April 13, 2022
Indigenous rights lawyer, leader, and author Sherri Mitchell describes how the Christian Doctrines of Discovery made their way from 15th-century European religious leaders into the U.S. legal system. She elaborates on how the U.S. government justified centuries of colonization and dispossession of Indigenous lands, with implications for social justice and environmental health. And Sherri offers important ideas for decolonizing the mind and healing the gaping wound that runs right through the middle of the U.S.
- Sherri Mitchell is the author of Sacred Instructions: Indigenous Wisdom for Living Spirit-Based Change.
- A previous Crazy Town episode explores the greenlighting of colonization
- The American Bar Association presents the history of Indian law in the Supreme Court, including Johnson v. M’Intosh and the Marshall Trilogy.
- Felix Cohen’s Handbook of Federal Indian Law
Melody Travers Hi, I'm producer Melody Travers. In this bonus episode, Asher speaks with Indigenous rights lawyer, author, and leader, Sherri Mitchell, about the Christian Doctrines of Discovery, which are a collection of edicts issued by 15th century Popes that authorized European colonization. Sherri also covers the legacy of the doctrines in U.S. law today. Asher Miller Sherri Mitchell is a Native American attorney, teacher, activist, and change maker who grew up on the Penobscot Indian Reservation. She is the author of "Sacred Instructions: Indigenous Wisdom for Living Spirit Based Change. She's also the visionary behind Healing the Wounds of Turtle Island, the global healing ceremony that brings together people from all corners of the world. And she is founder of The Land Peace Foundation, an organization dedicated to the protection of Indigenous land, water, and religious rights, and the preservation of the Indigenous way of life. In addition to many, many other hats that Sherri wears, she is a member of Post Carbon Institute's board of directors, and someone that I have grown to become very fond of and consider as a friend. Sherri, welcome back to Crazy Town. Sherri Mitchell Thank you, Asher. It's nice to be with you again. Asher Miller Yeah. So the purpose of the conversation, or the reason I asked you on, was to talk about sort of the legal and structural legacy of the papal bulls. In this season of Crazy Town, we're exploring unknown or underappreciated watershed moments in human history that helped drive us to where we are today. In the last episode, we talked about how the papal bulls of the 15th century sort of quote-unquote granted Europeans the right to subjugate and even destroy the land and peoples of the rest of the world. Jason, Rob, and I spoke about the encoding of the Doctrines of Discovery in U.S. law, which, frankly, blew my mind when I first learned of it. But we only talked about that briefly. And obviously, we don't have much legal knowledge. And that's why I wanted to turn to you because you have a lot of legal knowledge specifically about these issues. So can you help us better understand just how deeply the legacy of the papal bulls is in U.S. and international law? Sherri Mitchell You know, I think that the first step that we really should take is to understand the significance of the inclusion of what was the Christian law of Nations into codified U.S. law, right. So we have this pre constitutional recognition as sovereign nations for Indigenous nations, tribal nations that are located in the territory that's now called United States or so called United States. And so we have this pre-Constitutional and then extra-Constitutional recognition of sovereign nations because there are, in fact, three lines in the Constitution that recognize tribes, as you know. . . There's references to Indians not taxed. Just to say, essentially that Congress cannot apportion taxes on to Indigenous peoples. But then the only other reference besides that is one that talks about, first, the Commerce Clause, the right of the United States government to enter into trade or commerce with the tribes. And then also looking at treaty law, and the express granting of the United States to enter into treaties with tribal nations. And so all three of those things, recognize the sovereignty of tribal nations outside of the Constitution. And so there, they are delineated in ways that Congress has delineated their right to negotiate with foreign powers, so foreign nations, or even states as distinct bodies. And so there's this recognition that the tribes exist as sovereigns, outside of the United States government. And that's written into the Constitution. And so you have this understanding, you also have, you know, in the very first amendment to the Constitution and the establishment clause, you have recognition of separation of church and state. And so, when we were looking at what is contained within the Constitution, allegedly the highest legal document, or the highest legal authority within the United States framework, the Constitution is at the very top and then Treaty Law comes second or is considered equitable to Constitutional Law on in many ways. And so you have within Treaty Law, and you have within Constitutional Law, recognition of sovereignty of the tribal nations. And you have a recognition of the unconstitutionality of imposing religious law onto the people who are engaging with the United States government or are living within the territories out land within the borders of the United States. And then 35 years after the ratification of the Constitution, you have the first case in the Marshall Trilogy, Johnson v. MacIntosh, where the court in that case, actually could not find any authority under the law for them to take possession of the lands owned by these inherent sovereigns, these sovereign nations. And so they reached outside of the legal framework that they had established under the Constitution. Reached outside of the legal framework that they had been existing under, and brought in this antiquated Christian Law of Nations under 15th century papal bulls to justify the taking of Indigenous lands in the United States. And then indoctrinated that into the United States law where it becomes the foundational law that governs all interactions between the United States government and Indian tribes in Indian nations within the land base that has been outlined by the United States as their country boundaries. And so, it doesn't just have implications from that point where this whole new category of sovereignty was essentially made up out of whole cloth by the court in Johnson V. McIntosh, where the sovereign status of the tribes was reduced to a quasi-sovereignty status. Saying that, you know, tribes are quasi-sovereign - Meaning that they have the rights of occupancy, but we're not going to acknowledge the ownership that they have of the lands that they occupy. We're going to dispossess them of those lands at our will, based on this manufactured law that we have created and now incorporated into U.S. law as the foundation for this whole body of law that becomes known as Federal Indian Law. Asher Miller Just so I understand, not being (1) very smart and 2) a legal scholar, let me just sort of repeat back to you what I understand here . . . Basically, the Supreme Court of that time, this was fairly early on in the history of the country? We're talking 1823, right? Sherri Mitchell Yeah, 1823. 35 years after the ratification of the Constitution. Asher Miller Right. And from my understanding, it was a little bit of a battle also between the federal government and state government, right? It was in a sense like giving the federal government the exclusive right to, quote unquote, negotiate with quasi sovereign Indigenous nations. But they had to basically find some justification for taking away full sovereign rights from native peoples. So they turned to something that was hundreds of years old. They came from the church, the Catholic Church, which in our Constitution, we have a separation of church and state, but they actually turn towards effectively a church law or church edict to justify something that was outside of our own laws. So I'm just trying to wrap my head around how kind of insane that is. Sherri Mitchell I mean, the founding of the United States was based upon a breaking of the Constitution that they had recently ratified, and a violation of the Treaty Law that they had established between the tribal nations. And so the two highest laws in the land were violated with these seminal cases in the Marshall Trilogy connected to the dispossession of Indigenous peoples of their lands here in this place known as the United States. So yeah, I mean, you're not misunderstanding it. It's just beyond comprehension. Asher Miller It's bananas. Sherri Mitchell The legality of it. And, you know, not just going back hundreds of years to Church Law, but going back hundreds of years to the, days of conquest. I mean, this is really an act of conquest. And so, you're talking about the formation of this visionary democracy, and in comes this barbaric Law of Conquest that not only sanctions the taking of lands from all those who are non-Christian, but also the forced enslavement of peoples who are non-Christian. So those same documents were the documents that gave legal authority to the kings of Portugal and Spain to right up the western coast of Africa, and enslave all the people and then bring them to the colonial nations. And so, the implications of this are far reaching in regard to being tied to that legacy, but also far reaching because it became the foundational law of the four primary colonial nations who had large populations of Indigenous peoples, primarily the United States, Canada, New Zealand and Australia. They adopted wholesale, the ideology that was expressed within the doctrines of discovery and within the Marshall Trilogy under the guise of federal Indian Law. And I think it's also important to note that this whole concept of reservations, and some of the most harmful impacts of federal Indian Law were also indoctrinated into the Mein Kampf concentration camps - That idea actually originated in the United States under the imposition of reservation boundaries on Indigenous peoples here. It was also adopted and included in to the apartheid documents in South Africa. And so the heinous use of this legal framework gives you an idea of what it's truly aligned with, you know, conquest, genocide, and apartheid. You know, these are the things that that this U.S. legal legacy has been tied to. And so, it's quite horrific really when you think about the larger implications of it. Asher Miller Yeah. And I think for me, even with all this cynicism I've built in my life over time learning about how badly humans can treat one another and the rest of the world . . .It still, there's something kind of shocking for me, and it's probably my naivete here. But the mindset of conquest of colonization. We've had conversations about this before. I know you do a lot of work on decolonization. I think I can't stress enough how important that work is because of the way that a certain mindset has been embedded in culture. But the idea that there's like a veneer of legitimacy that we look at the Supreme Court, and I know a lot of people now are more and more seeing the Supreme Court as maybe partisan to, you know, bias on some level. It's not a simple matter of letter of the law kind of thing in following the Constitution. But to recognize that from the very beginning. . . Sherri Mitchell Yeah. It has to be recognized that the Supreme Court is an apparatus of colonization. It's an apparatus of capitalism. And so if you stop looking at it as some balanced legal authority, and start looking at it for what it was actually created to be, which is really a mechanism of a colonial capitalist movement, then you start to see the history that it's tied to that. You know, it benefits those who are engaging in high levels of capitalism, and it disadvantages all those who are in the way of their advancement. Asher Miller And I think what may be challenging, at least, for someone like me. I think we could recognize the flaws of this nation from the beginning. Right? I think that that's become more commonly understood for people. But there's still, I think, a high level for a certain population of the country of adherence and a belief that the Constitution is, you know. . . Like, there are things that we put in the Bill of Rights, there's these key principles that we have that we should be proud of. And we believe in, right? And still want to believe in. But to recognize how flawed our institutions are, these core foundational documents are for this country. It's like, what do you keep? What do you not keep? And what would you do with this information? I think there's a real reckoning there, because it's like, what do we go back to? Do we start all over? Sherri Mitchell Right. Well, I mean, that's the whole part of decolonization, right? It is that we can't decolonize unless we recognize who we were pre-colonization, and who we have the potential to be had we been allowed to move through the natural trajectory of our own conscious evolution without the imposition of the imbalanced views of colonization. And so there has to be some recognition of who we were pre-colonization in order to really determine where we want to go post colonization. Because we certainly do not live in a post-colonial era at this point in time. Asher Miller Yeah, I want to get back to that in terms of kind of the legal implications to this day. But, maybe just a key point that struck me, which is probably an obvious one to you, and that is colonization, has colonized everyone. It obviously impacted different peoples in different ways. But that we are all in a sense, in the world that we have now,, have been colonized ourselves. At least in terms of worldviews and belief systems. Sherri Mitchell I think we've all been impacted by colonization. Asher Miller Fair. That's a much better way to put it. Yeah. Well, can we talk just about, what are the sort of legal implications to this day? I mean, we talked a little bit about 1823 and these kind of first rulings. What does it mean to this day? You know, where are we now? How is this manifesting itself currently? Sherri Mitchell Well, I mean, the Doctrine of Discovery is the foundational legal document that influences these three seminal cases, the Marshall Trilogy. And Marshall Trilogy is the series of cases that every case to date, 2022. Every case impacting Indigenous peoples in the United States within the land base of the United States. It's the case that determines the outcome of every one of the cases that comes forward today. Asher Miller So it's the existing precedent that is still applied. Sherri Mitchell It's the existing precedent. But you know, it also, it completely diminished the status of Indigenous peoples. And so when you look at how it gets applied, when you're able to legitimize the creation of an entire body of law out of thin air that doesn't exist, that has no legal authority other than barbaric authority under rules of conquest, then what precedent you set is that those people who are subject to those laws are never seen as being fully human. Our sovereignty has never been acknowledged. Our humanity has never been acknowledged. So just like the stripping away of our full sovereignty to this notion of quasi-sovereignty, our humanity has also been stripped away so that we're not seen as full humans, right? We are the last population of people who still has these characterized mascots depicting us that are paraded around in public events. And so when we look at that, what we see is a whole population of people from all different walks of life, from all different places who have come here, as part of the immigrant makeup of this nation, right? Who have found the Indigenous people to be the ones that you stand on in order to elevate yourself within this nation. And so, is that something for people to be proud of? I don't think that it's something for people to be proud of. I think that that's something to be rectified. I mean, that's something that needs to be repaired in order for this nation to even have a hope of achieving the greatness that it aspires to in its founding documents. And so if we want people to continue to have a hope that the United States is going to be somehow this honor worthy democracy, then the country certainly has to start being that in more than just word. Because they've never been able to arise to the aspirations that have been spoken and written about the type of Republic that they wanted to create. And the cruelty underlying the truth has poisoned the well. And we see that poisoning pouring out in everything that's happened since. You know, we're the most violent nation on the planet really, in large scale. So anyway, when we think about the larger implications of how that's unfolded, all we have to do is look at the history of violence that has been wrought on people of color throughout the history of, this nation. But also to look to the laws that continue to allow the diminishment of Indigenous peoples and the dispossession of Indigenous lands that continues to this day. The changing of legal frameworks unilaterally, which, again, should be completely illegal under the law is allowed to happen in regard to Indigenous people. So here in the state of Maine where the canons of construction that the United States Supreme Court has outlined for dealing with cases related to Indian tribes, there are these three canons of construction that say, "Okay, this is how every case related to Indigenous peoples or Indian tribes is to be decided." One of those things is that what's not expressly granted is retained. And that had to be written by the Supreme Court because people were just saying, "No, we can just take anything from Indian tribes, right? You sell me a canoe, now I also own your home. And I can lay claim to all of these other things that you have, because there's just no end to my taking." And so, we have this canon of construction by the Supreme Court that says if you're dealing with a case that involves Indian tribes, what's not expressly granted is retained by those tribes. And yet, here we are in the state of Maine, still fighting for our water rights because unilaterally in 2010-2012, the state of Maine just wrote a document that said the tribes don't possess any water rights. So all of the treaties, all of the legal documents that outline our water rights, including the 2010 Bureau of Census report, including a case from 2007 that outlines the tribal water rights and the southern boundaries of the tribe in regard to the water as being territory. Despite the fact that it's been legally acknowledged, and that it's been acknowledged by the government, the State of Maine can just unilaterally decide that we no longer have water rights. And they've been winning cases. Because people aren't required to learn federal Indian Law when they go to law school. There's only a handful of states that requires it on their bar exam. So if you've never taken a course in federal Indian Law, and you're a judge who's deciding this case, then you're not looking at the principles of law that have been established for the protection of Indian tribes against unilateral and unending taking, right? So every case that's followed that Marshall Trilogy that was manufactured out of whole cloth, has followed that same trajectory of, well, if the law doesn't favor us, we can just make up some decision that arbitrarily and unilaterally disfavors and diminishes and dispossesses Indian peoples of their rights. And that's the legacy of the doctrine of discovery that exists to this day. Every Supreme Court case involving territory and tribal lands references the Marshall Trilogy, which is where the Doctrines of Discovery were adopted into U.S. law. Asher Miller Is it fair to say that we treat individual property rights with more respect in this country in terms of what states can do, than we would treat sovereign rights of Native American communities in the U.S.? I mean, think about this. . . Like if Maine said, we're just gonna take water from Canada. Like, no way, right? Sherri Mitchell Right. You know, the thing that is important about that, Asher, is that Felix Cohen, who is considered to be the architect of federal Indian Law, he was the one that codified all of the laws and treaties and agreements with all of the tribes across the country and created what's known as the Cohen Handbook of federal Indian Law, which is still used as the seminal document for understanding the progress in the trajectory of federal Indian Law. And this quote by him that said that Indian tribes or Indian people are the miner's canary. And that the shift from fresh air to poisonous gas that he's referencing in that quote, he's talking about recognizing that what this government is doing to Indian people, and what this government has done to Indian people throughout time is going to be the barometer by which everyone can expect to be treated eventually by the same government. Under the premise of laws that have been established here what's happening is not just that these laws that are negatively situating Indigenous peoples under this really kind of diminished rights position, but also that all people can eventually become subject to those same precedents that are being created for Indigenous peoples. And so if individual landowners who think that they've had some rights to protect them are now seeing that those rights are being taken away before their eyes, there's all kinds of takings. Not for the public good, but for the benefit of profit and industry. Where people's private land rights are being taken by eminent domain. Even though eminent domain is supposed to be reserved specifically for the public good. So to create a national park or something else that benefits the public, and now it's being used all over the place to dispossess individual landowners of their land rights when industry wants access to that land. And so, we're starting to see Felix Cohen's quote coming true in that the things that were used to diminish the rights of Indian people are now seeping out into the commons. And they're starting to affect everybody in regard to land and water rights, and also protection of the commons. Those places that were set aside for the common good are also being taken and being poisoned by industrial action. And so the poisoning of the well in regard to the precedent set under federal Indian Law actually has much greater legacy other than in the lives of Indigenous peoples. It has a legacy that spills out and affects everybody. Asher Miller Yeah. I'd like to think that it wasn't just self interest that would compel people to want to address that. I think that's a really good point. Maybe we can leave it at any thoughts you have or suggestions you have or what listeners could actually do about this. Specifically around kind of this really toxic and damaging legal precedent that we have now. What would you say to people if they were out as outraged today, I guess, as I am to learn of this? Sherri Mitchell Well, I think that there are, there are many ways that people can help. And I think, remembering that the people are the democratic body that is governing this nation and taking back control of the government. We have a situation where those in positions of privilege are making all of the decisions that benefit others in positions of privilege and further marginalizing the marginalized and actually expanding the margins so that more and more people are finding themselves within marginalized positions. This is the expansion of this disease that we call unchecked capitalism, right? That's destroying the planet. It's destroying people's lives, and certainly destroying any hope of real democracy from ever being achieved. And so, you know, get involved to take back control of those systems and those structures from those who are seeking to destroy. But also, there's a lot of movements around to completely denounce the Doctrines of Discovery, to strip them out of the language of the United States, to remove them as the legal precedent for this dispossession of laws. And there needs to be, you know, people who are like, "Well, we can't do that. Because if we do that, then we'll all have to leave the United States and give the Indians all back the land, right?" But there needs to be a renegotiation based on a removal of those principles, and some type of reparations that acknowledges the harm that was done. Because it's not just harm to Indigenous peoples, it's also harm to black peoples who were removed from their homelands and brought here as slaves under colonization. And so when we think about the impacts of all of these things, and how they're all tied together, there's a gaping wound that exists right through the center of this country that's fracturing any hope of us becoming collectively what we would hope to be right? Like, this quote that I love by Frances Moore Lappe: "Why are we together creating a world that none of us would individually want to inhabit?" And the larger "we" that lives within the boundaries of the United States, all of the sovereign nations, Indigenous nations that exist within this territory, on Turtle Island, both here and in Canada, but also all of the citizens of those nations, specifically, referring to the United States and Canada in this regard whose government structures are very, very similar - I can't imagine that the majority of those people are hoping to create the type of reality that we're currently living in. That it is so filled with hatred and division and racism and dehumanization and destruction of life on every front that it makes sense for us to go back and to heal those original wounds so that we can move forward in a way that is actually in alignment with the preservation of life. Actually in alignment with the building of community and cooperative, collaborative possibility so that we can work together to solve some of the major problems that have been created under the influence of colonization. Asher Miller I think that maybe this is a perhaps a much bigger conversation. But I think that there are a lot of people who instinctively react defensively. Yeah, I'm not racist. I'm not responsible for that. Like maybe they can't, they can't internalize that wound. You know what I mean? Or they struggle because they feel like they're being asked to hold responsibility, sole responsibility for that wound somehow. And I think what that does sometimes is shut people down and makes them actually oppositional. And seems that it's fundamental to recognize that actually, I don't want to equate wounds, but that we're all wounded by this, that it is, to your point earlier, it can even be self interest to say that this healing has to happen for all of us. Because this is not the world that we want to be in and we are all suffering from it. I mean, clearly we're suffering from it, even if it's taken for certain populations of people. It's taking many, many generations to start experiencing the consequences. But we are now experiencing that, right? Sherri Mitchell Right. You know, I think, Asher, that it's part of every healing journey to sit down, to have a real honest conversation with yourself, no matter what the illness is that you're trying to heal from, and to say, you know, if you're really obstructed in your path towards healing, you have to have the conversation with yourself of how am I benefiting from this current situation? How am I benefiting from this sickness? How am I benefiting from this behavior pattern that seems so destructive in my life, but I keep repeating it? How am I behaving from the social structures that have been established that favor some over others? In this moment, right? I mean, there has to be some willingness to recognize that you don't have to have been directly connected to the past harm to be responsible for addressing the ways that those harms continue to be meted out in the current day. And to recognize that there may be a way that you're benefiting from it. And so I'm working on a book right now that talks about, how do we rise up outside of the patriarchal colonial capitalist paradigm? You know, because when we think about all the ways that people have fought for their freedom, it's been from within that paradigm, never outside of it. Never with the intent of leaving it, but just finding an equitable place within it. And this path that we're on, within this current system is leading to our extinction. It's suicidal to not do something different. Asher Miller Yes. So you're talking about imagining a completely different, different way of being. Maybe it's a way of how we used to be? I mean, you brought that up earlier, right? Like imagining or trying to connect with where we were before. Colonization? I don't know if we can go back to before patriarchy? That would be even harder to imagine, in some ways, but . . . Sherri Mitchell I think we can. I think it's a lot of work. But you know, even just thinking about the fact that there were nine, so far, there have been nine humanoid species that have been found having inhabited the Earth. The remains of these nine humanoid species, we are the only one that survived into the modern age. We didn't survive into the modern age by being isolated and individualistic and greedy and selfish and cutthroat. That's not how we survived. That's what led to the extinction of all of the others. How we survived, our specific humanoid species was by learning to be cooperative, collaborative, and to live in community with one another, to look out for one another, to ensure one another's survival. We've forgotten how to do that. That's what we need to remember. So if we can just go back to that place to remember that truth, and then move forward from there, we've made a really good start at where we need to be. Asher Miller Well said. Let's leave it at that. Thanks so much, Sherri. I appreciate it. Sherri Mitchell Thank you, Asher. Melody Travers That's our show. Thanks for joining us in Crazy Town. This is a program of Post Carbon Institute. Get more info at postcarbon.org