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Origins of the Doctrine of Discovery
Origins of the Doctrine of Discovery
To understand the connection between Christendom's principle of discovery and the laws of the United States, we need to begin by
examining a papal document issued forty years before Columbus' historic voyage. In 1452, Pope Nicholas V issued to King Alfonso V
of Portugal the bull Romanus Pontifex, declaring war against all non-Christians throughout the world, and specifically sanctioning
and promoting the conquest, colonization, and exploitation of non-Christian nations and their territories. (ref.World Conference Against Racism document
Under various theological and legal doctrines formulated during and after the Crusades, non-Christians were considered enemies of the
Catholic faith and, as such, less than human. Accordingly, in the bull of 1452, Pope Nicholas directed King Alfonso to "capture,
vanquish, and subdue the saracens, pagans, and other enemies of Christ," to "put them into perpetual slavery," and "to take all their
possessions and property." [Davenport: 20-26] Acting on this papal privilege, Portugal continued to traffic in African slaves, and
expanded its royal dominions by making "discoveries" along the western coast of Africa, claiming those lands as Portuguese territory.
When Christopher Columbus first set foot on the white sands of Guanahani island, he performed a ceremony to "take possession" of the
land for the king and queen of Spain, acting under the inter- national laws of Western Christendom. Although the story of Columbus'
"discovery" has taken on mythological proportions in most of the Western world, few people are aware that his act of "possession" was
based on a religious doctrine now known as the Doctrine of Discovery. Even fewer people realize that today--five centuries later--the
United States government still uses this archaic Judeo- Christian doctrine to deny the rights of Native American Indians."
In the Inter Caetera document, Pope Alexander stated his desire that the "discovered" people be "subjugated and brought to the faith
itself." [Davenport: 61] By this means, said the pope, the "Christian Empire" would be propagated. [Thatcher: 127] When Portugal
protested this concession to Spain, Pope Alexander stipulated in a subsequent bull--issued May 4, 1493--that Spain must not attempt
to establish its dominion over lands which had already "come into the possession of any Christian lords." [Daven- port: 68] Then,
to placate the two rival monarchs, the pope drew a line of demarcation between the two poles, giving Spain rights of conquest and
dominion over one side of the globe, and Portugal over the other.
During this quincentennial of Columbus' journey to the Americas, it is important to recognize that the grim acts of genocide and conquest
by Columbus and his men against the peaceful Native people of the Caribbean were sanctioned by the above mentioned documents of the
Catholic church. Indeed, these papal documents were frequently used by Christian European conquerors in the Americas to justify an
incredibly brutal system of colonization-- which dehumanized the indigenous people by regarding their territories as being "inhabited
only by brute animals." [Story: 135-6]
The lesson to be learned is that the papal bulls of 1452 and 1493 are but two clear examples of how the "Christian Powers," or
"different States of Christendom," viewed indigenous peoples as "the lawful spoil and prey of their civilized conquerors."
[Wheaton: 270-1] In fact, the Christian "Law of Nations" asserted that Christian nations had a divine right, based on the Bible,
to claim absolute title to and ultimate authority over any newly "discovered" Non-Christian inhabitants and their lands. Over the
next several centuries, these beliefs gave rise to the Doctrine of Discovery used by Spain, Portugal, England, France, and
Holland--all Christian nations.
The Doctrine of Discovery in U.S. Law
In 1823, the Christian Doctrine of Discovery was quietly adopted into U.S. law by the Supreme Court in the celebrated case,
JOHNSON v. McINTOSH (8 Wheat., 543). Writing for the unanimous court, Chief Justice John Marshall observed that Christian
European nations had assumed "ultimate dominion" over the lands of America during the Age of Discovery, and that--upon
"discovery"--the Indians had lost "their rights to complete sovereignty, as independent nations," and only retained a right
of "occupancy" in their lands. In other words, Indian nations were subject to the ultimate authority of the first nation of
Christendom to claim possession of a given region of Indian lands. [Johnson: 574; Wheaton: 270-1]
According to Marshall, the United States--upon winning its independence in 1776--became a successor nation to the right of "discovery"
and acquired the power of "dominion" from Great Britain. [Johnson: 587-9] Of course, when Marshall first defined the principle of
"discovery," he used language phrased in such a way that it drew attention away from its religious bias, stating that "discovery
gave title to the government, by whose subject, or by whose authority, the discovery was made, against all other European governments."
However, when discussing legal precedent to support the court's findings, Marshall specifically cited the English charter issued to
the explorer John Cabot, in order to document England's "complete recognition" of the Doctrine of Discovery. [Johnson: 576] Then,
paraphrasing the language of the charter, Marshall noted that Cabot was authorized to take possession of lands, "notwithstanding
the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may
have made a previous discovery." [Johnson: 577]
In other words, the Court affirmed that United States law was based on a fundamental rule of the "Law of Nations"--that it was
permissible to virtually ignore the most basic rights of indigenous "heathens," and to claim that the "unoccupied lands" of America
rightfully belonged to discovering Christian European nations. Of course, it's important to understand that, as Benjamin Munn Ziegler
pointed out in The International Law of John Marshall, the term "unoccupied lands" referred to "the land in America which, when
discovered, were `occupied by Indians' but `unoccupied' by Christians." [Ziegler: 46]
Ironically, the same year that the JOHNSON v. McINTOSH decision was handed down, founding father James Madison wrote: "Religion is not
in the purview of human government. Religion is essentially distinct from civil government, and exempt from its cognizance; a connection
between them is injurious to both."
Most of us have been brought up to believe that the United States Constitution was designed to keep church and state apart.
Unfortunately, with the Johnson decision, the Christian Doctrine of Discovery was not only written into U.S. law but also became
the cornerstone of U.S. Indian policy over the next century.
From Doctrine of Discovery to Domestic Dependent Nations
Using the principle of "discovery" as its premise, the Supreme Court stated in 1831 that the Cherokee Nation (and, by implication,
all Indian nations) was not fully sovereign, but "may, perhaps," be deemed a "domestic dependent nation." [Cherokee Nation v. Georgia]
The federal government took this to mean that treaties made with Indian nations did not recognize Indian nations as free of U.S.
control. According to the U.S. government, Indian nations were "domestic dependent nations" subject to the federal government's
absolute legislative authority--known in the law as "plenary power." Thus, the ancient doctrine of Christian discovery and its
subjugation of "heathen" Indians were extended by the federal government into a mythical doctrine that the U.S. Constitution
allows for governmental authority over Indian nations and their lands. [Savage: 59-60]
The myth of U.S. "plenary power" over Indians--a power, by the way, that was never intended by the authors of the Constitution
[Savage: 115-17]--has been used by the United States to:
a) Circumvent the terms of solemn treaties that the U.S. entered into with Indian nations, despite the fact that all such treaties are
"supreme Law of the Land, anything in the Constitution not withstanding."
b) Steal the homelands of Indian peoples living east of the Mississippi River, by removing them from their traditional ancestral
homelands through the Indian Removal Act of 1835.
c) Use a congressional statute, known as the General Allotment Act of 1887, to divest Indian people of some 90 million acres of their
lands. This act, explained John Collier (Commissioner of Indian Affairs) was "an indirect method--peaceful under the forms of law--of
taking away the land that we were determined to take away but did not want to take it openly by breaking treaties."
d) Steal the sacred Black Hills from the Great Sioux nation in violation of the 1868 Treaty of Fort Laramie which recognized the
Sioux Nation's exclusive and absolute possession of their lands.
e) Pay the Secretary of the Interior $26 million for 24 million acres of Western Shoshone lands, because the Western Shoshone people
have steadfastly refused to sell the land and refused to accept the money. Although the Western Shoshone Nation's sovereignty and
territorial boundaries were clearly recognized by the federal government in the 1863 Ruby Valley Treaty, the government now claims
that paying itself on behalf of the Western Shoshone has extinguished the Western Shoshone's title to their lands.
The above cases are just a few examples of how the United States government has used the JOHNSON v. McINTOSH and Cherokee Nation v.
Georgia decisions to callously disregard the human rights of Native peoples. Indeed, countless U.S. Indian policies have been based
on the underlying, hidden rationale of "Christian discovery"--a rationale which holds that the "heathen" indigenous peoples of the
Americas are "subordinate to the first Christian discoverer," or its successor. [Wheaten: 271]
As Thomas Jefferson once observed, when the state uses church doctrine as a coercive tool, the result is "hypocrisy and meanness."
Unfortunately, the United States Supreme Court's use of the ancient Christian Doctrine of Discovery--to circumvent the Constitution
as a means of taking Indian lands and placing Indian nations under U.S. control-- has proven Madison and Jefferson right.
Bringing an End to Five Hundred Years of Injustice to Indigenous Peoples
In a country set up to maintain a strict separation of church and state, the Doctrine of Discovery should have long ago been
declared unconstitutional because it is based on a prejudicial treatment of Native American people simply because they were not
Christians at the time of European arrival. By penalizing Native people on the basis of their non-Christian religious beliefs and
ceremonial practices, stripping them of most of their lands and most of their sovereignty, the JOHNSON v. McINTOSH ruling stands
as a monumental violation of the "natural rights" of humankind, as well as the most fundamental human rights of indigenous
As we move beyond the quincentennial of Columbus' invasion of the Americas, it is high time to
formally renounce and put an end to
the religious prejudice that was written into U.S. law by Chief Justice John Marshall. Whether or
not the American people--especially
the Christian right--prove willing to assist Native people in getting the Johnson ruling
overturned will say a lot to the world
community about just how seriously the United States takes its own foundational principles
of liberty, justice, and religious
As we approach the 500th anniversary of the Inter Caetera bulls on May 3 and 4 of 1993, it is
important to keep in mind that the
Doctrine of Discovery is still being used by countries throughout the Americas to deny the rights
of indigenous peoples, and to
perpetuate colonization throughout the Western Hemisphere. To begin to bring that system of
colonization to an end, and to move
away from a cultural and spiritual tradition of subjugation, we must overturn the doctrine at
its roots. Therefore, I propose
that non-Native people--especially Christians-- unite in solidarity with indigenous peoples
of the Western Hemisphere to impress
upon Pope John Paul II how important it is for him to revoke, in a formal ceremony with
indigenous people, the Inter Caetera
bulls of 1493.
Revoking those papal documents and overturning the JOHNSON v. McINTOSH decision are two important
first steps toward correcting the
injustices that have been inflicted on indigenous peoples over the past five hundred years.
They are also spiritually significant
steps toward creating a way of life that is no longer based on greed and subjugation. Perhaps
then we will be able to use our
newfound solidarity to begin to create a lifestyle based on the first indigenous principle:
* RESPECT THE EARTH AND HAVE A SACRED REGARD FOR ALL LIVING THINGS *
In an interview Glenn Morris, an attorney and associate professor of political science at University of Colorado at Denver and a member of
the Leadership Council of the American Indian Movement of Colorado, said:
The Doctrine of Discovery was institutionalized in 1823 in the Supreme Court case of Johnson v. McIntosh, where John Marshall uses --
fabricates the Doctrine of Discovery to justify the diminishment of Indian title to the Americas.
Essentially, what Marshall says in Johnson v. McIntosh is that by virtue of the arrival of Christian civilization, the right of native
peoples to their traditional homelands and territories is diminished, because of the blessings that Christian civilization have brought
to the western hemisphere. And that opinion is the foundation for federal Indian law in the United States that continues to be enforced
day after day after day until 2008.
We have a case in Nevada right now with the Western Shoshones, in which the title to their land was considered to be extinguished
under this Doctrine of Discovery -- not in 1823, not in 1890 -- in the 1980s, and it continues to the present, to the point where the
United Nations, the Committee on the Elimination of the Racial Discrimination and the Inter-American Commission on Human Rights, have
said that through this Doctrine of Discovery, the application of the Doctrine of Discovery, the United States has been involved in
gross violations of fundamental human rights.
Now, the United States, of course, continues to ignore those decisions, but in addition to that, this Doctrine of Discovery and the
principles of federal Indian law have been exported from the United States to be applied in Canada, in Australia, in New Zealand, in
other English common law countries, like India and Kenya and South Africa.