Yakama Nation Challenges the Doctrine of Christian Discovery and Domination in the United States Supreme Court

A statement in support of the Yakama Nation’s amicus brief in Washington State Department of Licensing v. Cougar Den, Inc.By Steven Newcomb and Peter d'Errico

On September 24, 2018, the Yakama Nation submitted a “friend of the court” (“amicus curiae”) legal brief to the U.S. Supreme Court in the case of Washington State Department of Licensing v. Cougar Den, Inc

The Yakama Nation is advocating for the U.S. Supreme Court to uphold a Washington State Supreme Court ruling which decided that Article 3 of the Yakama Nation Treaty of 1855 bars Washington State from imposing a fuel tax on a fuel distribution company named Cougar Den, a firm that is Yakama Nation-licensed and located on the Yakama reservation.

The case has gone up to the U.S. Supreme Court because the State of Washington has taken the unusual step of appealing a decision made by its own Supreme Court. The state is dissatisfied with the Washington Supreme Court’s ruling that Cougar Den does not have to pay a $3.6 million tax bill to Washington State. The court decided that the Yakama Nation Treaty disallows such a tax, based on the Yakama Nation’s treaty-guaranteed right to trade and to travel the public roads.

The State of Washington argues that the Yakama Treaty may be overridden by state laws; it bases this argument on a line of cases that trace back to the federal Indian law doctrine of "Christian discovery." Oral arguments in the U.S. Supreme Court are scheduled for October 30th.

In its desire to support Cougar Den, a business owned by a Yakama Nation citizen, the Yakama Nation is challenging the doctrine of Christian discovery. In its legal brief, the Yakama Nation says that “the state is wielding the sword of the religious, racist, genocidal, fabricated doctrine of Christian discovery.” The “relationship between the United States and the Yakama Nation,” says the brief , “is founded on the Yakama treaty” and not on “the doctrine of Christian discovery.”

The Yakama Nation identifies that doctrine as “the legal fiction that Christian Europeans immediately and automatically acquired legally recognized property rights in our lands upon reaching the Americas,” and the legal fiction that the doctrine of Christian discovery had the effect of “diminishing our [Yakama Nation] sovereignty.”

Davis Washines, chairman of the Yakama Nation general council, asks for prayers as Supreme Court hears Washington v. Cougar Den on October 30. “This should be a concern to all treaty tribes,” Washines told the National Congress of American Indians in Denver. #NCAI75 pic.twitter.com/EV1YtepRhK — indianz.com (@indianz) October 25, 2018

The Yakama Nation is referring to the legal fiction found in the 1823 U.S. Supreme Court ruling Johnson v. McIntosh . According to that fiction, as soon as “Christian people” (a direct quote from Johnson) sailed to the lands of “natives, who were heathens” (another quote from Johnson), the Christian legal system immediately gave them a claim of a right of Christian domination (ownership of property) over those lands.

The Johnson decision cites 15th century papal bulls and royal charters issued by Christian monarchs for the proposition that Native nations "rights to complete sovereignty as independent nations were necessarily diminished by the original fundamental principle that discovery gave title to those who made it.”

Stated differently, the U.S. system of federal Indian law assumes that the dominating thoughts, ideas, and decisions of the Christian world during the fifteenth and later centuries automatically made nations and peoples that were labeled “heathens” and “infidels” inferior to Christian colonizers and their governments.

This is the basis upon which originally free and independent Native nations are presumed to be subject to the ideas and decisions of the U.S. Supreme Court and the so-called "plenary power" of the U.S. The Yakama Nation amicus brief attacks the principle in U.S. law that when “Christian people” colonize the lands of non-Christians with the intention of establishing domination over a place previously unknown to the Christian world, they have a right to claim domination (empire, jurisdiction, and property) over the lands of the non-Christians.

What narrative did the Supreme Court provide to explain the supposed right of Christian domination over heathen and infidel lands? Under the leadership of Chief Justice John Marshall, the Supreme Court said that the “monarchs of Europe” had “asserted the ultimate dominion” (a right of domination) based on a Vatican papal document from 1493 and royal charters of England based on the same supposed right of domination.

In other words, U.S. federal Indian law is based on the circular argument that the principle of domination is justified by the claim of domination! Chief Justice Marshall, on behalf of a unanimous Supreme Court, expressed this assertion of domination as the continuation by the U.S. of the claim of “ultimate dominion” and “absolute title” asserted by the Christian monarchs of Europe.

The ideas and arguments of domination ("Christian discovery") found in the Johnson v. McIntosh ruling provide the frame of reference and context for Washington State's attempt to override the Yakama Nation treaty of 1855. The State rejects the Yakama Nation’s Treaty frame of reference and argues that the Yakama Nation treaty is subject to the thoughts, ideas, and arguments of domination in federal Indian law, rooted in Johnson v. McIntosh.

The Yakama Nation challenge to the U.S. claim of domination rests on powerful legal arguments, including such long-standing international land rights principles as “first in time, first in right” and “the authority of a nation within its own territory is absolute and exclusive.” From the viewpoint of the United States, such powerful international principles and arguments may not be applied to Native Nations categorized as “heathen” and “infidel.” Federal Indian law assumes that international law ideas and arguments may only be made on behalf of the United States as the successor to the English Christian monarch's claims of a right of Christian domination over non-Christian lands.

On May 15, 2018, in a legal brief responding to the Supreme Court’s request for comment in the Cougar Den case, the federal government said that Washington Supreme Court’s ruling in favor of the Yakama Nation Treaty was not consistent with federal Indian law precedents. Not surprisingly, the federal precedents cited by the federal government are rooted in Johnson v. McIntosh—the doctrine of Christian discovery and domination.

Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute and author of the bestseller Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008). He the writer and co-producer of the documentary movie, “The Doctrine of Discovery: Unmasking the Domination Code.” He can be contacted at originalfreenations.com

Peter d'Errico graduated from Yale Law School in 1968; was Staff Attorney in Dinébe’iiná Náhiiłna be Agha’diit’ahii Navajo Legal Services, 1968-1970; taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002; and is a consulting attorney in Indigenous litigation. He can be contacted at derrico@legal.umass.edu.

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