We Must Do The Necessary
Thinking For Them
by Jordan S. Dill

On the eight of November, 1519, Hernando Cortes and four hundred Spanish soldiers...approached the Aztec Byzantium-Tenochtitlan, Mexico City. The city was scattered with great aviaries where thousands of birds - white egrets, energetic wrens and thrushes, fierce accipiters, brilliantly colored parrots - were housed and tended. They were captivating, as fabulous, as the displays of flowers: vermilion flycatchers, coppertailed trogons, green jays, blue-throated hummingbirds, and summer tanagers. Great blue herons, brooding condors.

Three months later, because of Cortes's psychological manipulation of Montezuma and a concomitant arrogance, greed, and disrespect on the part of the Spanish military force had become too much for the Mexicans, and they drove them out. Eleven months later a vengeful Cortes returned to lay siege to the city.

On June 16 [1521] in a move calculated to humiliate and frighten the Mexican people, Cortes set fire to the aviaries.

Crossing Open Ground, Barry Lopez

When we arrived in this country the Indians were so numerous that it seemed as if they were going to grow into a vast population: but after they were baptized God called them to Himself either by disease or by the hands of the Iroquois, It was perhaps his wise design to permit their death lest their hearts should turn to wickedness.

Marie Guyard, Quebec, 1639

Some time ago I began to wonder what the basis, the "legal" basis, was for the way Wasichu relates/related to the First Nations. The colonization process, for anyone interested, isn't hard to track down, but the legal whys, generally aren't considered - not unless one happens to be a lawyer. After a short time it became apparent that the concept of "legality" as regards the First Nations exudes fabrication and falsity. The realization, a confrontation really, that the concepts of Manifest Destiny and the Doctrine of Discovery were concoctions actually stunned me. That these "fictions" are the basis for legitimizing Wasichu's possession of this continent causes despair.

That the First Nations were so naive as regards Wasichu I initially found incredible. But then, this particular phenomena just hadn't been encountered before. Not on such a grand scale anyway... Consider the following assertion:

...First, it is not a clear proposition that savages can, for any consideration, enter into contract obligatory upon them. They stand by the law of nations, when trafficking with the civilized part of mankind, in the situation of infants, incapable of entering into contracts, especially for the sale of their country. Should this be denied, it may then be asserted that no monarch of a nation (that is, no sachem, chief, or headmen, or assemblage of sachems, etc.) has a power to transfer by sale the country, that is, the soil of the nation, over which they rule. (History of Maryland)
And then there were the:
...moralists who have questioned the right of Europeans to intrude upon the possessions of the aborigines in any case and under any limitations whatsoever. But have they maturely considered the whole subject? The Indian right of possession itself stands, with regard to the greatest part of the country, upon a questionable foundation. Their cultivated fields, their constructed habitations, a space of ample sufficiency for their subsistence, and whatever they had annexed to themselves by personal labor, was undoubtedly by the law of nature theirs. But what is the right of the huntsman to the forest of a thousand miles over which he has accidentally ranged in quest of prey? Shall the liberal bounties of Providence to the race of man be monopolized by one of ten thousand for whom they were created? Shall the exuberant bosom of the common mother, amply adequate to the nourishment of millions, be claimed exclusively by a few hundreds of her offspring? Shall the lordly savage not only disdain the virtues and enjoyments of civilization himself, but shall he control the civilization of a world? Shall he forbid the wilderness to blossom like the rose? Shall he forbid the oaks of the forest to fall before the ax of industry and rise again transformed into the habitations of ease and elegance? Shall he doom an immense region of the globe to perpetual desolation, and to hear the howlings of the tiger and the wolf silence forever the voice of human gladness? Shall the fields and the valleys which a beneficent God has framed to teem with the life of innumerable multitudes be condemned to everlasting barrenness? Shall the mighty rivers, poured out by the hands of nature as channels of communication between numerous nations, roll their waters in sullen silence and eternal solitude to the deep? Have hundreds of commodious harbors, a thousand leagues of coast, and a boundless ocean been spread in the front of this land, and shall every purpose of utility to which they could apply be prohibited by the tenant of the woods? No, generous philanthropists! Heaven has not been thus inconsistent in the works of its hands. Heaven has not thus placed at irreconcilable strife its moral laws with its physical creation. (Adams)
A pretty heady presentation from one who also felt that "Indians" were "blood Hounds" with "cruel, bloody disposition[s] who scalp men and butcher[ed] Women and children." (Sheehan) Apparently, when Adams sought to justify the Conqueror's continental takeover a scholarly approach was relevant. Then, necessity prompted more "realistic" references to the First Nations once the expropriation was well underway.

Long before the Laramie Treaty farce Wasichu had established that it was his law that mattered. A law that was arbitrary, convenient, and entirely concocted to serve the interests of the colonizers who asserted:

an absolute dominion over the whole territories afterwards occupied by them, not in virtue of any conquest of, or cession by, the Indian natives, but as a right acquired by discovery. Some of them, indeed, obtained a sort of confirmatory grant from the papal authority. But as between themselves they treated the dominion and title of the territory as resulting from the priority of discovery...The title of the Indian was not treated as a right of property and dominion, but as a mere right of occupancy. As infidels, heathens and savages, they were not allowed to possess the prerogatives belonging to absolute, sovereign, and independent nations. The territory over which they wandered, and which the used for this temporary and fugitive purposes, was in respect to Christians, deemed as if it were in habited by brute animals. (Williams)
I quote Chief Justice Marshall, generally regarded as a foundation layer of Federal Indian Law. This from Johnson v. M'Intosh, 1832, 340 years after the Admiral of the Ocean Sea (Columbus) hit the beach. Marshall's comments in this decision were prompted "exclusively on [by] the need for rationalizing the process of land acquisition in a country originally inhabited by a savage people but gradually taken over by a foreign invader." (Williams):
On the discovery of the immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy. The potentates of the old world [and the new] found no difficulty in convincing themselves, that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence.
Of course, inherent here is the "given" that "civilization and Christianity" were filling a void and that the "compensation" and legitimacy of the "bestowing" was anything other than a fantasy, which of course it certainly was. The dear Justice goes on:
But as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which t hey all asserted, should be regulated, as between themselves. The principle was, that the discovery [of America] gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements on it. ...Conquest gives a title which the courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. ...The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. (Johnson v. M'Intosh)
We must not expect them [Indians]...to evolve out of their own consciousness what is best for their salvation. We must in a great measure do the necessary thinking for them, and in the most humane way possible induce them to accept our conclusions. (Chamberlin)
What's my point here? Well, it's just to underline that the very legal foundation of the Wasichu/First Nations relationship is based upon the opinion that:
...the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. [That] to leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as high-spirited as they were fierce, and were ready to repel by arms every attempt on their independence. (Johnson v. M'Intosh)
Because there was no way in hell Wasichu could deal with such people, because there was no precedent...he resorted to a "new and different rule, better adapted to the actual state of things..." Simply put, he rewrote the book while continuing to to offer advice such as the following:
You remind me brother, of what I said to you, when you visited me the last winter, that the lands you then held would remain yours, and shall never go from you but when you should be disposed to sell. This I now repeat, and will ever abide by. We, indeed, are always ready to buy land; but we will never ask but when you wish to sell; and our laws, in order to protect you against imposition, have forbidden individuals to sell, even to a State, that an agent from the United States should attend the sale, so that your consent is freely given, a satisfactory price paid, and report to us what has been done, for our approbation...The right to sell is one of the rights of property. To forbid you the exercise of that right would be a wrong to your nation...In all your enterprises for the good of your people, you may count with confidence on the aid and protection of the United States, and on the sincerity and zeal with which I am myself animated in the furthering of this humane work. You are our brethren of the same land; we wish you prosperity as brethren should do....(Jefferson)
A mere 35 years after Jefferson's heartfelt declaration, we find Major General Scott addressing the Cherokee Nation:
The President of the United States has sent me with a powerful army, to cause you...to join that part of your people who are already established in prosperity on the other side of the Mississippi...The full moon of May is on the wane, and before another shall have passed away, every Cherokee man, woman, and child...must be in motion to join their brethren in the far West...My troops already occupy many positions in the country that you are to abandon, and thousands and thousands are approaching from every quarter, to tender resistance and escape hopeless...Chiefs, head men, and warriors - Will you then, by resistance, compel us to resort to arms? God forbid. Or will you, by flight, seeks to hide yourselves in the mountains and forests, and thus oblige us to hunt you down? Remember that, in pursuit, it may be impossible to avoid conflicts. The blood of the white man, or the blood of the red man, may be spilt, and if spilt, however accidentally, it may be impossible for the discrete and humane among you, or among us, to prevent a general war and carnage. Think of this, my Cherokee brethren, I am an old warrior, and have been present at many scenes of slaughter... (Van Every)
No longer was Wasichu "brethren." No longer was there a desire for common prosperity. In truth there never was any such leaning.

Years down the road in Tee-Hit-Ton Indians vs. United States (1955) when the Tee-Hit-Ton, a clan of the Tlingit Nation comprised of no more than 70 individuals in 1955, claimed that over 350,000 acres of land and 150 miles of water had been taken from them "illegally," it was noted that "Congress has never recognized any legal interest of the petitioner [the Tee-Hit-Ton] in the land and therefore without such recognition no compensation is due the petitioner for any taking by the United States." Bottom line, I suppose, is that since I can not see you, you are not there. In fact, you don't even exist! Pretty neat, huh?

So...the Supreme Court reiterated that "Indian occupancy, not specifically recognized as ownership by action authorized by Congress, may be extinguished by the Government without compensation..." Needless to say, the Tee-Hit-Ton lost.

As was pondered by a couple of "Justices" in the Tee-Hit-Ton case:

Ownership meant no more to them [Indians] than to roam the land as a great common, and to possess and enjoy it in the same way that they possessed and enjoyed sunlight and the west wind and the feel of spring in the air. Acquisitiveness, which develops a law of real property, is an accomplishment only of the civilized.
Now...if it is a given that Wasichu appreciates/appreciated that the First Nations/First People didn't connect with "ownership" of the Land and that "Congress has the power to extinguish aboriginal title 'by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise," ..."Can a legal doctrine traceable to prejudice against Indian people serve as a vehicle for achieving justice between Indian tribes and the dominant society in the United States?" I suggest, sadly, that it can not. What then to do? How to deal? To cope? How to carry on the fight for recompense...for rightful retribution?

I suggest that the First Nations/First Peoples must come to grips with the reality of life in the Wasichu Sea. I suggest that one must define terms and establish an fresh legal environment within which Wasichu can be held accountable for past and present fictions:

Today, principles and rules generated from this Old World discourse of conquest are cited by the West's domestic and international courts of law to deny indigenous nations the freedom and dignity to govern themselves according to their own vision. Thus as a first step toward the decolonization of the West's law respecting the American Indian, the Doctrine of discovery must be rejected. It permits the West to accomplish by law and in good conscience what it accomplished by the sword in earlier eras: the physical and spiritual destruction of indigenous people. (Williams)


Works Cited:

Adams, John Quincy. Speech - December 22, 1802

Chamberlin, J. E. The Harrowing of Eden - White Attitudes Toward Native Americans. New York: The Seabury Press, 1975.

History of Maryland, p. 569

Jefferson, Thomas. Speech to Handsome Lake, half brother to Cornplanter, November 3, 1803.

Sheehan, Bernard W. Seeds of Extinction. Chapel Hill: The University of North Carolina Press, 1973.

Supreme Court. Johnson v. M'Intosh (1832)

Supreme Court. Tee-Hit-Ton Indians vs. United States (1955)

Williams, Robert A. The American Indian in Western Legal Thought, The Discourses of Conquest. New York/Oxford: Oxford University Press, 1990

Van Every, Dan. Disinherited: The Lost Birthright of the American Indian. New York: William Morrow & Company, 1966.

First Nations

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