Indigenous Peoples and Human Rights

June 25, 2023

Justice Kavanaugh May Not Realize It But His Opening Statement is Premised on the Doctrine of Discovery

Navajos at Bosque Redondo, Fort Sumner, New Mexico

Justice Kavanaugh May Not Realize It But His Opening Statement is Premised on the Doctrine of Discovery

Steve Melendez, Paiute 
President, American Indian Genocide Museum
Censored News

On June 23, 2023, Justice Kavanaugh delivered the opinion of the Court: “In 1848, the United States won the Mexican-American War and acquired vast new territory from Mexico in what would become the American West. The Navajos lived within a discrete portion of that expansive and newly American territory.”

This was Justice Kavanaugh’s opening statement so I would first like to ask him, ”What does Mexico have to do with the Navajos who have lived on this land for thousands of years?” You can’t get land title from someone who does not own it.

This is exactly like Congressman Isaac C. Parker in 1872 when he wrote bill H.R. 2635 which said,

“...The territory now in the possession of the several tribes (in Oklahoma) a part of the Louisiana Purchase, by which soil and sovereignty passed to the United States...this doctrine is clearly established in the case of Johnson vs. M’Intosh...” This doctrine of which he spoke is the Doctrine of Discovery. This is the 1823 Supreme Court decision that cited “Papal Bulls” which were proclamations of the Pope granting land title to European explorers; never mind that there were people already living there.

Perhaps Justice Kavanaugh can tell me, “What does the Louisiana Purchase from France have to do with the Indians living in Indian Territory?

Actually, Congressman Parker told us what the Doctrine of Discovery would do to the Indians who ended up there through Andrew Jackson’s Indian Removal Act of 1830. He wrote, “...but we are equally clear the exercise of such power would involve the repeal or violation of all the treaties made with these Indians.” And they call us ‘Indian Givers’!

What we are dealing with is white supremacist colonial law and 200 years of Supreme Court Justices performing the juggling act of keeping either the Doctrine of Discovery or Indian Sovereignty up in the air at all times. It is either one or the other because holding both would cancel each other out.

Justice Kavanaugh wrote, “In light of the treaty’s text and history, we conclude that the treaty does not require the United States to take those affirmative steps. And it is not the Judiciary’s role to rewrite and update this 155-year-old treaty. Rather, Congress and the President may enact—and often have enacted—laws to assist the citizens of the western United States, including the Navajos, with their water needs.”

The text and history were this: Gen. Carleton ordered Col. Kit Carson to kill every male Navajo capable of bearing arms who did not surrender and capture the women and children and hold them prisoners.

In 1863 there were 301 Indians killed,87 wounded and 703 captured. Carson like Custer employed the “winter campaign”, following pony tracks to villages and attacking at dawn. On January 23,1864 Carson reported from the Canyon de Chelly, ‘Killed 23; captured 34; voluntary surrender 200; captured 200 sheep’. That year about 8,000 made the “Long Walk” To the Bosque Redondo to join the almost 1,000 already there for four years of confinement at Fort Sumner.

Justice Kavanaugh may not think it is the Judiciary’s role to rewrite and update a 155-year-old treaty, but it is his role not to base his opinions on a 200-year-old racist, white supremacist colonial law.

Supreme Court rules against Navajo Nation in water case

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