Can Flawed Be Fraud
Donnis D. Whitfield
August 14, 2001
The complete question is "Can the United States federal Indian law which has been deeply flawed for years, have been perpetrated on the Indian people by fraudulent acts?" While I am not a lawyer, I do consider myself a student of Indian law. In this paper I would like to present the facts so that you may answer the question for yourself.
In the fifth century as the Roman empire was expanding, a new set of laws had to be developed for the newly subjugated foreigners because Roman law only applied to Roman citizens. These new and separate laws were called, the Law of Nations. The Romans were faced with a legitimating crisis in that they had to explain their growing dominion over the world. All governments operate under a "legitimation of authority" which may come from an individual or a group of individuals. When the justification for authority is no longer accepted by society there are only two paths to follow: a change in the form of government or a modification in the present "legitimation of authority." The Romans used the Greek philosophy of Stolic that was founded by Zeno about 308 B.C. holding that all things, properties, relations, etc. are governed by unvarying natural laws, and the wise man should follow virtue alone, obtained through reason. This can also be said as the concept of Logos or logic. Logic is a way of reasoning, whether correct or incorrect. The Romans concluded that the Law of Nations was the uniform rule of law that God intended the human world to live under.
The early "Roman Christians" used the Law of Nations to explain the purpose of the Roman Empire and its conversion to their brand of "Christianity"." The Romanist made the presumption that God directed the accrual of power to Rome so that "Christianity" would have a world united under one power so that the religion would spread more effectively. This presumption of power is at the center ideology of imperialism and colonialism and legitimated the appropriation of land, resources, and cultures under the auspices of spreading civilization to uncivilized countries.
The Italian magazine Oggi recently reported in an article by Ruggero Marino, a writer and historian, that the voyage by Columbus in 1492 was a return voyage. Mr. Marino has uncovered irrefutable evidence that the first trip that Columbus actually "discovered America" was in 1485. The plan in Rome was to use the gold of the New World to fund Crusades and to gain souls for Christianity. Now this really perks my Indian curiosity. According to the Euro-Americans, we Indians are not so smart, but to use this gold were they going to borrow or steal this gold, in the name of the Lord of course? Innocent VIIIís successor, Alexander VI, Spanish-born Borgia Pope, "signed over the rights to the New World" to the Spanish throne. The origins of the New World venture had been covered up partly because his Spanish masters manipulated Columbusís writings.
Franciscus de Victoria, in 1532 in Spain, raises the question of title by discovery of which he says was the only title invoked at the beginning of the enterprises in the New World. But the Roman Catholic theologian points out that the "Law of Discovery" would only give good title to the land that was uninhabited and the barbarians were the real masters of the country. Victoria said, "According to the Law of Nations, that which has no owner becomes the property of the seizor; but the possessions we are speaking of were under a master, and therefore they do not come under the head of discovery." These facts may be verified in Victoriaís works entitled "Relectiones." As to the question of whether the Christian faith had been properly presented to the Indians, Victoria stated "There have been no miracles or manifestations which ought to have convinced them; there have not even been examples of religious life; on the contrary, the Spanish have been guilty of numerous scandals, crimes, and impieties." The "Doctrine of Discovery" is essentially a code under International Law between the European nations as to how they would deal with the "New World." By design, it was structured to mitigate potential conflicts between competing European claims to Indian lands. The doctrine was reasoned by the following presumptions:
Prior to 1776 there were numerous deceitful schemes to defraud the Indians of their land. One thing the White man has never understood is that the Indians have never considered themselves as owners of the land. The Indians were placed here to have dominion over the land. The owner of the land is the One that created it. Is this a difficult concept to understand? White man thinks he can stick a flag up anywhere and say, "This land is mine." The Europeans feared the large number of "Native Americans" would be difficult to subjugate by force because it would be too costly and the outcome would be uncertain. This respect for Indian land and tribal sovereignty in itself shows "superior title." In English terms this would be an "Allodial Title." It has been said that the United States was founded as a nation in opposition to injustice and a belief in inalienable natural rights, but they found they could only bring their nation into existence by injustice and the alienation of rights which is most glaring in federal Indian law. Are these the Christian principles that they have said this nation was founded on?
The first case that involved the Supreme Court making a decision in federal Indian law was Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) which grew out of aggressive, and fraudulent, speculative schemes called the "Yazoo Land Fraud." This case was about the state, Georgia, selling Indian land to several land companies and was known as the squabble among thieves. Chief Justice Marshall wrote that the majority believed "Indian title...is not such as to be absolutely repugnant to seisin in fee on the part of the state." The principle that Marshall is creating with this case is that Indian title was only one of the right of occupancy, which he will use to help legitimize the doctrine of discovery.
The next case we will look at is New Jersey v. Wilson, 11 U.S. (7 Cranch) 164 (1812). This involves the Delaware Indians sell of tax-exempt land to non-Indians. The purchasers bring suit to retain the tax-exempt status of the land. Again it seems that Marshall did not want to address the Indian question. Marshallís opinion for the Court failed to examine the question of tribal sovereignty or property rights but said only that the original colonial purchase would quiet the title of the extensive claims of the Indians.
The next case Johnson v. MíIntosh, 21 U.S. (8 Wheat.) 543 (1823), is one of the most controversial in the history of federal Indian law. Chief Justice Marshall characterized the Indians as "fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest." Marshall states that in 1498 Cabot "...discovered the continent of North America, along which he sailed as far south as Virginia. To this discovery the English trace their title." But in the Royal Proclamation of 1763 the King states that the land was "reserved to the said Indians" which shows good Indian title to the soil. Now we can see the plan that the arrogant Euro-Americans have put forth. The vilification of the Indians was to diminish the Indian dominion over their land, as the Spanish did in Mexico. From this case forward we will see the Indians vilified.
In Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) suit was filed because Georgia had enacted laws the would essentially annihilate the Cherokee nation as a political society and would seize all of their land which the United States had assured to the Cherokee by solemn treaties repeatedly made and still in force today. Marshall wrote in the Courtís opinion that the Indian tribes were "domestic dependent nations" and "they are in a state of pupilage." This would be used to father diminish Indian sovereignty and the Indianís land title.
The Courtís opinion in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) had finally given the Cherokee hope that their legal fortunes were about to turn around. They had done everything the United States had ask in order to be a "government" in the eyes of the Euro-Americans. This case was about White missionaries that were living in the Cherokee nation against a newly enacted Georgia law that one was required to have a permit or license to live there. The Court held"The settled doctrine of the law of nations is, that a weaker power does not surrender its independence, its right to self-government, by associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state" and the Indians "as the undisputed possessors of the soil." Marshall also said "Protection does not imply the destruction of the protected." The missionaries were to be released and the Cherokee nation was determined to be a sovereign, independent state under international law. But, Georgia refused to obey the order of the Court. What happened to the rule of law?
In Mitchel v. United States, 34U.S. (9 Pet.) 711 (1835) Justice Baldwin stated that Indian occupancy title was "as sacred as the fee simple of the whites" and "Indian possession or occupation was considered with reference to their habits and modes of life; their hunting grounds were as much in their actual possession as the cleared fields of the whites." This is the case that Indian title began to change from "undisputed possessors of the soil" to "possession or occupation."
The case of United States v. Rogers, 45 U.S. (4 How.) 567 (1846) appeared to change the direction of the Court. Justice Taney opined that the Indians were an "unfortunate race" that had "never been acknowledged or treated as independent nations by the European governments, nor regarded as the owners of the territories they respectively occupied." This Court stated that the sovereignty question was "for the law-making and political department of the government, and not for the judicial." This created a part of the confusion and contradiction in federal Indian law.
The cases, United States v. Holliday, 70 U.S. (3 Wall.) 407 (1865), United States v. Forty Three Gallons of Whiskey, 93 U.S. 188 (1876), and Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 621 (1871), were about more federal control and subservient power over the Indians. In Cherokee Tobacco the Court has said "...an act of Congress may supersede a prior treaty" but in prior cases, The Kansas Indians, 72 U.S. (5 Wall.) 737, 757 (1866) and Fellows v. Blacksmith, 60 U.S. (19 How.) 366, 371-72 (1856) the Court had determined that the treaties and laws of Congress protect Indians.
Holden v. Joy, 84 U.S. (17 Wall.) 211, 252-53 (1872) reaffirmed Mitchel when the Court stated that Indian title was as "sacred as the fee-simple title of whites." Holden also established the principle that Congress has no power to interfere with treaty rights, "except in cases purely political."
United States v. Cook, 86 U.S. (19 Wall.) 591, 594 (1873) was another exercise in subservient power when the Court held: "What a tenant for life may do upon the lands of a remainder-man the Indians may do upon their reservation, but no more." The Indians could not even sell the timber on "their" reservation.
These cases are only the tip of the iceberg but will give the reader some incite as to the bias of the Courts. Even when compared with other minorities, the American Indian is discriminated against. Plessy v. Ferguson, 163 U.S. 537 (1896) was a case that the Court held that "separate but equal" right was the law of the land but it was over turned with Brown v. Board of Education, 347 U.S. 483 (1954) because it was racism and could not be tolerated. However. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) was a class suit brought by the Kiowa, Comanche, and Apache tribes against the Secretary of Interior for obtaining signatures by fraud and concealment. Again, subservient power won and the Indians lost. There appears to be no justice in the Courts and Congress of the United States for the American Indian.
This arrogant, blatant racism and discrimination continues into this day of equal justice under the law by twisting definitions and manipulation of words. On July 21, 1993 in Geneva, Switzerland, in a meeting of the United Nations Working Group on Indigenous Populations, Kathryn Skipper, spokesperson for the United States delegation reported in the United States position statement that "Self-determination is generally understood to mean the right to establish a sovereign and independent state under international law. Self-determination, however, can be achieved through arrangements other than independence. The United States could not accept the inclusion of self-determination as applying specifically to indigenous groups if it implies or permits full independence generally recognized under international law." Well, in the beginning the Indians were sovereign, independent, and were under international law as held by the Courts. So, what happened?
Recently much has been said about the United States not being re-elected to the United Nationís, Commission on Human Rights. I would like to try and shed some light on this subject. In the U.N. document E/CN.4/Sub.2/1998/18-Human Rights of Indigenous People on the subject of the Indian people and land titles it states, "These discriminatory laws and legal doctrines deserve special attention because they appear to be widespread, because they appear to be in violation of existing international human rights norms and because they appear to be relatively amenable to correction." On the subject of "Plenary Power" this document says, "Another discriminatory legal doctrine that appears to be widespread is the doctrine that States have practically unlimited power to control or regulate the use of indigenous lands, without regard for constitutional limits on governmental power that would otherwise be applicable. In the United States, this is known as the Ďplenary power doctrineí and it holds that the United States Congress may exercise virtually unlimited power over indigenous nations and tribes and their property. No other population or group is subject to such limitless and potentially abusive governmental power."
In the U.N. document E/CN.4/Sub.2/1996/23 it speaks of the Removal Act of May 28, 1830 (4 Stat. 411) as a "segregationist policy." This demoralizing and deadly act has never been made right.
So, by bending the existing laws and creating new legal theories or doctrines to accommodate the needs of the powers that be, the United States has subjugated a proud people. It is past time for the United States government to make right a 200-year wrong.
This paper was prepared as an educational and research project for the Chickamauga Cherokee of Alabama and is covered under the Fair Use Doctrine of the International copyright laws 17 USC 107.
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