Wampum

Why is this of the slightest interest to anyone with an interest in Federal Indian Law? Because ...

Ex Parte Crow Dog and the Major Crimes Act of 1886 simply are incomprehensible unless viewed in two contexts -- institutional and political, the context of the elites, and the context of the message to the non-elites.

The institutional transformation was the transfer of control of exploitation of the Americas from one institution to another, one in a long series, from Rome to secular crowns in the late 15th and early 16th centuries, from secular crowns to colonial charters and viceroys in the 17th and 18th centuries, and from colonial charters and viceroys to "revolutionary" regimes in the late 18th and 19th centuries. The international legal regime created in the Conquest of the Canaries, then the Conquest of Indies, and finally in the Conquest of Mexico and Peru, fully developed in the legal processes of the Audencias -- Hernán Cortés, Nuño Guzmán de Beltran, and their successors in appointment were answerable to the Crown of Spain, which was in turn answerable to the Curia in Rome, ended in half of the English controlled exploitation zone in 1832, the date of the real "American Revolution", when the Supreme Court of the United States in Worcester vs. Georgia held the forced removal of the Cherokee Nation illegal, unconstitutional and contrary to treaties negotiated by previous Executives and ratified in previous sessions of the Senate, and President Andrew Jackson said "John Marshall has made his decision; let him enforce it now if he can." The Conquistadors of the Western States were no longer answerable to the successor in interest to a European Crown, and in turn to the Curia in Rome.

The national legal regime created in 1832, of an Executive and Senate, composed of two members from each State, including Rhode Island, Deleware, Maryland, and Massachusettes, Connecticut, and Virginia, which had all surrendered any western extension claims based upon colonial charters in the late 18th century, which exclusively "dealt with Indian Nations", answerable to no higher authority other than itself, ended with the Appropriation Act of March 3, 1871, Ch. 120 §1, 16 Stat. 544, 566 (codified at 25 U.S.C. §71). That was the end of "Federalism" and Article II as the foundation of relations between the United States and Indian Nations. The majority in the House excluded the Executive and the Senate from negotiating treaties, and with the Act of Mar. 3, 1885, S 9, 23 Stat. 385, now codified, as amended, 18 U.S.C. S 1153, the "Major Crimes Act", the majority in the House placed all Indian Treaties previously negotiated and ratified under the unilateral, unrestricted control of the momentary majority in the House. Modernly this is all resolved by an appeal to Article I, S 8, cl. 3, which provides Congress with the power to `regulate Commerce . . . with the Indian Tribes, where "regulate Commerce" means anything any momentary majority in the House, or any revisionist, writing an opinion or a textbook, intends it to mean.

The political message was the extension of the benefits of Christian civilization, a package of sedentarism and agriculturalism and modernism, made in the enduring European mythos of non-sedentarism, and therefore without title to land, and non-agriculturalism, and therefore without economic exchange systems, and non-modernism, and therefore without enlightenment. Central to this criminal jurisdictional claim was the natural supremacy and universality of Christian morality, a theory of law Robert A. Williams explored in The Algebra of Federal Indian Law: The Hard Trail of Decolonizing and Americanizing the White Man's Indian Jurisprudence, 1986 Wis. L. Rev. 219. He traces the origins of Natural Law, the foundation of objectivism, and therefore universal truths, back to the European Middle Ages, to the exchange of letters in 1246 between Sinibaldo de' Fieshi and Güyük Borjigh.

In his letter to Güyük Borjigh, son of Ogodei Borjigh, who had defeated the Europeans at Mohi in Hungary and Liegnitz in Poland, and grandson of Temujin Borjigh (Chingis Khan), the ruler of most of Asia and a significant part of Europe, Sinibaldo de' Fieshi, as Pope Innocent IV and in 1246, ruler of what was left of Catholic Europe, wrote from exile in Lyons and dependency under Louis IX a simplified version of his commentary on the canonical law collection of the Liber Extra. I'm paraphrasing the commentary on Liber Extra.

From the beginning of all times, when all territory was still common property, anybody who first took possession of a piece of land owned it legally from then on and forever or until he gave it up voluntarily, be he Christian or not. Thus, a non-Christian ruler could rule his realm legally and a heathen ruler could even rule legally over Christian subjects as long as he treated them well.

Innocent IV did not argue a Christian legal basis, but a "natural law" to which all living beings are bound -- since the Pope is Christ's vicar on earth, and Christ is the natural Lord, dominus naturalis, of the World, the Pope must clearly be the one authority to supervise right or wrong behaviour, to punish heathen rulers who treat their Christian subjects badly and Christians who illegally attack heathens who never did anything wrong. Güyük Khan accepted the "natural law" argument, with the modification that his chair, not Innocent's, was the center of the natural universe.

Innocent's pupil Henricus de Segusio (Hostiensis), denounced Innocent's "natural law" theory, stressing that Christ's first coming had reorganised all property rights so that legal sovereignty can only lie in Christian hands. The difference between these two 13th century canon lawyers would manifest in the difference between the Inter Caetera of 1493, authorizing "... that barbarous nations be overthrown and brought to the faith itself ..." and the Sublimus Dei of 1537, directing "... by these Our letters ... that, notwithstanding whatever may have been or may be said to the contrary, the said Indians and all other people who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property, even though they be outside the faith of Jesus Christ; and that they may and should, freely and legitimately, enjoy their liberty and the possession of their property; nor should they be in any way enslaved ..." However imperfect its execution, it is from the Sublimus Dei that the American Republic severed itself in 1832, and it is from the Sublimus Dei that the Catholic Church is now severed.

Why this is of the slightest interest to anyone with an interest in Federal Indian Law is because Rehnquist in Oliphant, the jurisdictional cognate of ecclesiam nulla salus (no salvation outside of the Church), in an opinion that resurected the reasoning of 1886 while eliding the Christian basis for that reasoning, came down on the side of Hostiensis, not Innocent IV, and Benedict XVI is unmistakably also a Hostiensis man.

In 1610 Rome entered into a treaty with the Mi'kmaq of Unamaki (Cape Breton), part of the greater tribal group of the Mi'kmaq Nation, itself part of the Wabanaki (Dawn Land) Confederacy of Nations. The text of the treaty is the Mombertou Wampum Belt, which establishes the Catholic Church in Unamaki, with the condition that the walls of the European Church have an Indian Window, carefully detailed in the Wampum. The walls define, but the window allows the spirit to enter and exit at will. The Inquisition and its successor, the Congregation for the Doctrine of the Faith, have never been permitted in the Wabanaki Church.

The distance from the SCOTUS to Rome is a sea of time and salt, but what is shared by Chief Justice William Rehnquist and Prefect Cardinal Joseph Ratzinger is immanent.

Jacques Dupuis, S.J., died on December 28th, 2004.