Federal Native American law is a complex interweaving of two centuries of Supreme Court decisions, legislative actions, and actions at the executive level, all combined to formulate contemporary U.S. policy toward Native American lands, resources, and lives. Laws that govern Native American property and lives, like all bodies of law, are based on legal principles set out in legal precedents that are upheld from generation to generation of lawmakers, coalescing into legal doctrines upon which other laws and policies are constructed. They presuppose a basis of legitimacy and fairness, but some of the foundational principles of federal Native American law violate rights to their own lands against the original intention of treaties and, arguably, even the Constitution. The Doctrine of Discovery is one of them. It is one of the constituent principles of settler colonialism.

Johnson v McIntosh

The Doctrine of Discovery was first articulated in the Supreme Court case Johnson v. McIntosh (1823), which was the first case regarding Native Americans ever heard in the American court. Ironically, the case didn't even directly involve any Native Americans. Rather, it involved a land dispute between two white men, which questioned the validity of the legal title of land once occupied by and sold to a white man by the Piankeshaw Native Americans.

The ancestors of plaintiff Thomas Johnson purchased land from the Piankeshaw in 1773 and 1775 and the defendant William McIntosh obtained a land patent from the U.S. government on what was supposed to be the same parcel of land. There is evidence that there were two separate parcels of land and the case was brought in the interest of forcing a ruling. The plaintiff sued for ejectment on the basis that his title was superior. The court rejected it under the claim that the Native Americans had no legal ability to convey the land in the first place. The case was dismissed.

The Opinion

Chief Justice John Marshall wrote the opinion for a unanimous court. In his discussion about the competing European powers' competition for land in the New World and the wars that ensued, Marshall wrote that in order to avoid conflicting settlements, European nations established a principle they would acknowledge as a law. This was the right of acquisition. "This principle was, that discovery gave the title to the government by who subjects or by whose authority, it was made, against all other European governments, which title might be consummated by possession." He wrote further that "discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest."

In essence, the opinion outlined several troubling concepts that became the root of the Discovery Doctrine in much of federal Native American law (and property law in general). Among them, it would give full ownership of Native American lands to the U.S., with tribes only possessing the right of occupancy. This completely ignored the scores of treaties that had already been made with Native Americans by Europeans and Americans.

An extreme interpretation of this implies that the U.S. is not obligated to respect native land rights at all. The opinion also problematically relied on the concept of cultural, religious, and racial superiority of Europeans and deployed the language of Native American "savagery" as a means of justification for what Marshall would admit was the "extravagant pretension" of conquest. Scholars have argued that this, in effect, institutionalized racism in the legal structure that governs Native Americans.

Religious Underpinnings

Some indigenous legal scholars (most notably Steven Newcomb) have also pointed out the problematic ways in which religious dogma informs the Discovery Doctrine. Marshall unapologetically relied on the legal precepts of medieval Europe in which the Roman Catholic Church determined policy for how European nations would divide up the new lands they "discovered."

Edicts issued by sitting Popes (in particular the Papal Bull Inter Caetera of 1493 issued by Alexander VI) granted permission to explorers like Christopher Columbus and John Cabot to claim for the Christian ruling monarchs the lands they "found." It also implored their expedition crews to convert — by force if necessary — the "heathens" they encountered, who would then become subject to the will of the Church. Their only limitation was that the lands they found could not be claimed by any other Christian monarchy.

Marshall referred to these papal bulls in the opinion when he wrote: "the documents upon the subject are ample and complete. So as early as the year 1496, her [England's] monarch granted the commission to the Cabots, to discover countries then unknown to Christian people, and to take possession of them in the name of the King of England."

Under the authority of the Church, England would thus automatically inherit title to the lands, which would then convey to America after the Revolution.

Aside from the criticism levied against the American legal system for its reliance on outmoded racist ideologies, critics of the Discovery Doctrine have also condemned the Catholic Church for its role in the genocide of Native American peoples. The Doctrine of Discovery has also found its way into the legal systems of Canada, Australia, and New Zealand.

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