The discovery doctrine, also called doctrine of discovery, is a concept of public international law expounded by the United States Supreme Court in a series of decisions, most notably Johnson v. M'Intosh in 1823. Chief Justice John Marshall explained and applied the way that colonial powers laid claim to lands belonging to foreign sovereign nations during the Age of Discovery. Under it, title to lands lay with the government whose subjects travelled to and occupied a territory whose inhabitants were not subjects of a European Christian monarch. The doctrine has been primarily used to support decisions invalidating or ignoring aboriginal possession of land in favor of modern colonial/imperial governments, such as in the 2005 case of Sherrill v. Oneida Nation.
The 1823 case was the result of collusive lawsuits where land speculators worked together to make claims to achieve a desired result. John Marshall explained the Court's reasoning. The decision has been the subject of a number of law review articles and has come under increased scrutiny by modern legal theorists.
The Doctrine of Discovery was promulgated by European monarchies in order to legitimize the colonization of lands outside of Europe. Between the mid-fifteenth century and the mid-twentieth century, this idea allowed European entities to seize lands inhabited by indigenous peoples under the guise of discovery. In 1494, the Treaty of Tordesillas declared that only non-Christian lands could be colonized under the Doctrine of Discovery.
In 1792, U.S. Secretary of State Thomas Jefferson claimed that this European Doctrine of Discovery was international law which would also apply equally to dealings the infant U.S. government would have with non-Christian lands. The Doctrine and its legacy continue to influence American imperialism and treatment of indigenous peoples.
Johnson v. M'IntoshEdit
The plaintiff Johnson had inherited land, originally purchased from the Piankeshaw tribes. Defendant McIntosh claimed the same land, having purchased it under a grant from the United States. It appears that in 1775 members of the Piankeshaw tribe sold certain land in the Indiana Territory to Lord Dunmore, royal governor of Virginia and others. In 1805 the Piankeshaw conveyed much of the same land to William Henry Harrison, governor of the Indiana Territory, thus giving rise to conflicting claims of title. In reviewing whether the courts of the United States should recognize land titles obtained from Native Americans prior to American independence, the court decided that they should not. Chief Justice John Marshall had large real estate holdings that would have been affected if the case were decided in favor of Johnson. Rather than recuse himself from the case, however, the Chief Justice wrote the decision for a unanimous Supreme Court.
Marshall found that ownership of land comes into existence by virtue of discovery of that land, a rule that had been observed by all European countries with settlements in the New World. Legally, the United States was the true owner of the land because it inherited that ownership from Britain, the original discoverer.
On the discovery of this immense continent, the great nations of Europe ... 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. ... The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles.
Chief Justice Marshall noted the 1455 papal bull Romanus Pontifex approved Portugal's claims to lands discovered along the coast of West Africa, and the 1493 Inter Caetera had ratified Spain's right to conquer newly found lands, after Christopher Columbus had already begun doing so, but stated: "Spain did not rest her title solely on the grant of the Pope. Her discussions respecting boundary, with France, with Great Britain, and with the United States, all show that she placed it on the rights given by discovery. Portugal sustained her claim to the Brazils by the same title."
United States lawEdit
Marshall pointed to the exploration charters given to the explorer John Cabot as proof that other nations had accepted the doctrine. The tribes which occupied the land were, at the moment of discovery, no longer completely sovereign and had no property rights but rather merely held a right of occupancy. Further, only the discovering nation or its successor could take possession of the land from the natives by conquest or purchase.
The doctrine was cited in other cases as well. With Cherokee Nation v. Georgia, it supported the concept that tribes were not independent states but "domestic dependent nations". The decisions in Oliphant v. Suquamish Indian Tribe and Duro v. Reina used the doctrine to prohibit tribes from criminally prosecuting first non-Indians, then Indians who were not a member of the prosecuting tribe.
The doctrine has been cited by the US Supreme Court as recently as 2005, in City of Sherrill v. Oneida Indian Nation of New York. Writing for the majority, Ruth Bader Ginsburg stated that "Under the 'doctrine of discovery...' fee title [ownership] to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the discovering European nation and later the original states and the United States."
As the Piankeshaw were not party to the litigation, "no Indian voices were heard in a case which had, and continues to have, profound effects on Indian property rights."
Professor Blake A. Watson of the University of Dayton School of Law finds Marshall's claim of "universal recognition" of the "doctrine of discovery" historically inaccurate.
In reviewing the history of European exploration Marshall did not take note of Spanish Dominican philosopher Francisco de Vitoria's 1532 De Indis nor De Jure belli Hispanorum in barbaros. Vitoria adopted from Thomas Aquinas the Roman law concept of ius gentium, and concluded that the Indians were rightful owners of their property and that their chiefs validly exercised jurisdiction over their tribes, a position held previously by Palacios Rubios. His defense of American Indians was based on a scholastic understanding of the intrinsic dignity of man, a dignity he found being violated by Spain's policies in the New World. However, the legal scholar Anthony Anghie has demonstrated that Vitoria--after applying to the Indians the concept of ius gentium--then found them to be in violation of international law through their resistance to Spanish exploration and missionary activities. By resisting Spanish incursions, Indians were, according to Vitoria, provoking war with the Spanish invaders, thus justifying Spanish conquest of Indian lands.
Marshall also overlooked more recent American experience, specifically Roger Williams's purchase of the Providence Plantation. In order to forestall Massachusetts and Plymouth designs on the land, Williams subsequently traveled to England to obtain a patent which referenced the purchase from the natives. The Royal Charter of Rhode Island issued by Charles II acknowledged the rights of the Indians to the land.
Nor does Justice Marshall seem to have taken note of the policy of the Dutch West India Company which only conferred ownership rights in New Netherland after the grantee had acquired title by purchase from the Indian owners, a practice also followed by the Quakers in Pennsylvania.
Watson and others, such as Robert Williams Jr. suggest that Marshall misinterpreted the "discovery doctrine" as giving exclusive right to lands discovered, rather than the exclusive right to treaty with the inhabitants thereof.
Contemporary advocacy effortsEdit
Discovery doctrine has been severely condemned as socially unjust, racist, and in violation of basic and fundamental human rights. The United Nations Permanent Forum on Indigenous Issues (UNPFII) noted the Doctrine of Discovery "as the foundation of the violation of their (Indigenous people) human rights". The eleventh session of the UNPFII, held at the UN's New York headquarters from 7-18 May 2012, had the special theme of "“The Doctrine of Discovery: its enduring impact on indigenous peoples and the right to redress for past conquests (articles 28 and 37 of the United Nations Declaration on the Rights of Indigenous Peoples),"  and called for a mechanism to investigate historical land claims, with speakers observing that "The Doctrine of Discovery had been used for centuries to expropriate indigenous lands and facilitate their transfer to colonizing or dominating nations...."
At the 2012 Unitarian Universalist Association General Assembly in Phoenix, AZ, delegates of the Unitarian Universalist Association passed a resolution repudiating the Doctrine of Discovery and calling on Unitarian Universalists to study the Doctrine and eliminate its presence from the current-day policies, programs, theologies, and structures of Unitarian Universalism. In 2013, at its 29th General Synod, the United Church of Christ followed suit in repudiating the doctrine in a near-unanimous vote.
At the 2016 Synod, 10-17 June in Grand Rapids, MI, delegates to the annual general assembly of the Christian Reformed Church rejected the Doctrine of Discovery as heresy in response to a study report on the topic.
At the 222nd General Assembly of the Presbyterian Church (U.S.A.) (2016), commissioners called on members of the church to confess the church's complicity and repudiate the Doctrine of Discovery. The commissioners directed that a report be written reviewing the history of the Doctrine of Discovery; that report was approved by the 223rd General Assembly (2018), along with recommendations for a variety of additional actions that could be taken by the church at all levels to acknowledge indigenous peoples and to confront racism against them.
In 2016, the Churchwide Assembly of the Evangelical Lutheran Church in America (ELCA), adopted Assembly Action CA16.02.04 entitled Repudiation of the Doctrine of Discovery by a vote of 912-28, describing the Doctrine of Discovery as "an example of the 'improper mixing of the power of the church and the power of the sword'"
- How the Indians Lost Their Land: Law and Power on the Frontier Stuart Banner, 2005, pg 171–2
- The Dark Side of Efficiency: Johnson v. M'Intosh and the Expropriation of American Indian Lands, Eric Kades, 148 U. Pa. L. Rev. 1065 2000, pg 148
- Harjo, Susan Shown (2014). Nation to Nation: Treaties Between the United States & American Indians. Washington, DC: National Museum of the American Indian. pp. 15–16. ISBN 9781588344786.
- Dunbar-Ortiz, Roxanne (2014). An Indigenous Peoples' History of the United States. Boston: Beacon Press. pp. 197–201.
- "Watson, Blake A., "John Marshall and Indian Land Rights: A Historical Rejoinder to the Claim of "Universal Recognition" of the Doctrine of Discovery", Seton Hall Law Review, Vol.36, 481" (PDF).
- Frichner, Tonya Gonnella. (2010). “Preliminary Study of the Impact on Indigenous Peoples of the International Legal Construct Known as the Doctrine of Discovery.” E/C.19/2010/13. Presented at the Permanent Forum on Indigenous Issues, Ninth Session, United Nations Economic and Social Council, New York, 27 Apr 2010.
- "Marshall, John. "Johnson v. M'Intosh", 21 U.S. 543, 5 L.Ed. 681, 8 Wheat. 543 (1823)" (PDF). Archived from the original (PDF) on 2015-09-24. Retrieved 2014-07-23.
- Newcomb, Steve (Fall 1992). "Five Hundred Years of Injustice". Shaman's Drum: 18–20. Retrieved 2007-01-10.
- Robertson, Lindsay G. (June 2001). "Native Americans and the Law: Native Americans Under Current United States Law". Native American Constitution and Law Digitization Project. The University of Oklahoma Law Center. Retrieved 2007-01-10.
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- Pagden, Anthony. Vitoria: Political Writings, Cambridge University Press, 1991
- Anthony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge: Cambridge University Pres, 2005): Ch. 1 “Francisco de Vitoria and the Colonial Origins of International Law.”
- "Department of Economic and Social Affairs - Social Policy and Development Division; Home". 1map.com.
- UNPFII Eleventh Session, United Nations Economic and Social Council, New York. Retrieved 15 Sep 2019.
- United Nations. (2012-05-08). “‘Doctrine of Discovery’, Used for Centuries to Justify Seizure of Indigenous Land, Subjugate Peoples, Must Be Repudiated by United Nations, Permanent Forum Told” (media release). HR/5088. Forum on Indigenous Issues, Eleventh Session, United Nations Economic and Social Council, New York. Retrieved 15 Sep 2019.
- Schjonberg, Mary Frances. "General Convention renounces Doctrine of Discovery", Episcopal Life Online, 27 August 2009.
- "Doctrine of Discovery and Rights of Indigenous Peoples". UUA.org. February 17, 2016.
- "General Synod delegates overwhelmingly approve resolution repudiating the Doctrine of Discovery". www.ucc.org.
- "Synod 2016 Rejects Doctrine of Discovery as Heresy". Retrieved 2016-07-21.
- PC(USA) "Doctrine of Discovery Report". For action by the 222nd General Assembly (2016), see business item 11-17; for actions by the 223rd General Assembly (2018), see business item 10-12 and 10-13.
- "RepudiationDoctrineofDiscoverySPR2016" (PDF).
- Lawlor, Mary.Public Native America: Tribal Self Representation in Casinos, Museums and Powwows, Rutgers University Press, 2006
- Robert J Miller and Elizabeth Furse, Native America, Discovered and Conquered: Thomas Jefferson, Lewis & Clark, and Manifest Destiny, Westport, CT: Praeger Publishers, 2006
- Miler, Robert J., and Jacinta Ruru. "An Indigenous Lens into Comparative Law: The Doctrine of Discovery in the United States and New Zealand." West Virginia Law Review 111 (2008): 849.
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