By Peter d’Errico
There’s a clue in what Scalia apparently said to another Indian questioner. He claimed the U.S. has a right to rule over Indian nations by “conquest” and all federal Indian law is based on that. In other words, Scalia wants to pretend the same thing the U.S. has been pretending since John Marshall first pretended it in 1823 in Johnson v. McIntosh: the “pretension of converting the discovery of an inhabited country into conquest.”
The actual basis of federal Indian law, as Marshall’s quote shows, is not conquest, but “pretense of conquest,” based on “Christian Discovery” and “ultimate dominion.” This is what Scalia’s comment covers up. Marshall, at least, had the honesty to call it what it was.