, that "the colonization of all the territory then in the possession of the United States" was to proceed. Indeed, the Northwest Ordinance set down in writing the systematic manner in which the United States--as the American Empire--would establish colonies in the territory from the Allegheny Mountains to the Mississippi River.
When John Marshall was an envoy working for the Department of State, he told Talleyrand of Great Britain in 1798 that the United States would attain greatness not based on "European wars of conquest" but "by a different kind of conquest." The US would exploit their territories, "on which bountiful nature has bestowed, with a lavish hand, all the capacities for future legitimate greatness." As Robert Kenneth Faulkner states in The Jurisprudence of John Marshall:
"And thus a great and expanding republican empire would be America's future. "This vast republic" was to be 'a great powerful, and independent nation,' extending from the Atlantic to the Pacific." Phrases like 'this our wide-spreading empire,' came easily from Marshall. He could admire 'the magnificent purchase of Louisiana' with neither the constitutional doubts of Jefferson nor the sectional jealousies of the Northern Federalists."
The very first American colony that began this process of American imperium, was established where the Ohio and the Muskingum Rivers come together in what is today Marietta Ohio. Of this settlement, George Washington declared: "No colony in America was ever settled under such favorable auspices as that which has just commenced at the Muskingum." Let us turn now to America's second colony, Louisiana.
The Louisiana Purchase
In the treaty of the Louisiana Purchase, France declared herself to have "an incontestable title to the domain and possession of the said territory." France further declared that she did "hereby cede to the United States, in the name of the French Republic, forever and in full sovereignty, the said territory with all its rights and appurtenances..." Once France had purported to "cede" that country to the United States, the American government considered itself entitled, according to the international law of Christian states, to regard the lands so conveyed as part of the "territory of the United States". This was exactly parallel to the lands referred to as the Northwest Territory.
With the Louisiana Purchase, the "colony and province" of Louisiana thereby became the second colony of the American empire. If we want to talk in English about the geographical location of the Oglala Lakota Nation and its territory, and we are referring to a time after the Louisiana Purchase, we are forced to reference our remarks in terms of the dominant society's cultural and political frame of reference. Accordingly, the Oglala Lakota Nation, its lands and territory were, after 1803, geographically located in the area identified on European maps as "Louisiana".
Because the colony of Louisiana had been transferred to the United States, and because the Oglala Lakota Nation was located, from a Christian European point of view, "within" that "colony", this means that the Louisiana Purchase signaled the beginning of a relationship of colonialism between the American Empire and the Oglala Lakota Nation. Through various military and political maneuvers, the American Empire would attempt to fulfill its commitment to colonize all the Indian lands within the boundaries of that colony or territory. In turn, the Oglala Lakota Nation would struggle to maintain the free and independent way of life it had always had for thousands of years, and to retain an unhindered sacred relationship and possession of its lands and territory.
Conclusion
Were the truth not hidden behind the Doctrine of Christian Discovery and dominion, and behind the colonial system of the United States, the rightful free and independent political status of the Oglala Lakota Nation would be immediately self evident. In fact, Chief Justice John Marshall, not many years before his death, tried to set the record straight in Worcester V. Georgia, regarding the subjects of "discovery" and "dominion". In that decision, Marshall contrasted "existing pretensions" with "the actual state of things."
A pretension is "an allegation or assertion, the truth of which is not proved or admitted; often with the implication that it is unfounded or false, or put Forth to deceive or to provide a false excuse or ground." By contrast, that which is actual is "in full existence; real; denoting that which not merely can be, but is: opposed to potential, apparent, constructive, and imaginary."
According to Marshall's description of what actually is "in full existence" and "real", Indians were divided into nations, independent of each other and of the rest of the world. They were acknowledged as such by European nations which sought alliances with and the friendship of the powerful Indian nations. English charters or grants providing for colonial settlements in North America, said the chief justice, were considered as blank paper so far as the rights of the natives were concerned. Indeed, said Marshall, those characters stated objectives which were "to be accomplished by conciliatory conduct and good example; not extermination."
Again, Marshall used the phrase "the actual state of things", and referred to "the practice of European nations" as being able to "explain" the claims of those nations, and "the charters they granted." The pretensions of one European monarch, he said, excluded the claim of every other European monarch. But in order to avoid arousing Native resentments, the monarches of Europe did not assert claims to the Indian lands, or to dominion over the Native people themselves. Because the Indian nations could be either formidable enemies or reliable friends, the European monarchy sought the Indian nations as allies.
In an acknowledgment of the truth he had helped hide in the Johnson ruling, Marshall explained that "discovery" of the Americas by Christian Europeans, "could not affect the rights" of the Native Nations living in the Americas. This was an admission by Marshall that Indian "rights to complete sovereignty, as independent nations were" not diminished by the Christian European "discovery" of the continent. And it also means, of course, that the Native Nations were as free and independent after, as they had been before the so-called Christian European "discovery" of their lands. And, said Marshall, the Indians were willing to profess their "dependence" on a European nation so long as their independence was untouched, and their right of self government acknowledged.
And what was this concept of "dependence"? It simply meant, explained Marshall, that the Native people would have their essential wants supplied and would have their country protected from dangerous invaders. When the Cherokee nation acknowledged its "dependence" on Great Britain, it was an acknowledgment that merely bound the Cherokee nation to the British crown, as a dependent ally, giving a claim to the protection of a powerful friend and neighbor, and the benefit of receiving the advantages of that protection. It involved no surrender of their independence or "national character". Such was the true meaning of the stipulation of dependence, said Marshall. "Neither the British government, nor the Cherokees, ever understood it otherwise." Cherokee "dependence" on the United States, said Marshall, "is, undoubtedly, to be understood in the same sense."
Christian European dominion had not been asserted over the Indians, explained Marshall. It had merely been asserted to exclude all other Christian European competitors from a "discovered" region, and to "keep the agents of foreign powers" out of that country. No other Christian European nation would be able to "seduce" the Indians of that region into "foreign alliances". In this sense, then, "protection" meant "to protect" the political and financial interests of the "discovering nation, by not allowing any other Christian European nations to enter into alliances with the Indian nations. This was the actual "state of things", said Marshall, so far as Christian European assertions of "dominion" in the Americas were concerned. Such assertions did not involve "any attempt on the part of the [ British Crown ] to interfere with the internal affairs of the Indians"; and the crown had "never coerced a surrender" of Indian lands. The king purchased Indian lands when they were willing to sell.
To explain "the settled state of things" when the colonies went to war for their independence, Marshall wrote:
"The general views of Great Britain with regard to the Indians were detailed by Mr. Stuart, superintendent of Indian affairs, in a speech delivered at Mobile, in presence of several [Native] persons of distinction, soon after the peace of 1763. Towards the conclusion, he says, 'Lastly, I inform you that it is the king's order to all his governors and subjects, to treat Indians with justice and humanity, and to forbear all encroachments on the territories allotted to them; accordingly, all individuals are prohibited from purchasing any of your lands; but, as you know, that, as your white brethren cannot feed you when you visit them unless you give them ground to plant, it is expected that you will cede lands to the king for that purpose. But whenever you shall be pleased to surrender any of your territories to his majesty, it must be done, for the future, at a public meeting of your nation, when the governors of the provinces, or the superintendent shall be present, and obtain the consent of all your people. The boundaries of your hunting grounds will be made upon them. As you may be assured that all treaties with your people will be faithfully kept, so it is expected that you, also, will be carefully strict to observe them.'"
Marshall explained this speech in the following way:
"The proclamation issued by the king of Great Britain, in 1763, soon after the ratification of the articles of peace, forbids the governors of any of the colonies to grant warrants of survey, or pass patents upon any lands whatever, which, not having been ceded to, or purchased by, us (the king), as aforesaid, are reserved to the Indians, or any of them.
The proclamation proceeds: "And we do further declare it to be our royal will and pleasure, for the present, as aforesaid, to reserve, under our sovereignty, protection, and dominion, for the use of the said Indians, all the lands and territories lying to the westward of the sources of the rivers which fall into the sea from the west and northwest as aforesaid; and we do strictly forbid, on pain of our displeasure, all our loving subjects from making any purchases or settlements whatever, or taking possession of any of the lands above reserved, without our special leave and license for that purpose first obtained."
"And we do further strictly enjoin and require all persons whatever, who have, either willfully or inadvertently, seated themselves upon any lands, which, not having been ceded to, or purchased by us, are still reserved to the said Indians, as aforesaid, forthwith to remove themselves from such settlements."
A proclamation, issued by Governor Gage, in 1772, contains the following passage: "Whereas many persons, contrary to the positive orders of the king upon this subject, have undertaken to make settlements beyond the boundaries fixed by the treaties made with the Indian nations, which boundaries ought to serve as a barrier between the whites and the said nations;..." The proclamation orders such persons to quit those countries without delay."
Based on this documentation, Chief Justice Marshall concluded that Great Britain considered the Indians "{as nations capable of maintaining the relations of peace and war, of governing themselves, under her protection; and she made treaties with them, the obligation of which she acknowledged." This "was the settled state of things" when the Revolutionary War began. And, instead of "advancing a claim to" Indian lands, or asserting any right of dominion over them, Congress resolved "that the securing and preserving the friendship of the Indian nations appears to be a subject of the utmost moment to these colonies." In fact, the first treaty of the United Colonies, concluded with the Delaware nation in 1778, was, as near as may be formed "on the model of treaties between the crowned heads of Europe."
When the Cherokee nation entered into formal relations with the United States, they "assumed the relation with the United States which had before subsisted with Great Britain." Marshall also had this to say, regarding the USÕ attitude toward Indian nations.
"From the commencement of our government Congress has passed acts to regulate trade and intercourse with the Indians, which treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate. All these acts, and especially that of 1802, which is still in force, manifestly consider the several Indian nations as distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States."
The US had assumed the relationship with the Indian nations that had previously existed between Great Britain and the Indian Nations. And just as Great Britain had not asserted any dominion over the Indians, the US had no legitimate political right to do so. The Indian nations were completely free and independent nations even if and when they acknowledged "dependence" on the United States, or accepted the "protection" of the United States. When Great Britain had acknowledged that the US was "sovereign" of the territory from the Atlantic to the Mississippi River, this did not include any acknowledgment by Great Britain that the US could rightfully assert political dominion--or [plenary power]--over free and independent Indian nations.
After the definitive treaty of Paris of 1783, the territories and lands of Indian nations were geographically within but still politically separate from the territory of the United States, which were then still organized under the Articles of Confederation. No central or federal government yet existed that could have had any claim of dominion over free and independent Indian nations. After the Treaty of Paris, the USA had at the very most, a claim to be the one and only Christian European nation to be allowed to purchase lands from the Indians living in that region whenever they should be willing to sell.
When the British minister asked Thomas Jefferson in 1802 what right the American nation had in Indian soil, Jefferson replied that the US has merely a right of "Pre-emption". This right, Jefferson regarded as not "amounting to any dominion, or jurisdiction, or paramountship whatever." It was simply a right of "preventing other [Christian European] nations from taking possession [of the Indian lands], and so defeating" the American expectation of obtaining the land when the Indians should be willing to sell. And Jefferson further said that "the Indians had the full, undivided and independent sovereignty as long as they chose to keep it, and that this might be forever."
There were, however, men behind the formation of the federal government of the US who believed that the American Empire was destined to expropriate all the lands of the Indians within geographical boundaries claimed by the United States. Many of these men had formed the Society of the Cincinnati in 1783, which was founded, they said, for "the establishment and perpetuation of the American Empire." And this society, working behind the scenes in the federal government, began to deal with Indian nations, not upon principles of respect, but on the basis of the "unwritten Constitution of the American Federal Empire."
With George Washington at the helm these men launched an enterprise to expropriate all the Indian lands northwest of the Ohio River, and eventually all Indian lands from the Ohio to the Pacific Ocean. These men were in need of a pretension that would enable them to achieve their stated goal. Accordingly, they turned away from
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