New Podcast and Into to my Written Work
Here is a recent podcast—released on 15 November 2024—that is followed by a written introduction to my book and some helpful links and blurbs about my work:
https://podcast.doctrineofdiscovery.org/season5/episode-04/
“All Christendom seems to have imagined that, by offering that immortal life, promised by the Prince of Peace to fallen man, to the aborigines of this country, the right was fairly acquired of disposing of their persons and their property at pleasure.” So claimed Georgia Senator John Forsyth in 1830. To this advocacy of what became the Trail of Tears, Rhode Island Senator Asher Robbins replied: “does our civilization give us a title to his right? A right which he inherits equally with us, from the gift of nature and of nature’s God. The Indian is a man, and has all the rights of man. The same God who made us made him, and endowed him with the same rights; for ‘of one blood hath he made all the men who dwell upon the earth.’”
We cannot change a past in which President Andrew Jackson was specifically warned by his secretary of war, Lewis Cass, in September of 1831, that without adequate preparations “great sufferings must be encountered upon the journey, and many will doubtless perish.” Within a matter of months one in five members of the Choctaw Nation were dead. And the killing, for that is what it was, went on for a decade as nation after nation was driven west and away from their ancestral lands. But we can and must repudiate and overturn the body of “law” that allowed these crimes and that oppresses and exploits the peoples of the Native Nations to this day by building on this and other poisonous precedents—especially the false claim of a “right” to dominate the Native Nations and their lands and to unilaterally ignore or override treaty obligations to them on the basis of a “plenary power” or “ultimate dominion” that simply does not exist in either the individual states or the United States according to constitutional law (properly construed).
In a famous political pamphlet in 1774, James Wilson (who I consider the principal architect of the Constitution) declared that “All men are, by nature, equal and free” that “no one has a right to any authority over another without his consent” and that “all lawful government is founded upon the consent of those who are subject to it.” Wilson recognized that the Native Nations had never consented to be governed by the United States and that the United States therefore had, as he told the continental congress in 1776, “no right over the Indians, whether within or without the real or pretended limits of any Colony.” Explaining the intentions behind what I have called the Treaty Supremacy Clause in the Pennsylvania ratifying convention in 1787, Wilson declared: “This clause, sir, will show the world that we make the faith of treaties a constitutional part of the character of the United States; that we secure its performance no longer nominally, for the judges of the United States will be enabled to carry it into effect, let the legislatures of the different states do what they may.”
Rather than work within a Wilsonian democratic framework, or for that matter even within a framework influenced by the common “Enlightenment” revulsion at the extreme brutality of Spanish colonization and its twisted justifications, Supreme Court Chief Justice John Marshall reached back over centuries in an incredible reactionary maneuver to found U.S. property law in Johnson v. McIntosh, in 1823, on the doctrine of Christian discovery. In this way, the treaty-guaranteed dominion of the Cherokee Nation, Choctaw Nation, Muscogee Nation, Chickasaw Nation (and many others) was reduced to a mere right of “occupancy” by a unanimous (although profoundly mistaken) United States Supreme Court.
According to Marshall’s opinion in Johnson, 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” over the land and a “right” to dominate the Native peoples—a “degree of sovereignty” over them—to be in their government.
In a famous sentence, Marshall claimed that “Conquest gives a title which the courts of the conqueror cannot deny.” In fact, far from being unable to deny a fraudulent claim of conquest on the part of the “conqueror,” the Treaty Supremacy Clause of the Constitution mandated that the judges of the Supreme Court adopt such a position of denial toward any claim at odds with America’s treaty obligations to the Native Nations. The heart of Marshall’s fraudulent claim in Johnson—a claim adopted in violation of his oath of office—was exclusively a product of Marshall’s turgid imagination without foundation in law or fact. This was the assertion that “discovery” somehow is “conquest.” By deliberately lying about the past—and I explore and document Marshall’s mendacity at some length in my book—Marshall and his court paved the way for repeated genocides and land thefts.
It is of limited importance whether the “plenary power” that the United States claims over the Native Nations of much of Turtle Island is seen to derive from the doctrine of “Christian discovery”—as articulated in the assertion in Johnson v. McIntosh of an “ultimate dominion” in the United States, and a “necessarily diminished” Native sovereignty, consequent on some representatives of a “Christian people” showing up on this side of the Atlantic—or is seen rather as somehow appearing sui generis in the subsequent claim in Cherokee Nation v. Georgia, in 1831, that the Native Nations are “completely under the sovereignty and dominion of the United States.” I do not intend to suggest that the doctrine of Christian discovery must be seen as the only possible origin of a politics of domination and dehumanization. But the doctrine of discovery was certainly the source Marshall began his evil work with and from: the foundation for the system to which the Native Nations have been subject since the Marshall trilogy. Clearly, more recent Supreme Court decisions have dropped any reference to “Christianity” from the doctrine of discovery that the Court continues to articulate, and continues to appeal to, as a source of “plenary power” over the Native Nations (by continuing to cite Johnson and cases that depend on Johnson).
The dishonesty of Marshall’s claim in Worcester v. Georgia, in 1832, to have treated the Indians fairly—to have treated them the same as “the other nations of the earth”—is evident in even a cursory examination of Worcester in the context of Johnson and Cherokee Nation. Nothing in Worcester repudiated the claim of an “ultimate dominion” or a complete “sovereignty and dominion” over the Native Nations that Marshall had claimed for the United States in the earlier cases; a claim that the United States made with regard to no other nations in the world. Nothing in Worcester repudiated Marshall’s claim that the Native Nations were “domestic” and “dependent.” Nothing in Worcester respected the right of the Cherokee Nation as an independent foreign state to bring an action in the Supreme Court under its original jurisdiction. Nothing in Worcester respected the right of the Cherokee Nation—as a Tribe (a legal entity specifically mentioned in the Constitution)—to maintain an action in the Supreme Court under its original jurisdiction simply because the United States had guaranteed them their dominion as part of the supreme law of the land and that treaty-guaranteed dominion was being violated by a state of the union.
Worcester allowed Marshall—after he had, in effect, repudiated the Treaty Supremacy Clause in Cherokee Nation—to pretend to embrace treaties as the supreme law of the land. Here it is essential to stress that Marshall’s claim in Worcester is that the Cherokee Nation are at the “rank” of treaty partners and not that they have any constitutional rights that they can enforce in the courts as a consequence of their treaties or as a result of their “rank.”
In the conclusion to Cherokee Nation v. Georgia, Marshall declared, in words that would have sickened James Wilson: “If it be true that the Cherokee Nation have rights, this is not the tribunal in which those rights are to be asserted. If it be true that wrongs have been inflicted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future.” Denying the state of Georgia the right to unilaterally commit genocide in Worcester, while covertly sanctioning the claim that the Congress had such a “right,” Marshall acknowledged that the Cherokee Nation did in fact have some traditional and “natural” rights while continuing to deny that they had any constitutional rights derived from the treaty-obligations of the United States.
Arguments over Genocide—now available in paperback—is a history of the fight against Cherokee Removal in the nineteenth century. It also addresses some of the ways the arguments of the advocates and appeasers of that genocide continue to determine American law, policy, and conduct to this day. It is about the ways knowledge of the arguments of the opponents of that genocide, and of the framers of the Constitution, might be revived to transform American relationships with the peoples of the Native Nations and perhaps to transform the American people as well.
We as a people have at least some sense of our historic wrongdoing towards the Native Nations—a sense that spans most of our political spectrum and combines with a tangible feeling of sympathy for the cause of bringing an end to the systematic injustice with which the United States has treated these peoples. What might we become as a people if we were to truly care for the larger whole that embraces all life beginning by caring for justice for the Native Nations by listening to them as to what they most want.
The arguments of the opponents of the genocide of the 1830s have largely been forgotten, at least among non-Native people. These arguments center on the proposition that Native Nations are independent foreign states, as the Cherokee Nation told the Supreme Court in 1831, “not owing allegiance to the United States, nor to any state of this union, nor to any other prince, potentate, or state, other than their own.” This is a truth that the advocates of genocide and their appeasers—then and now—have united in denying.
As George Manuel, chief of the National Indian Brotherhood (known today as the Assembly of First Nations), has written: “Perhaps when men no longer try to have ‘dominion over the fish of the sea, and over the fowl of the air, and over every living thing that liveth upon the earth,’ they will no longer try to have dominion over us. It will be much easier to be our brother’s keeper then.”
If you click here:
https://ethicspress.com/products/arguments-over-genocide/?GENOCIDE
it will take you to the publisher’s webpage where you can read full reviews (see the excerpts below) and purchase the book, with 40% off the hardback price, and 20% off the paperback, simply by using that link (you can click the small arrow next to “binding” to access the paperback).
Here is a link to a radio interview and a YouTube video:
https://radiokingston.org/en/broadcast/first-voices-radio/episodes/steven-schwartzberg-guest
And here is a link to an essay (about a dozen pages):
Selected review excerpts for Arguments Over Genocide
“This compelling study unravels how nearly two centuries ago, the Supreme Court developed doctrines of Christian discovery that superseded the laws of the time, including existing American law, and laid the foundation for genocidal crimes and what is now considered the legal basis for administering the Indigenous peoples who remain.” —Noam Chomsky
“Arguments Over Genocide will reward attentive readers whether they are new to the field of U.S. policy toward the Cherokee and other Indigenous Nations, or have studied it for decades… [it] will surprise and inform even people who have spent their lives studying these issues.”—Thurman “Lee” Hester, Jr., author of Political Principles and Indian Sovereignty.
“I am surprised as I write this: the most compelling new work of theology I have read in years is embedded in a historian’s exploration of 19th century legal debates. Worthy of its alarming title, Arguments Over Genocide is an urgent book that every clergyperson and seminarian should read.”—Matt Fitzgerald, Senior Pastor, St. Pauls, United Church of Christ, Chicago.
“As critics lay supine, the Supreme Court under John Marshall crafted the ‘Marshall Trilogy’… Examining Marshall’s premises, Schwartzberg demolishes them, one by one, demonstrating their honeyed lethality and urging a principled revision of American jurisprudence.”—Barbara Alice Mann, Professor of History, University of Toledo, and the author of The Gantowisas: Iroquoian Women.
“This is a bracing, learned, and eloquent study of words and actions that mattered -- that still matter -- and the relationship between them. I learned much.”—David Waldstreicher, Professor of History, City University of New York, and the author of The Odyssey of Phillis Wheatley: A Poet’s Journey through American Slavery and Independence.
“This book is more than a mere scholarly exploration. It is a gift. Hopefully, it is part of a roadmap forward.” —Randy Kritkausky author of Without Reservation: Awakening to Native American Spirituality and the Wisdom of Our Ancestors.
“Arguments Over Genocide [provides] a global spiritual philosophy to show that there is a way toward freeing the world from ideas and structures of domination that have constituted the past 500 years of law, economics, and morality.”—Peter d’Errico, Professor Emeritus of Legal Studies, University of Massachusetts at Amherst, and the author of Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples.
“In the end, Schwartzberg’s argument is an important one for our country to grapple with.” —Chris Hammer, The Christian Century, November 2024