Clarence Thomas is Probably Not an Ally

Fighting Federal Anti-Indian Law

My friend and mentor Peter d’Errico asks “Who’s Afraid of Clarence Thomas?”

Who's Afraid of Clarence Thomas?

and notes that there is some intellectual substance to Thomas’ critique of what the American Bar Association calls “federal Indian law” as being “schizophrenic.”  Peter indicates that the US Constitution mentions “Indians” three times and that Thomas, deeply aware of each of these mentions, finds no basis in any of them for a plenary power over Indian tribes.  There is, however, a fourth mention which neither Peter nor Thomas addresses and which shows, conclusively, not only that there is no power over the Native Nations in the US Constitution but that these nations are recognized in the text, and according to the intentions of the framers, as independent sovereign states with whom the United States has binding treaties whose obligations the United States is not at liberty to unilaterally alter.

Although one cannot be sure, Thomas’ failure to come to terms with the deep implications of this fourth mention for “states’ rights”—a failure indicated by his continued belief in the existence of “states’ rights”—suggests to me that Thomas is probably not an ally; that even if he does not agree with John Marshall’s reactionary jurisprudence he is probably opposed to the revolutionary jurisprudence of James Wilson and his allies that informs the Constitution.

To understand the fourth mention of the Native Nations in the Constitution, one must reconstruct the reasoning of the framers with regard to treaties—one must understand why they were recognized as the “supreme law of the land.”

In a nutshell, at an idealistic level, the Treaty Supremacy Clause originated in a desire to maintain peace and covenantal relations with all nations.  At a more pragmatic level, it originated in the failure of James Wilson and his allies to secure a Congressional veto of state legislation.  Such a veto was needed for a variety of reasons, not least to prevent the individual states from violating the terms of the Treaty of Paris of 1783 by which the Revolutionary War had been concluded.

Let’s look more closely (page numbers in parentheses are to those in my book, Arguments over Genocide). Immediately following the convention’s failure to secure a Congressional veto over state legislation on 17 July 1787, the convention voted unanimously to approve the following motion by Maryland’s Luther Martin: “that the Legislative acts of the U.S. made by virtue & in pursuance of the articles of Union, and all treaties made & ratified under the authority of the U.S. shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their Citizens and inhabitants—& that the Judiciaries of the several States shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwithstanding” (176).  Here the key word to highlight is “ratified” which, if it had been maintained, would have excluded treaties with the Native Nations that had already been made but had not been considered subject to ratification.  By adopting instead the language: “all Treaties made, or which shall be made…” (55) the constitutional convention specifically included all treaties with the Native Nations as part of the supreme law of the United States.  This is the fourth, and somewhat hidden, mention of “Indians” in the Constitution.  It was explicitly recognized by Supreme Court Chief Justice John Marshall in Worcester v. Georgia in 1832 (79).

That all a foreign state in the sense of the Constitution was to the framers was another state possessing dominion—and that the Indian Tribes qualified as such—is clear from President Washington’s successful appeal to the Senate of the United States in 1789 to establish the practice of ratifying treaties made with the Native Nations: “It doubtless is important that all treaties and compacts formed by the United States with other nations, whether civilized or not, should be made with caution and executed with fidelity” (12).  The issue, in other words, was simply one of good faith versus bad faith: were treaties with a Native people worth the paper they were printed on?  The issue was not obscure to the Senate which agreed to Washington’s appeal.

It was John Marshall, betraying the treaty-guaranteed dominion of the Cherokee Nation, Choctaw Nation, Muscogee Nation, Chickasaw Nation (and many others) in Johnson v. McIntosh, in 1823, that established what Peter d’Errico rightly calls federal anti-Indian law and paved the way for the Trail of Tears and subsequent land thefts and genocides.  It is John Marshall’s calling this treaty-guaranteed dominion a mere right of “occupancy” that is the taproot of the evil.  When this pernicious nonsense was criticized, the Supreme Court doubled down on that wrongly decided opinion in Cherokee Nation v. Georgia, in 1831, by deciding—again wrongly—that no Native Nation has a right to bring an action in the courts of the United States in defense of their treaty rights because they are (allegedly) “domestic” and “dependent.”

The claim of United States v. Curtiss-Wright, that “The power to acquire territory by discovery and occupation…[is] inherently inseparable from the conception of nationality” is not only historically inaccurate as an account of how the United States acquired territory prior to the thefts and genocides that began in the 1830s but disguises the novelty and anti-constitutional character of the doctrine of Christian discovery whereby these thefts and genocides were sanctioned by the Supreme Court.

As a unanimous Supreme Court put it, in 1823, in Johnson v. McIntosh, the mere presence of representatives of a “Christian people” on this side of the Atlantic “necessarily diminished” the sovereignty of the “heathens”—the Native peoples—and gave an “ultimate dominion” to the discoverers whereby they claimed a “title” to the land and a “right” to dominate the Native inhabitants—a “degree of sovereignty” over them—to be in their government.

It is an open question in my mind as to how Clarence Thomas views this claim that Christians have magic eyes that can acquire sovereignty by gazing.  I say this because there is no other basis for “states’ rights.”  The claim that the individual states of the Union are, or ever were, possessed of untrammeled sovereignty is dependent on a belief in magic Christian eyes.  Certainly there was no such untrammeled sovereignty under the British Constitution.  Where then did it (allegedly) originate?  The answer is that after James Wilson and his allies had claimed that all men are born “equal and free” (65) and that the American people have the right under the law of nations to do what all other nations may do of right, the advocates of “states’ rights” started to claim that their states (formed within the borders of chartered colonies deriving their “authority” from “inheritance” from a king who allegedly derived his authority on this continent from Christian discovery) were sovereign within their borders.  Many of them made this claim in order to defend slavery or at least to be out from under the natural law and law of nations obligations that James Wilson and his allies sought to respect and, if necessary, impose.  Here is Wilson outlining his position to the Constitutional convention.  I am inclined to doubt that Clarence Thomas would agree with the jurisprudence behind this comment of Wilson’s from 8 June 1787:

“Among the first sentiments expressed in the first Cong^s one was that Virg^a is no more, that Mas^ts is no [more]. That P^a is no more &c.  We are now one nation of brethren.  We must bury all local interests & distinctions.  This language continued for some time.  The tables at length began to turn.  No sooner were the State Gov^ts formed than their jealousy and ambition began to display themselves.  Each endeavored to slice from the common loaf, to add to its own morsel, till at length the confederation became frittered down to the impotent condition in which it now stands.  Review the progress of the articles of Confederation thro’ Congress & compare the first and last draught of it.  To correct its vices is the business of this convention.  One of its vices is the want of an effectual controul in the whole over its parts.  What danger is there that the whole will unnecessarily sacrifice a part?  But reverse the case, and leave the whole at the mercy of each part, and will not the general interest be continually sacrificed to local interests?” (134)