Doctrine of Discovery
What are the unintended consequences of disavowing the Doctrine of Discovery?
The week, the Vatican repudiated its role in the “doctrine of discovery” that has become foundational in several countries’ ownership of property since the 15th Century.
The “doctrine of discovery” is a legal concept that originated in Europe in the 15th century and was used to justify European exploration, colonization, and exploitation of lands outside of Europe. The concept was based on the idea that Christian nations had the right to claim and govern non-Christian lands and peoples, based on the belief that non-Christian peoples were uncivilized and in need of Christian guidance.
The origins of the doctrine of discovery can be traced back to a series of papal bulls issued by the Catholic Church in the 15th century. These bulls granted European monarchs the right to claim and govern non-Christian lands, and encouraged them to convert the indigenous peoples to Christianity. The most famous of these bulls is the "Inter caetera" bull issued by Pope Alexander VI in 1493, which granted Spain the exclusive right to colonize and govern the lands that Columbus had discovered in the Americas.
Over time, the doctrine of discovery became a central legal concept in European colonialism, and was used to justify the displacement and subjugation of indigenous peoples in many parts of the world. The legacy of the doctrine of discovery is still felt today, as indigenous peoples continue to struggle for recognition of their rights and sovereignty over their ancestral lands.
The repudiation come in the form of a “joint statement” from departments in the Holy See that explained in that statement, in paragraph seven:
7. In no uncertain terms, the Church’s magisterium upholds the respect due to every human being. The Catholic Church therefore repudiates those concepts that fail to recognize the inherent human rights of indigenous peoples, including what has become known as the legal and political “doctrine of discovery”.1
The statement further seems to suggest that the UN Declaration of the Rights of Indigenous Peoples is the doctrine the Vatican has come to embrace, instead of any erasure of human rights that might have been generated by the “doctrine of discovery.”
The Statement explains that there are actually several supporting documents that have been used as the basis of the doctrine of discovery, where ”[C]ertain scholars have argued that the basis of the aforementioned ‘doctrine’ is to be found in several papal documents, such as the Bulls Dum Diversas (1452), Romanus Pontifex (1455) and Inter Caetera (1493).”2
Finally, the Statement argues that the “doctrine of discovery” was subverted for political purposes among competing nations to justify suffering of indigenous peoples and the expropriation of their lands. Yet, the purpose of the 1493 Inter Caetera was to ensure that lands discovered by Columbus the year were claimed to the exclusion of all others.
Origins of the doctrine of discovery
During the colonial period, the foundations of the legal relationship between the new country of America and the indigenous people of America was an important issue facing those who hoped to settle in the New World. European theorists asked questions about the morality and legality of possessing land discovered in America. Two leading theorists were Dominican clerics Bartolome de las Casas (1474-1566) and Francisco de Vitoria (1486-1547). De las Casas had been a missionary among the Indians and was able to discuss the abuses of Spanish colonization, from his own first hand experiences. He criticized the Spanish encomienda system which granted the Spanish land and the right to enslave Indians to do their work. Vitoria, on the other hand, had never been to the New World, however he did agree with De las Casas on the humanity of the indigenous peoples.
Vitoria set forth the legal relationship that would be the foundation of American Indian law. He held that Indians possessed an entitlement to the land and the right to act autonomously, and this, the Europeans must respect. This evidenced the influence of theology on his concept of law, with God as the source of legal authority. Vitoria supported the idea that Indians were rational human beings. This was in conflict with what many believed was the bestowal of ownership to Spain over all the lands discovered, not ruled by Christians, as granted by Pope Alexander VI. Therefore, it was important to find that Indians were human and rational in order to convert them to Christianity, which was a job expected of Spain by the Catholic Church.
But how did Vitoria reason that Spain could ultimately claim the lands? First, Vitoria concluded that the Indians were not suited for the administration of government which brought civility and control over life. If Spain could provide this government — for their benefit of course — then this would in effect allow Spain to control the land. This laid the foundation for the understanding of the trust relationship between the federal government and Indians in modern American Indian law. Second, Vitoria reasoned that under a natural law theory, that Indians had obligations as well as rights, which allowed visitors, travelers, traders and churches on their missions to convert. Should the indigenous peoples resist this obligation, then the Spanish would be morally justified, under a just war theory, to fight and conquer the Indians. Thus, the foundation for the conqueror's right to possession of the land. Because of the rights held by Indians, the use of treaties was seen as a way to gain the consent of the indigenous peoples with the domination of the colonizers, but that would give them clear title.3
The failure of Spain to heed the advice of Vitoria, in respecting the land and rights of the indigenous people led to the Pueblo Revolt of 1620. A landmark event for the Pueblo people, the harsh rule of the Spanish and Mexicans was turned back after more than one hundred years of colonization aggression. This event is a pivotal landmark in Pueblo government and history, today, and the events which surrounded the Pueblo Revolt of 1620 are important even in today’s governance among the Pueblo people in the Southwestern United States.
The “doctrine of discovery” is the foundation of property law in the U.S.
The U.S. Supreme Court in 1823 opined in a case called Johnson v. McIntosh.4 This opinion established that land grants made by tribal chiefs to individuals from 1773 to 1775 — prior to the establishment of the United States— were valid. Basing this decision on the “right of occupancy”, at the sufferance of the United States, the court held that Indians did have rights to convey. (To find otherwise, would have been to invalidate treaties which gave immense tracts of land to the colonial and U.S. governments.) The court further established that the “doctrine of discovery” and “title by conquer,” had evolved into the current system of controlling land of the tribes which had been “conquered”.
Chief Justice John Marshall wrote in Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823), that whatever the "original justice of the claim," and however "opposed to natural right, and to the usages of civilized nations," he was constrained in doing justice for Indian peoples because he sat in the "Courts of the conqueror." Establishing title in the sovereign was possible with some restraints, “when the conquest is complete, and the conquered inhabitants can be blended with the conquerors, or safely governed as a distinct people.”5
Further, Justice Marshall found that taking land was considered a righteous bargain because the Indians received Christianity and unlimited independence in exchange for their land. He wrote:
The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new by bestowing on them civilization and Christianity in exchange for unlimited independence.6
The opinion makes two important interpretations for the federal government and Indian Nations. First, it gives full title to the U.S. to transfer lands to pay off its debts, pay soldiers who fought in the Revolutionary War, and the ability to offer land for settlement to settlers. Second, it acknowledges that Indian Nations had a “right of occupancy” always, and so therefore those attributes of ownership made transfers valid in treaties that were made between Indian Nations and the federal government.
What are the consequences of this repudiation of the “doctrine of discovery”?
When the “doctrine of discovery” is repudiated, and it is the basis of land ownership in America, does that jeopardize the title to land acquired from Indian Nations through treaties?
Justice Marshall actually relied on the doctrine of discovery but on several other ideas like the conqueror that followed discovery. Then, in a part of the opinion that is not often discussed, Justice Marshall actually cites to a memorial between London and Versailles about a political dispute, wherein was the first official recognition othat there is an “Indian right to the soil”. The memorial describes a meeting where the English governors had gathered “to ascertain the limits of the land in dispute”. By acknowledging the “land in dispute” the British acknowledged the Indians dominion and control over the land and their right to occupy it.
1755 Memorial between London and Versailles and supporting documentation
Further, Justice Marshall uses two legal fictions to conclude that Indians have a “right to the soil.” Both of these legal fictions diminish sovereignty but also acknowledge a right to the soil— the Indian Trust Doctrine nd the “domestic dependent nation” description of Indian tribes.
Finally the affirming conclusion was stated in the negative, as “ . . . [I]t has never been contended that the Indian title amounted to nothing. Their right of possession has nevver been questioned.”
All of this is to say, that the “doctrine of discovery” is not such a critical leg of the stool that if it is gone, the chair will collapse. It will not.
Finally, Pope Francis is to be commended for following up on his trip to Canada and his meetings with First Nations people and the survivors of the residential schools with a real response.
[Parts of this article have been excerpted from Sutton, Decolonizing the Foundations in American Indian Law (2021) written for non-lawyers and lawyers available on amazon.com at https://a.co/d/7NefX5E .]
https://www.humandevelopment.va/content/dam/sviluppoumano/news/2023-news/nota-dottrina-scoperta/Nota-congiunta---EN.pdf
https://press.vatican.va/content/salastampa/en/bollettino/pubblico/2023/03/30/230330b.html
S. James Anaya, Indigenous Peoples in International Law 2d ed. Oxford Press 2004]
Johnson v. McIntosh, 21 U.S. ( 8 Wheat.) 543 (1823).
Johnson v. McIntosh, 21 U.S. ( 8 Wheat.) 543 (1823).
Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 573 (1823).