In 1901, the U.S. Supreme Court delivered its decision in the case Barker v. Harvey 181 U.S. 481. The case involved a tract of land known as Warner Ranch, in Southern California. The Court was called upon to decide whether the Native people, the Cupeños, who had a long standing traditional relationship with that area had a right to remain on the land despite two Mexican land grants. “The land in question,” said the Court, “is within the limits of the territory ceded to the United States by the Treaty of Guadalupe Hidalgo, February 2, 1848.” The Barker’s were asserting a title to the Warner Ranch property based on a land patent issued to John J. Warner on January 16, 1880. That land patent to Warner confirmed two land grants to the property that had been made by the Mexican government in 1840 and 1844.
As to the Harvey defendants, the Supreme Court said “the defendants do not claim a fee in the premises, but only a right of permanent occupancy by virtue of the alleged fact that they are mission Indians, so called, and had been in occupation of the premises long before the Mexican grants.” The Court said that the Indians’ claimed that their “occupation of the premises” was ongoing “before any dominion acquired by this government [the United States] over the territory.” The Indians, said the Court, argued that “the government of Mexico had always recognized the lawfulness and permanence of their occupancy, and that such right of occupancy was protected by the terms of the treaty [of Guadalupe Hidalgo] and [by] the rules of international law.”
The Supreme Court’s use of dehumanization toward the “Indians” to arrive at its decision in Barker v. Harvey makes the case particularly interesting. The Court tacitly acknowledged that those being categorized as “Indians” did exist and did engage in physical actions, including efforts to drive the Mexican grantees off lands the Indians regarded as traditionally belonging to them. The Court noted, for instance, that José Antonio Pico, the Mexican man to whom Governor Juan B. Alvarado had granted the ranch to in 1842, “left the place probably on account of the danger from the Indians, and does not appear to have done anything more in connection with it.” As for Warner, he was “living with his family on the place in the fall of 1844 and cultivating portions of the land.” Warner had received a grant from Governor Manuel Micheltorena, in November 1844. However, Warner was eventually driven from the ranch by the “Indians” and his buildings burned. After that, Warner’s “occupation” had been “continued by his servants.” The Indians, in other words, had engaged in a very human act of forcing Pico and then Warner to abandon the property in an effort to defend their interest in what they considered to be part of their traditional lands.
The Cupeño people being classified as “Indians,” in other words, had behaved in a most human manner by asserting a defensive territoriality in relation to the area known as Agua Caliente, and “Valley of San Jose.” By their actions, they were contesting in the most direct manner the legitimacy of a grant by the Mexican government of their Cupeño ancestral lands to a Mexican rancher. Yet the Court completely ignored these specifically human actions of territoriality and self-defense. The relationship of the Cupeños with their lands—whether it be as humans, as a distinct people, or as a distinct nation—was entirely disregarded by the U.S. Supreme Court, and apparently did not enter into the Court’s decision making process in Barker v. Harvey.
The Court placed its focus on those whom the dominating white society deemed to be truly human, and focused on the relationship that those humans either previously had, or else still had, to the Warner Ranch lands. The list of those whom the Court regarded as fully human includes two Mexican territorial governors (Alvarado and Micheltorena) and at least one other Mexican authority (Juan MaMarron), the Mexican rancher José Antonio Pico, as well as John J. Warner, and a Catholic priest (Father Vincent Olivas). The list of fully human institutions includes the Mexican government and the Catholic Church viz-a –viz, the Catholic Mission of San Diego. None of those categorized as fully human included those classified as “Indians.”
Clearly, the humanity of the “Indians” remained outside the scope of the Supreme Court’s reasoning for one simple reason. The humanity of the Cupeño “Indians” had been conceptually subsumed and thus effaced by the colonizing institution of the Catholic mission system of domination, as well as by the documents of Christian empire and colonization that had been issued by the papacy of the Catholic Church. Those documents include the Patronato Real issued by Pope Julius II in 1502. When the attorneys for the Cupeños invoked the “rules of international law,” they evidently did not take into account international law’s context of domination and subordination when it comes to what James Crawford has called “the relations between civilizations and peoples,” which he identified as “relations of domination.” (See James Crawford’s Foreword to Imperism, Sovereignty, and the Making of International Law, by Antony Anghie, 2004).
Neither the attorneys for Harvey, nor the Supreme Court in its ruling, made explicit that colonization and empire were present at the creation of international law and thus formed the context for any international law issues having to do with “Indians.” The Court’s treatment of the Indians in Barker v. Harvey did not account for the fact that the relations between the Spanish state and the Indians, between the Mexican state and the Indians, and then between the United States and the Indians, was premised on a conceptual position of domination for “the state” and a conceptual position of dehumanizing subordination for the Indians.
The reasoning process of the U.S. Supreme Court in Barker v. Harvey deployed those same patterns of domination and subordination. It did so by humanizing the Mexican authorities, the Mexican grantees, and the Catholic Church through the Catholic mission, while dehumanizing the “Indians.” The attorneys for Harvey had, in the name of their “Indian” clients, acknowledged a “dominion of this government [the United States] over the territory [in the Treaty of Guadalupe Hidalgo],” pursuant to the pattern of domination and subordination in international law.
The Christian aspect of the overall pattern was made clear in The international law of John Marshall, by Benjamin Munn Ziegler (1939). Zeigler states that “[o]ne of the oldest means by which nations have acquired territory has been through the discovery of unoccupied lands,” and he further says in passing, “The term ‘unoccupied lands’ refers of course to the lands in America which when discovered were ‘occupied by Indians’ but ‘unoccupied’ by Christians” (p. 46, footnote 12).
When Christians located lands occupied or inhabited by non-Christians, the Christians dehumanized the non-Christians by regarding the inhabited lands as being ‘unoccupied’ or void of human habitation, simply because non-Christian people were living there. Claiming to have “discovered” lands already well know to those living there is a dehumanizing act. The Christians classified non-Christian lands as “unoccupied and able to be “discovered” because the lands were deemed void of human (i.e., Christian) dominium (a claimed right of domination). In the Johnson ruling, Chief Justice Marshall made this observation of the English system, but the same concept of terra nullus (unbaptized lands devoid of Christians) held true for the Spanish system, and was later adopted by the United States. That dehumanizing context became the basis for the Supreme Court’s decision in Barker v. Harvey.
Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008). He is co-producer of the soon-to-be-released documentary movie, The Doctrine of Discovery: Unmasking the Domination Code, directed by Sheldon Wolfchild (Dakota), with narration by Buffy Sainte-Marie (Cree).