Chief Justice John Marshall, who had received 10,000 acres in grants west of the Appalachians in return for fighting in the Revolutionary War, declared, invoking an obscure Norman law, that the land was "vacant" and therefore Euro-American deeds were legitimate. By 1832, he was declaring that all natives were "subordinate" to the U.S., a simple statement of colonialism, before the genocide of Western tribes had even begun. Marshall went even further and declared that natives "committed aggression" when they attempted to regain control of their land.

In 1823, the Christian Doctrine of Discovery was quietly adopted into U.S. law by the Supreme Court in the celebrated case, Johnson v. McIntosh (8 Wheat. 543). Writing for a unanimous court, Chief Justice John Marshall observed that Christian European nations had assumed "ultimate dominion" over the lands of America during the Age of Discovery, and that - upon "discovery" - the Indians had lost "their rights to complete sovereignty, as independent nations," and only retained a right of "occupancy" in their lands. In other words, Indians nations were subject to the ultimate authority of the first nation of Christendom to claim possession of a given region of Indian lands. [Johnson:574; Wheaton:270-1]

According to Marshall, the United States - upon winning its independence in 1776 - became a successor nation to the right of "discovery" and acquired the power of "dominion" from Great Britain. [Johnson:587-9] Of course, when Marshall first defined the principle of "discovery," he used language phrased in such a way that it drew attention away from its religious bias, stating that "discovery gave title to the government, by whose subject, or by whose authority, the discovery was made, against all other European governments." [Johnson:573-4] However, when discussing legal precedent to support the court's findings, Marshall specifically cited the English charter issued to the explorer John Cabot, in order to document England's "complete recognition" of the Doctrine of Discovery. [Johnson:576] Then, paraphrasing the language of the charter, Marshall noted that Cabot was authorized to take possession of lands, "notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery." [Johnson:577]

In other words, the Court affirmed that United States law was based on a fundamental rule of the "Law of Nations" - that it was permissible to virtually ignore the most basic rights of indigenous "heathens," and to claim that the "unoccupied lands" of America rightfully belonged to discovering Christian European nations. Of course, it's important to understand that, as Benjamin Munn Ziegler pointed out in The International Law of John Marshall, the term "unoccupied lands" referred to "the lands in America which, when discovered, were 'occupied by Indians' but 'unoccupied' by Christians." [Ziegler:46]

Ironically, the same year that the Johnson v. McIntosh decision was handed down, founding father James Madison wrote: "Religion is not in the purview of human government. Religion is essentially distinct from civil government, and exempt from its cognizance; a connection between them is injurious to both."

This type of legal history is the foundation for Churchill's devastating critique of U.S. government policies toward indigenous peoples in the United States. Struggle for the Land is a series of precise, factual case studies of, for example, the Iroquois efforts to reclaim their land in upstate New York (the entire city of Syracuse is on native land), and the Lakota refusal to accept any amount of money for the Black Hills. One of the most important facts in the book, though, is that Hitler used the United States treatment of Indians as a model for his genocide. Consequently in 1946, as the United States was preparing to sit in judgment on the Nazis at Nuremberg, the Indian Claims Commission Act was passed in order to provide a new veneer of legal rights to Indians, ostensibly giving them the right to sue for lost land if claims were based on "fraud, duress, unconscionable consideration, mutual or unilateral mistake," which, of course, they were.

In another section, Churchill describes the "radioactive colonization" of native land (i.e., the pursuit of mining rights for uranium (60 percent lies on native reservations), and oil and gas (20 percent on native reservations). Ninety percent of mining takes place on native land. In one concise chart, Churchill outlines 33 different corporations who have leases in areas in Montana, North Dakota, South Dakota, and Wyoming. There are more than 5,000 in the Black Hills alone. Locally, the Hanford plutonium plant leaks toxins from storage tanks into the fishing grounds of the Columbia River Yakima, leading to illness, sickened, malformed and dead fish, and a host of other problems.

The funds from leases are kept in "trust" by the government, and, of course, the tribes see little of them. This Northern Plains Lady, Elouise Cobell, is bringing the issue to the light of day in court. This is an excerpt from an article in 2004 Blackfeet Reservation Development Fund, Inc.