Roots of Contemporary Genocidal Law in North America

“The Gospel of Conquest” – John Collins Lecture – November 19th, 2015, Oregon Ecumenical Ministries

‪“Settler-Colonialism and Genocide Policies in North America” Roxanne Dunbar-Ortiz, October 27, 2015 – Simon Fraser University – Institute for the Humanities

Introduction by Treothe Joseph Bullock

Memory is a radical act in the modern era. Yet, it is essential to foundational knowledge of ourselves and one another. Memory is often a creative act fraught with the sculpting’s of desire. When memory is painful or uncomfortable we are vulnerable to denying or avoiding it. A key to free empowerment of healthy community exists within honest encounters of context through our individual and collective humanity. Questions can include – Where have we come from? What have been the sources of formative forces within our communities? Whose memories and experience has guided and informed our community norms? Whose memories and experience have been purposefully ignored or repressed? These contexts can be revealed in encounters of personal and collective memory as revealed in oral traditions of the commons. They can also be revealed in peer reviewed legal and historic scholarship. The colonial laws explored here have roots at least as far back as the 11th century yet are cited by the US Supreme Court as recently as 2009 to limit Tribal Rights.

For most humans living in what Indigenous First Peoples commonly refer to as Turtle Island and colonial settlers refer to as North America, facing collective formative memory is a challenging task. There is an uncomfortable living legacy of historic and ongoing genocidal violence that has not been fully faced and come to terms with in the circles of the commons. It is a landscape laden with trauma and distorting repressions of truth. These distortions underlie norms of society and economy as most living humans have experienced them. On closer view, it can be seen that these institutional “norms” are founded on European Racism, Sexism and Christian Zealotry – which have been encoded into law and state policy “legitimizing” both historic and contemporary colonial genocide – laws which stand and continue in their use into the current moment. To face this living history is to face foundations of the structures of state and economic power. These legal foundations of the Nation State violate what in the popular mind, has become unacceptable abuse of fundamental human rights. This dissonance between public modern ideals and legal/economic truth is huge and represents a challenge, which when faced honestly, demands a re-foundation of basic political and economic structures and agreements.

Scholars and allies from within Indigenous communities of Turtle Island are gaining in the power to communicate this history and the legacy of active forces within the colonial powers of Canada and the United States of America – using the language and history of colonial legal structures and law to articulate how genocidal law has informed wholesale and continuing genocidal violence. These legal realities inform all ideas of property, title and ownership within the colonial states. This legal scholarship and the telling of these legal continuums poses great difficulties, as it is foundational to the entirety of economic structures rooted in what have become Nation State economies and in turn the larger global economies. For the most part “colonial settlers” have not been educated about these roots of law and have been kept similarly ignorant of indigenous legal orders, indigenous land title and the treaty obligations arising out of status as “settlers” in a land with elder indigenous “title” holders. The US Supreme Court itself has stated that a “treaty was not a grant of rights to the Indians, but a grant of rights from them – a reservation of those not granted.” (US Const. art. VI; United States v Winans, 198 US 371 (1905)). Where are citizens of the US educated on their treaty responsibilities and the unilateral colonial legal thinking they were entered into with?

To face these truths is to face the legitimacy of law in the Nation State system. Legitimate law has the requirement to protect individuals and communities from those individuals or groups, from within or without, who have or are doing harm. When law enforces harm on wholesale genocidal levels it loses its legitimacy. When illegitimate bodies of law exist among institutions that hold monopolies of violence and are operated by “elites” who benefit from these laws and monopolies, it is left to people to rely on the arts, education and grass roots activism to foster public discourse to transform constitutional agreements, which inform the body politic. It is the obligation of the people to exercise their responsibility to transform bodies of governance to represent their true interests. The enthusiastic response and attendance at these two sold out events expresses that we live in a time that may well be ready to move toward re-foundations that stop, heal and repair, and prevent genocidal violence within North America.

These two events, which occurred in the autumn of 2015, brought together native scholars, ecumenical religious leaders and academics, together with larger colonial settler and native community members to shine light on these realities. Foundational to both events was an exploration of how 15th Century Papal Bulls have become a part of ongoing international and national law that Nation States claim as legitimizing their claims to land title and the extinguishment of indigenous title.

The first, which the author was personally present for, was “The Gospel of Conquest” – the 2015 Collins lecture presented by Ecumenical Ministries of Oregon.

The second was ‪“Settler-Colonialism and Genocide Policies in North America” Co-sponsored by SFU’s Vancity Office of Community Engagement, J.S. Woodsworth Chair in the Humanities, First Nations Studies, and Department of History, and UBC’s First Nations and Indigenous Studies Program and Institute for Critical Indigenous Studies.

Neither of the talks looks farther back to the process which feudalism (or pre feudal colonial Roman law) played in disrupting indigenous legal orders of Europe and which led to the legal systems that emerged out of Europe through global colonialism informing the nation states of the planet. The feudal system replaced indigenous legal orders based on community centered restorative justice practices with for profit legal systems established by those with a monopoly of violence over indigenous communities. These legal systems are rooted in a branch of feudal law based on the “rights of the strongest”. Restoration of harm to individuals and communities was replaced with punitive seizures of land title and property, and exclusion from access to sources of biological necessities and the trade of such necessities. This legal system became a source of revenue and wealth for “elites”. This feudal system was viralized by the early European Monarchs, in cooperation with the Roman Catholic Church. Contemporary Nation States of all kinds use these legal systems to consolidate control of land title and markets by granting certain “rights” to the people while leveraging the use of law to monopolize access to necessities of biology and concentrate wealth among political and economic “elites”. Just as non White Christian men, non property owning men, and women were excluded from these bodies of rights for centuries – the earth’s indigenous biological communities largely remain “rightless” within dominant legal systems. Nation States of the current system claim possession of all land title and grant individual titles at their will – based on ideas of property which are dissonant with all indigenous communal valuations of land as sacred trust. What these talks both do however is clarify the racism and zealotry foundational to the supposed legal legitimacy of the Nation State. In these talks is a revelation of the reality of Empires Wearing No Clothes – revealing the violence and betrayal of humanity foundational to the pretense of “legitimacy” which exists for the nation state legal order – particularly from the perspective of more ancient living organizations of human community – those based on fidelities to indigenous experience and values.

The Gospel of Conquest – the 2015 Collins lecture presented by Ecumenical Ministries of Oregon.

Full Unedited Recording of The Gospel of Conquest Lecture – Please see the times on the Lecture Program notes to listen in with specific speakers.

Lecture Program

Welcome by Jan Elfers, interim executive director of EMO;

Notes –

comes clear at about :23 talking about the day and intro – 2:18

The Rt. Rev. Michael Hanley, Bishop of the Episcopal Diocese of Oregon

~ 2:31

~ 6:08 intro of co moderator Woodley

Prayer by Marcus L. Luke II (Umatilla)

8:48 – 14:48 Including words about how it was a colonial process that named a spiritual way of life religion…

Song by Dr. Cornel Pewewardy (Comanche/Kiowa)

16:02 – 23:32 spoken word

23:34 – 25:54 honor song

25:55 – 28 spoken word

Honoring by The Rev. Dr. Randy Woodley (Keetoowah Cherokee)

29:00 – 32:02 recap of the day work

History of the Collins Lecture by The Rev. Dr. Pat Ross

32:16 history of the lecture and introduction of the speakers…

Robert J. Miller
Robert J. Miller (Eastern Shawnee)

Lectures by Robert J. Miller (Eastern Shawnee),

34:40 – 1:02:03

 

George (Tink) Tinker (Wazhazhe, Osage Nation)
George (Tink) Tinker (Wazhazhe, Osage Nation)

 

 

 

George (Tink) Tinker (Wazhazhe, Osage Nation)

1:02:03 – 1:25:26 Intro & Talk

 

Paddle
Paddle designed and made by Clan Chief Adam Dick – Kwaxsistalla (Kwaxkwaka’wakw) for the journey to the “Gospel of Conquest” John Collins lecture, is shared during Kim Recalma-Clutesi’s (Kwagiulth/Pentlatch) lecture.

 

 

 

 

 

 

 

 

 

 

 

Kim Recalma-Clutesi (Kwagiulth/Pentlatch)

1:26:04 – 1:52:12 Intro & Talk

 

Honoring Ceremony by The Rev. Dr. Randy Woodley (Keetoowah Cherokee)

IMG_3720
“Gospel of Conquest” Q & A Panel

Question & Answer Session with Lecturers
 Moderated by The Rev. Dr. Randy Woodley (Keetoowah Cherokee)

1:52:12 – 2:10:30Version 2

 

IMG_3724 (1)
Clan Chief Adam Dick – Kwaxsistalla (Kwaxkwaka’wakw) with friends & family

Closing Song by Clan Chief Adam Dick – Kwaxsistalla (Kwaxkwaka’wakw)

2:10:30 – 2:14:51

 

Ecumenical Ministries of Oregon – Gospel of Conquest – Collins Lecture 2015 Website

_____________________________

‪“Settler-Colonialism and Genocide Policies in North America” Roxanne Dunbar-Ortiz,

Co-sponsored by SFU’s Vancity Office of Community Engagement, J.S. Woodsworth Chair in the Humanities, First Nations Studies, and Department of History, and UBC’s First Nations and Indigenous Studies Program and Institute for Critical Indigenous Studies.

Simon Fraser University Event Website

__________________________

Addendum:

These are historic full house events which occurred in the autumn of 2015. They are significant representations of a growing movement of invitations from “colonial settler” religious and educational institutions in the Americas to invite and listen to First Peoples / Native scholars experience. Native scholars shared their reading of the use of religious and race based legal doctrines to implement Eurocentric Empire building in the “Americas”. The European “Doctrine of Discovery” which was modified by the United States to become the legal principal of “Manifest Destiny” was also analyzed. These legal strategies, which have become accepted parts of international Nation State law are not simply historic – they remain intact and are continuing aspects of a long campaign of violence against indigenous communities.

In the first gathering represented here, the details of these strategies and a living contrast of indigenous legal orders is shared. The term genocide is not used directly though it is illustrated and implied in the sharing of experience. This is particularly poignant in a year in which there was headline news about history professors who deny the existence of genocide in the America’s colonial or contemporary experience and native students banned from college classrooms for calling out this denial.

Miller, the first speaker, has outlined 10 elements to the Doctrine of Discovery; (pp. 6 – 8 in his book Native America, Discovered and Conquered) which were well understood in the formation of the United States:

  1. First Discovery;
  2. Actual Occupancy and Current Possession;
  3. Preemption/European title;
  4. Indian title;
  5. Tribal limited sovereign and commercial right;
  6. Contiguity;
  7. Terra Nullius;
  8. Christianity;
  9. Civilization;
  10. Conquest.

In the second gathering a very specific reading of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide Paris, 9 December 1948 is given by scholar Roxanne Dunbar-Ortiz, author of An Indigenous Peoples’ History of the United States. She represents evidence of both historic and contemporary acts committed in violation of all 5 acts of genocide as listed in Article II of the convention and levels of engagement as defined in Article III. A major point she makes is that the convention does not simply require states to act in punishing genocide but also to prevent genocide where incitement or complicity are involved. Awareness of the existence of the Doctrine of Discovery, as existent law, and it’s continued use in what she convincingly argues is ongoing genocidal violence, leaves us all responsible to be actors in repudiating and ending the acceptance of the Doctrine as legitimate.

Article I

The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.

Article II

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such :

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

Article III

The following acts shall be punishable:

(a) Genocide;

(b) Conspiracy to commit genocide ;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide ;
(e) Complicity in genocide.

 

To be aware of historic and ongoing crimes against humanity is one thing. To actually stop and reform them when enacted by the most powerful contemporary empire builder, the United States, is another. If every citizen who becomes aware of this legacy puts their shoulder to the work, it will become a lightened work, certain to free all of our spirits.

Below, is the thinking of a legal scholar who has thought and written about the impacts of the Doctrine of Discovery and strategies to move towards it’s repudiation within the United States.

 

THE DOCTRINE OF DISCOVERY AND THE ELUSIVE DEFINITION OF INDIAN TITLE by Blake A. Watson

On April 15, 2011, the Lewis & Clark Law Review hosted its Spring Symposium, entitled “The Future of International Law in Indigenous Affairs: The Doctrine of Discovery, the United Nations, and the Organization of American States.” While the Symposium participants agree that the doctrine of discovery should be rejected, they disagree on the impact of the discovery doctrine on native land rights in the United States. This Article examines the differing views of Indian title. Specifically, it contrasts the “limited owner” view of Indian title, under which Indian tribes retained nearly all of their proprietary rights, subject only to the government’s exclusive right of preemption, with the “limited possessor” view of Indian title, under which Indian tribes lost ownership of their lands by virtue of European discovery. The Article concludes that, although the “limited owner” view of Indian title is preferable to Indian nations, the Supreme Court has nonetheless adopted the “limited possessor” view. The Article further concludes that there is little downside to acknowledging that the Supreme Court has adopted the harsher “limited possessor” conception of Indian title, and that by doing so, opponents of the doctrine of discovery may be better positioned to secure its repudiation.

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