May 16th, 2012
The 15th century international law Doctrine of Discovery in the modern world, by Robert J. Miller
The United Nations Permanent Forum on Indigenous Issues is holding its 11th annual meeting in New York May 7-18. More than 1,500 Indigenous Peoples will attend the meeting to address critical issues facing Indigenous Nations today. The main theme of this year’s meeting is the Doctrine of Discovery, one of the world’s first international laws.
The Doctrine of Discovery has its roots in the Crusades of 1096-1271 but it was primarily developed in the 1400s by Spain, Portugal, England, and the Church in an attempt to justify the colonization of the globe. Why, one might ask, is the U.N. Permanent Forum addressing this issue in 2012?
The answer is that colonization is still on ongoing process and the Doctrine of Discovery continues to be international law today and continues to negatively impact the daily lives of up to 500 million Indigenous Peoples located in over 72 countries. Indigenous Peoples in almost every one of those countries suffer from health, education, and income levels far below national averages. This is largely the result of Indigenous Peoples and Nations losing most of their traditional lands and access to their first foods, sacred sites, and basic human rights.
This outcome is no surprise because the very purpose of the Doctrine and European colonization was to strip Indigenous Peoples of their sovereignty, lands, resources, and rights. This purpose is well demonstrated in papal bulls, Dum Diversas (1452), Romanus Pontifex (1455), and four bulls in 1493 in which popes granted Spain and Portugal sovereignty, jurisdiction, and title to most of the world. In Romanus Pontifex, Pope Nicholas V purported to authorize Portugal “to invade, search out, capture, vanquish, and subdue all Saracens [Muslims] and pagans” along the west coast of Africa and to place them into “perpetual slavery” and to take all their property and “islands, land, harbors, and seas.” Spain and Portugal applied these principles of emerging international law in the Americas, Asia, and Africa.
Thereafter, England, France, and Holland helped shape the international law of Discovery as they claimed a share of the Indigenous world. These countries claimed they could ignore the 1493 papal bulls if they were the first to “discover” lands Spain and Portugal had not yet found. Consequently, the race was on to discover new lands. Spanish, Portuguese, English, Dutch, and French explorers engaged in all sorts of rituals to claimed newly encountered lands: planting flags and crosses and by leaving written signs and objects to prove which country claimed the lands under European international law.
European countries often disputed their claims of “first discovery.” England, Spain, Russia, and the United States made first discovery claims over the Pacific Northwest, for example, and President James K. Polk famously proclaimed “54-40 or fight” in invoking the Doctrine of Discovery to claim the Pacific Northwest. Spain and Portugal often fought over first discovery and occupation of the lands comprising modern-day southern Brazil and Uruguay, and in the Pacific.
In the United States, the definition of the international law Doctrine of Discovery was crystallized in the world’s foremost case on this legal principle, Johnson v. McIntosh (1823). In Johnson, the United States Supreme Court analyzed the European history and law of colonization and set out the elements that define the Doctrine. This case has been very influential and has been cited hundreds of times by U.S. courts, and by courts in Australia, Canada, New Zealand, and the English Privy Council in cases regarding Africa and Canada. The U.S. Supreme Court cited Johnson as recently as 2005 and lower federal courts cite it repeatedly to answer questions about American Indian rights.
The United States and all settler societies around the world continue to exercise and enforce the alleged powers granted them by the Doctrine. Many aspects of United States Indian law arise directly from Discovery: the federal trust responsibility, the plenary power doctrine, and the allegation of the diminished sovereignty of American Indian Nations. In addition, the limited land rights that American Indian Nations are deemed to legally possess today comes from the Doctrine of Discovery. These same limiting and dehumanizing principles are applied in almost all colonial, settler societies around the world today.
Therefore, it is no surprise that the U.N. Permanent Forum is addressing the Doctrine of Discovery. It is also no wonder that Indigenous Peoples and scholars have been researching, writing about, and advocating for the repudiation of this ethnocentric, feudal, and religiously inspired law. Recently, Indigenous and non-Indigenous peoples have been focusing on getting churches to repudiate the Doctrine. In 2009, the Episcopal Church adopted a resolution to repudiate Discovery, as did the Anglican Church of Canada in 2010, the World Council of Churches in 2012, and as many individual Unitarian and Quaker churches have done in the past few years.
Indigenous Nations and Peoples are now asking the U.N. Permanent Forum to advocate for settler societies to analyze their historical and modern-day usages of this international law, the discriminatory impacts of that law, and to remove the vestiges of that feudal legal regime from their current laws, regulations, and policies. The Permanent Forum is also being asked to convene an Expert Group Meeting to continue studying Discovery, to advocate that all governments adopt the U.N. Declaration on the Rights of Indigenous Peoples as binding national laws, and to encourage all churches to reflect on their roles in developing the Doctrine and in using it to steal the rights, lands, and resources of Indigenous Peoples and Nations. Plainly, Indigenous Peoples think it is high time for the Doctrine of Discovery to be relegated to the dustbin of history.
Robert J. Miller is a professor at Lewis & Clark Law School, Chief Justice of the Grand Ronde Tribe, and a citizen of the Eastern Shawnee Tribe. He is the author of Native America: Discovered and Conquered and the co-author of Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies.