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Maine's Original Sin

During his tenure as the Executive Director for the Maine Indian Tribal State Commission, John Dieffenbacher-Krall worked closely with Maine Wabanaki REACH engaging tribal and state partners, assisting with writing the mandate and developing the Commission selection process. He has worked tirelessly toward the repudiation of the Doctrine of Christian Discovery and we are pleased to offer the text of his talk at the Wilson Center in Orono on March 4, 2020, as our blog this month. The text has been edited slightly for readability.

Maine’s Original Sin with Wabanaki Nations and Peoples

by John Dieffenbacher-Krall 

First, I want to acknowledge that we gather on Penobscot Nation land that perhaps a deed says belongs to the Wilson Center or University of Maine, but it will always be Penobscot land until the earth ceases to exist. Regardless of the current legal status of the land, the Penobscot people have a connection with this land that is part of them in an eternal relationship. I believe as settlers we often don’t sufficiently appreciate the relationship Original Peoples have with the land. It is not a resource to exploit but instead a relation to protect and to nurture.

Though I assume few of you know much about the Doctrine of Christian Discovery and Domination even though you have been taught history and social studies and learned about the founding of the United States, I did not do the original scholarship that has exposed the Doctrine of Christian Discovery and Domination as the legal and moral justification for Christendom’s colonization of North America. Many people credit Vine Deloria, Jr. for bringing the concept into greater prominence in his 1972 An Open Letter to the Heads of the Christian Churches in America. Lenape/Shawnee scholar Steven Newcomb has further researched and more fully explicated this worldview that is the ultimate expression of white supremacy and a terrible evil that any person of conscience should work to purge from the world.

Tonight, I address you during the liturgical season of Lent in the Christian Church...a period marked by "prayer, doing penance, mortifying the flesh, repentence of sins, almsgiving, and self-denial." I find repentance to be an especially applicable word for what settlers need to do in their relationship with the Original Peoples and Nations of this land. Note the two-part aspect of this definition from Wikipedia: “Repentance is the activity of reviewing one's actions and feeling contrition or regret for past wrongs, which is accompanied by commitment to and actual actions that show and prove a change for the better." My intent is to inform and to motivate you sufficiently tonight that you will take action to join with other like-minded people to purge the world of the Doctrine of Christian Discovery and Domination.

For the past 23 years, I have expressed some important aspects of my spirituality through worship in the Episcopal Church. As is the case for most Christians, Episcopalians view sin as a foundational concept to understanding our faith. Even if a person is not a practicing Christian, s/he has heard the word and probably has some understanding of sin as a concept... For Christians, sin means “an immoral act considered to be a transgression against divine law" (Google).

I titled my talk in part “Maine’s Original Sin.” I did not do that accidentally. The Episcopal Church describes original sin as “the shared sinful condition of all humanity.” The original sin consists of Adam’s and Eve’s defiance of God by eating the fruit of the Tree of Knowledge.

I assert Maine’s Original Sin is its reliance on the Doctrine of Christian Discovery and Domination and continued colonial occupation to exert control over the land and the Original Peoples and Nations we today recognize within the boundary of the State of Maine. I want to acknowledge my friend and fellow Episcopal Committee on Indian Relations member Father Ted Kanellakis for his expression of this idea as Maine’s Original Sin. Similarly to the Episcopal description of Original Sin as the “shared sinful condition of all humanity,” I maintain all settlers living within the State of Maine live in a “shared sinful condition” as occupiers of Wabanaki land. Until we renounce the colonial power we have exerted and create a new relationship with Wabanaki Peoples and Nations based on acknowledgment of their inherent right to self-determination and their eternal relationship with the land, we live as unrepentant occupiers and sinners.

Why is the Doctrine of Christian Discovery and Domination so central to our colonial occupation of Wabanaki Peoples and the land they view as a relation? It provides unjustified moral cover for evil and genocidal acts and the legal basis for the stealing of Wabanaki land and asserting settler political control over formerly free and independent peoples.

The Doctrine of Christian Discovery and Domination asserts Christians — based solely on the fact that they profess to be Christians in contrast to other individuals and peoples who do not espouse such a religious identity — have a right blessed by God to enter non-Christian lands, seize the land and possessions of non-Christians, and kill the original inhabitants unless they instantly submit to the domination of the Christian invaders. This worldview was delineated in a series of papal bulls — think of them as official pronouncements by the Pope. Scholars generally attribute the first articulation of this concept to the Papal Bull Dum Diversas issued in 1452 by Pope Nicholas V:

"We grant you [Kings of Spain and Portugal] by these present documents, with our Apostolic Authority, full and free permission to invade, search out, capture, and subjugate the Saracens and pagans and any other unbelievers and enemies of Christ wherever they may be, as welll as their kingdoms, duchies, counties, principalities, and other property...and to reduce their persons into perpetual servitude."

Spain was not alone in using the concept to justify its greed and colonial desire. King Henry VII of England borrows the reasoning first articulated by Pope Nicholas V in sanctioning John Cabot's voyage to North America. Instead of a Papal Bull, he uses the instrument of a letters patent:

"Be it known and made manifest that we have given and granted as by these presents we give and grant, for us and our heirs, to our well beloved John Cabot, citizen of Venice, and to Lewis, Sebastian and Sancio, sons of the said John... to find, discover and investigate whatsoever islands, countries, regions or provinces of heathens and infidels, in whatsoever part of the world placed, which before this time were unknown to all Christians. And that the before-mentioned John and his sons or their heirs and deputies may conquer, occupy and possess whatsoever such towns, castles, cities and islands by them thus discovered that they may be able to conquer, occupy and possess, as our vassals and governors, lieutenants, and deputies therein, acquiring for us the dominion, title and jurisdiction of the same towns, castles, cities, islands and mainlands so discovered." (Patent granted to John Cabot and his Sons, March 1496)

Vine Deloria, Jr. told Studs Terkel in a 1975 interview:

"I think the doctrine of discovery has kind of separated out the Christian church establishment, as at least a theoretical enemy of Indians and not simply a religious enemy, because Christian docrines have in my opinion, [in] many other Indians' opinion, supported the disenfranchisement of Indians and genocide of Indians."

The United Nations in 2007 condemned the Doctrine of Christian Discovery and Domination in the preamble to the UN Declaration on the Rights of Indigenous Peoples:

"Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust."

Every member state present for the adoption of the UN Declaration on the Rights of Indigenous Peoples voted in support of it except for Australia, Canada, New Zealand, and the US. Subsequently, all four countries issued qualified statements supporting the Declaration.

Though the official body of nation-states rejects the Doctrine of Christian Discovery and Domination, it formed the legal basis for the taking of Wabanaki and all Original Peoples' lands. An example of how something so fundamental to the existence of the State of Maine remains so invisible today can be found on page 40 of Maine, The Pine Tree State, from Prehistory to the Present (compiled by the University of Maine). Here it describes the voyage of Humphrey Gilbert: "After sailing to Newfoundland, which he officially claimed for the Queen..." How did Gilbert do that, claim Newfoundland for the Queen of England? The Doctrine of Christian Discovery and Domination supported his action. Yet the text of Maine never states this fact.

Robert Miller and the co-authors of Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies describe "ten elements that constitute the Doctrine." The initial one is "first discovery: The first European country that discovered lands unknown to other Europeans claimed property and sovereign rights over the lands and Indigenous Peoples." The fourth element underscores the profound injustice of the most important US Supreme Court decision ever decided affecting the Original Nations and Peoples of this land, Johnson v M'intosh:

"Indigenous/Native title. After a 'first discovery,' European legal systems claimed that Indigenous Peoples and Nations had automatically lost the full ownership of their lands. Europeans claimed that Indigenous Nations only retained the rights to occupy and use their lands. These rights could last indefinitely, however, if the Indigenous Peoples never consented to sell land to the European country that claimed the preemption right. But if Indigenous Nations did choose to sell, they were expected to sell only to the European government that purported to hold the preemption right."

Fast forward from Humphrey Gilbert in 1583 to the US Supreme Court in 1823. In its decision Johnson v M'intosh, the Court ruled the Original Nations and Peoples of this country had a mere right of occupancy but no legal title to the land:

"On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.

"In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it."

Though Chief Justice Marshall writing for the Supreme Court does not use the term "Christian" Discovery, that is the basis for this decision. So a country that purports to keep separate church and state has based the most important Supreme Court decision ever issued affecting the Original Nations and Peoples of this land on a religious concept condemned by the United Nations and many 21st century religious bodies.

Anyone with even a cursory interest in Maine politics and the political scene knows of the deep conflict between the Wabanaki Nations and Peoples who reside in what we today call Maine, and Maine State Government. I deliberatedly chose Maine State Government instead of Maine People because I know many Maine residents oppose the actions and policies that Maine State Government has pursued on what political leaders would call its citizens' behalf. For anyone here unfamiliar with the term Wabanaki, I am referring to the Original Nations and Peoples that inhabit New England and provinces in eastern Canada who speak a common Algonquin-based language and share many cultural practices, spirituality, and traditions. They have also been united for centuries in the Wabanaki Confederacy. In Maine, these Wabanaki Peoples include the Abenaki, Maliseets, Micmacs, Passamaquoddies, and Penobscots. 

The Wabanaki did not escape the American genocide. Many Wabanaki Peoples who lived in this territory at the time of early European contact no longer exist (see Unsettled Past, Unsettled Future: The Story of Maine Indians, by Neil Rolde). For the Wabanaki Peoples that remain, they are engaged in a constant struggle for survival.

Maine State Government has also acted in a white supremacist and colonial posture toward the Wabanaki no different that other states within this country or the United States or other nation-states of the world. I can point to many examples. I offer two from the Maine judiciary. In Murch v Tomer decided by the Maine Supreme Court in 1842, the court said: "Imbecility on their [the Indians'] part, and the dictates of humanity on ours, have necessarily prescribed to them their subjection to our paternal control; In disregard of some at least, of abstract principles of the rights of man." Fifty years later the Maine Supreme Court opined in State v Newell (1892), "Though these Indians...perhaps consider themselves a tribe, they have for many years been without a tribal organization in any political sense...They are as completely subject to the State as any other inhabitants can be."

Reflecting the paternal control the State of Maine exerted for 155 plus years, from the inception of Maine as a state in 1820 until the Passamaquoddy v Morton decision in January 1975, the Maine Legislature passed numerous laws controlling and regulating the Wabanaki. The compilation of these laws was commonly referred to as the blue book, State of Maine: A Compilation of Laws Pertaininig to Indians, prepared by the now defunct Department of Indian Affairs. 

Another example of the State of Maine denying the political rights of the Wabanaki applies to voting. The audience may be unaware that the State of Maine, not Alabama or Mississippi or some other state we might want to believe is more racist and less progressive than the Pine Tree State, was the last state in the US to grant the Wabanaki the right to vote in state elections. It happened in 1967.

Despite all the colonial oppression directed at the Wabanaki, they have endured and have refused to become acculturated and assimilated. Unbelievably, Wabanaki Tribal Governments continue to find themselves constrained by laws rooted in the Doctrine of Christian Discovery and Domination. The most significant of these laws is the Maine Indian Claims Settlement Act of 1980. The Act resulted in response to a land claim initially brought by the Passamaquoddy Tribe and later joined by the Penobscot Nation. During the last year of negotiations that produced the settlement agreement, the Houlton Band of Maliseet Indians joined the process. 

The Settlement Act consists of two acts that function together, a state act known as the Maine Implementing Act, and the federal act titled the Maine Indian Claims Settlement Act. The state act would not have effect or force of law without the federal act. The reason is the Federal Government has principal authority iin governmental relations with Indian Tribes, not the individual states. Article 1, Section 8 of the Constitution states, "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes."

Though the Maine Implementing Act would not have effect without Congress ratifying it when it enacted the Maine Indian Claims Settlement Act in 1980, disputes involving the settlement agreement most often focus on the state act. Several initiatives have been attempted during the settlement agreements' nearly 40-year history to address some of its flaws and produce a more just agreement. The Maine Indian Tribal-State Commission (MITSC), a body created as part of the Maine Implementing Act to monitor the implementation of the Act and to make recommendations to the signatories, found in 2012:

"These Acts are in serious nonconformance with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), both in the process leading up to their enactment and in how they have been implemented. The Acts have created structural inequities that have resulted in conditions that have risen to the level of human rights violations." (in MITSC's letter May 16, 2012 to Mr. James Anaya, UN Special Rapporteur on the Rights of Indigenous Peoples)

Several provisions in the Maine Implementing Act reflect the Doctrine of Christian Discovery and Domination. The most egregious in my opinion is Section 6204:

"6204 Laws of the State to Apply to Indian Lands. Except as otherwise provided in this Act, all Indians, Indian nations, and tribes and bands of Indians in the State and any lands or other natural resources owned by them, held in trust for them by the United States or by any other person or entity shall be subject to the laws of the State and to the civil and criminal jurisdiction of the courts of the State to the same extent as any other person or lands or other natural resources therein." [1979]

In 2019, leadership exercised by the Wabanaki Tribal Governments with active support from individuals and groups committed to a more just Wabanaki-State of Maine relationship has resulted in the creation of a Task Force on changes to the  Implementing Act. The Task Force was directed to:

" An Act to Implement the Maine Indian Claims Settlement and the Micmac Settlement Act and make recommendations to the Legislature for legislation regarding any suggested changes to those Acts. Recommendations of the task force must be made by consensus. For the purposes of this order, "consensus" means consensus between representatives on the task force of the tribe or tribes affected by the suggested changes and a majority of the other voting members of the task force." (129th Maine State Legislature, Joint Order Establishing the Task Force on Changes to the Maine Indian Claims Settlement Implementing Act)

All of us...can help expunge this repugnant, colonial, and evil Doctrine of Christian Discovery and Domination from Maine law. I urge you to contact your State Representative and State Senator. Tell them to support the changes submitted by the Wabanaki Tribal Governments that include striking Section 6204. Let's stop oppressing the Wabanaki and all Original Peoples throughout the world.

Editor's note: The Task Force Final Report with 22 Recommendations was submitted to the Joint Standing Committee on Judiciary of the Maine Legislature in January 2020. Once the Committee had transformed these recommendations into LD 2094 An Act to Implement the Recommendations of the Task Force on Changes to the Maine Indian Claims Settlement Implementing Act, several public hearings were held in February, followed by worksessions in early March with tribal counsel and relevant committees weighing in. At that point, work was halted by the pandemic. LD 2094 will be carried over to any special session of the legislature.

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