Discovery Doctrine

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The Discovery Doctrine is a concept of public international law expounded by the United States Supreme Court in a series of decisions, most notably Johnson v. M'Intosh in 1823. The doctrine was Chief Justice John Marshall's explanation of the way in which colonial powers laid claim to newly discovered lands during the Age of Discovery. Under it, title to newly discovered lands lay with the government whose subjects discovered new territory. The doctrine has been primarily used to support decisions invalidating or ignoring aboriginal possession of land in favor of colonial or post-colonial governments.

John Marshall, who is most credited with describing the doctrine, did not voice wholehearted support of the doctrine even while using it to justify judicial decisions. He pointed to the doctrine as simple fact, looking at the possession-takings which had been supported by it as things which had occurred and had to be recognized. The supposedly inferior character of native cultures was a reason for the doctrine having been used, but whether or not that was justified was not relevant for Marshall.^[1]

[edit] Colonial history

The origins of the doctrine can be traced to Pope Nicholas V's issuance of the papal bull Romanus Pontifex in 1452, essentially declaring war against all non-Christians. The bull allowed Portugal to claim and conquer lands in West Africa. Pope Alexander VI extended to Spain the right to conquer newly-found lands in 1493, after Christopher Columbus had already begun doing so. Arguments between Portugal and Spain led Alexander to clarify that only non-Christian lands could thus be taken, as well as drawing the Line of Demarcation to allocate potential discoveries between the two powers.^[2]

[edit] United States law

According to the United States Supreme Court's decision in Johnson v. M'Intosh, this theory of Christian expansion and possession of newly discovered lands, despite native presence, was one by which all colonial powers operated. Chief Justice Marshall, writing the decision, held that the United Kingdom had taken title to the lands which constituted the United States when the British discovered them. Marshall pointed to the exploration charters given to John Cabot as proof that the British had operated under the doctrine.^[2] The tribes which occupied the land were, at the moment of discovery, no longer completely sovereign and had no property rights but rather merely held a right of occupancy. Further, only the discovering nation or its successor could take possession of the land from the natives by conquest or purchase. Natives could not sell the land to private citizens but only to the discovering government.^[1]

The doctrine was used in numerous other cases as well. With Cherokee Nation v. Georgia, it supported the concept that tribes were not independent states but "domestic dependent nations".^[2] The decisions in Oliphant v. Suquamish Indian Tribe and Duro v. Reina used the doctrine to prohibit tribes from criminally prosecuting first non-Indians, then Indians who weren't a member of the prosecuting tribe.^[3]

[edit] References

1. ^ ^{a b} Utter, Jack. "The Discovery Doctrine, the tribes and the truth", Indian Country Today, Four Directions Media, 2000-06-07. Retrieved on January 10, 2007.
2. ^ ^{a b c} Newcomb, Steve (Fall 1992). "Five Hundred Years of Injustice". Shaman's Drum: 18-20. Retrieved on 2007-01-10. 
3. ^ Robertson, Lindsay G. (June 2001). Native Americans and the Law: Native Americans Under Current United States Law. Native American Constitution and Law Digitization Project. The University of Oklahoma Law Center. Retrieved on January 10, 2007.