In 1823, the Supreme Court of the United States decided the case of Johnson v. M’Intosh (pronounced “Macintosh”). The case centered on a title dispute between two parties over land purchased in 1773 and 1775 from American Indian tribes north of the Ohio River. In the decision Chief Justice John Marshall outlined the Discovery Doctrine, explaining that the U.S. federal government had exclusive ownership of the lands previously held by the British. While the native inhabitants could claim the right to occupy the land, they did not hold the radical title to the land.
In plain English, the United States claimed ultimate sovereignty over the discovered territories, but permitted the native tribes residing there to continue to live in a kind of landlord-tenant relationship. Marshall explained that as a result, the natives could sell only their right to occupancy — their aboriginal title — and only to the federal government. With a stroke of the pen, American Indians had become tenants of the empty land.
The case has several peculiarities; for example, Marshall’s decision did not rely on the Constitution or previous decisions, but instead upon international agreements put in place during the Reconquista of Iberia, and solidified shortly after Columbus’s first voyage to the New World. This framework essentially permitted Christian nations of Europe to invade, occupy, and colonize any non-Christian land anywhere in the world.
Marshall explained that the United States was the successor of radical title, which they had won by defeating the English. (The quoted paragraphs below come from the original text of the decision. The bold text is mine.)
No one of the powers of Europe gave its full assent to this principle [of discovery] more unequivocally than England. The documents upon this subject are ample and complete. So early as the year 1496, her monarch granted a commission to the Cabots to discover countries then unknown to Christian people and to take possession of them in the name of the King of England. Two years afterwards, Cabot proceeded on this voyage and discovered the continent of North America, along which he sailed as far south as Virginia. To this discovery the English trace their title.
In other words, as long as no other Christian nation had taken title of a non-Christian foreign territory, the English saw it as fair game. What Cabot had discovered, they reasoned, became the Crown’s sovereign holdings.
In this first effort made by the English government to acquire territory on this continent we perceive a complete recognition of the principle which has been mentioned. The right of discovery given by this commission is confined to countries “then unknown to all Christian people,” and of these countries Cabot was empowered to take possession in the name of the King of England. Thus asserting a right to take possession notwithstanding the occupancy of the natives, who were heathens, and at the same time admitting the prior title of any Christian people who may have made a previous discovery.
The same principle continued to be recognized. The charter granted to Sir Humphrey Gilbert in 1578 authorizes him to discover and take possession of such remote, heathen, and barbarous lands as were not actually possessed by any Christian prince or people. This charter was afterwards renewed to Sir Walter Raleigh in nearly the same terms.
While Marshall focused on so-called heathen people (usually construed as polytheists, animists, etc.), we should recall that Portugal operated under the same doctrine to colonize and subjugate people in Africa, some of whom were Muslims.
Once the United States had gained title to former colonies (Treaty of Paris, 1783), it assumed full sovereignty. Similarly, the subsequent acquisition of Louisiana gave the federal government full control of this vast, new territory.
The United States, then, has unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold and assert in themselves the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy either by purchase or by conquest, and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise.
The power now possessed by the government of the United States to grant lands, resided, while we were colonies, in the Crown, or its grantees. The validity of the titles given by either has never been questioned in our courts. It has been exercised uniformly over territory in possession of the Indians.
Marshall recognized the intrinsic rights of Native Americans as the first human inhabitants of the land, but insisted that the United States’ ultimate sovereignty over the land superseded those rights.
In the establishment of these relations, the rights of the original inhabitants were in no instance entirely disregarded, but were necessarily to a considerable extent impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their 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.
And so we come to the nexus of Marshall’s decision. He reasoned that any land deal between Native Americans and a private party or even a state could not occur legally. The dependent nations living in the territories claimed by the United States could only sell to the federal government, which holds radical title to it. Legally, the Indians would be selling their right of tenancy or occupancy, and once they had vacated the land, the national government could resell it, cede it to one or more of the several states, or parcel it out to citizens. But in no case could such a transaction occur directly.
The foundations of conquest
Today’s legal scholars will often cite Johnson v. M’Intosh as a bad decision, although it remains the law of the land. If you’re interested in its repercussions (the can of worms Marshall unwittingly opened), see the links at the end of this post. For now I would draw your attention to some unusual aspects of the decision. First, Marshall’s argument does not rely on the Constitution. Rather, the ruling draws upon international law and the rights of nation states as world actors. Second, it mentions the Pope.
While the different nations of Europe respected the right of the natives as occupants, they asserted the ultimate dominion to be in themselves, and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil while yet in possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy.
The history of America from its discovery to the present day proves, we think, the universal recognition of these principles.
Spain did not rest her title solely on the grant of the Pope. Her discussions respecting boundary, with France, with Great Britain, and with the United States all show that she placed in on the rights given by discovery. Portugal sustained her claim to the Brazils by the same title.
In a broader sense, if the government of Spain claimed title to the lands in Central and South America by right of discovery, then it was relying upon a legal framework set in place by the Pope with a series of decrees in the 15th century.
- Dum Diversas (1452): A papal bull that authorized the king of Portugal to conquer non-Christian lands (both heathen and Muslim), and to enslave permanently their inhabitants.
- Romanus Pontifex (1454): A papal bull that reiterated Portugal’s right of domination in Africa (south of Cape Bojador). It contains some fairly strong language concerning the treatment of conquered nations.
We [therefore] weighing all and singular the premises with due meditation, and noting that since we had formerly by other letters of ours granted among other things free and ample faculty to the aforesaid King Alfonso — to invade, search out, capture, vanquish, and subdue all Saracens [Muslims] and pagans whatsoever, and other enemies of Christ wheresoever placed, and the kingdoms, dukedoms, principalities, dominions, possessions, and all movable and immovable goods whatsoever held and possessed by them and to reduce their persons to perpetual slavery, and to apply and appropriate to himself and his successors the kingdoms, dukedoms, counties, principalities, dominions, possessions, and goods, and to convert them to his and their use and profit . . . (See full text here.)
- Inter Caetera (1493): One of the Bulls of Donation in which the Papacy divided colonial lands in the Americas, Africa, and Asia between the monarchs of Spain and Portugal.
- Treaty of Tordesillas (1494): This treaty, written by Pope Alexander VI, solidified the Bulls of Donation. It clarified and codified the borders of the Spanish and Portuguese colonial empires.
The reconquest of the Iberian peninsula had left two rival powers in place, both of whom had designs on foreign conquest. And when they rubbed against each other — for example, when Columbus claimed lands that the King of Portugal believed were in his sphere of influence — they took their complaints to the Bishop of Rome. Catholic monarchs who submitted to the rulings of the Pope were bound to follow them under threat of excommunication.
Marshall’s ruling represents the official position of the United States vis-à-vis the indigenous peoples of North America as well as its relationship to the rest of the world. The United States saw itself as a world power, on par with the European nation states. Its conquered territories lay in the vast, wild, unexplored West. Like any other Christian world power, the U.S. government understood its right of sovereignty as emanating from the existing international framework.
To put it more starkly, the Johnson v. M’Intosh decision embraced the Doctrine of Discovery, which itself was based on a religious ideology of just and holy war, combined with a belief in the superiority of Christians and their inherent right to seize all heathen and Muslim lands. These holy wars would result in the conquest, subjugation, and depopulation of non-Christian domains, with their original inhabitants sold into perpetual slavery or (more often the case in the U.S.) concentrated together in camps or reservations. We should not think of these results as unintentional. They were, after all, spelled out in the original papal decrees.
Indeed, the Papacy in formulating and promulgating these decrees had fully expected a new, successful, worldwide crusade, in which Christendom’s enemies would be vanquished and millions of unbelievers would be brought to Christ. They viewed it as a positive good.
Jihad at sea?
Consider all of the above in contrast to the curious new repackaging of the conflict of the Barbary Pirates as having its roots in jihad — a kind of Muslim holy war at sea. Over two years ago, a guy who called himself “Peter” commented on one of Neil’s posts with the typical sort of anti-Islamic screed we’ve grown accustomed to. But his post included some new accusations that I hadn’t heard before, contained, for example, in the unintentionally hilarious YouTube video that asks, “Why did they hate us in 1783?”
Here we have a newly constructed collective memory among those who seek to equate all followers of Islam with Islamic terrorists, who conflate all violence perpetrated by Muslims (even the 18th-century thugs who used piracy and the threat of piracy as part of a protection racket) with terrorism, and who would dearly love to drag us all into a war of civilizations. In this mythic past, the Muslims attacked us first, which simultaneously puts the blame on Islam while absolving the U.S. of all guilt.
By coining the term “Jihadist Piracy,” they retroject today’s radical Islamic groups into the past. They attacked us in 1783 — where “they” refers to all followers of Islam. And by affixing blame elsewhere and pointing to a casus belli in the distant past, the creators of this distorted memory provide an easy out. If anyone mentions the Iranian coup we engineered in 1953, they reply, “What about 1783?” If we point out that the CIA’s meddling in Afghanistan has had far-reaching negative effects that we’re still dealing with today, they reply, “What about the jihad on the Mediterranean Sea?”
Their argument, of course, is not simply “They started it!” The underlying assumption is “That’s how they are.” In other words, Islam is radically different from Christianity. Never mind the highly organized and systematic subjugation of the planet by European Christians. Never mind the crusades. Those events just “happened.” Never mind the international framework behind the discovery doctrine and the roots of modern racism and inequality. These things must be ignored, because Christianity is fundamentally a peaceful religion, whereas Islam is warlike and violent at its very core.
Proponents of the Jihadist Piracy theory point to a letter written by Thomas Jefferson after visiting with the ambassador of Tripoli. They claim this “smoking gun” provides proof of their motives.
We took the liberty to make some enquiries concerning the ground of their pretensions to make war upon nations who had done them no injury, and observed that we considered all mankind as our friends who had done us no wrong, nor had given us any provocation.
The Ambassador answered us that it was founded on the laws of their Prophet; that it was written in their Koran; that all nations who should not have acknowledged their authority were sinners; that it was their right and duty to make war upon them wherever they could be found, and to make slaves of all they could take as prisoners; and that every Mussulman [sic] who was slain in battle was sure to go to Paradise. (Jefferson, Diplomatic Correspondence of the United States of America, p. 605).
This would appear to be rather damning evidence, except for the fact that the petty rulers of the nations of Northern Africa were quite satisfied with payments in lieu of raiding non-Muslim ships. If their primary goal was to advance Islam, then we would have expected them to pursue all-out war to enlarge their territories and bring other nations under the yoke of Islam. The ambassador was, admittedly, using scriptural justification for piracy, but since his government was more than willing to receive protection money to allow safe passage, we know that their ultimate aim was to fill their coffers.
May we wonder if the United States government would ever have taken protection money from Native Americans in exchange for leaving them in peace? Perhaps for a time, but we know from history that none of the treaties with the aboriginal tribes ever held for very long. We can tell by its unrelenting behavior that the U.S. ultimately wanted and got total sovereignty over the land from the Atlantic to the Pacific. Similarly, I would argue that we can tell from the Barbary potentates’ consistent behavior that they ultimately wanted riches; consequently, they were just as content taking it in the form of bribes rather than extracting it by force.
“Peter’s” recommended YouTube video quotes Andrew Bostom, a medical doctor at Brown University, who has written a few books advancing the notion that every violent act in the Muslim world stems from jihad and that Islam is fundamentally flawed. In the eyes of his fans, any degree of skepticism is viewed as being in denial. On the far-right site, FrontPage.com, you can read his thoughts on the subject. In it, he quotes Joshua E. London, another darling of the right. You will find his book, Victory in Tripoli How America’s War with the Barbary Pirates Established the U.S. Navy and Shaped a Nation, frequently cited by Islamophobes and opportunistic neocons who desperately want a permanent, global war against Islam.
Whether you find their arguments compelling or not, please try to remember that the spread of Europeans and their religion did not just magically happen. The conquest of the Western Hemisphere, the colonization of Africa, and the economic imperialism imposed on most of the planet after the Second World War had their antecedents in an international framework based on the doctrine of our superiority over non-Christian, non-European, non-White people.
This worldview continues to reveal itself in statements among Western elites such as, “They aren’t ‘ready’ for democracy.” I invite you to Google “not ready for democracy” and marvel at how long our smug, condescending leaders have been saying this one. You’ll find that Africa isn’t ready, Egypt isn’t ready, Arabs aren’t ready, Muslims aren’t ready. Of course Palestinians weren’t ready for democracy; they keep voting for the wrong people.
Please don’t take my remarks as a defense or condemnation of either religion. They both have the capacity to do good and to do great harm. Christianity is more benign today than it has been in the past, although I must remind you that when people talk about American exceptionalism, they are operating under the delusion that God chose the United States to carry the torch of Western civilization. They’re forgetting our past as conquerors of the continent, as exterminators of natives, as masters of human chattel, as merciless rulers of overseas possessions (see, e.g., the Philippine–American War), as destroyers of nascent democracies (in Iran, Chile, Honduras, Nicaragua, etc.), as defenders of colonialism (e.g., in Southeast Asia) — all fine examples, no doubt, of what George Washington meant by “the benign influence of Christian Religion.”
People today are doing terrible, horrific things in the name of Islam, while at the same time vocal, nationalist, right-wing movements here in the West would like us to see all Muslims as the same, and to blame Islam itself as the problem — to view it as an intractable plague that must be eradicated. These noble Christian warriors frequently try to entice atheists to join their cause, with some success. But I think we need to be extremely careful about whom we associate with.
I’m all for a reformation movement within Islam that would seek to modernize the religion; for example, giving more rights to women, embracing humanism, reducing violence, tolerating other religions, etc. But we can’t force it from the outside; it will have to come from within Islam, just as Christendom’s reforms came from within.
We cannot excuse Islamic extremism, but at the same time we cannot ignore the contributing factors that have led people to embrace it, nor should we excuse ourselves from helping to create a world in which desperate, disaffected people choose the path of violence, war, and suicide. To ignore the causes of extremism is intellectually dishonest and potentially dangerous. For if we resort to a permanent, violent struggle against Islam itself, we will be turning our backs on reform, choosing instead to start an apocalyptic holy war — the final crusade that will end in sorrow and desolation.
For more background information on the case of Johnson v. M’Intosh, here’s a fascinating lecture by Professor Lindsay Robertson:
(Notice that Marshall’s decision forms the basis for Australian Aboriginal land rights, Mayan land rights, etc. Yet another successful American export.)
For more info on the Barbary pirates, see: In Barbary wars, did U.S. declare ‘war on Islam’? at PolitiFact.com.
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