Robert Williams Jr., ‘Learning not to live with Eurocentric myopia: A reply to Professor

Conquest and acts of state: the United States’ approach

Between 1823 and 1832 the United States Supreme Court, under Chief Justice Marshall, handed down a series of decisions which form the basis for the recognition of Aboriginal rights in the United States, Canada and, more recently, Australia.22 In

Johnson v M ’Intosh the Court had its first opportunity to face squarely the issue of rights over Indian lands.23 Confronted with a dispute between colonists over deeds, Chief Justice Marshall treated the loss of independence and control over lands as a fait accompli.

While conceding that the ‘pretension of converting discovery of inhabited country’ into a form of title was an ‘extravagant’ one, Marshall CJ abdicated judicial responsibility for the rights of peoples against the exercise of power by the state.24 In this way, Phillip Frickey argued that ‘colonial pretensions’ were privileged to the exclusion of all other considerations.25

The doctrine of discovery was adopted into the domestic law of the United States but formulated on the narrowest construction, giving the discovering nation the

Laurence’s learning to live with the plenary powers of congress over Indian Nations’, Arizona Law Review, vol. 30, 1988, p. 439 (restating an argument from Williams, ‘The algebra of federal Indian law: The hard trail of decolonizing and Americanizing the White man’s jurisprudence’, Wisconsin Law Review, 1986), argued that:

American Indian nations have been judged and their legal rights and status determined in European legal thought and discourse by alien and alienating norms derived from the European’s experience of the world, the central texts of contemporary Federal Indian law, beginning with its grounding legal text, the Doctrine of Discovery, deny respect to American tribal peoples’ fundamental human rights of autonomy and self determination.

22 In the United States, see Williams v Lee 358 US 217 (1958); in Canada, R v Sioui (1990) 70 DLR (4th) 427 at p. 449 (SCC); and in Australia, see Mabo v Queensland [No. 2] (1992) 175 CLR 1, at p. 60, per Brennan J.

23 21 US (Wheat.) 543 (1823). One significant earlier case in which Marshall CJ commented on the status of the lands past the Western frontier, refering to Indian lands as ‘the vacant lands within the United States’: Fletcher v Peck 10 US (6 Cranch) 87 at p. 142 (1810). Williams, ... Discourses of Conquest, op. cit., p. 309, described this case as the ‘preliminary ceremonies in the legal internment of the doctrine that American Indians possessed natural rights to the lands they had occupied since time immemorial’.

24 Johnson v M ’Intosh 21 US (Wheat.) 543 (1823) at p. 591.

25 Frickey, op. cit., p. 385. Many commentators have criticised Marshall CJ for the ‘anti-intellectual’ approach taken in Johnson v M ’Intosh. See for example, Werther, op. cit., p. 38, and Frickey, op. cit., pp. 386-7.

exclusive right to extinguish Indigenous peoples right of occupancy, and recognising

no natural law based rights to sovereignty in the Indigenous peoples:26

the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired . . . [T]heir rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. 27

What began as a law regulating trade as between European powers became a doctrine of dependence, subjecting the Indigenous peoples to the authority of the state,

cementing the vulnerability of Indigenous land and other rights in law. In Johnson v

M ’Intosh Marshall CJ both recognised European arrogance and reinforced it, relying

on a perception of the courts’ institutional impotence.28

Frickey argued that in embracing colonialism Marshall CJ relied on two ‘starkly

colonial visions’ of cultural superiority and judicial inferiority.29 For example,

Marshall CJ stated that:

Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals maybe, respecting the original justice of the claim which has been successfully

asserted.36

26 Johnson v M ’Intosh 21 US (Wheat.) 543 (1823), at pp. 573-4. See also Williams,... Discourses o f Conquest, op. cit., p. 313.

27 Johnson v M ’Intosh 21 US (Wheat.) 543 (1823) at pp. 547, 573-4.

28 Chief Justice Marshall stressed the need to accept ‘the actual state of things’, and engaged in a process of rationalising in law, the acts of the state. Williams,... Discourses o f Conquest, op. cit., p. 308, argued that in Johnson v M ’Intosh Marshall CJ merely legitimated the outcome of United States military campaigns and commercial agreements and ‘silently ignored’ the rights of the Indigenous peoples. For example, see Marshall CJ at pp. 572-3. This sentiment was reiterated at p. 589: ‘some excuse if not justification in the character and habits of the people whose rights had been wrested from them’. See also Werther, op. cit., p. 39, and Macklem, ...Borders of the Canadian legal imagination, op. cit., pp. 400-1. However, Marshall CJ displayed his own prejudices and falsities in comments such as the following, from Johnson, p. 590:

the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.

29 Frickey, op. cit., p. 388. Both of these assumptions have been discussed extensively throughout chapters two and three leading up to this discussion.

30 Johnson v M ’Intosh 21 US (Wheat.) 543 (1823), p. 588. This idea was reinforced throughout the judgement at pp. 572, 589, 591-2. The term ‘courts of the conquerors’ was used by Chief Justice Marshall in Johnson v M ’Intosh 21 US (8 Wheat.) 543 (1823), p. 588. On this, see Foster, op. cit., pp. 355-6; Frickey, op. cit., pp. 394-5; Slattery, ...Imperial claims, op. cit., p. 685; and Gary Meyers, ‘Different sides of the same coin: A comparative view of the Indian hunting and fishing rights in the United States and Canada’, UCLA Journal o f Environmental Law and Policy, vol. 10(1), 1991, p. 75.

While Marshall CJ expressly avoided judgements about the justness of colonisation

or even of assertions of superiority, 31 the decision ‘immunised’ those questions from

judicial review. 32 For Williams, ‘[t]he dominant themes of Marshall’s denial of

Indian natural-law rights in Johnson are clearly established in those early evasions of

judicial accountability’ .33 Therefore, Johnson v M ’Intosh established the dichotomy

between power and law that was to form the foundation of the judicial inaction that

has become known as the ‘act of state’ doctrine. 34

During the period in which Marshall CJ was developing the discovery doctrine as domestic law, there was some dissent among his peers who saw the Indian nations as foreign and independent and, although they may have entered into a protection arrangement with the more powerful State, considered this a frequent occurrence

among independent nations.35 However the argument was defeated and the principle

of equal sovereignty was replaced by one of ‘relative sovereignty’ which established the hierarchy between Indigenous peoples and the colonising state in the common

law, under the ‘dependent nation’ idea. 36

Later cases involving the Cherokee Nation elaborated on the ‘diminished’

sovereignty alluded to in Johnson v M ’Intosh.31 Unlike Johnson, the Cherokee cases

involved a claim by Indigenous people in which sovereignty was a central issue. While dismissing the claim on a technical, jurisdictional question, Chief Justice Marshall constructed a model of Indian status that posited the Indigenous peoples not as foreign states but certainly as sovereign entities within the Constitution of the

United States. 38 Remarkably, Marshall CJ accepted the arguments and underlying

31 Johnson v M ’Intosh 21 US (Wheat.) 543 (1823), at pp. 588, 589. 32 Frickey, op. cit., pp. 388-9.

33 Williams,... Discourses o f Conquest, op. cit., p. 312. 34 This dichotomy was identified by Frickey, op. cit., p. 389.

35 Fletcher v Peck 10 US (6 Cranch) 87 (1810), p. 146 per Johnson J, dissenting; Cherokee Nation v

Georgia 30 US (5 Pet) 1 (1831), p. 59, per Thompson J, dissenting. On this, see Macklem, op. cit., p. 398, and Flanagan, op. cit., p. 87.

36 Meyers, op. cit., pp. 89-90, noted that the Marshall doctrine enshrines a tension between nationhood and dependence in the maintenance of a ‘measured separatism’.

37 Johnson v M ’Intosh (1823) 21 US 260, at p. 574.

assumptions of the Cherokee, accepting their status as ‘nation’ as well as the integrity of their relationship with the United States under treaty.39 Marshall CJ stated that the Cherokee, with other Indian nations were ‘a distinct political society’.40

This construction of Indian status was confirmed in Worcester v Georgia in 1832.4'

Marshall CJ concluded that Indian nations were:

distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States.42

Worcester v Georgia confirmed an exclusive sovereign to sovereign relationship between Indian nations and the federal government that would be upheld by the courts. This however, was no protection against the federal government itself.43

Marshall CJ appeared more willing to criticise the origins of the titles asserted by the state and now legitimated by the law:

It is difficult to comprehend . . . that discovery . . . should give the discoverer rights in the country discovered, which annulled the pre­ existing rights of its ancient possessors.44

While less strident in its commitment to judicial impotence, Worcester v Georgia

reaffirmed the act of state doctrine:

power, war, conquest, give rights, which after possession, are conceded by the world; and which can never be controverted by those on whom they descend. We proceed, then, to the actual state of things, having glanced at their origin; because holding it in our recollection might shed some light on existing pretensions.45

Despite accepting that the doctrine of discovery and conquest was difficult to defend on the grounds of justice or natural law, Marshall CJ kept the Court shrouded in a

39 ibid., p. 15. 40 ibid., p. 16.

41 31 US (6 Pet.) 515 (1832). 42 ibid., p. 557.

43 See Cherokee Nation v Georgia 30 US (5 Pet.) 1 (1831), at p. 18; Worcester v Georgia 31 US (6 Pet.) 515 (1832), at pp. 557-62. Confirmed in US v Sandoval 231 US 28 (1913), at pp. 46-7.

44 Worcester v Georgia 31 US (6 Pet.) 515 (1832), p. 542. 45 ibid., p. 543.

veil of judicial incompetence. Aggression against Indian peoples was now subject to judicial scrutiny under the domestic dependent nation doctrine, but colonisation itself and historical acts of aggression by the state were seen as merely part of the fabric of

legal history.46 Williams concluded that:

White society’s exercise of power over Indian tribes received the

sanction of the Rule of Law in Johnson v McIntosh . . . [and] while the

tasks of conquest and colonization had not been fully actualized on the entire American continent, the originary rules and principles of federal

Indian law set down by Marshall in Johnson v McIntosh and its discourse

of conquest ensured that future acts of genocide would proceed on a

rationalized basis.47

Assuming the supremacy of the federal government legitimised the exercise of power to extinguish the rights of Indigenous peoples without consent and unrestricted by any natural or common law rights. Chief Justice Marshall’s rejection of the natural law literature and embrace of the power of the state were explicit. For

example, in Worcester v Georgia, Marshall CJ stated that ‘natural law and abstract

principles of justice must take a back seat to power and accomplished fact’ .48

Guntram Weither has highlighted the implications of such assumptions of superiority, and the role of the law in supporting them:

The tactic of denying legal recognition of international law status of aboriginal nations has been an important political function of legal fictions in aboriginal law throughout history . . . In the world of practical

politics, this question comes down to one of relative power.49

In short, respect for the equality of peoples was disregarded in the face of absolute power. While Indigenous peoples continued to exercise sovereignty over their remaining lands and peoples the law no longer recognised their independence. The creation of a hierarchy of sovereignty subordinated Indian nations and left Indigenous peoples without recourse against the exercise of power by the state to dispossess them of their lands.

46 Frickey, op. cit., p. 395. See also Williams, ...Discourses of Conquest, op. cit., p. 317. 47 ibid.

48 Worcester v Georgia 31 US (Pet.) 515 (1832), at p. 543.