The Principle of Subtraction in U.S. Federal Indian Law

Steven Newcomb (Shawnee, Lenape)

It’s not necessary to have a basic understanding of mathematics to follow this article. You won’t even need a calculator. All you need is an understanding of subtraction. 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 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 starting point of 100 percent. An acceptance of that assertion of a “diminishment” will necessarily lead to the conclusion that very little if anything of our original free existence remains. However, it is not possible to know the precise amount of our free existence that is remaining without knowing how much has been subtracted from the original 100 percent of our independence.

            Now let’s represent our original independence with a phrase from the U.S. Supreme Court 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 rights. However, the Supreme Court said that as a result of “discovery” a large but unspecified amount of our rights had been “diminished,” meaning, subtracted from.

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.  

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 “rights to complete sovereignty, as independent nations” to have been “diminished.” The U.S. Supreme Court first expressed that principle in the 1823 case Johnson v. M’Intosh, and said “that discovery gave title to those who made it [the discovery].”

The Court’s claim that “discovery,” by “Christian people,” “gave” a form of “title” to the one called “the discoverer” was the basis upon which the Court also suggested that the right of our Nations to maintain 100 percent of our free existence as independent nations had been ended. The Supreme Court’s presumption of a “diminishment” of our original independence leaves merely a “residual” amount, or “residue” of what was once understood to be 100 percent of our original free existence.

The U.S. Supreme Court said that discovery “gave” to the “discoverer” a title of “ultimate dominion” or “absolute title.” Something “given” suggests a process of addition. Something is thereby “added” to the “possessions” of the recipient. Thus, the idea that “discovery” “gave” “title” is accurately re-expressed as “adding” that form of title to the discoverers’ (colonizers’) possessions. When that form of title is added to the “possessions” of the colonizers, that form of title is subtracted from our nations.

When the Supreme Court ascribed (added) “ultimate dominion” or “absolute title” to the colonizers’ side of the ledger, it subtracted (deducted) a corresponding amount or quantity of “title” from our Nations’ 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 was a “right of occupancy” or a “right of possession,” which was deemed subject to the “ultimate dominion,” “absolute title,” and “sovereignty” of the invading “discoverers.”

  Now, let’s use the above information to analyze a recent court ruling that mentions the Indian right of occupancy. On August 27, 2014, a three-judge panel of the 9th Circuit Court of Appeals handed down a split (2-1) decision in the case White v. University of California. The case involves a dispute regarding two 9,000 + year old ancestral remains which the Kumeyaay Cultural Repatriation Committee (KCRC) considers to be 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 in 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 foreign colonization. For the word “aboriginally” traces to “aborigine,” meaning, “An indigenous inhabitant esp. as contrasted with an invading or colonizing people.”

After the arrival of an “invading or colonizing people” is the frame of reference for the 9th Circuit’s use of “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 any potential political complications that might arise as a result of the 9th Circuit Court of Appeals saying that the Kumeyaay Nation still “currently occupies” its own Kumeyaaylands, the Court’s second footnote  clarifies that, in the court’s view, the Kumeyaay Nation only has an “aboriginal interest” in the lands of the invading non-Kumeyaay “sovereign,’ which “the Tribes” of the Kumeyaay Nation currently occupy:

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 panel’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 by Justice Stanley Reed directly 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 the chapter in Wheaton’s Elements of International Law is quite lengthy, a couple of pertinent passage provide insight into the basis for “legal theory” mentioned by the Supreme Court in its Tee-Hit-Ton decision, and by the 9th Circuit Court of Appeals comment about the Kumeyaay Nation’s “residual” right to occupy  lands:

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 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 an 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 placed emphasis on the word “Christian”)

The 9th Circuit Court panel’s 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, Reed said the theory expressed in Johnson v. M’Intosh was that “discovery by Christian nations gave them sovereignty over and title to the lands discovered.” The sentiment was expressed 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” 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.

  It is on this basis of this kind of bigoted thinking that 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 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 is defined as “domination.” 

In footnote 2 of White v. University of California is a direct result of the claim 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 Original Nations and Peoples of this continent, including the Kumeyaay Nation. Today the United States is the successor to that claim of Christian ultimate dominion (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.