It is challenging to see how humanity can ever rise above a seemingly universal greed that nearly always surmounts any good impulse that may arise. History tells a story of inconsistency and dismal failure.
For my Federal Indian Law class, I am reading about things that perhaps I learned in middle school or high school. But if I did, it long ago fell off the wagon in all the shaking and moving of life. And I am certain that the version I learned then was a little more skewed to show those of European descent in a favorable light.
What follows is an attempt at a synopsis of what I learned this week. Much of it comes from the textbook, Cases and Materials on Federal Indian Law, Getches, Wilkinson, Williams and Fletcher, and from our class discussion on the topic. I claim no original thought on this matter. I find it unsettling to re-think both some of our history, and how the law functions. I had thought, had hoped, that it provided justice for the oppressed, but it is hard to maintain that belief in the face of all of this. Because what we do to or for the least powerful is the real indicator of the rule of law, and the opportunity for justice.
The basis for U.S. Indian law as administered even today reaches far back in history. It perhaps originated in the Catholic European nations' view of the Pope as divinely designated shepherd of the universal flock of Christ. The Pontiff was vested with supreme spiritual authority over the souls of all humankind. The Pope’s universal authority was also political.
This concept was the basis for the Crusades in 11th-13th centuries- there was a righteous authority to conquer the lands and peoples of the infidels for 'Christ' and to spread the gospel.
The Doctrine of Discovery is European in origin- the discovering sovereign had the right to 'discovered' land superior to all other ‘Christian nations’ and superior to current occupiers, so long as the land was not already discovered and possessed by another Christian European nation. Then again, this conquest rule of law was not new with Europe. In Anabasis, Xenophon talks about the law of the conqueror swallowing up the law of the conquered, written around 400 B.C. One can find many traces of the concept throughout history. While it doesn't justify anything done to the Indians of the U.S., it perhaps helps to put it in historical context.
Catholic legal scholars' canon-law writings provided a basis for the Christian sovereign's right to punish and take property of any infidels.
In a bull issued by the Pope for the King of Portugal in 1436, the King was given the right directly from God to colonize Canary Islands and all of Africa, by whatever means was necessary.
Later Spain obtained a series of bulls granting the Americas/‘Indies’ upon discovery by its agent, Columbus. Spain's legal minds had come up with the Requerimiento, which had to be read aloud to any group of Indians before any hostilities could legally be commenced (written in 1513). Only the Indians didn't speak the European languages, and there was no provision for translation. The Requerimiento provided that God had given charge of the whole human race to the Pope, who had donated their lands to the King and Queen of Spain. The Indians were asked to ponder and acknowledge this higher power, and consent to be preached to. If, however, they denied this, or delayed in responding, God and the Church approved of war-making by the Christian nations, enslaving the Indians, taking away their goods, and doing all the harm and damage that the Spaniards could.
Incredibly, the speaking of this writing gave authority then to proceed as desired to take from the Indians their land, their freedom, and their lives, with the blessing of the Most High.
Franciscus de Victoria (1480-1546) would at first reading appear to be a voice standing out against this taking in the name of God. In On the Indians Lately Discovered (1532), he discussed the applicable international law, and provided three arguments later included in the European Law of Nations.
1. The inhabitants of the Americas possessed natural legal rights as free and rational people
2. Any Spanish claims to title to the Americas on the basis of ‘discovery’ or papal grant were illegitimate and could not affect the inherent rights of the Indian inhabitants
3. Transgressions of the universally binding norms of the Law of Nations by the Indians might serve to justify a Christian nation’s conquest and colonial empire in the Americas
It was his assertion that Indians were rational beings and therefore possessed the same natural rights as Christians. He said that the law could not bind those not previously subject to it and any Spanish claims to title to the Americas on the basis of ‘discovery’ or papal grant were illegitimate and could not effect the inherent rights of the Indian inhabitants.
As to the land, he said the Indians could not be deprived of their property without just cause. While what belongs to nobody belongs to the first occupant/discoverer, the Indians were true owners of this land as present occupiers.
Alas, he did not stop there. While he claimed that the Pope has no temporal power over aborigines or other unbelievers, under argument #3, he found an exception to the universal natural laws in #1 and 2. Transgressions of the universally binding norms of the Law of Nations by the Indians might serve to justify a Christian nation’s conquest and colonial empire in the Americas. This then was the just cause, and it undid entirely the precepts in his first two arguments.
Our legal concept that the Federal Government has a guardianship over Indians in the U.S. stems from this theory. Victoria said that since Indians could not be expected to understand fully the rules of the European Law of Nations, they should be placed under guardianship.
But deciding for someone else what is good for them is thin veneer for abuse of power-illegitimate power most often. The concept of guardianship allowed for- no, demanded ‘brotherly correction’ – Indian princes had no legal right to prevent the preaching of the gospel, and to deny this gospel would provide legal justification for seizing of lands and setting up new lords.
Edward Coke wrote in Calvin’s Case about the English King’s right of conquest in Christian vs non-Christian territory:
Infidels are in law perpetual enemies
Law presumes not that they will be converted
There is perpetual hostility between infidel and Christian, no peace
Pagan/infidel cannot therefore maintain an action in King’s courts- no recourse, no justice available to an infidel
If the King takes infidel’s land by conquest
The laws of the infidel are abrogated (and their title to lands)
Because they are not only against law of God but against law of nature
How would the Indians be expected to know European/Christian norms? More to the point, who is to decide what are the universally binding norms? Religion was just the convenient cloak of justification for greed/ land grabs. Frankly, there had to be some mechanism for acknowledging title in order to extinguish it. So the legal fiction that was set up to justify the actions of the European settlors loses even its veneer of being motivated by a sense of fairness. They thought of the need to be able to devise and convey land with clear title, and therefore sought to lay the foundation on the blood and betrayal of those who occupied the land they desired.
When I hear people talk about the U.S. as a Christian nation, it makes me anxious, as I contemplate what has been done in the name of Christianity, or any other religion. I knew of the Crusades, of course, but they are so remote in time, and surely couldn't take place today. But it seems that evil is perpetuated continually, no less the evil for its being cloaked in precedent and guardianship. I can better see now the evil done in the name of the Lord, and given the historical bent of humans to repeat the cycle, I worry at any intrusion on my right to be an infidel.
Justice or the illusion of justice?
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