By Andrea

The original red menace was not the Red Russian, but the Red Race. The colonization of Khéya Wíta, or Turtle Island, is a process that seeks to eliminate Indigenous people from the continent and steal their land. It was obvious to those who first colonized this place that they needed the land, but they didn’t take it without explaining why they deserved it. They needed a justification, as their philosophical base demanded so. And so they found justification for their theft in the Dominican theologian Francisco de Vitoria. All of this work was done within liberalism, but communists, never wanting to be out done by liberals, also have looked to find a way to justify their Workers’ State founded upon the same stolen land as the bourgeois state so long ago. The question is one of land. Although Indigenous people know that the land is rightfully ours, we must watch as liberal and communist settlers make justifications of their states (both actually existing and merely wished for) upon our land. Let us explore these justifications.

De Vitoria was one of the premier theologians of colonization, who determined its legal boundaries after the invasions of Ēxcān Tlahtōlōyān (the Aztec Empire) by Hernán Cortéz and Tawantinsuyu (the Incan Empire) by Francisco Pizarro, along with the invasions of other nations by later conquistadores. Before we explore De Vitoria’s thought, we must remember the role that law plays in our lives. Evgeny Pashukanis says, “law represents the mystified form of a specific social relation” (79). I will not seek to explain in its full entirety the material processes of settler-colonialism, as these processes have already been expanded upon by an innumerable amount of authors. What I will explore is the legal mystification of the social process of settler-colonialism.

De Vitoria determined that Indians “are not in point of fact madmen, but have judgment like other men” (250). In this context, we can understand judgement as reason, reason allowing them dominion (which is to say, ultimate title) over their own land. A lack of reason is the same reason why a woman, for example, was unable to hold land.[1] The goal of the Spanish, through De Vitoria, was to ensure a legality of conquest. De Vitoria recognized the humanity of Indians, but still needed to find ways through which to justify the conquest of their lands and the Spanish possession of dominion over them. There were several ways that he did this. If an Indian Nation refused the right of the Spanish to travel through their territory or refused the Spanish the right to trade with Indians, Indian Nations were acting against the Law of Nations, or ius gentium (278-284). Acting against ius gentium was to act against reason itself. This would render Indians “mad” and allow the Spanish to declare dominion over the land that Indians occupied. They could claim dominion because the Spanish were required to set up a civil society in order to teach the Indians how to be reasonable. In more direct terms, this meant that the Spanish had the right to intervene in the lives of Indians, an intervention that would result in the loss of tens of millions of lives.

There was also another opportunity through which the Spanish could acquire dominion over Indian land. Although de Vitoria asserted that Indians possessed reason, he then posited the possibility that “these barbarians, though not totally mad… are nevertheless so close to being mad, that they are unsuited to setting up or administering a commonwealth both legitimate and ordered in human and civil terms” (290). This would mean that, in lacking reason, they lacked a basic precondition for ownership. Indians did not even have to break the law of nations, they could simply be found to be so deficient in reason that they lacked the ability to claim dominion over their land. Although they lacked reason, Europeans would be able to grant them reason through the teachings of the Good Book. As Robert Williams Jr. says, “Only Christian Europeans could offer the Indians a rationalized existence, which the Indians by the Law of Nations were obliged to accept” (106).

What is important to remember is that although Spain, and the colonial powers at large, may have possessed dominion over a territory, that doesn’t mean that it had been settled. Indigenous people lived in their nations which European sovereigns claimed to be under European dominion. But British settlers, soon to be US Americans, recognized one right that Indians had before the white settlement of an area, and that was the right of occupancy. Patrick Wolfe defines occupancy as, “a right of soil or usufruct, understood as hunting and gathering rather than as agriculture” that was granted due to “Natives’ immemorial occupancy” (Loc 3418). Therefore, although a land may have been under the dominion of the United States, Indians still had the right of occupancy and the “privileges” granted through it. It was only through the consummation of dominion, which is to say settlement, that this right of occupancy disappeared.

The territory occupied by the British would use all of these legal and philosophical justifications to explain their right to invade hundreds of Indigenous nations throughout the history of the 13 Colonies and the United States. To summarize, dominion was held by the king (or later the US government), and because of this it was only the king who was able to give out title to land. Of course, this title to land would only be given out to settlers. The only right to land that Indigenous people had was that of occupancy, a right which quickly became empty and meaningless when the title to land Indigenous people occupied was given out, their houses burned down, food sources annihilated, eventually forced to die, be assimilated, or be removed. The consummation of dominion.

Not only did the British function using the justification of dominion and occupancy, but they also used a concept called pre-emption. Pre-emption was a concept employed by all European powers which said that Indian Nations only had the ability to be politically involved with the power that discovered them. Therefore the Cherokee Nation could not make treaties with the Spanish or French, as they were not the power that either discovered them or had dominion over their land. Here I would like to point out the apparent contradiction in recognizing Indian Nations but claiming dominion of their land. But the United States would have a solution for this problem. The three ideas of dominion, occupancy, and pre-emption would eventually coalesce into a political formation that is now referred to as the “domestic dependent nation.”

“The state authority introduces clarity and stability into the structure of law, but does not create the premises for it, which are rooted in the material relations of production” (94 Pashukanis). Between 1823 and 1832, three cases would be presented to the Supreme Court dealing with the politico-juridical status of Indian Nations living in occupancy in the United States. These cases were Johnson v. McIntosh, Cherokee Nation v. Georgia, and Worcester v. Georgia, all decided by Chief Justice John Marshall. These three cases introduced clarity and stability into the hazy legal realm of clear colonial relations between the US and Indian Nations by giving a solid form to the concept of the domestic dependent nation. As we see, the phrase is three words long, and each word expresses a combination of the ideas of dominion, occupancy, and pre-emption that we have explored beforehand. Let’s take a closer look at what each word means.

Domestic signifies that the nation is not able to make arrangements of any sort with foreign nations. This reflects the idea of pre-emption and reinforces its reality for domestic dependent nations, not able to make alliances to defend itself from the United States. Dependent signifies a relation that has been described as that of a ward to its guardian. This is to say that Indian Nations and Indian people are childlike in character and need the care and protection that the United States offers. As the decision says, the United States “treat them as an inferior race of people, without the privileges of citizens, and under the perpetual protection and pupilage of the government” (Johnson v. McIntosh 2). Finally, we come to the word nation. As we have seen, the sovereignty and nationhood of Indigenous nations has been something constantly under attack by European powers. So why would the Supreme Court recognize Indian nationhood? The answer to this question is that nationhood was key to treaty making, and treaties were one of the primary means through which the United States was acquiring so much of its land. Patrick Wolfe says, “This degree of ongoing compatibility between Indian dispossession and Indian sovereignty as formulated in the Marshal decisions obliges us to view that formulation of sovereignty as a conduit – rather than an impediment – to dispossession” (Loc 3735). Through this concept of the domestic dependent nation, the United States acquired a stable politico-juridical means through which to deal with its Indian problem. It reaffirmed the dominion of the United States all while facilitating the treaty lead expansion of the United States.

There have been additional changes and reforms to federal Indian policy since the formulation of the domestic dependent nation, but this form of Indian “sovereignty” (and I use that word in the weakest way possible) has stayed as the base of the United States’ commanding relation of domination with US American Indians. This relationship of domination is one that forwards a logic of elimination. This logic seeks to eliminate Indians and Natives from existence by using murder (of Indians/Natives by settlers or the police) or assimilation. This logic ensures the legitimacy of the settler-colonial state by eliminating one of the primary forces that is in opposition to that very state and which demonstrates that states illegitimacy.

But at this point, it is necessary to move from the present to the future, from liberalism to socialism. Many socialist parties mention Indians and Natives in their party programs and determine a direction for us, whether that is “liberation,” “self-determination,” “the right to secession,” or whatever other meaningless language is used. But is this relation of domination really changed in these party programs?

The Party for Socialism and Liberation’s party program begins by stating the right of self-determination for all “oppressed groups.” This effectively means nothing, so let us pass on to the meat of the document.

The existing colonial relationships of the United States will be dissolved. Independence will be immediately granted to Puerto Rico with full reparations for colonial exploitation, and the right of free travel between the U.S. and Puerto Rico. Samoa, Guam, the Virgin Islands, and Mariana Islands will be free to exercise their right to self-determination, up to and including independence, with reparations and the right to free travel between the former colonies and the U.S. mainland. Restitution, including the return of land stolen, will be provided for Native Nations. Further, the socialist government will reaffirm the right of Native Nations to self-determination, up to and including independence.

“Colonial relationships” in this sense means territorial formulations of the US that are not the 50 states. It is important to recognize that the US has hundreds of colonial relationships within the borders of its fifty states, but it is clear that the PSL does not view the situation as such. Puerto Rico is the only nation which, for unspecified reasons, is granted independence without restraints. The clear reason for this is the fact that only around 1% of Puerto Rico’s population is “not Hispanic or Latino” (US Census Bureau). The rest of the islands included in the program are also minority white to a large degree (either having large Indigenous or arrivant populations). PSL demonstrates that it allies itself with the settler-colonial and white supremacist definition of the United States as that territory where whites either make up the majority or majority minority population. For PSL it is important to automatically ensure the independence of non-white states, but independence is not surrendered to those nations which settlers have occupied to a large degree. PSL attempts to put roadblocks in the way of Indigenous independence, upholding the white state. Let’s take a look at these roadblocks.

In regards to “Native Nations,” things become incredibly confusing. The program says that the return of stolen land will be provided for Native Nations. As we know, all the land on which the United States sits is stolen, and considering the fact that the program in its entirety pushes for a US Workers’ State, we can consider a true return of stolen land to be null and void. To surrender the land means to destroy any version of the United States, whether a dictatorship of the bourgeoisie or proletariat. The word “further” in the next sentence and the proclamation of the possibility of independence for Native Nations makes things even more confusing than they already were. It would seem that the program would like “further” to indicate even stronger steps towards independence, but what it actually indicates is steps backwards. We are told that land will be returned in the previous sentence, but then told that independence isn’t assured, as the Workers’ State has the final say in our independence. How does the Workers’ State have the final say? The program specifies the “right of Native Nations to self-determination.” Rights are something that are given and upheld by some entity. It is the Workers’ State that gives us the right to affirm independence, which means that it can also take it away. The Workers’ State has all of the power. Due to the alignment with settler-colonial definitions of the US, the weakness of language, and the lack of specificity, I think that the only reasonable thing to discern from this program is that the return of land would be through a reservation system. The PSL looks to uphold a US Workers’ State, therefore it is necessary to have some system of reservations.

Most other communist parties, organizations, or groups uphold a similar line no matter the tendency. The lines are stated in different ways and different reasons are given for the survival of a USSA. I don’t wish to talk about all these different ways in which communists would like to uphold a USSA, because not a single party, organization, or group has any specific plan on how they would uphold a USSA but ensure Indigenous sovereignty. Furthermore, we are looking at law here. For this reason, we will recognize that all of these lines are reactionary in that they seek to uphold settler-colonialism (for settler-colonialism cannot be destroyed but through the destruction of the United States in any form) and we will move on to law. We recognize that the vast majority of large and established communist parties in the US would have to continue the legal reality of domestic dependent nationhood under their settler-colonial Workers’ State. How would it do that?

The first work of action by a USSA would be to revert all negative language within the phrase “domestic dependent nation.” We would instead have an “autonomous free territory” or something similar. Autonomous free territories will no longer be guided by the Bureau of Indian Affairs but by the “Organ for Indigenous Sovereignty” or possibly the “multinational” Communist Party itself. We must understand that all of these changes of name do not signify a fundamental break with any of the concepts encoded within “domestic dependent nation.” The reservations will still be subject to the guidance and/or leadership of some overarching body subservient to the settler-state and reservations will still not be able to trade or do any other sort of diplomacy with foreign nations. Settler-colonialism is left intact if a USSA is allowed to exist. If settler-colonialism is left intact, its mystified form in law is left intact. So how then would the USSA claim dominion?

A USSA would seek to abolish capitalism, not settler-colonialism. It would take all resources available to the USSA to abolish capitalism, and all resources available to a USSA would be those resources stolen from Indigenous land. Let us not delude ourselves into thinking that because the US claims ownership over Coast Salish land, for example, that means it is true. Every fish taken out of a river in what we would now call the area around the “Pudget Sound” is stolen. Those resources belong to Coast Salish people and they are being stolen by the United States. Indigenous people fight for our resources and sovereignty. Indeed this is why the Fish Wars were fought by Coast Salish people in the 60s and 70s. We look to end settler-colonialism and claim our resources for ourselves, so that we may determine their correct and well thought out distribution to ourselves and settlers. But for communists who support a USSA this conclusion is not reasonable. The only reasonable claim is that of a USSA in which a settler-colonial proletarian state determines what to do with the resources it steals. In this way, we see that the social settlers have arrived back at the reasoning of de Vitoria, not breaking from modernity/coloniality and liberalism at large. Let us quote him once again;

these barbarians, though not totally mad… are nevertheless so close to being mad, that they are unsuited to setting up or administering a commonwealth both legitimate and ordered in human and civil terms… It might therefore be argued that for their own benefit the princes of Spain might take over their administration… so long as this could be proved to be in their best interest (290).

These are the exact terms in which those who do not support the establishment of Indigenous states think. They understand our cries for Indigenous states, but they consider our liberation dangerous to settler socialist society. To act at odds with the settler proletariat is to act against the Law of Workers, just as to act against the conquistadores and Spanish settlers was/is to act against the Law of Nations. And so a USSA must be set up, dominion over the land intact, in order to guide the social settler state in the correct direction. And so it would be argued that Indians, their heart being in the right place but not their head, would be put under the tutelage of a socialist state in some way, shape or form, to be shown how to truly build a workers’ state. Perhaps the Indians are consulted on how to best distribute fish around the Pudget Sound, but they don’t have full control over the decision and distribution. This control is gifted to the settler-state. In this way, the settler-state is saved from its potential destruction and can continue on its mission to liberate the proletariat through the theft of Indigenous land and resources.

Let me repeat myself more clearly. The settler-state looks to liberate the proletariat from capitalism by using settler-colonialism, while Indigenous people look to liberate ourselves and others from settler-colonialism by using decolonization and decoloniality. Decoloniality necessitates the destruction of modernity/coloniality, a duality in which capitalism (or economic coloniality) plays an enormous role. The socialist settler-state then needs to find a legal justification for its settler-colonial material existence. This justification is the madness of Indians who work against the Law of Workers in seeking decolonization and decoloniality. The madness of Indians denies us our ability to independence and ensures the control of Indigenous land by the settler-state. The settler-state, recognizing its Indian Problem, then seeks a way to deal with it. These solutions are reservations, autonomous territories, or whatever other wording would want to be used. Perhaps the settler-state would be so reactionary that it completely eliminates reservations in their entirety and employs an assimilatory concept to integrate the Indians into wider settler-proletarian culture. The possibilities are endless, the logic of elimination continues.

It should be clear to see that any social settler claim over Indigenous land legally falls flat on its face. The reason for this is because the material reality that law mystically represents, settler-colonialism, is a genocidally oppressive condition that cannot be stopped but through surrendering the land to those from whom it was stolen. The land was stolen by settlers, and so it must be taken back. The result of this process of regaining our land is the establishment of Indigenous states and nothing short of that. The entire problem of dominion disappears once Indigenous states are established, because its whole reason for creation is thrown into the waste bin of US American history. Whether we are reasonable or unreasonable in the eyes of communists is not important, what is important is our real liberation.

Andrea can be found @Andrea_Lakota on Twitter.

Sources:

Party for Socialism and Liberation Third Party Congress (2016 : San Francisco, California). Program for the Party for Socialism and Liberation, 2016. Web. 29 Dec. 2018. https://liberationschool.org/program-of-the-party-for-socialism-and-liberation/

Pashukanis, Evgeny. “Ideology and Law.” Law and Marxism, edited by Christ Author, Pluto Press, 1989, pp. 73–84.

de Vitoria, Francisco. “On the American Indians.” Francisco De Vitoria; Political Writings, edited by Anthony Pagden and Jeremy Lawrance, Cambridge University Press, 1991, pp. 231–292.

Williams, Robert A. “The Perfect Instrument of Empire; the Colonizing Discourse of Renaissance Spain.” The American Indian in Western Legal Thought, Oxford University Press, 1990, pp. 59–118.

Wolfe, Patrick. “The Red Race on Our Borders; Dispossessing Indians, Making the United States.” Traces of History; Elementary Structures of Race, Verso, 2016.

United States Census Bureau. “Race and Hispanic or Latino Origin.” census.gov. 01 Jan. 2010. Web. 29 Dec. 2018. https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=CF

[1] I would like to remind the reader at this point that we are talking about the mystified form of a specific social relation. Of course the real reason that a woman could not hold land is a long historical process that a material analysis clarifies. But in this example, we are explaining the legal and philosophical mystifications of the social relation of patriarchy, as we will explain the legal and philosophical mystifications of settler-colonialism in general.