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UNPFII’s 11th Session Will Review “Doctrine of Discovery”

Manifest Destiny Circa 1872 (from WikiMedia Commons)

The “Doctrine of Discovery” appears to reference the “Inter Caetera” (this Papal bull and others similar to it make up the “Bulls of Donation”) issued by Pope Alexander VI on May 4, 1493. The Inter Caetera ‘granted to Spain (the Crowns of Castile and Aragon) all lands to the “west and south” of a pole-to-pole line 100 leagues west and south of any of the islands of the Azores or the Cape Verde Islands.[1]’ (excerpt from Wikipedia.com on “Inter Caetera“). “A Papal bull is a particular type of letters patent or charter issued by a pope. It is named after the bulla that was appended to the end in order to authenticate it.” (excerpt from Wikipedia.com on “Papal Bull“; more at the Vatican website at “The Diplomatics of The Papal Documents: The Parts of the Document” and a sample bull shown at the bottom of the page of “The Diplomatics of The Papal Documents: Papal Documents” or a close-up in “Papal Seals“)

It remains unclear to the present whether the pope was issuing a “donation” of sovereignty or a feudal infeodation or investiture. Differing interpretations have been argued since the bull was issued, with some arguing that it was only meant to transform the possession and occupation of land into lawful sovereignty. Others, including the Spanish crown and the conquistadors, interpreted it in the widest possible sense, deducing that it gave Spain full political sovereignty.[2]

(excerpt from Wikipedia.com on “Inter Caetera“)

In 1823, the United States Supreme Court in Johnson v. McIntosh

declared that the Doctrine of Discovery had been the law on the North American continent since the beginning of European exploration and controlled how Europeans and Americans could claim and acquire land from the Indian nations. Discovery is still the law in the United States today and in the international arena as is well demonstrated by the actions of modern day countries attempting to claim new lands and assets in the Arctic. We appear to be at the start of a new race to establish claims to this “New World” of the Arctic as the icecaps retreat, and it is evident that the rituals and principles of the Doctrine of Discovery provide the legal framework for claims to newly discovered lands and assets.

(excerpt from “The New Land Rush” by Robert J. Miller, published on May 3, 2007 at TomPaine.com and republished as “Artic Ice melts Create New Land Rush” on May 7, 2007 at Alternet.Org).

Supreme Court Justice John Marshall

[..] writing for a unanimous court, affirmed the dismissal.

Marshall’s opinion begins with a lengthy discussion of history of the European discovery of the Americas, and the legal foundations of the American Colonies. In particular, Marshall focuses on the manner in which each European power acquired land from the indigenous occupants. Synthesizing the law of nations, Marshall traces the outlines of the “discovery doctrine”—namely, that a European power gains radical title (also known as sovereignty) to the land it discovers. As a corollary, the discovering power gains the exclusive right to extinguish the “right of occupancy” of the indigenous occupants, which otherwise survived the assumption of sovereignty.

Marshall’s opinion further opined that, in declaring independence from Great Britain, the United States government inherited the British right of preemption over Indian lands. The legal result is that the only Indian conveyances of land which can create valid title are sales of land to the federal government.[4]”

(excerpt from Wikipedia.com on “Johnson v. M’Intosh“)

In 1995, Philip J. Prygoski writes:

In what is known as the “Marshall trilogy,” the Supreme Court established the doctrinal basis for interpreting federal Indian law and defining tribal sovereignty.

In the first of these cases, Johnson v. McIntosh (21 U.S. (8 Wheat.) 543 (1823)), Chief Justice Marshall ruled for the Court that Indian tribes could not convey land to private parties without the consent of the federal government. The Court reasoned that, after conquest by the Europeans and the establishment of the United States, the rights of the tribes to complete sovereignty were diminished, and the tribes’ power to dispose of their land was denied.

(excerpt from “From Marshall to Marshall: The Supreme Court’s changing stance on tribal sovereignty” by Philip J. Prygoski, American Bar Association, Fall 1995)

Former Executive Director of the National Congress of American Indians (1972-78), Charles Trimble wrote:

Although coinage of the term “manifest destiny” is attributed to journalist John L. O’Sullivan in an 1845 editorial, it gained political importance among the new Democratic Party in support of the expansion plans of President Polk. But the sanctimonious attitude known as manifest destiny predates that by almost four centuries.

Since 1537, when the Papal Bull, Sublimis Deus, was issued by Pope Paul III declaring Native peoples to be humans with rights to life and property, outright genocide of Indians was not an accepted approach to conquering them and taking their lands, although in fact it was widely practiced. The whole question continues to this day as to how the peoples who owned the New World could be removed so that their lands could be taken and developed.

Outright removal was one method, which was even sanctified by law and national policy in the 1830s and beyond. But that policy only resulted in relocating the tribes to new lands that the dominant society would want in the future.

So, new methods were adopted in a twofold strategy to disappear the tribal nations: the first was for physical attrition that would be through warfare, pestilence, starvation, benign neglect, and interbreeding with whites. This would kill off the people or force them off their lands in search of sustenance and livelihood.

The second was for cultural attrition that would be accomplished by “civilizing” the Indian people through Christianization, education, and assimilation. The tribes, it was hoped, would eventually abandon their savage ways and become brown white people, so to speak. Most importantly, they would become capitalists and recognize the importance of making the greatest use of their lands, mostly by ceding or selling them to the superior and dominant European Americans.

(excerpt from “Charles Trimble: Manifest destiny continues in nation’s laws” May 24, 2010; more on Sublimis Deus and Pastorale Officium at Wikipedia.com on “Sublimus Dei“)

The following video features Chief Oren Lyons of the Onondaga Nation presenting on the “Doctrine of Discovery,” the US legal system and a report on the Ninth Session of the United Nations Permanent Forum on Indigenous Issues (UNPFII) that was held at the UN Headquarters, New York, New York on April 19 – 30, 2010 (posted Oct. 13, 2010; begin at time point 7:53 regarding a portion of the legal analysis of “Doctrine of Discovery”)

The “Permanent Forum on Indigenous Issues: Report on the ninth session (19-30 April 2010)” is a recording of the body’s decisions and reports that

The Permanent Forum decides that the special theme for its eleventh session, in 2012, will be “The Doctrine of Discovery: its enduring impact on indigenous peoples and the right to redress for past conquests (articles 28 and 37 of the United Nations Declaration on the Rights of Indigenous Peoples)”.

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