By Oren Lyons
The ‘Legal’ Defense for Oppressing Indigenous People
This is a pivotal time in the saga of human history. The human species comes in all sizes, shapes and varieties of color. All living creatures of the earth including us, the human species, are bound by the universal laws of nature. These laws will prevail over and beyond the laws created by people. I speak of the laws that challenge the balance of nature’s laws to serve the interests of one species of humanity against another and against the principles of equity and peace.
Current international law regarding the colonization of indigenous peoples and our lands and resources trace back to the fifteenth century papal bulls of the Roman Catholic empire that encompassed the Christian nations of Europe. These papal bulls became known as the Christian Doctrine of Discovery. This Doctrine of Discovery was absorbed into the Law of Nations, which then became the international law of today.
The most powerful figure in medieval Europe was the Pope; the monarchs of Europe were Roman Catholic, supporting the church under the threat of ex-communication. This continued to be the case until reformation altered the political landscape of Europe.
The Church of England under the leadership of Henry VII issued a patent to John Cabot and Sons in 1496: “To seek out and discover all islands, regions, and provinces whatsoever, that may belong to heathens and infidels; to subdue, occupy, and possess these territories, as vassals and lieutenants…”
This reflected the Inter Caetera bull of Pope Alexander VI of 1493, about which a recent UNESCO study reported the following: “According to the European ideas of that age, the Heathen Nations of other quarters of the globe were lawful spoil and prey of their civilized conquerors, and between the Christian powers themselves the Pontiff was the supreme arbiter of conflicting claims…”
Henry the VII’s patent to the Cabots challenged the plenary power of the Pope. Nevertheless, the principles of “first discovery” by a Christian nation gave the Cabots title to lands belonging “to heathens and infidels” and has remained a common understanding that became the Law of Nations.
Thus was the Native Nations of the America’s aboriginal sovereign title of ownership reduced to the European concept of only “right of occupancy.” This was done without our knowledge or consent and continues into contemporary times.
The transference of this International Law of Nations into the United States judicial system occurred with the case of Johnson & Graham’s Lessee v. M’intosh & Wheat (1823). This case was between land speculators arguing over who had first rights to Indian lands in Illinois. Supreme Court Justice John Marshall presided and advised the land speculators that “Indian title” did not exist and cited as his authority the patent and charter given to the Cabots by Henry VII in 1496. He quoted the charter under the Doctrine of Discovery as the underlying principle of “the right of occupancy” possessed by Indian Nations in the United States.
Thus the Doctrine of Discovery which developed under Christian feudal laws of medieval Europe, during the time of the Inquisition, visited unspeakable crimes against indigenous peoples over the past five centuries. These include: genocide; ethnocide (new terminologies had to be invented); forced removal of native children into boarding schools, subjecting them to an international program of social engineering called “Christianization,” separation from family and friends, punishment for speaking their languages and practicing their culture, sexual abuse, and death, all in the name of God. Indigenous peoples of the world suffered these crimes against humanity and continue to experience this medieval injustice today.
The Doctrine of Discovery continued to surface in the US Courts in the 20th century. The Supreme Court handed down a decision on the Tee Hit Ton Indians v the United States in 1955. The Tee Hit Ton Indians were suing for damages incurred on their lands under the jurisdiction of federal law. Justice Stanley Forman Reed delivered the majority decision of the Supreme Court, where he wrote:
“…that it was “well settled” that American Indians…held claim to lands in North America after the coming of the white man, under what is sometimes termed Indian title or permission from the whites to occupy.”
“That description means mere possession not specifically recognized as ownership by Congress. After conquest they were permitted to occupy parts of their territory over which they previously exercised sovereignty as we use the term. This is not a property right but amounts to a right of occupancy which the sovereign grants.”
He further said that, “This right of occupancy may be terminated and such lands fully disposed of by the sovereign itself without any legal enforceable obligation to compensate the Indians.”
This discourse continues into the 21st century and is an active legal principle recognized by the United States Supreme Court. For example, in the case of: City of Sherrill v Oneida Indian Nation of New York, (2005), involving a dispute over taxation of ancestral lands of the Oneida Indian Nation, the court relied on the Doctrine of Discovery. Footnote number one states: “Under the Doctrine of Discovery… fee title to the lands occupied by Indians when colonists arrived became vested in the sovereign — first the discovering European nation and later the original states and the United States.”
A preliminary study of the matter was submitted to the United Nations Economic and Social Council on February 3, 2010 under the title Impact on Indigenous Peoples of the international legal construct known as the Doctrine of Discovery. It shows how the Doctrine of Discovery as the foundation violates indigenous human rights worldwide.
In May 2012 there will be a tremendous opportunity at the meeting of the International Commission of the United Nations to approve a year-long international study on the Doctrine of Discovery and its impact on indigenous peoples. It will be an opportunity for indigenous peoples to document five hundred years of crimes, inequities, injustice, deprivations, and moral incursions against them.
I’m pleased to ask you to join religious leaders from other traditions to repudiate the Doctrine of Discovery. We thank you for your interest and support of this human rights issue.
Nyawenha –Thank you Skanonh – Peace,
Joagquisho, Oren Lyons
Faithkeeper, Turtle Clan of the Onandaga Nation
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You can hear Faithkeeper Joagquisho reflecting on business, the laws of nature, the state of the world, and spiritual prophecy here.
For more information about the Onandaga Nation please visit http://www.onondaganation.org.