In 2006, the U.S. Supreme Court rejected an Oneida Nation land claim in which that Nation, having re-purchased on the open market parcels of its former reservation that had been sold in 1807, sought to reintegrate the land into its reservation, effectively removing it from the tax rolls of Sherrill, a city in upstate New York. Even though courts at the time broadly agreed that land sales by Indian tribes such as the ones in question, which did not route through the federal government, violated the Trade and Intercourse Acts first passed by Congress in 1790, the Court found a workaround to this and a series of other land claims made by the Onondaga Nation and other Haudenosaunee peoples whose reservation lands were similarly eviscerated.
Justice Ginsburg wrote for the 8-1 majority:
Given the longstanding, distinctly non-Indian character of the area and its inhabitants, the regulatory authority constantly exercised by New York state and its counties and towns, and the Oneidas’ long delay in seeking judicial relief against parties other than the United States, we hold that the Tribe cannot unilaterally revive its ancient sovereignty, in whole or in part, over the parcels at issue.
That it was Justice Ginsburg rather than one of the conservatives who wrote the opinion tells us something about how broad the reluctance is to upset any apple carts of history. But the real kicker is Ginsburg’s reference, in her first footnote, to the “Doctrine of Discovery” on which the High Court had based its reasoning in a 1985 rejection of an earlier Oneida land claim.
You read that correctly: a 21st-century citation to the Doctrine of Discovery to thwart claims by Native Nations trying to restore their land on the open market with their own money. The legal upshot is that an 1823 Supreme Court precedent penned by the first Chief Justice, John Marshall, remains very much “good law,” even though its reasoning hinges on the legal and theological pretense that Christian European sovereigns by dint of their Christianity held absolute title to lands in the Americas. (For more analysis of the Doctrine of Discovery that is in conversation with Haudenosaunee views, please visit the Doctrine of Discovery Project led by Philip Arnold and Sandra Bigtree. Also, see Robert J. Miller’s 2008 book Native America, Discovered and Conquered: Thomas Jefferson, Lewis & Clark, and Manifest Destiny.)
Timothy Vasko helps us make sense of the contradiction by inquiring deeply and deftly into the historical development of and political theory elaborating this Doctrine of Discovery from its late 15th-century origins through the Enlightenment. Along the way, Vasko’s book Making All the World America not only shows just how central the Doctrine of Discovery is to the project of Euro-American modernity, but also how it is not a done deal. In an effort to legitimize modern nation-states built on such shaky intellectual foundations, thinkers like John Locke, we learn, relied on a calculus far more complex than the winner-takes-all logic that seems, at first glance, to be the case. “At work in these features of the Doctrine of Discovery’s reliance upon native information,” Vasko demonstrates, “was not simply an unchallenged assertion of the supremacy of European Christendom. Rather, the Doctrine of Discovery’s reliance upon native information demonstrates that a profound struggle to establish legal, theological, and philosophical legitimacy took the form of a sustained reckoning with the existence of the original inhabitants of the western hemisphere” (229-30).
In his epilogue, Vasko offers a helpful reading of the 1823 case cited in Ginsburg’s footnote – Johnson v. M’Intosh, one of the “Marshall Trilogy” of cases penned by John Marshall that lay the foundation of all federal Indian law ever since. Vasko offers a way to think about the instability of that foundation without stabilizing, in turn, the inevitabilities of settler colonial theory. In this legal proceeding, no Native peoples were even in the room: Johnson and M’Intosh were two white land speculators whose heirs held competing title to the same land in what is now Indiana, each claiming true title from a chain of transmission that went back to an agreement or sale from different Native people and under different circumstances.
Such title disputes are relatively straightforward to settle in the common law. The stronger claim by legal tradition belongs to the party who first registers the title: “first in time, first in right,” as the saying goes. But as the United States expanded across the Appalachians, land sales between various Native leaders and various settler entities and interests were often ad hoc affairs, with different settlers holding what they swore was the real title. With an eye toward establishing a more stable principle on which to decide the numerous disputes bound to arise, Marshall’s Court sided with McIntosh, whose ownership was keyed to a chain of title that originated with the United States after the Treaty of Greenville (1795). Native peoples had rights recognized in the Treaty, but those were reduced with the stroke of a Chief Justice’s pen to rights of occupancy only. Absolute title, Marshall reasoned, belonged to the sovereign, in this case the United States. Native peoples could thus not diplomatically sell their rights of occupancy in their lands to anyone other than the United States. “We will not enter into the controversy,” Marshall writes, “whether agriculturists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess.” Pawnee legal scholar Walter Echo Hawk observes, “This is judicial code for ‘something unjust is about to happen’” (72).
I’ll quote the full paragraph by which Marshall finesses the political theology referenced by Ginsburg in our own day:
Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be respecting the original justice of the claim which has been successfully asserted. The British government, which was then our government and whose rights have passed to the United States, asserted a title to all the lands occupied by Indians, within the chartered limits of the British colonies. It asserted also a limited sovereignty over them, and the exclusive right of extinguishing the title which occupancy gave to them. … The title to a vast portion of the lands we now hold, originates in them. It is not for the Courts of this country to question the validity of this title, or to sustain one which is incompatible with it.
“However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear,” Marshall continues, “if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned.”
Vasko’s discussion of the case appears in the book’s epilogue, pointing to how the trial documents engage the tensions found in early modern thinkers that are the subject of the body chapters of Vasko’s book, including Vespucci’s letters and Locke’s Two Treatises on Government. The struggles within those generative texts become tensions that continue to vex U.S. law. “Most works of literature carry a destabilizing ambivalence that complicates their apparent narrative meaning,” Vasko observes. “Marshall’s Trilogy is no exception” (232).Vasko calls attention to the tensions between M’Intosh and the two subsequent cases that establish ongoing rights to Native peoplehood, albeit as domestic, dependent nations, and to U.S. obligations under treaties entered into with those nations. He also centers a passage at the end of the discussion of discovery in M’Intosh that is often overlooked: “Those relations which were to exist between the discoverer and the natives were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them” (234, citing M’Intosh, 573). Here, we glimpse facets of the Doctrine of Discovery that Vasko suggests indicate that it was, from the beginning, “conceived as much around the recognition and protection of Native subjects as it was conceived around claims of first arrival to a particular territory” (233).
I learned so much from Making All the World America. The book opens doors to a richly complex appreciation of how the Doctrine of Discovery became “a central component of the grammar of modern political theory.” I say opens doors because the Doctrine of Discovery’s emergence and development, and perhaps even its contemporary workings, are only partly illuminated by the structural analysis that Patrick Wolfe so generatively set on course by naming settler colonialism as “a structure, not an event.”
To be sure, Vasko’s analysis appreciates the crucial ways that the lens of settler colonialism enables us to see the often subterranean processes of (attempted) erasure in the cultural field aimed at sanitizing and underwriting land theft and retaining pilfered wealth. And Vasko certainly doesn’t locate the Doctrine of Discovery as an event that can be done away with by a single disavowal of a late-medieval papal decree or an early 19th-century Supreme Court decision. But in the interest of eliciting the predictable outcomes of such teleological structural analysis, settler colonial studies risk squelching the voices and agency of Indigenous intellectuals crucial to the story and occluding the considerable efforts by European political theorists like John Locke to work through ambiguities in their foundational texts of political theory.
For example, we learn from Vasko just how unwise it is to make quick work of Locke by relying on his famous favoring of the agrarian, improvement-of-land view of legitimate property rights in one chapter of Two Treatises. In Vasko’s reading, this chapter remains crucial but not unequivocal. Drawing on Locke’s pragmatic view developed from his vantage as colonial administrator of Carolina and a close reading of other chapters of the Two Treatises, Vasko shows that Locke looked deeply into the available native information produced by Indigenous authors to establish empirically and theoretically a basis for his view that peoples are naturally capable of contractarian restraint. What’s more, Vasko suggests this inquiry maps back onto the Americas through a rigorous wrestling with the implications for the colonization of those peoples and their lands.
From the perspective of some, such close reading surely amounts to giving too much credit to the intentions or moral misgivings of Locke and other agents of conquest and genocide. They might object: If settler colonialism is a structure, not an event, don’t look to the surface for a sense of what is really going on. But I think Vasko’s book deepens and extends rather than diminishes the possibilities of settler colonialism studies in two respects. First, as Vasko himself notes, the binary between “settler” and “Native” that presents itself to structural analysis erases important Indigenous historical actors who straddled the boundary. We often take Indigenous intellectuals like Garcilaso de la Vega, known as El Inca, or Don Fernando de Alva Ixtlilxochitl, whose writings were pored over by a wide range of European thinkers, to be involved in a project that erases all Native presence. Vasko’s analysis tracks how European thinkers and colonial administrators indicated they knew better when they were involved in colonial violence. If their better angels seldom if ever prevailed, efforts to legitimize their rule pointed to their awareness of other possibilities.
Vasko understands his project as suggesting “that colonial government and the imperialist theories that flow into and out of it are often much more localized, contingent, contested, negotiated, multidirectional, fragile, and iterative than a structuralist framework like settler colonialism may be capable of demonstrating” (256n44). European thinkers in early modernity, John Locke chief among them, looked to Europe’s encounter with Indigenous peoples and pored over the developing body of “native information” to lay the foundation of a political order not derived from Scripture or Church Authority but from presumptively secular natural rights and reason of “the people.”
Vasko wisely doesn’t give his reader enough slack to conclude that those encounters were any less violent or catastrophic than they were. The kinder, gentler vision of conquest and genocide of Las Casas or English criticisms of the excesses of Catholic Spanish colonization are not let off the hook for what they were. From the brutal, even wanton violence toward the Taino of Columbus’s early years onward, Vasko’s intellectual genealogy stays close enough to the ground to remain soaked in the blood to be found there, and the trauma that reverberates for communities who continue to suffer from it. But neither does Vasko lead his reader on such a tight leash through the sources that we wind up in the binary thinking that scholarship in the wake of the theory of settler colonialism risks lapsing into. The contingencies and negotiations in the development of the Doctrine of Discovery show up, subtly but weightily, in history as in our own day.
If Vasko’s book helps us see how ultimately unsurprising it is that Ginsburg cites the Doctrine of Discovery in 2006, it also holds space for what should be an equally unsurprising 2020 opinion written by Justice Neil Gorsuch, a Trump appointee, in a case where the U.S. Supreme Court backed broad Creek Nation jurisdiction over large swaths of Oklahoma, including the city of Tulsa, that had been settled by settlers in spite of being the Muscogee Creek Nation’s original reservation. At issue here was criminal jurisdiction, not a land claim, but as with the City of Sherrill, the decision boiled down to competing stories of whose land this part of Oklahoma is. Gorsuch acknowledged the difficulty of recognizing the Creek story as the jurisdictionally pertinent one, and of rethinking assumptions on which settlers had made lives there for more than a century. But Gorsuch concluded that “the magnitude of a legal wrong is no reason to perpetuate it.” The 2020 case neither overturned City of Sherrill v. Oneida, nor took issue with that decision’s reasoning from the Doctrine of Discovery, but Gorsuch does remind those put out by it that settler law itself requires adherence to treaty obligations:
Just imagine what it would mean to indulge that path. A State exercises jurisdiction over Native Americans with such persistence that the practice seems normal. Indian landowners lose their titles by fraud or otherwise in sufficient volume that no one remembers whose land it once was. All this continues for long enough that a reservation that was once beyond doubt becomes questionable, and then even farfetched. Sprinkle in a few predictions here, some contestable commentary there, and the job is done, a reservation is disestablished. None of these moves would be permitted in any other area of statutory interpretation, and there is no reason why they should be permitted here. That would be the rule of the strong, not the rule of law.
At this particular juncture in the history of the United States, it is especially important to keep open doors of inquiry and possibility as Timothy Vasko does in this fine book.
