The report continued by alluding to Genesis 1:28. (This Old Testament passage reads: ”And God said unto them, Be fruitful and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air and over every living thing that moveth upon the earth.”)

Invoking Genesis 1:28 as a frame of reference, the authors of the report stated: ”To go forth, to subdue and replenish the earth, were received [by ''Christian and civilized nations''] as divine commands or relied on as plausible pretexts to cover mercenary enterprises by the Governments which gave the authority and [sent forth] the adventurers who first discovered and took possession of the New World.”

The report authors could not say whether the ”Christian and civilized nations” had been ”right or wrong” in their use of the ‘’sacred text” [the Bible]. Nonetheless, in their view, it was on the basis of the Old Testament’s directive ”to subdue and replenish the earth,” that ”the nations of Europe” took ”possession … of the entire habitable portion of this continent … divided out, and held it originally by the right of discovery as between themselves and by the rights of discovery and conquest as against the aboriginal inhabitants.”

Thus, according to the 1830 congressional report, behind the ”right or discovery” of doctrine of discovery are the two Old Testament directives - ‘’subdue” the earth, and ”have dominion” over every living thing. It follows, then, that these two biblical directives also serve as the context of the legal categories ”ultimate dominion” and ”Indian title” of ”occupancy” (otherwise known as ”aboriginal title”), written into U.S. law by the Supreme Court in the Johnson v. M’Intosh ruling on the basis of the doctrine of discovery. The Old Testament context is the dimension of federal Indian law that the U.S. government has successfully kept hidden from view under the guise of ”the law.”

This means is that every time the Supreme Court has invoked the Johnson ruling, or the doctrine of discovery, it has simultaneously, even if unconsciously, invoked the Old Testament background of what I call the doctrine of Christian discovery. The Court most recently cited the discovery doctrine in 2005, in footnote number one of City of Sherrill v. Oneida Indian Nation of New York.

In the 1990s, the State of Nevada filed its legal brief in Nevada v. Hicks (the case was decided by the Supreme Court in 2002). Seventeen other states filed amicus briefs supporting Nevada. All 18 states relied heavily on the doctrine of discovery. The 1830 congressional report documents a key point regarding these legal briefs: The tacit background of the states’ argument was the Old Testament paradigm that gave birth to the doctrine of Christian discovery, and that paradigm continues to be operative today in U.S. law.

The Old Testament context of the doctrine of discovery has also greatly influenced how every Indian treaty with the United States has been interpreted by the United States. Vine Deloria Jr. said that ”the treaties with Native Americans have been negotiated, ratified, and concluded under a cloud of impotence so clear that promises [made to Indians] have dissolved into rhetoric when put to the judicial test.” The Old Testament context of the discovery doctrine solves the mystery as to why Indian treaties have not proven more beneficial to Indian nations despite the fact ratified treaties are classified in the U.S. Constitution as ‘the supreme Law of the land.’

As Deloria pointed out, federal Indian law ”actually begins with a sleight-of-hand decision [the Johnson ruling] that proclaimed that the United States had special standing with respect to ownership of land on which the Indigenous Peoples lived.”

Indian treaties are not interpreted by the United States in keeping with the way the Indian people understood the treaties when they were made. In other words, those treaties are not interpreted within the context of a particular Indian nation’s language, culture, spiritual traditions and multigenerational ecological relationship with their lands. Instead, Indian treaties are interpreted by the United States within the Old Testament context of the doctrine of discovery. It is within this religious context that Indian rights ”to complete sovereignty as independent nations,” are said to have been diminished by what we have now identified as the Old Testament premised doctrine of discovery.

The concept of ”ultimate dominion” in the Johnson ruling is the lynchpin of the Christian nations theory that has so effectively worked to the detriment of Indian nations. This pattern of thinking frames the category ”aboriginal title” (or ”Indian title”) as a title of ”mere occupancy.” Once ”dominion” (a right of domination) was presumed by the U.S. Supreme Court to be in the United States, as ‘ultimate Sovereign,’ the Indians were said to only have a right to continue occupying their lands subject to U.S. sovereignty and dominion, or ”plenary power.”

U.S. federal Indian law is traced to the tenet of the law-system of Christendom, that a nation was not entitled to be free and independent unless its people were baptized Christians. In keeping with this tenet, Chief Justice Marshall never said in the Johnson ruling that the American Indian nations had been conquered. On the basis of the royal charters of the colonial ventures of England, he said that the Supreme Court and rest of the U.S. government would pretend that the mere ”discovery” of ”heathen” lands by ”Christian people” is the same as a conquest of the so-called heathens. Even now in the 21st century it is this dehumanizing paradigm of ‘’subdue” and ”dominion” that continues to undermine the original independence of our respective indigenous nations.

Steven Newcomb is indigenous law research coordinator at the Sycuan Education Department on the reservation of the Sycuan Band of the Kumeyaay Nation in San Diego County, co-founder and co-director of the Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery,” (Fulcrum, 2008).

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