20 N.Y.U. Rev. L. & Soc. Change 303 (1992-1994)
The Evidence of Christian Nationalism In Federal Indian Law: The Doctrine of Discovery, Johnson v. McIntosh, and Plenary Power

handle is hein.journals/nyuls20 and id is 313 raw text is: THE EVIDENCE OF CHRISTIAN NATIONALISM
IN FEDERAL INDIAN LAW: THE DOCTRINE
OF DISCOVERY, JOHNSON v McINTOSH,
AND PLENARY POWER
STEVEN T. NEWCOMB*
Preface  .............................................................  304
Introduction  ........................................................  306
I. Christianity and Discovery ................................... 309
A. The Christian Discovery of Heathen Lands .................. 309
B. The Independence of American Indian Nations .............. 311
C. The Supreme Court's Adoption of the Principle of Christian
D iscovery  ..................................................  314
D. Christendom's Principle of Arbitration ...................... 317
II. The Roots of Christian Nationalism in Federal Indian Law ...... 320
A. The Johnson Ruling ........................................ 320
B. Marshall's Definition of the Discovery Doctrine ............. 321
1. The Religious Underpinnings of Plenary Power and the
United States' Absolute Right of Property in Indian
Lands  ..................................................   324
2. Further Clarification of Marshall's Principle
of Discovery  ............................................  327
C. Christian Discovery As Heathen Conquest .................. 329
Conclusion  ..........................................................  335
A PPENDIX   ..........................................................  338
* Steven T. Newcomb (Shawnee-Delaware) is enrolled at the Cherokee Nation of
Oklahoma and is presently the director of the Indigenous Law Institute. A frequent public
speaker on indigenous legal and political issues, Mr. Newcomb currently has a book in progress
entitled PAGANS IN THE PROMISED LAND: RELIGION, LAW, AND THE AMERICAN INDIAN
(forthcoming).
I want to thank the staff of the New York University Review of Law and Social Change for
inviting me to submit a paper to this edition of the Review. It is truly a great honor for a lay
person to be given this opportunity to publish. My thanks also to Mark Savage of Public Advo-
cates in San Francisco. Mark first contacted the staff on my behalf. Associate Professor Mary
Wood, at the University of Oregon School of Law, and James L. Olmstead, Esq., read the draft
and made many helpful editorial suggestions. I would also like to thank Professor Peter
D'Errico, Professor of Legal Studies at the University of Massachusetts, Amherst. Not only
has Peter enthusiastically encouraged me to continue with my research, but he also made nu-
merous suggestions that assisted me on this Article. My thanks to Birgil Kills Straight of the
Oglala Lakota Nation for spiritual inspiration and believing in the value of my work. And
finally-saving a most important acknowledgment for last-I must thank Paige Giberson, and
my daughter Shawna Blue Star, their loving support and seemingly endless patience over the
past decade has enabled me to pursue my research and writing. All Our Relations.
303

Imaged with the Permission of N.Y.U. Review of Law and Social Change

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