S1E01 - The Legal Framework of the Doctrine of Christian Discovery in Practice with Joe Heath

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Introduction

We begin this episode with a land acknowledgement. Our hosts Prof. Philip P. Arnold and Sandy Bigtree (Mohawk Nation) begin by introducing our guest, Joseph J. Heath, General Counsel for Onondaga Nation. He has an interesting career from the Attica Prison Rebellion to working with Onondaga Nation. The show begins by Arnold, Bigtree, and Heath answering the question, What is the Doctrine of Discovery? Heath responds: “The Doctrine of Discovery is an excuse for colonialism. It is European white Christian colonialism which has inflicted white Christian supremacy all over the globe” (00:04:31). After offering a definition of the Doctrine of Christian Discovery, Heath turns his attention to the way sin which it becomes the basis of “U.S. Federal Indian Law” and U.S. Property Law. In his analysis he traces an arc from Johnson v. M’Intosh in 1823 to the Onondaga Nation Land rights action in 2005 and its dismissal in 2010.

Having traced a brief legal history of the Doctrine of Discovery the episode turns to the work of Steven T. Newcomb (Shawnee/Lenape) who recommended clarifying the Doctrine of Discovery by calling it the Doctrine of Christian Discovery and Domination to more accurately reflect its usage and development especially in light of Chief Justice John Marshall (1755-1835) legal ruling and his land speculation. Marshall like many of the other found fathers was a land speculator. Again following Newcomb, Heath points out that the early U.S. economy was driven by two primary elements, enslavement and land theft (land speculation). The basis of US Federal Indian Law and US property law is the Doctrine of Discovery because of this is pure artifice.

Having provided a brief legal history (c.f. Doctrine of Discovery Project’s law page) the conversation turns to the idea of plenary power. One of the many paradoxes of U.S. Law is plenary power. The U.S. Constitution in Article VI says that treaties are the supreme law of the land. However, the United States in practice does not treat treaties as the Supreme Law of the land and sees itself as having the power to unliterally, without consultation of the other nations, break treaties (00:12:00-00:16:39).  After concluding the discussion of plenary power Arnold turns the discussion towards reparations and asking what the U.S. can do to begin to repair the harm of enslavement, exploitation, and extractive industries. Heath suggests turning back to history to really understand the history and examine what was done, in order to start examining what to do.

Enslavement, exploitation, and extraction are all inter-connected and US Law continually comes back to the Doctrine of Discovery as an implicit and explicit justification for injustice. [editors note: The hosts suggest that reparations should be made through the return of land and equity but that is really the beginning of a larger conversation about building better relationships and abiding by treaties.]. One of the major issues that goes unaddressed so often in conversations about reparations is that the foundations of the settler colonial nation states must be challenged. At issue is implicit and explicit justification for injustice which underlies contemporary settler colonial societies.

Before talking about reparations, one must examine the ideological foundations of the present and the historical legacy of harm. For example, George Washington’s Campaign against the Haudenosaunee aka “The Sullivan Clinton Campaign.” The U.S. had an insatiable appetite for enslavement, exploitation, extraction, and land theft. In order to understand the large scale devastation of the Sullivan Clinton Campaign one can look at the “Carte du theatre de la guerre presente en Amerique map from 1779.”

Credit Line: Library of Congress, Geography and Map Division

Comparing the 1779 map with the older “A new map of the British Dominions in North America; with the limits of the governments annexed thereto by the late Treaty of Peace, and settled by Proclamation, October 7th 1763.”

Credit Line: Library of Congress, Geography and Map Division.

One can get a sense of how much Haudenosaunee lands were stolen by the United States. Haudenosaunee lands were fertile and beautiful. This was a resource that the United States stole and in its lust for land attempted to kill and destroy the Haudenosaunee. However, thanks to the cicada, the Haudenosaunee were able to survive. After the American Revolution, New York State saw Haudenosaunee Confederacy lands as a source of wealth and a way to pay soldiers. The stolen land violated treaties because NY state had no money. Many of the soldiers preferred money to land, so they sold their portions to land speculators who then created the towns and the market for the property.

The fiction of private property

Learn more about the Sullivan Clinton Campaign.

After the Sullivan Clinton Campaign followed the Erie Canal

The Erie Canal is a form of physical and mental trauma to Mother Earth, the natural world, and the Haudenosaunee Confederacy. It was literally a dam across Haudenosaunee territory, cutting up and carving up the landscape and cutting off Indigenous knowledges.

One of the primary functions of the Erie Canal is all about stealing salt from Onondaga Lake. There was a big salt industry in Onondaga Nation territory from the 1790s-1870s (est). During this time salt was more valuable and important than gold.

The seizure of Onondaga Lake was a direct and explicit violation of Onondaga Nation sovereignty as NY state wanted and needed the salt. The salt mining industry was the first of many environmental catastrophes to occur at Onondaga Lake. During this time salt was one of the primary commodities of the United States and it was because of salt and salted meats that westward expansion began to become more logistically feasible especially as the railroad went westward as well. John Gast American Progress painting in 1852.

American Progress, 1852 by John Gast. LC-DIG-ppmsca-09855 (digital file from original print) LC-USZC4-668 (color film copy transparency) http://loc.gov/pictures/resource/ppmsca.09855/.

Contrary to popular belief westward expansion of colonization and colonialism did not end in the 1900s but instead continued through the interstate commerce and expansion work well into the 1970s with interstates like I-81. Interstate commerce like the Erie Canal and I-81 are designed to increase state commercial revenues, steal Indigenous territories, and cut Indigenous communities off from economic viability. Additionally the role of Interstates has been to divide, isolate, and alienate Black, Indigenous, and other Persons of Color within a community (c.f. “The New York highway that racism built”).

Environmental impact of the Doctrine of Discovery

The myths of American progress, Manifest Destiny, and interstate commerce all foreground the urgency and importance of the #Landback movement. Indigenous lands need to be in Indigenous hands. #Landback is more than the return of land it is the return of waterways, water access, and a restoration of the natural order. The natural order is mutual and sustaining relationship between the natural world all species and beings. Humans are part of the system not on top of the system or dominating the system. Returning land means the healing of natural resources like the polluted yet still sacred Onondaga Lake. Over one third of the Onondaga Nation diet used to come from the waters and the rest came from the land. Now the eating of fish and living in proper relationship with the lake is just not possible without action from Onondaga County and New York State to return the land to the Onondaga Nation. The environmental impact of the Doctrine of Discovery does not stop after the pollution of Onondaga Nation’s sacred lake but is also continues to fracking, the oil industry, mineral extraction, and of course war.

War

War is an extension of the Doctrine of Christian Discovery and Domination. Modern warfare is all about colonialism and seeking land and money. Heath talks about how during the Vietnam war Roman Catholic priests would bless U.S. bombs and bombers in order to sanctify the war effort. This is but one important example of the way in the which religion, war, and domination intertwine.

Complicity of the Church

Transitioning away from war in the complicity of Christianity, ours hosts and Heath discuss how Christian churches are complicit not only in justifying wars like Vietnam but also in the “Indian boarding schools” or “Indian residential schools.” Many people may know about the boarding/residential schools in Canada and perhaps do not realize that there are over 350+ boarding schools in the United States. For example, in New York State the Thomas Indian Boarding School (Thomas Asylum for Orphan and Destitute Indian Children) was founded in 1855 by [ed, note “Presbyterians not Quakers”] and then transferred to the state. These boarding schools are a direct result of the Doctrine of Christian Discovery (Steven T. Newcomb, Joseph Heath, and most recently Betty Lyons have made this point).  These are some of the efforts to uncover the bodies of children who died or were killed at boarding schools. These efforts are on-going so please make sure to check and do research to make sure that you are also keeping up on the important progress of this work:

• 215 bodies discovered at former residential school for Indigenous children in Canada
• Mission underway to identify hundreds of children who died at Indigenous boarding schools
• Inside the US push to uncover Indigenous boarding school graves
• US Boarding school healing project

Listening and reading the stories of boarding/residential school survivors our hosts ask, do all “Indian boarding schools” have mass graves? These graves that are being uncovered, their existence was known by the people running the schools and the children who attended and survived the schools and now that people are listening to survivors, we are finally able to uncover the graves and hopefully return the children to their nations and families and begin to tell the stories of those who died in these places.

These boarding schools are another example of the collaboration between church and state and further highlight the silencing of Indigenous voices. Col. Richard Henry Pratt at the opening of the Carlisle Indian Industrial School in Pennsylvania gave his vision for the boarding school:

“A great general [Custer] has said that the only good Indian is a dead one, and that high sanction of his destruction has been an enormous factor in promoting Indian massacres. In a sense, I agree with the sentiment, but only in this: that all the Indians in the race should be dead. Kill the Indian in him, and save the man.”

After examining the founding of the boarding schools, our hosts and Heath return back to the urgency of needing to tell the stories of the boarding schools today. There is an urgency to uncovering the graves, returning the children home, telling their stories, and addressing the legacies of intergenerational trauma and harm brought about the “Indian Residential Schools” and their past, in order to begin healing and moving towards transformation within Indigenous Nations and communities.

Environment

After discussing boarding schools, Bigtree reminds us that it is important for us to reconsider our relationship to the land. An important and often overlooked problem brought on by the Doctrine of Christian Discovery is the severing of right and proper relationships to the land.  The Onondaga Nation Land Rights Action begins by noting how this relationship with the land has been broken and that there is an urgency to healing societies’ relationship to the land and the natural world in order to heal the relationships with each other as well.

The Onondaga People wish to bring about a healing between themselves and all others who live in this region that has been the homeland of the Onondaga Nation since the dawn of time. The Nation and its people have a unique spiritual, cultural, and historic relationship with the land, which is embodied in Gayanashagowa, the Great Law of Peace. This relationship goes far beyond federal and state legal concepts of ownership, possession, or legal rights. The people are one with the land, and consider themselves stewards of it. It is the duty of the Nation’s leaders to work for a healing of this land, to protect it, and to pass it on to future generations. The Onondaga Nation brings this action on behalf of its people in the hope that it may hasten the process of reconciliation and bring lasting justice, peace, and respect among all who inhabit the area. (Click to read the Land Rights Case)

This opening statement by the Onondaga Nation illustrates how the proper relationship with the natural world is not one of domination or stewardship but of a respectful, collaborative engagement with the natural world. It is a collaborative relationship of listening to the natural world, learning what is needed and through this collaboration forming an environment that is conducive to human existence. We are in relationship with all species and beings and this creates a habitable world.

This land rights action is still on going and is presently going before the OAS. Visit the Onondaga Nation website to stay up to date on the land rights case. 

Law

In concluding the podcast the hosts and the guest return to the importance of explicating the Doctrine of Christian Discovery for lawyers as far too often, lawyers do not always fully understand the implication of the doctrine. Heath tells the story of talking with other lawyers about the Doctrine of Discovery and their not fully understanding the urgency of repudiating and rescinding the Doctrine of Discovery so he spent a decade preparing a law review article entitled, “The Doctrine of Christian Discovery: Its Fundamental Importance in United States Indian Law and the Need for Its Repudiation and Removal.”

By way of conclusion and offering hope for a better future Heath says,

“We learn from the caring, compassionate ways that Indigenous communities take care of their citizens. We have so much to learn, and yes, it’s a bit encouraging that we are beginning to listen to them more. And those of us who live in central New York are really really fortunate, to have the wisdom of the Haudenosaunee and the Onondaga available to us. When I think of how much I have learned in the last 50 years, and so much of it from sitting in that long house and listening, I’ve been very, very lucky, and I hope that whoever listens to this can understand the importance of working with Indigenous peoples, to save mother land and to save the water, because everything else is secondary now. We only have two or three or four years. We have to do much more and we have to listen to the wisdom of the Indigenous Peoples of the Onondagas.”

Keywords

• Plenary Power – a unitary power claimed through fiat by the United States. Plenary power states that the United States has unilateral authority to break and enforce law
• Treaties shall be the supreme law of the land. Article 6 of the US Constitution.
• Environmental healing
• “Value change for survival” – Onondaga nation Turtle Clan Faithkeeper Oren Lyons
• Johnson v. M’Intosh
• Onondaga Nation Land rights action
• Law and the Doctrine of Discovery
• The Sullivan Clinton Campaign

Key Places

• Onondaga Nation
• Onondaga Lake
• Haudenosaunee Confederacy (PDF from Smithsonian Institute)
• Erie Canal
• I-81

People Mentioned

• Tadodaho Sidney Hill

• Onondaga Nation Turtle Clan Faithkeeper Oren Lyons

• Susan Harjo

Resources

• Steven T. Newcomb Pagans in the Promise Land
• Sullivan Clinton Campaign
• Erie Canal
• The Ice is melting by Oren Lyons
• Boarding Schools
• Neighbor to Neighbor booklet by Neighbors of Onondaga Nation
• Onondaga Land Rights Action (2005)
• Johnson v. M’Intosh, March 10, 1823
• City of Sherrill, New York v. Oneida Indian Nation, Decided March 29, 2005
• Joseph J. Heath, “The Doctrine Of Christian Discovery: Its Fundamental Importance In United States Indian Law And The Need For its Repudiation And Removal,” Albany Government Law Review, vol 10, Issue 1, 2017.
  • ‘United States Indian Law’ Panel
  • Statement on the Historical Use of the Doctrine of Christian Discovery by the United States Supreme Court Since 1823

Homework

• Research and look for examples of “Indian titles”

Citations

• Doctrine of Discovery Project doctrineofdiscovery.org
• Denis, Louis, and Basset. Carte du theatre de la guerre presente en Amerique. A Paris, Chez Basset, 1779. Map. Retrieved from the Library of Congress, <www.loc.gov/item/gm71005489/>.
• Kitchin, Thomas, -1784. A new map of the British Dominions in North America; with the limits of the governments annexed thereto by the late Treaty of Peace, and settled by Proclamation, October 7th. [London, 1763] Map. Retrieved from the Library of Congress, <www.loc.gov/item/75696331/>
• Heath, Joe, “The Doctrine Of Christian Discovery: Its Fundamental Importance In Unitedstates Indian Law And The Need For its Repudiation And Removal.” Albany Government Law Review. 10, Issue 1, 2017. < https://www.albanygovernmentlawreview.org/article/23984-the-doctrine-of-christian-discovery-its-fundamental-importance-in-unitedstates-indian-law-and-the-need-forits-repudiation-and-removal >. View PDF
• Onondaga Nation, “Onondaga Land Rights Action,” 2005. https://www.onondaganation.org/land-rights/.

Credits

• Music: Onondaga Social Dance songs performed by Orris Edwards and Regis Cook
• Producers: Jordan Loewen-Colón and Adam DJ Brett
• Show notes: Adam DJ Brett

Suggested Citation

Philip P. Arnold and Sandra Bigtree, “Episode 01 - The Legal Framework of the Doctrine of Christian Discovery in Practice,” Mapping The Doctrine of Discovery (Podcast), March 14, 2022. https://podcast.doctrineofdiscovery.org/season1/episode-01.