What is the discovery doctrine, and when was it introduced into United States municipal law?

The discovery doctrine is a disputed interpretation of international law from the Age of Discovery. It was introduced into United States municipal law by Supreme Court Justice John Marshall in the 1823 case *Johnson v. McIntosh*. The doctrine posits that the discovery of territory previously unknown to Europeans granted the discovering nation title to that territory against other European nations, a title that could be solidified through possession.

According to the doctrine of discovery, what rights did the discovering European nation gain over newly discovered lands?

The doctrine of discovery, as formulated by Justice John Marshall, stipulated that the nation discovering territory previously unknown to Europeans gained title to that land against all other European nations. This title could be perfected by possession. Furthermore, the discovering nation held the sole right to acquire the soil from the Indigenous inhabitants and establish settlements upon it, while the Indigenous peoples' sovereignty and rights to sell their land were diminished, though their right of occupancy remained.

What are the generally recognized means by which a state can acquire territory in international law?

In international law, states can acquire territory through several means: conquest, cession by agreement between states, occupation of land that belongs to no state (known as *terra nullius*), and prescription through the continuous exercise of sovereignty. The discovery of a territory, by itself, only creates an initial, incomplete title that must be followed by effective occupation within a reasonable period to be fully established.

What is the historical origin of the doctrine of discovery, and which papal bulls are cited as foundational?

The doctrine of discovery is traced back to papal bulls issued during the 15th century, which authorized European monarchs to conquer the lands of non-Christians. Key bulls include Pope Nicholas V's *Dum Diversas* (1452) and *Romanus Pontifex* (1455), which granted Portugal rights to subjugate non-Christians and take their lands and belongings. Later, Pope Alexander VI issued the Bulls of Donation in 1493, including *Inter caetera*, which divided newly discovered non-Christian lands between Spain and Portugal.

How did the Spanish theologians Francisco de Vitoria and Domingo de Soto challenge the claims based on discovery and papal grants?

Spanish theologians like Francisco de Vitoria and Domingo de Soto challenged the notion that papal bulls or mere discovery granted European powers legitimate title to lands already inhabited by Indigenous peoples. Vitoria, for instance, argued in 1539 that the discovery of the Americas did not inherently support Spanish possession any more than if Indigenous peoples had discovered Europe.

What was the stance of France and England regarding papal authority and the doctrine of discovery in the 16th century?

France and England, while also claiming territories based on discovery, disputed the idea that papal bulls or discovery alone could grant title to lands. The French king stated that popes held spiritual jurisdiction and could not distribute land, and that mere visual discovery did not constitute possession. Similarly, Queen Elizabeth I of England rejected papal claims to grant lands and asserted that symbolic acts like erecting monuments did not confer property rights.

What justifications did France and England use for exploring and colonizing territories inhabited by non-Christians?

France and England asserted rights to explore and colonize territories not already possessed by Christian sovereigns, using several justifications. These included spreading Christianity, civilizing 'barbarian' peoples, the natural right to free exploration and trade, and the right to settle and cultivate lands that were considered uninhabited or uncultivated.

How did legal theorists like Hugo Grotius, William Blackstone, and Emer de Vattel view the concept of discovery and territorial acquisition?

Hugo Grotius, writing in 1625, argued that discovery only applied to things that belonged to no one, implying it did not grant rights over inhabited lands. By the 18th century, William Blackstone suggested that territorial rights could stem from occupancy of desert and uncultivated lands or from conquest and cession. Emer de Vattel distinguished between effectively occupied and cultivated lands versus unsettled and uncultivated lands of nomads, which he considered open to colonization.

What symbolic rituals and concrete actions did European states employ to assert claims of discovery and possession?

European states used various symbolic rituals, such as burying plates, raising flags, erecting signs, and naming territories or rivers, to notify other European states of their discoveries and claims. More concrete assertions of possession included building forts and establishing settlements. Rituals often extended to symbolizing the enforcement of the colonizing power's laws through acts like trials and executions.

How did European monarchs typically assert sovereignty over non-Christian territories, and what was the role of charters?

European monarchs frequently claimed sovereignty over vast areas of non-Christian territory based on purported discoveries and symbolic acts of possession. They often issued charters and commissions to grantees, empowering them to represent the Crown and acquire property. While sometimes acknowledging Indigenous property rights that needed acquisition through conquest, treaty, or purchase, these monarchs sometimes acted as if territories were uninhabited, allowing acquisition through occupation.

What legal strategy did European powers sometimes employ regarding their territorial claims?

European powers often adopted multiple, sometimes contradictory, legal rationales for their acquisition of territory. This was frequently a deliberate strategy to defend their claims against rival European nations, using whichever justification best suited their immediate political and legal arguments.

When did Thomas Jefferson assert that the doctrine of discovery was applicable international law for the United States?

In 1792, U.S. Secretary of State Thomas Jefferson claimed that the doctrine of discovery was part of international law and was applicable to the newly formed United States government.

What were the five key points of Chief Justice John Marshall's formulation of the discovery doctrine in *Johnson v. McIntosh* (1823)?

In *Johnson v. McIntosh*, Chief Justice John Marshall outlined five points regarding the discovery doctrine: 1) Discovery gave the discovering nation title against other European nations, perfected by possession. 2) The discovering nation had the sole right to acquire land from natives and establish settlements. 3) Indigenous sovereignty and rights to sell land were diminished, but the right of occupancy remained. 4) The discovering nation could sell the land, subject to Indigenous occupancy rights. 5) This ultimate title passed from Britain to the individual states and then to the United States.

What is the argument that the *Johnson v. McIntosh* case was a result of collusive lawsuits?

Some legal scholars, like Banner and Kades, argue that the *Johnson v. McIntosh* case was orchestrated through collusive lawsuits. This means that land speculators allegedly worked together to bring the case to court in order to achieve a predetermined legal outcome that would validate their land claims.

What were the conflicting land claims in the *Johnson v. McIntosh* case?

The plaintiff, Johnson, claimed land inherited from a purchase made from the Piankeshaw tribes. The defendant, McIntosh, claimed the same land based on a grant from the United States. The Piankeshaw had previously sold land in the Indiana Territory to Lord Dunmore in 1775 and later conveyed much of the same land to William Henry Harrison in 1805, creating the basis for these conflicting titles.

According to John Marshall's decision in *Johnson v. McIntosh*, how did the United States acquire ultimate title to land?

Marshall found that ultimate title to land arose from discovery and possession, a principle observed by European nations. He stated that the United States inherited this ultimate title from Great Britain and France, as part of the sovereign rights gained through the American Revolutionary War.

What did Chief Justice John Marshall cite as evidence for the 'universal recognition' of the discovery doctrine's principles?

Marshall cited the history of America from its discovery onward, noting that European nations established the principle of discovery giving title against other European powers to avoid conflict. He also pointed to papal bulls like *Romanus Pontifex* and *Inter caetera*, and exploration charters given to figures like John Cabot, as evidence that other nations accepted these principles.

What are some key criticisms leveled against Chief Justice John Marshall's formulation of the discovery doctrine?

Critics argue that Marshall's formulation lacked sufficient historical basis, that the authority for the doctrine was 'flimsy,' and that he overlooked evidence of other European settlers acknowledging Indigenous land rights and preferring purchase. Furthermore, it's argued that Marshall misinterpreted the doctrine as granting exclusive rights to land rather than an exclusive right to negotiate treaties with Indigenous inhabitants. The fact that Indigenous voices were absent from the litigation is also a significant point of criticism.

How did Chief Justice Marshall re-interpret the discovery doctrine in *Worcester v. Georgia* (1832)?

In *Worcester v. Georgia*, Marshall clarified that discovery granted the discovering nation only the 'sole right of acquiring the soil and making settlements on it,' which was a right of preemption between colonizing powers. He stated this right did not diminish the sovereignty of Indigenous inhabitants or affect the rights of those already in possession.

What was the Supreme Court's ruling in *Cherokee Nation v. Georgia* (1831) regarding Indigenous nations?

In *Cherokee Nation v. Georgia* (1831), the U.S. Supreme Court characterized the Cherokee Nation as a 'domestic dependent nation,' which meant they lacked the standing to bring legal action against the state of Georgia.

How did later Supreme Court cases, between 1836 and 1842, alter the interpretation of the discovery doctrine compared to *Worcester v. Georgia*?

Following *Worcester v. Georgia*, five Supreme Court cases decided between 1836 and 1842 (Mitchel I, Fernandez, Clark, Mitchel II, and Martin) effectively restored the rule established in *Johnson v. McIntosh*. These decisions reasserted that discovery granted the discovering nation ultimate title to the land, while Indigenous peoples retained a right of occupancy.

What impact did the *Oliphant v. Suquamish Indian Tribe* (1979) and *Duro v. Reina* (1990) Supreme Court cases have on tribal jurisdiction?

In *Oliphant v. Suquamish Indian Tribe* (1979), the Supreme Court ruled that tribes lacked the jurisdiction to prosecute non-Indians. Subsequently, in *Duro v. Reina* (1990), the court held that tribes could not prosecute Indians who were not members of the prosecuting tribe, although Congress later amended the Indian Civil Rights Act to permit inter-tribal prosecutions.

When was the discovery doctrine last cited by the U.S. Supreme Court, and in which case?

As of March 2023, the most recent citation of the discovery doctrine by the U.S. Supreme Court was in the 2005 case *City of Sherrill v. Oneida Indian Nation of New York*, where it was mentioned by Justice Ruth Bader Ginsburg in the majority decision.

How was the discovery doctrine discussed in the early Canadian case *St Catharines Milling and Lumber Co v R* (1888)?

In *St Catharines Milling and Lumber Co v R*, the first Canadian case concerning Indigenous land title, the doctrine of discovery as articulated by John Marshall in *Johnson v. McIntosh* was extensively discussed. While the initial judge referenced Marshall's statement of English law, the Privy Council on appeal diverged, finding that native land rights in Canada derived from the Royal Proclamation of 1763 rather than directly from the discovery doctrine.

What did the Supreme Court of Canada rule regarding Indigenous land title in the *Calder v British Columbia (Attorney General)* case (1973)?

In the landmark 1973 case *Calder v British Columbia (Attorney General)*, the Supreme Court of Canada affirmed that Indigenous peoples in Canada held an aboriginal title to their lands. This title was deemed independent of the Royal Proclamation of 1763 and originated from the fact that Indigenous societies were already organized and occupying the land when European settlers arrived.

What is the current status of the *terra nullius* concept in Canadian law, according to the Supreme Court of Canada?

In the 2014 case *Tsilhqot'in Nation v British Columbia*, the Supreme Court of Canada confirmed that the doctrine of *terra nullius* (land belonging to no one) never applied in Canada. The court recognized Aboriginal title as a beneficial interest in land, although the Crown retains underlying title, and outlined conditions under which the Crown could extinguish Aboriginal title.

What international declaration, adopted in 2007, addresses the rights of Indigenous peoples concerning their lands?

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted in 2007, acknowledges the rights of Indigenous peoples to their lands. While the United States, Canada, Australia, and New Zealand initially voted against it, all four nations later reversed their positions.

How has the United Nations Permanent Forum on Indigenous Issues (UNPFII) addressed the doctrine of discovery?

The UNPFII has condemned the discovery doctrine as a foundation for the violation of Indigenous peoples' human rights. Its eleventh session in 2012 focused specifically on the doctrine's enduring impact and the right to redress for past conquests, calling for mechanisms to investigate historical land claims.

Which major Christian denominations have formally repudiated the doctrine of discovery?

Several Christian denominations have formally repudiated the doctrine of discovery. These include the US Episcopal Church (2009), the Unitarian Universalist Association (2012), the United Church of Christ (2013), the Christian Reformed Church (2016), the Presbyterian Church (U.S.A.) (2016, 2018), the Evangelical Lutheran Church in America (2016), and the Christian Church (Disciples of Christ) (2017). The Holy See also stated in 2010 that the doctrine was abrogated and *Inter caetera* had no value, and in 2023, the Vatican formally repudiated it.

What was the Vatican's official stance on the doctrine of discovery as of March 2023?

On March 30, 2023, the Vatican's Dicasteries for Culture and Education and for Promoting Integral Human Development jointly repudiated the doctrine of discovery, stating it is 'not part of the teaching of the Catholic Church.' They referenced the 1537 papal bull *Sublimis Deus*, which affirmed Indigenous liberty and property rights.

What action did clergy take in November 2016 related to the *Inter caetera* papal bull?

In November 2016, during the Dakota Access Pipeline protests near the Standing Rock Indian Reservation, a group of 524 clergy publicly burned copies of the papal bull *Inter caetera*. This act was performed with the authorization of Indigenous elders as a demonstration against the doctrine of discovery.

What have Canadian commissions like the Royal Commission on Aboriginal Peoples and the Truth and Reconciliation Commission of Canada stated regarding the doctrine of discovery?

Both the Royal Commission on Aboriginal Peoples and the Truth and Reconciliation Commission of Canada have repudiated the doctrine of discovery. They have also called upon governments to remove the doctrine from laws and policies.

What did the Supreme Court of Canada confirm about *terra nullius* in the *Tsilhqot'in Nation v British Columbia* case?

In the *Tsilhqot'in Nation v British Columbia* case in 2014, the Supreme Court of Canada confirmed that the doctrine of *terra nullius* (the idea that land was empty and belonged to no one) was never applied in Canada. The court recognized Indigenous peoples' inherent Aboriginal title to their lands.

What is the significance of the papal bull *Sublimis Deus* in relation to the doctrine of discovery?

The papal bull *Sublimis Deus*, issued in 1537, is significant because it affirmed the liberty and property rights of Indigenous peoples and prohibited their enslavement. The Vatican cited this bull in its 2023 repudiation of the doctrine of discovery, highlighting that the doctrine was contrary to earlier papal teachings.

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The Doctrine of Discovery

International Law and the Age of Discovery

The Doctrine of Discovery is an interpretation of international law that emerged during the European Age of Discovery. It posits that the first European nation to discover territory previously unknown to Europeans gained sovereignty and exclusive rights over that land, superseding the rights of Indigenous peoples already inhabiting it. This principle was foundational for European colonial expansion and territorial claims across the globe.

U.S. Jurisprudence: Johnson v. McIntosh

In the United States, the doctrine was formally incorporated into municipal law by Chief Justice John Marshall in the landmark Supreme Court case Johnson v. McIntosh (1823). Marshall's ruling established that discovery granted the discovering nation title against other European powers, creating an "inchoate title" that could be perfected by possession. This ruling significantly diminished Indigenous sovereignty and property rights within the U.S. legal framework.

Core Tenets

The doctrine, as articulated in legal contexts, generally held that:

Discovery by a European Christian nation conferred title against other European nations.
This title included the exclusive right to acquire land from Indigenous inhabitants, typically through conquest, cession, or purchase (preemption).
Indigenous peoples retained a right of occupancy but their inherent sovereignty and ability to freely alienate their lands were severely curtailed.

Historical Roots and Evolution

Papal Authority and Colonial Claims

The doctrine's origins are often traced to papal bulls issued in the 15th century, such as Dum Diversas (1452) and Romanus Pontifex (1455). These bulls granted European monarchs, particularly Portugal, rights to conquer non-Christian lands and peoples. Later, Inter caetera (1493) by Pope Alexander VI delineated spheres of influence for Spain and Portugal in the newly discovered Americas, reinforcing the idea that discovery, sanctioned by the Church, granted dominion.

Dum Diversas (1452): Authorized the subjugation of non-Christians and their perpetual servitude.
Romanus Pontifex (1455): Extended Portugal's rights to conquer infidel lands and trade, framing it as a mission for salvation.
Inter caetera (1493): Divided newly discovered lands between Spain and Portugal, granting exclusive rights based on discovery.
Ea quae pro bono pacis (1506): Endorsed the Treaty of Tordesillas, which adjusted the spheres of influence between Spain and Portugal.

European Powers and Justifications

While Spain and Portugal relied heavily on papal authority, other European powers like France and England asserted claims based on discovery and possession, often disputing the Pope's authority to grant lands. They developed justifications centered on bringing civilization, spreading Christianity, and the right to settle and cultivate lands deemed "unoccupied" or underutilized by Indigenous peoples. Theorists like Francisco de Vitoria offered critiques, questioning the automatic right to possession of inhabited lands.

Legal Rationales and Practices

European states employed various legal rationales, including discovery, papal grants, colonial charters, and symbolic acts of possession (e.g., erecting flags, naming territories). These were often used strategically to defend claims against rival European powers. The underlying principle was that discovery created a right to acquire territory, though the specific means and recognition of Indigenous rights varied and were often contested.

Legal Application and Impact

Johnson v. McIntosh (1823)

Chief Justice John Marshall's opinion in Johnson v. McIntosh codified the Doctrine of Discovery into U.S. law. He established that discovery granted title against other European nations and gave the discovering nation the exclusive right to acquire land from Indigenous peoples. This ruling effectively legitimized the U.S. government's claim to vast territories and its control over land transactions with Native American tribes, severely limiting tribal sovereignty.

Key points from Marshall's decision:

Discovery conferred title against other European nations, perfected by possession.
The discovering nation held the sole right to acquire land from Indigenous peoples.
Indigenous sovereignty and land alienation rights were diminished, though a right of occupancy remained.
The ultimate title passed from Britain to the United States.

Subsequent U.S. Cases

The Supreme Court's interpretation of the doctrine evolved. While Johnson v. McIntosh established ultimate title, Worcester v. Georgia (1832) suggested discovery granted only the right of preemption between European powers, not diminishing Indigenous sovereignty. However, subsequent cases largely reverted to the Johnson interpretation, solidifying the doctrine's impact on Indigenous land rights and tribal jurisdiction, as seen in cases like Oliphant v. Suquamish Indian Tribe.

Canadian Legal Context

In Canada, the doctrine was discussed in cases like St Catharines Milling and Lumber Co v R (1888), initially aligning with Johnson v. McIntosh. However, later decisions, notably Calder v British Columbia (Attorney General) (1973) and Tsilhqot'in Nation v British Columbia (2014), recognized Indigenous aboriginal title as distinct and pre-existing, independent of the Crown's ultimate title. The Supreme Court of Canada affirmed that terra nullius never applied in Canada.

Critiques and Contestation

Lack of Indigenous Voice

A significant critique, highlighted by scholars like Allison Dussias, is that Indigenous peoples were not parties to the foundational legal cases like Johnson v. McIntosh. This meant their perspectives and rights were excluded from the legal discourse that shaped the doctrine's application, leading to profound and lasting impacts on their property rights and sovereignty.

Questionable Legal Foundations

Legal scholars, including Kent McNeil and Blake Watson, argue that the historical basis for the Doctrine of Discovery as international law was "flimsy." They contend that Marshall may have misinterpreted historical evidence and that European powers often employed contradictory legal rationales to justify territorial claims against both Indigenous peoples and rival European states. The doctrine's reliance on papal bulls was also contested by various European nations.

Injustice and Racism

The doctrine is widely condemned as inherently unjust, racist, and a violation of fundamental human rights. It provided a legal framework for the dispossession of Indigenous lands, cultural assimilation, and the subjugation of Indigenous peoples. Its legacy continues to be debated and challenged in contemporary legal and political discourse.

Modern Repudiation and Advocacy

International Recognition

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted in 2007, acknowledges Indigenous rights to their lands. While initially opposed by some Western nations, their positions later shifted. The UN Permanent Forum on Indigenous Issues has explicitly identified the Doctrine of Discovery as a foundation for human rights violations against Indigenous peoples, calling for its repudiation.

Religious Institutions' Stance

Numerous religious denominations have formally repudiated the Doctrine of Discovery. Organizations such as the Episcopal Church, the United Church of Christ, the Evangelical Lutheran Church in America, and the Christian Reformed Church have issued statements condemning the doctrine as incompatible with their values and calling for its removal from legal and policy frameworks. The Holy See itself stated in 2023 that the doctrine is not part of Catholic teaching.

Episcopal Church: Repudiated in 2009.
Unitarian Universalist Association: Repudiated in 2012.
United Church of Christ: Repudiated in 2013.
Christian Reformed Church: Rejected as heresy in 2016.
Evangelical Lutheran Church in America: Adopted action repudiating the doctrine in 2016.
Presbyterian Church (U.S.A.): Called for repudiation and review in 2016/2018.
Christian Church (Disciples of Christ): Condemned and repudiated in 2017.
Holy See (Vatican): Joint statement from Dicasteries in 2023 declared it not part of Catholic teaching.

Calls for Legal Reform

Advocacy efforts continue to push for the formal removal of the Doctrine of Discovery from national and international laws and policies. Indigenous rights organizations and legal scholars advocate for legal reforms that recognize Indigenous sovereignty and land rights fully, addressing the enduring legacy of this doctrine.

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References

The bull of Julius II in Portuguese archives

Stuart Banner (2005), How the Indians Lost Their Land: Law and Power on the Frontier, pp. 171â172

Eric Kades (2000), "The Dark Side of Efficiency: Johnson v. McIntosh and the Expropriation of American Indian Lands", 148 University of Pennsylvania Law Review 1065, p. 148

Dussias, Allison M., "Squaw Drudges, Farm Wives, and the Dann Sisters' Last Stand: American Indian Women's Resistance to Domestication and the Denial of Their Property Rights", 77 North Carolina Law Review 637, 645 (1999)

Anthony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge: Cambridge University Press, 2005): Ch. 1 "Francisco de Vitoria and the Colonial Origins of International Law".

Pub. L. 101-511 Â§ 8077(b)

A full list of references for this article are available at the Discovery doctrine Wikipedia page

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Important Notice

This document was generated by an Artificial Intelligence and is intended for academic and informational purposes only. The content is derived from publicly available data and has been refined for clarity and depth, suitable for higher education students. However, it is not exhaustive and may not reflect the most current legal interpretations or historical scholarship.

This is not legal advice. The information presented here should not be considered a substitute for professional legal consultation. The complexities of international law, property rights, and Indigenous law require consultation with qualified legal professionals. Reliance on any information provided herein is solely at your own risk.

The creators of this content are not responsible for any errors, omissions, or consequences arising from the use of this information.

Foundations of Claim

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The Doctrine of Discovery 📜

🌍 International Law and the Age of Discovery

🇺🇸 U.S. Jurisprudence: Johnson v. McIntosh

⚖️ Core Tenets

Historical Roots and Evolution ⏳

🇻🇦 Papal Authority and Colonial Claims

👑 European Powers and Justifications

📜 Legal Rationales and Practices

Legal Application and Impact 🏛️

⚖️ Johnson v. McIntosh (1823)

➡️ Subsequent U.S. Cases

🇨🇦 Canadian Legal Context

Critiques and Contestation ❓

🗣️ Lack of Indigenous Voice

📜 Questionable Legal Foundations

⚖️ Injustice and Racism

Modern Repudiation and Advocacy ✊

🇺🇳 International Recognition

⛪ Religious Institutions' Stance

🏛️ Calls for Legal Reform

Teacher's Corner 🧑‍🏫

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Dive in with Flashcard Learning!

The Doctrine of Discovery

International Law and the Age of Discovery

U.S. Jurisprudence: Johnson v. McIntosh

Core Tenets

Historical Roots and Evolution

Papal Authority and Colonial Claims

European Powers and Justifications

Legal Rationales and Practices

Legal Application and Impact

Johnson v. McIntosh (1823)

Subsequent U.S. Cases

Canadian Legal Context

Critiques and Contestation

Lack of Indigenous Voice

Questionable Legal Foundations

Injustice and Racism

Modern Repudiation and Advocacy

International Recognition

Religious Institutions' Stance

Calls for Legal Reform

Teacher's Corner

True or False?

Test Your Knowledge!

Gamer's Corner

Discover other topics to study!

References

Feedback & Support

Disclaimer

Important Notice