As Chief Justice of the U.S. Supreme Court, John Marshall wrote the decision in Johnson v. M'Intosh. Image: Library of Virginia
Law | Opinion

Steven Newcomb: Christian domination serves as basis for 'Indian' law

The U.S. Supreme Court decision in Johnson v. M'Intosh is widely described as "landmark" for holding that aboriginal title cannot be extinguished by ordinary Americans. But Steven Newcomb (Shawnee / Lenape) of the Indigenous Law Institute points out that the decision is closely linked to the religious doctrine of discovery:
When a writer expresses a particular reality, the “reality” expressed thereby is created by the mind of the writer. When Chief Justice John Marshall wrote the U.S. Supreme Court ruling Johnson v. M’Intosh in 1823, he mentally created the following version of “reality”: Whenever a “Christian people” successfully located a land inhabited by “heathens,” this automatically “gave” the Christians an “ultimate title” to that non-Christian place.

What Marshall was saying in the Johnson ruling is this: When Christian Europeans first sailed to some non-Christian place where no Christians had previously been, they mentally and metaphorically imagined themselves as suddenly “having” or “holding” a “title” to the lands of the nations. But there is something Marshall did not explain. If these “title” events “happened” at all, they didn’t happen physically; they “happened” mentally, as a result of the Christians’ thought processes about lands “not possessed by any Christian prince.” I have placed many of the above words in quotation marks to indicate that they are metaphorical (imaginative) mental constructs that we are now able to contest and challenge mentally with our own thought processes.

Marshall used his drafting of the Johnson v. M’Intosh ruling to create a Christian/non-Christian-premised version of legal reality. He did so by mentally crafting and telling a particular story on behalf of the U.S. Supreme Court. It was a story that he and the rest of the Supreme Court intended the United States government to keep using for the political and economic benefit of their future generations, and, most importantly, as a means of creating and exerting a system of domination “over” our Native nations.

Read More on the Story:
Steven Newcomb: Disallowing a ‘Heathen’ Right of Domination (Indian Country Media Network 7/19)