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By Pat Gonzales-Rogers

Former Executive Director of the Bears Ears Intertribal Coalition
Lecturer and Distinguished Practitioner in Residence

Yale School of the Environment and Yale Center for Environmental Justice

The period of prolific exploration was advanced by numerous breakthroughs in technology such as the development of the magnetic compass and more sophisticated ship designs, which in turn lent to maps that were more accurate and depicted global geography previously unseen. (Merson, p23) This allowed for the trade and commerce of goods from different hemispheres and catapulted those European entities to enter a period now known as the Age of Imperialism, which practically meant they were both political and economic masters of the world. However, it is arguable that perhaps the greatest impetus and license for the Age of Discovery was the Doctrine of Discovery.

The objectives of increasing trade and commerce during the Age of Discovery are abundantly obvious; however no less important was the urgency of the Church to expand its base and proselytize the unexplored global community. Unlike our contemporary political systems, there was very little separation between the church and state. The Doctrine of Discovery developed a multi-layered matrix that included the theological, political, and legal rationale so that European explorers could colonize and take lands from non-Christians. In 1493, Pope Alexander VI issued Papal Bull, Inter caetra II at the bequest of Spain—Spain and Portugal were equally concerned about conflicting ownership of lands, and this resulted in the demarcation of the North Pole to the South Pole and about 300 miles west of the Azores Islands, and granted Spain, under the authority of God, to all lands discovered west of this line. (Miller)In plain-speak, this provided the proxies of these countries the ability to discover new lands, claim them through the simple exercise of planting a flag on their soil, and then to report back to their lords and rulers. In short order, by following this basic process, the land was deemed to be now in the hands of Europeans interests. 

In the event that the original inhabitants formed a contrary point of view, the Doctrine of Discovery was patently dismissive of any other views other than those of European stakeholders—in that way, its ideology was based on the dehumanization of most other cultures. Some of the more egregious and morally pedantic elements of the Doctrine include the following:

  • First Discovery: In short, the first European country to discover a new land gained both the property and sovereign property rights over the lands. Further, the mere act of discovery, without actual physical possession, was considered to be sufficient to construct a claim of legal title. (Miller, p3)
  • Terra nullius: This literally mean a piece of land or earth that has no worth and is null and void. The thrust behind this principle was not merely if the lands were not occupied or overtly being utilized, but also, if the lands were occupied by non-Europeans and they were not being utilized in a fashion or conduct considered symmetrical to European standards and norms. In other words, any usage contrary to European standards made the lands empty and wasteful. European discoverers were quite liberal in their application of this principle and this criterion was used well into the western expansion of the United States. (Miller, p3)
  • Christianity: At primacy to the Doctrine of Discovery was religion and specifically Christianity. Summarily, non-Christians were deemed not to have the same rights to land and self-determination as Christians, and their limited rights could be easily abrogated upon discovery by Christians. (Miller, 3)
  • Civilization: Both European, and the later American explorers, leveraged their specific definition of civilization as a reactive mechanism to initiate their cultural and institutional superiority. At its core was the belief that God had personally directed them to introduce Eurocentric culture and education, via Christianity, to the conquered population. No doubt this resulted in and lent to the systemic paternalism and legal guardianship that is often associated with Native populations, even to this day. (Miller, p4)

Consider that at the time of Columbus’ arrival in 1492, the global population was approximately 500 million, with about one fifth of that number, or about 100 million, being Indigenous peoples. Based on just one feature, that is to say, because they were not Europeans, most of their land was considered terra nullius.

The impact and profundity of the Doctrine of Discovery is at once vast and long standing. In 2012, the United Nations Permanent Forum on Indigenous Issues felt compelled, given that so many of its member countries still feel the encumbrances of a five-hundred-year-old doctrinaire, to formally denounce it. Among the litany of grievances made, specific note was made to delineate that the Doctrine promoted “conquest,” that it was “shameful,” and that it had a marginalizing and discriminatory effect on all Native peoples. Further, the Permanent Forum noted, in addition to providing a broad legal authority for the acquisition of land, it also cultivated and promoted the ill-informed notions that Indigenous peoples were “savages,” “barbarians,” “inferior and uncivilized,” and that this was at the core of subjugating and exploiting both the people and their lands. (Impact)

A Background on the Doctrine of Discovery and Its Historical Implications to Indigenous Communities

The Doctrine of Discovery is the original tenet and cradle of federal Indian law, as it lays the groundwork for such contemporary concepts as the trust relationship, plenary power, and reserved rights. Common to all of these is both the institutional insinuation and instruction that tribes are subordinated against the interests and power of the federal government and to some extent, state powers and sovereignty. So, despite its general acceptance, both domestically and internationally, the concept has been so extrapolated it now is the tree of colonial fecundity to create numerous public policy progeny that still marginalize and dilute both the sovereignty and interests of Indian Country.

By way of specific domestic example, the Doctrine of Discovery still impacts all American Indians, Alaska Native, and Native Hawaiian populations to this very day. In fact, the Doctrine of Discovery is central to our federal trust relationship with all federally recognized tribes. The seminal 1823 U.S. Supreme Court case of Johnson v. M’Intosh held that private citizens could not purchase from Native tribes. Within the decision, Chief Justice Marshall makes a very blunt articulation that the United States, as the successor to Great Britain, has an inherited authority over all previously claimed lands within our boundaries. (Miller, p5) Equally provocative is Marshall’s analysis that the discovering country also gains the undivided right to extinguish the “right of occupancy” of the Indigenous population. Effectively, this disallowed any Native claims to said lands. This same concept was adopted into American jurisprudence and utilized with our own westward expansion and Manifest Destiny.

As an effective concept of law, the impact of the Doctrine of Discovery can be seen globally as it was utilized as a legal rationale not only in the United States, but also Canada, Australia and New Zealand. (Miller et al, p3) At present, it is still a valid precedent and is used by courts to decide property rights cases involving federally recognized tribes against non-Natives. As recently as 2005, Justice Ruth Bader Ginsburg cited the Discovery Doctrine in United States Supreme Court in City of Sherrill v Oneida Indian Nation of New York, decided against the Oneida.