An Uncomfortable Truth: Law as a Weapon of Oppression of the Indigenous Peoples of Southern New England

Roger Williams University Law Review Volume 27 Issue 2 Vol. 27, No. 2 (Spring 2022) Symposium: An Uncomfortable Truth, Indigenous Communities and Law in New England Article 3 Spring 2022 An Uncomfortable Truth: Law as a Weapon of Oppression of the Indigenous Peoples of Southern New England James D. Diamond Visiting Professor of Law at Roger Williams University School of Law Follow this and additional works at: https://docs.rwu.edu/rwu_LR Part of the Indigenous, Indian, and Aboriginal Law Commons, and the Law and Race Commons Recommended Citation Diamond, James D. (2022) "An Uncomfortable Truth: Law as a Weapon of Oppression of the Indigenous Peoples of Southern New England," Roger Williams University Law Review: Vol. 27: Iss. 2, Article 3. Available at: https://docs.rwu.edu/rwu_LR/vol27/iss2/3 This Article is brought to you for free and open access by the School of Law at DOCS@RWU. It has been accepted for inclusion in Roger Williams University Law Review by an authorized editor of DOCS@RWU. For more information, please contact . An Uncomfortable Truth: Law as a Weapon of Oppression of the Indigenous Peoples of Southern New England James D. Diamond* ABSTRACT Southern New England, today, is a de facto exception to much of U.S. Indian law and policy, with progress sustained by Indigenous peoples in the region at a bare minimum. The exception is the product of more than three hundred years of discrimination and persecution with law employed as the primary weapon. After the conclusion of seventeenth century military battles and warfare, colonial governments employed law as a weapon of oppression against the Indigenous peoples. With law as a weapon, they continued the persecution of the American Indians based on their belief of racial * James D. Diamond is a Visiting Professor of Law at Roger Williams University School of Law. S.J.D., James E. Rogers College of Law; J.D., Brooklyn Law School; B.A., University at Albany (S.U.N.Y.). This article was prepared as part of a Symposium held at the Roger Williams University School of Law, An Uncomfortable Truth, Indigenous Communities and Law in New England, October 22, 2021. It was the idea of the students at the Law School to hold the Symposium. In fact, all Indigenous Legal studies now occurring at the school has, in fact been initiated, by the students. I am grateful to Hannah Devoe, the Editor-in-Chief of the Law Review who invited me to write for the Symposium Edition. Lindsay Koso, my Research Assistant, performed legal archeological miracles, digging through stacks of hundreds or years old dusty colonial era law books, aided by RWU Law Professor and the chief Law Librarian Nicole P. Dyszlewski. I owe a debt of gratitude to my teacher, colleague and friend, Professor Robert A. Williams, Jr. of the James E. Rogers College of Law. His book, Like A Loaded Weapon is the inspiration for the theme of the article. 255 256 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol. 27:2 superiority. The campaign of persecution was accomplished with colonial and later state statutes and municipal law, and with judicial decisions. Judicial decisions by the United States Supreme Court evidenced an obvious belief of racial superiority and the inferiority of the American Indians which became the bedrock of American Indian law. Colonial law adopted theocratical canons which justified conquest based on European superiority and Christian belief. Incorporation of Papal canons of Indigenous inferiority into American law has never been repudiated nor repealed. The article details the history of law as a weapon of oppression in Southern New England, reviews in great details, oppressive colonial legislation and, finally, offers suggestions for healing the profound wounds of the past. It calls for the legal profession, for municipalities and for states to accept responsibility, be held accountable and take action to repair the wrongs of the past. INTRODUCTION It is axiomatic that law can be a powerful force for good, for protection of rights and for advancement of social goals.1 It is the premise of this article, however, that for one segment of the population of the United States, the Indigenous peoples, law has been a weapon of oppression,2 a tool implemented over four centuries with precision to subjugate and dehumanize the original occupants of the lands which became the United States. Plymouth, in what is now Massachusetts (along with Jamestown, in what is now Virginia) was among the first European settlements in North America.3 Settlements developed into the colonies of Great Britain which then became States. Colonies established included one region commonly referred to as New England. It includes the current states of Connecticut, Rhode Island, 1. See generally CAROL SMART, FEMINISM AND THE POWER OF LAW (1989). It is Smart’s argument that law is a very powerful tool because we give it more power over us than other forms of knowledge or experience. Id. at 10–11. 2. What is oppression? Iris Marion Young says that “In its traditional usage, oppression means the exercise of tyranny by a ruling group.” She adds, “In its new usages, oppression designates the disadvantage and injustice some people suffer not because of a tyrannical power coerces them, but because of the everyday practices of a well-intentioned liberal society.” IRIS MARION YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE 40–41 (1990). 3. ALDEN T. VAUGHAN, NEW ENGLAND FRONTIER: PURITANS AND INDIANS 1620-1675, at 64–92 (1st ed. 1995). 2022] AN UNCOMFORTABLE TRUTH 257 Massachusetts, New Hampshire, Vermont, and Maine.4 The first New England settlers landed in Plymouth in 1620.5 When they arrived, they discovered that the area was heavily populated with Indians. For around fifty years thereafter, colonists fought military battles and wars against the Indians in what is now Connecticut, Rhode Island, and Massachusetts.6 Historians estimate there were more than 100,000 American Indians living in New England at the beginning of the seventeenth century.7 The Indian peoples of New England were part of the Algonquian people and shared a similar language and culture, but there were many different groups. Among them were the Abenaki, Micmac, Pennacook, Pequot, Mohegan, Nauset, Narragansett, Nipmuc, Woronoco, and Wampanoag.8 Following about 1675, however, the Southern New England Colonies changed their strategies and implemented a new primary weapon, and that was law.9 They used their newfound weapon to maintain control over the Indians, to oppress and subjugate them 4. John Smith is credited with coining the term “New England” as early as 1619, but that could very well be a myth. See Megan Gambino, John Smith Coined the Term New England on This 1619 Map, SMITHSONIAN MAG. (Nov. 24, 2014), https://www.smithsonianmag.com/history/john-smith-coined-the-termnew-england-on-this-1616-map-180953383/ [https://perma.cc/Q238-ASXM]. I refer to Southern New England as the current states of Connecticut, Rho (...truncated)