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Sunday, June 16, 2013

Newtown, Superman and the Right of Conquest

     Yesterday I journeyed along the route of the Sullivan Expedition and noted the Battle of Newtown.  Here is the monument to the battle in Newtown Battlefield Park:

     Today I saw Superman, the current movie and remake of the so-called American icon.  The movie deserved the mediocre reviews it got, but that is for another day.  What struck me was the (excessively moralistic) dialog between Krypton's military leader on the one hand about the need to maintain the species and, if necessary, terraform Earth to accommodate Krypton's rebirth, and Superman and his father on the other, about the need for "bridges" and "co-existence."

     In Johnson and Graham's Lessee v. M'Intosh, 21 U.S. 543 (1823), in deciding a case involving land title granted by certain Indian tribes to two individuals, the Supreme Court discussed the legal authority of foreign entities (i.e., European nations) to acquire exclusive rights to land already occupied by others.  The Court held:

While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.

The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles.
Thus has our whole country been granted by the crown while in the occupation of the Indians. These grants purport to convey the soil as well as the right of dominion to the grantees.
Thus, all the nations of Europe, who have acquired territory on this continent, have asserted in themselves, and have recognised in others, the exclusive right of the discoverer to appropriate the lands occupied by the Indians. Have the American States rejected or adopted this principle?
The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise.
The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually, they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other; the distinction between them is gradually lost, and they make one people.
But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.

     Consequently, the court denied the Indian-granted title.

     I have always been curious about the rationalization of the legal basis by which an "alien" could legally usurp land occupied by others because the "alien" discovered it from the alien perspective.  Dick Gregory, the comedian, once had a short routine about "discovering" someone's else's automobile and taking it for himself.  Newtown gives us a context for considering these issues.  One wonders how much the vanquished rulers of Krypton might rely upon M'Intosh.

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