Man, who appointed me a judge or an arbiter between you?(Luke 12.14)
All authority in heaven and on earth has been given to me.(Mathew 28.18)
United States sovereignty claims are actually claims of counter-sovereignty. That is, US claims to territorial authority are generated, in the first instance, in claims of discovery and the preemption of other non-Native claimants to Native lands and waters. In political terms, the dominion of the various states, and their Union, has its basis on the ongoing recognition of Native rights to occupancy and use. Following this logic, recognition of Native presence, however constrained, is logically necessary for the functioning of US rule of law. As counter-sovereignty, US sovereignty is in perpetual reaction to the prior and primary claims of Native peoples on the territories that the United States claims as its own. Seen in this light, US sovereignty will always be an unfinished project in perpetual crisis of unraveling.
Here, I read the US Supreme Court decisions collectively known as the Marshall trilogy in order to outline one legal-political enunciation of counter-sovereignty. The early fourteenth-century analyses of the relationship [End Page 142] between papal and monarchal power from John of Paris and Marsilius of Padua provide context from a Western genealogy of sovereignty theory.1 Their arguments provide a window to the underlying logic of counter-sovereignty in Marshall’s decisions. In Marshall’s telling, US sovereignty claims have their origins and limits in discovery, “the sole right of acquiring the soil and of making settlements on it,” which works to “shut out the right of competition among those who had agreed to it.”2 This is a political claim leveraged among settlers. It is also a future-oriented, speculative claim, “pre-emptive privilege in the particular place,” and not a description of reality.3 “Discovery gave title . . . against all other European governments, which title might be consummated by possession.” 4 The claims of discovery are limited and proscribed among settlers themselves and reactive and responsive to Native peoples. “They were well understood to convey the title which, according to the common law of European sovereigns respecting America, they might rightfully convey, and no more. This was the exclusive right of purchasing such lands as the natives were willing to sell.”5 According to Robert Williams, Marshall’s opinion “asserted that the law of the United States acknowledged the medievally derived doctrine of discovery of infidel-held lands by European nations vested the Europeans with superior title in those lands.” 6
Discovery establishes a property claim for nations and empires, not for individuals, and settler property, according to Marshall’s logic, that is a problem internal to the settler order.7 This resonates with a type of property analyzed by John of Paris: “Ecclesiastical property . . . has been given to communities, not to individual persons. So therefore, no one person has proprietary right and lordship over ecclesiastical property. It is the community concerned which itself has these.” 8 US counter-sovereignty fits this mold of community property, so that individual settlers’ property rights are constituted by counter-sovereignty. “He has this not as individual in his own right but purely as part and member of the community.”9
Marshall argued that discovery asserts dominion over Native peoples. “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.” For Marshall, this is the starting place for individual settler claims to landed property, the basis for the US property order. “Thus [End Page 143] 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.”10 Settler property, in this reading, inherits imperial claims to dominion.
There is a contradiction between settler property claims limited by discovery and those asserting ultimate dominion.11 Marsilius provides a key to navigate these contradictions, describing natural rights...