| 'What every schoolboy knows' ... is often puerile and wrong |
| Posted: June 09, 2006 |
| by: Editors Report / Indian Country Today |
| When bad conscience nags at
federal judges who base their Indian law decisions on the ''doctrine of
Christian discovery,'' they sometimes invoke an even more disreputable legal
justification for European theft of Native lands. This is the so-called
''right by conquest.'' It is re-emerging as the Supreme Court slams the door
on decades of Indian land suits, first the Cayuga case and, in recent days
,the Seneca suit over Grand Island in the Niagara River. These decisions might be dressed up in obscure and possibly misapplied legal doctrines like ''laches.'' But they boil down to the attitude that might makes right, a position remarkably at odds with the United States' claim to be the world defender of human rights. Not only does it carry a history of racist aggression universally condemned in the current age, it was widely repudiated even at the time of European colonization. The classic statement came in the 1955 Supreme Court case of Tee-Hit-Ton Indians v. United States. The tiny Tee-Hit-Ton band of Tlingit Indians in Alaska sued for compensation for land Congress took from them in the Tongass National Forest. The court, by 6 - 3, said they had no legal claim. In the notorious language of Justice Stanley Reed, ''Every American schoolboy knows that the savage tribes of this continent were deprived of their ancestral ranges by force and that, even when the Indians ceded millions of acres by treaty in return for blankets, food and trinkets, it was not a sale but the conqueror's will that deprived them of their land.'' Reed fell back on the doctrines of discovery and conquest from an earlier era, from Chief Justice John Marshall's 1824 decision in Johnson v. M'Intosh. In a forthcoming book, Steven Newcomb has unearthed a fascinating insight into this doctrine. Henry Wheaton, the Supreme Court reporter who recorded the Johnson v. M'Intosh decision along with the lawyers' arguments, later wrote a treatise on International Law. His chapter on national rights to property footnotes his report on Marshall's decision. Title in Europe itself, he said, ''originally derived from conquest ... subsequently confirmed by long possession and international compacts.'' In the New World, European claims ''originally derived from discovery, or conquest and colonization.'' In spite of Great Power rivalries, the European invaders all agreed on ''almost entirely disregarding the rights of the native inhabitants of these regions.'' In language foreshadowing Reed and some current federal judges, Wheaton concluded that Indian title ''has thus been almost entirely extinguished by force of arms, or by voluntary compact, as the progress of cultivation gradually compelled the savage tenant of the forest to yield to the superior power and skill of his civilized invader.'' But according to the classic European texts on international law, Wheaton was dead wrong about the ''right by conquest.'' It isn't just the age of the United Nations that frowns on the use of war to exterminate peoples and seize their land. So did the leading jurists, theologians and political philosophers at the time of contact and colonization. Many scholars trace the origin of modern international law to the remarkable 16th-century Spanish debate on the justice of its wars in the New World. The Dominican theologian Francisco de Vitoria (1480? - 1546) had this to say: ''If necessity and the principle of war require the seizure of the larger part of the enemy's land, and the capture of numerous cities, they ought to be restored when the strife is adjusted and the war is over, only so much being retained as is just, in way of compensation for damages caused and expenses incurred and of vengeance for wrongs done, and with due regard for equity and humanity, seeing that punishment ought to be proportionate to the fault. Thus it would be intolerable that, if the French raided the flocks of the Spanish or burnt a single district, the latter should be allowed to seize the whole Kingdom of France.'' Hugo Grotius cited this passage in his classic, ''On The Law of War and Peace.'' The same argument appears with great elaboration in the single most influential political book in English North America, John Locke's ''The Second Treatise of Civil Government.'' A conqueror might have despotic power over his victims, said Locke, but he has no claim to title over their land. Even in a just war, he only has the right for compensation for his damages and expenses, but even this ''will scarce give him a title to any countrey he shall conquer'' (''Of Conquest,'' Chapter XVI, section 184). As for political rule, ''Conquest is as far from setting up any Government, as demolishing a house is from building a new one in the place.'' Locke's arguments reappear in the international law authority best known to John Marshall's generation, Emmerich de Vattel's ''The Law of Nations.'' The Swiss jurist wrote, ''Whoever agrees that robbery is a crime, and that we are not allowed to seize by force the goods of another, will acknowledge, without any other proof, that no nation has a right to chase another people from the country they inhabit, in order to settle in it themselves.'' (Dublin, 1787, page 261). Locke and Vattel came up with another excuse to dispossess American Indians, but that is another story. They give scant comfort to the American claim of a right by conquest to Indian land. Canada repudiated conquest as the basis for Native law in the 1995 report of its ''Royal Commission on Aboriginal Peoples.'' The record of dispossession, said the commission, ''is not a history that reflects well on Canada or its sense of justice.'' This is an attitude that more leaders in the United States and Canada should emulate. The revival of the older discredited doctrines of conquest and discovery should be giving the Supreme Court a major attack of bad conscience. |
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