What Is the Doctrine of (Christian) Discovery?

Chief Justice John Marshall, architect of the doctrine of discovery. Oil painting by William James Hubbard, circa 1832. Photo courtesy Wikimedia Commons. Public Commons.

Federal Indian law is a complex interweaving of two centuries of Supreme Court decisions, legislative actions and actions at the executive level all combined to formulate contemporary US policy toward Native American lands, resources and lives. Laws that govern Indian property and lives, like all bodies of law, are based on legal principles set out in legal precedents that are upheld from generation to generation of lawmakers, coalescing into legal doctrines upon which other laws and policies are constructed.

They presuppose a basis of legitimacy and fairness, but some of the foundational principles of federal Indian law violate Indian rights to their own lands against the original intention of treaties and, arguably, even the Constitution. The doctrine of discovery is one of them, and is one of the constituent principles of settler colonialism

Johnson v. McIntosh

The doctrine of discovery was first articulated in the Supreme Court case Johnson v. McIntosh (1823), which was the first case regarding Native Americans ever heard in the American court. Ironically, the case didn't even directly involve any Indians; rather, it involved a land dispute between two white men which questioned the validity of the legal title of land once occupied by and sold to a white man by the Piankeshaw Indians. The ancestors of plaintiff Thomas Johnson purchased land from the Indians in 1773 and 1775 and the defendant William McIntosh obtained a land patent from the United States government on what was supposed to be the same parcel of land (although there is evidence that there were two separate parcels of land and the case was brought in the interest of forcing a ruling).

The plaintiff sued for an ejectment on the basis that his title was superior but the court rejected it under the claim that the Indians had no legal ability to convey the land in the first place. The case was dismissed.

The Opinion

Chief Justice John Marshall wrote the opinion for a unanimous court. In his discussion about the competing European powers' competition for land in the New World and the wars that ensued, Marshall wrote that in order to avoid conflicting settlements European nations established a principle they would acknowledge as a law, the right of acquisition.

"This principle was, that discovery gave title to the government by who subjects or by whose authority, it was made, against all other European governments, which title might be consummated by possession." He wrote further that "discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest."

In essence, the opinion outlined several troubling concepts that became the root of the discovery doctrine in much of federal Indian law (and property law in general). Among them, it would give full ownership of Indian lands to the United States with tribes only possessing the right of occupancy, completely ignoring the scores of treaties that had already been made with Indians by Europeans and Americans.. An extreme interpretation of this implies that the United States is not obligated to respect native land rights at all. The opinion also problematically relied on the concept of cultural, religious, and racial superiority of Europeans and deployed the language of Indian "savagery" as a means of justification for what Marshall would admit was the "extravagant pretension" of conquest. This in effect, scholars have argued, institutionalized racism in the legal structure that governs Native Americans.

Religious Underpinnings

Some Indigenous legal scholars (most notably Steven Newcomb) have also pointed out the problematic ways in which religious dogma informs the discovery doctrine. Marshall unapologetically relied on the legal precepts of medieval Europe in which the Roman Catholic Church determined policy for how European nations would divide up the new lands they "discovered." Edicts issued by sitting Popes (in particular the Papal Bull Inter Caetera of 1493 issued by Alexander VI) granted permission to explorers like Christopher Columbus and John Cabot to claim for the Christian ruling monarchs the lands they "found" and implored their expedition crews to convert-- by force if necessary --the "heathens" they encountered, who would then become subject to the will of the Church. Their only limitation was that the lands they found could not be claimed by any other Christian monarchy.

Marshall referred to these papal bulls in the opinion when he wrote "the documents upon the subject are ample and complete. So early as the year 1496 her [England's] monarch granted the commission to the Cabots, to discover countries then unknown to Christian people, and to take possession of them in the name of the King of England." England, under the authority of the Church, would thus automatically inherit title to the lands which would then convey to America after the Revolution.

Aside from the criticism levied against the American legal system for its reliance on outmoded racist ideologies, critics of the discovery doctrine have also condemned the Catholic Church for its role in the genocide of American Indian peoples. The doctrine of discovery has also found its way into the legal systems of Canada, Australia and New Zealand.

References

Getches, Wilkinson and Williams. Cases and Materials on Federal Indian Law, fifth edition. Thomson West publishers, 2005.

Wilkins and Lomawaima. Uneven Ground: American Indian Sovereignty and Federal Law. Norman: University of Oklahoma Press, 2001.

Williams, Jr., Robert A. Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America. Minneapolis: University of Minnesota Press, 2005.