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By Bill Coffin, Class of 2004

Based on a belief in white Christian supremacy, with a legacy that lingers today, the 15th century’s Doctrine of Discovery authorized the colonization and religious conversion of Indigenous people and the appropriation of their homelands. The Doctrine was espoused in papal bulls and royal letters patent. In his 1455 papal bull, for example, Nicholas V authorized King Alfonso of Portugal to invade Africa and “to capture and subdue … all pagans and other enemies of Christ … and to appropriate their dominions and goods … to his use and profit.”

The United States was similarly colonized by royal letters patent. In 1496, King Henry VII of England granted John Cabot “full authority … to discover … provinces of heathens and infidels … which before this time were unknown to all Christians” and to acquire for the king their “title and jurisdiction.” The next year, Cabot claimed part of North America’s east coast for England. In 1678 and 1684, King Louis XIV of France authorized Rene-Robert Cavelier, Sieur de La Salle, to search for a water route from Canada to Mexico. So emboldened, LaSalle claimed the entire Mississippi River basin for France.

Our nation’s founders embraced the Doctrine of Discovery, and the U.S. Supreme Court formally adopted it in 1823. According to the Court, the Doctrine gave ownership to land in the Americas to the first European nation to arrive; allowed Native Americans to keep only the right to occupy and use the land, a right often called Indian title; and gave the European nation or its successor the exclusive right to extinguish Indian title, either by purchase or conquest. Well aware that Native land had been first seized by England and France then ceded to the U.S., the Court sanctioned the Doctrine’s result: “However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear, if a country has been acquired and held under it, it becomes the law of the land.” Johnson v. McIntosh, 21 U.S. 543 (1823).

Native Americans often ceded their Indian title in treaties, but the U.S., as owner of the land, could take that title at will and without compensation. “Every schoolchild knows that the savage tribes of this continent were deprived of their ancestral ranges by force and that, even when the Indians ceded millions of acres by treaty in return for blankets, food and trinkets, it was not a sale but the conquerors’ will that deprived them of their land.” Tee-Hit-Ton Indians v. U.S., 348 U.S. 272 (1955). Thus, in the mid-20th century, the U.S. could legally take the Indian title, and timber, of land occupied by the Tee-Hit-Tons without even the semblance of a sale.

The Doctrine of Discovery remains the law of the land, despite recent Native legal victories. Native Americans can now get compensation from third parties for infringements on their Indian title, Oneida County v. Oneida Indian Nation, 470 U.S. 226 (1985), and can enforce a treaty explicitly giving them full title to land, “not the usual Indian right of occupancy,” McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). But these decisions relied on the core principle of the Doctrine of Discovery — upon arrival in the Americas, European explorers and colonizers obtained ownership of Native land. That racist relic from the 15th century is firmly entrenched in United States law today.

Sources:

DoctrineofDiscovery.org (administered by the Indigenous Values Initiative and American Indian Law Alliance)

Supreme.justia.com/cases/federal/us

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