Arithmetic in Federal Indian Law

To follow this article you won’t even need a calculator. All you’ll need is an understanding of arithmetic and how to subtract. Take, for example, the equation 100 percent minus 99 percent = 1 percent. For the purpose of this article, we’ll say that the 1 percent stands for what has been called the “residual” Indian “right of occupancy” in U.S. federal Indian law and policy.

With the above in mind, let’s create a scenario. Let’s begin by considering 100 percent to represent our initial free and independent existence as the original Nations of this continent. Next, envision an assertion by the invading colonizers that most of our original free existence has been subtracted and thereby diminished from our 100 percent. If we were to accept that assertion of a “diminishment,” this would necessarily lead to the conclusion that almost nothing of our original free existence remains. However, it is not possible to know the precise amount of our free existence that is said to be remaining without knowing how much has been subtracted from the 100 percent of our free and independent existence.

100% – 99% = 1%
The High Math of Federal Indian Law

Now let’s represent our original independence with a phrase from the U.S. Supreme Court in the decision Johnson v. M’Intosh: “their rights to complete sovereignty, as independent nations.” With this phrase the Supreme Court acknowledged the initial 100 percent of our original free existence and our right to maintain that existence. However, the Supreme Court said that as a result of “discovery” by “Christian people” a large but unspecified amount of our rights had been “diminished,” meaning, subtracted.

The claim that most of our rights were “diminished” (done away with), matches a seldom noticed dictionary definition of “subtraction”: “the withdrawing or withholding from  one of a right to which one is entitled.” Whatever remained of our original free existence after it had supposedly been “diminished” could be called “the residue” of our original free existence, or a residue of the original 100 percent of our rights. A residue is “something that remains after a part is taken, separated, or designated: remnant, remainder.” And, of course, “remainder” is also a term used in subtraction.  The remaining amount is the “remainder.”

Now, let’s recall that the totality of our rights was expressed by the U.S. Supreme Court as “their rights to complete sovereignty, as independent nations.” And let’s further recall that the Supreme Court said that a particular “principle” is what had caused our right “to complete sovereignty, as independent nations” to have been “diminished.” The U.S. Supreme Court first expressed that principle in Johnson v. M’Intosh, and said “that discovery gave title to those who made” the discovery.

The Court’s claim that “discovery,” by “Christian people,” “gave” a form of “title” to the Christian “discoverers” was the basis for the Court suggesting that our right as Native people to hold on to 100 percent of our free existence, as independent nations, had been ended. That right was supposedly ended simply by Christians from Europe showing up to our part of the planet.

The U.S. Supreme Court said that discovery “gave” to the “discoverers” a title of “ultimate dominion” or “absolute title.” Something “given” to a recipient is thereby “added” to the “possession” of the recipient. This results in the inference that “discovery” “gave” (added) a “title” to the discoverers’ possession. Logically, from the colonizers’ viewpoint, what is considered to have been added to the colonizing nations must be subtracted from our nations.

Stated differently, when the Supreme Court ascribed (added) “ultimate dominion” or “absolute title” to the colonizers’ “side of the ledger,” so to speak, “ultimate dominion” and “absolute title” had to be mentally subtracted from our side of the ledger. According to the U.S. Supreme Court’s scenario, all that remained after the totality of our original free existence had been deducted from our Nations, was a “right of occupancy” or a “right of possession,” which was said to be subject to the “ultimate dominion” and “sovereignty” (domination) of the invading “discoverers.”

 Now, let’s use the above information to analyze a court ruling that mentions “the Indian right of occupancy.” On August 27, 2014, the 9th Circuit Court of Appeals handed down a decision in the case White v. University of California. The case involved a dispute regarding two 9,000 + year old ancestral remains which the Kumeyaay Cultural Repatriation Committee (KCRC) said were the skeletal remains of Kumeyaay ancestors.

The 9th Circuit Court of Appeals panel termed them the “La Jolla remains.” The Kumyeyaay ancestral remains were first “discovered” in 1976 during an archaeological excavation on the land where the UC San Diego Chancellor’s residence is located within the original territory of the Kumeyaay Nation.

Toward the opening of its decision, the panel for the Ninth Circuit Court of Appeals said: “The Kumeyaay, also known as the Ipai, Tipai, or Diegueño, aboriginally occupied areas of the south-western United States and northwest Mexico.” The Court continued: “The Kumeyaay Nation currently occupies various lands extending from San Diego and Imperial Counties in California and 75 miles south of the Mexican border.”

The 9th Circuit Court panel did not acknowledge that the Kumeyaay Nation originally  had 100 percent of its own free and independent existence and 100 percent of its own national Kumeyaay territory. Rather it said that the Kumeyaay Nation “aboriginally occupied areas of,” meaning, “belonging to,” the United States and Mexico. Use of the phrase “aboriginally occupied” provides a political context of colonization foreign to the Kumeyaay nation. This is because the word “aboriginally” traces to “aborigine,” meaning, “An indigenous inhabitant esp. as contrasted with an invading or colonizing people.” (emphasis added)

After the arrival of an “invading or colonizing people” is the time frame for the 9th Circuit Court’s use of the phrase “aboriginally occupied” areas of “the southwestern United States” and “northwest Mexico.” This wording only considers the nature of the Kumeyaay Nation after it had been invaded and colonized. To avoid saying that the Kumeyaay Nation still “currently occupies” its own Kumeyaaylands, the second footnote of court’s ruling clarifies that, in the court’s opinion, the Kumeyaay Nation only has an “aboriginal interest” in the lands that belong to the invading non-Kumeyaay “sovereign.” Here’s what the court said:

Aboriginal interest in land generally is described as a tribe’s right to occupy the land. It is not a property right, but “amounts to a right of occupancy which the sovereign grants and protects against intrusion by third parties.” Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279 (1955). That right, which is residual in nature, comes from the legal theory that discovery and conquest gave conquerors the right to own the land but did not disturb the tribe’s right to occupy it. See Johnson v. M’Intosh, 21 U.S. 8 Wheat 543, 588-91 (1823).

The 9th Circuit Court’s statement that “a tribe’s right to occupy the land” is “residual in nature” is important, because, as mentioned previously, “residual” in this context means, “of, relating to, or constituting a residue: remaining after a part is taken.” The characterization of “a tribe’s right to occupy the land” as “residual in nature,” “comes from the legal theory that discovery and conquest gave conquerors the right to own the land.” 

That wording is taken from Tee-Hit-Ton Indians v. United States. It was written by Justice Stanley Reed for a Supreme Court majority where Reed wrote for the Court: “This position has long been rationalized by the legal theory that discovery and conquest gave conquerors sovereignty over the lands thus obtained. 1 Wheaton’s International Law, c. V.” Whereas Reed wrote “sovereignty over the lands thus obtained,” the 9th Circuit Court panel said that “discovery and conquest” “gave conquerors the right to own the land.”

While the entire section that Justice Reed cited from chapter five in Wheaton’s Elements of International Law is quite lengthy, a couple of pertinent passages provide insight into the basis for the “legal theory” mentioned by the Supreme Court in the Tee-Hit-Ton decision:

According to the European ideas of that age [of discovery], the heathen nations of the other quarters of the globe were the lawful spoil and prey of their civilized conquerors, and as between the Christian powers themselves, the Sovereign Pontiff [the pope] was the supreme arbiter of conflicting claims.[1]

Thus, the bull of Pope Alexander VI. reserved from the grant to Spain all lands which had been previously occupied by any other Christian nation; and the patent granted by Henry VII. of England to John Cabot and his sons, authorized them “to seek out and discover all islands, regions, and provinces whatsoever, that may belong to heathens and infidels;” and “to subdue, occupy, and possess these territories, as his vassals and lieutenants.”. . . It thus became a maxim of policy and of law, that the right of the native Indians was subordinate to that of the first Christian discoverer…”[2] (Wheaton’s emphasis on “Christian”)

The 9th Circuit Court citation to both Tee-Hit-Ton Indians and Johnson v. M’Intosh is highly important. Not only did Justice Stanley Reed write the 1955 Tee-Hit-Ton opinion, he also wrote a dissenting opinion in the 1946 case Alcea Band of Tillamooks. In his dissent in Alcea Band of Tillamooks Reed said the theory expressed in Johnson ruling was that “discovery by Christian nations gave them sovereignty over and title to the lands discovered.” That sentiment was also expressed in 1836 by Henry Wheaton: “The Indians were deemed to be subordinate to the first Christian discoverer.” The process of subtraction results in a “subordinate” position and status of “occupancy” means, the original existence of the Native nations minus “propriety and dominion.” As Justice Story said:

We have also seen that the title of the Indians was not treated as a right of propriety and dominion; but as a mere right of occupancy. As infidels, heathen, 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 they used for their temporary and fugitive purposes, was, in respect to Christians, deemed, as if it were inhabited only by brute animals.

 On the basis of this kind of bigoted thinking, the 9th Circuit Court of Appeals considers the Kumeyaay Nation’s right to occupy land in its territory to be “residual.” The mere “right to occupy” is the “residue” left after the Kumeyaay have been made to undergo a process of “reduction” (subtraction) by means of which Christian dominium and non-Christian subjection was mentally constructed. It is the conceptual residue remaining after, in the words of the Johnson v. M’Intosh ruling, the Christian European monarchs had assumed the “ultimate dominion to be in themselves,” and had assumed the original Nations to be “a people over whom the superior genius of Europe might claim an ascendency,” another word that Webster’s dictionary defines as “domination.” 

Footnote number 2 of White v. University of California is a twenty-first century claim by a U.S. court that centuries ago Christians discovered the lands of “heathens and infidels,” and that this resulted in the Christians being able to claim Christian sovereignty (dominium) over all the lands of the Original Nations and Peoples of this continent, including the Kumeyaay Nation. Today the United States is the successor to that claim of Christian domination as a result of “Christian people” (quoted from Johnson v. M’Intosh) claiming to have “discovered” the lands of non-Christian nations.

[1] Wheaton’s Elements of International Law: With a Sketch of the History of the Science (Philadelphia, 1836), 139-40.

[2] Ibid. Wheaton’s emphasis on “Christian” matches italics on “Christian people” found in Johnson v. M’Intosh, and italics on “Christian people” found in Joseph Story’s Commentaries on the Constitution of the United States.

Copyright Steven T. Newcomb, June 13, 2019