Decolonising Indigenous Rights by Adolfo de Oliveira

Author:Adolfo de Oliveira [Oliveira, Adolfo de]
Language: eng
Format: epub
ISBN: 9780415339506
Barnesnoble:
Publisher: Taylor & Francis
Published: 2008-11-03T00:00:00+00:00

“DISCOVERY” AND “ENCOUNTER”

Another Columbus Day has come and gone. Another year, now more than five hundred since the Pope divided the world between Spain and Portugal, laying down the doctrine of discovery and conquest:

INTER CAETERA, MAY 3, 1493. Among other works well pleasing to the Divine Majesty and cherished of our heart, this assuredly ranks highest, that in our times especially the Catholic faith and the Christian religion be exalted and everywhere increased and spread, that the health of souls be cared for and that barbarous nations be overthrown and brought to the faith itself … [O]ur beloved son Christopher Columbus, […] sailing … toward the Indians, discovered certain very remote islands and even mainlands, [W]e […] by the authority of Almighty God … do … give, grant, and assign forever to you and your heirs and successors, kings of Castille and Leon, all and singular the aforesaid countries and islands …

An earlier Papal Bull had declared the legitimacy of Christian domination over “pagans,” sanctifying enslavement and expropriation of property:

ROMANUS PONTIFEX, JANUARY 8, 1455…. [W]e bestow suitable favors and special graces on those Catholic kings and princes, […] athletes and intrepid champions of the Christian faith […] to invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever, and other enemies of Christ wheresoever placed, and […] to reduce their persons to perpetual slavery, and to apply and appropriate […] possessions, and goods, and to convert them to […] their use and profit …

We might look at these ancient documents with amusement or condescension, confident in the modern view that church and state are separate. This would be a mistake. These Papal Bulls are part of the fabric of U. S. and international law.

The fact that Papal authority is the basis for U. S. power over indigenous peoples is not generally understood, even by lawyers who work with federal Indian law. This is due in large part to the sophistry of John Marshall, one of the greatest figures in the pantheon of the U. S. Supreme Court. Marshall borrowed from Papal Bulls the essential legalisms needed for state power over indigenous peoples. He encased Christian religious premises within the rhetoric of “European” expansion:

JOHNSON v. MCINTOSH, 21 US 543 (FEBRUARY, 1823). On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy. The potentates of the Old World found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity. (Johnson v. McIntosh, 8 Wheat. [21 U. S.] 572–73 (1823))

Steve Newcomb said it succinctly:

Indian nations have been denied their most basic rights […] simply because, at the time of

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