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Protest photo by Michael_Swan, via Flickr (July 29, 2022). Used under creative commons Attribution 2.0 Generic (CC BY 2.0).

Doctrine of Discovery, Until Otherwise

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On March 30, 2023, the Vatican issued a joint statement repudiating the “doctrine of discovery” and terra nullius. The doctrine of discovery was used as the legal foundation for taking the land of Indigenous people by Europeans, and for the establishment of residential schools; as Justice Marshall wrote, “The European governments asserted the exclusive right of granting the soil to individuals, subject only to the Indian right of occupancy.” It is a historic moment that also is a rejection of 500 years of colonization, and has great significance in the United States, Canada, Australia, and many other countries that were colonized.

[Pope] Francis Greets Chiefs. Photo by Michael_Swan, via Flickr (July 25, 2022). Used under creative commons Attribution 2.0 Generic (CC BY 2.0).

In late May and early summer 2021, a large number of human remains were discovered on the grounds of residential schools in Canada. The findings raised renewed calls for healing, including apologies from the Catholic Church and a repudiation of the doctrine of discovery. In July 2022, Pope Francis came to Canada to meet with First Nations and Canadian government leaders to discuss the Church’s role in residential schools and the damage created by the schools. He issued an apology for the first time during his visit. While he was there, Indigenous people called on him to rescind the Doctrine of Discovery.

The colonization of North America was based in large part on the concept of terra nullius and the doctrine of discovery, all rooted in the papal bulls Dum Diversas (1452), Romanus Pontifex (1455) and Inter Caetera (1493). The United States referred to the principle established by these bulls in the 1823 Supreme Court decision, Johnson vs. M’Intosh, 21 U.S. 543, 5 L.Ed. 681, 8 Wheat. 543 (1823) where Chief Justice Marshall wrote that although Indigenous peoples had legal claim to the land, their claim was “denied by the original fundamental principle, that discovery gave exclusive title to those who made it (574).” He also cited the earlier Court ruling in a similar case, Fletcher v. Peck, 10 US 87 (1810).

U.N. Special Rapporteur Tonya Gonnella Frichner noted that, “the Johnson ruling had also cited recognition of the Doctrine of Discovery and assertion of dominion by Spain, Portugal, France and Holland. That ruling had also mentioned the East India Company, and the Doctrine also related to the history of Russia. ‘This shows the global scope of [the Doctrine’s] application and its concomitant framework of dominance,’ she said, adding that it was also the basis of the line of thinking that Indian land rights in the United States were nothing more than ‘permission from the whites’ for the Indians to occupy their own native lands.”

Protest. Photo by Michael_Swan, via Flickr (July 29, 2022). Used under creative commons Attribution 2.0 Generic (CC BY 2.0).

 

The Catholic Church has suggested that the 1537 Bull Sublimis Deus revokes the doctrine as presented in these three bulls, but after listening to Indigenous leaders, the Church “acquired a greater awareness of their sufferings, past and present, due to the expropriation of their lands”.

The Catholic Church formally repudiated the doctrine this spring, stating,

“It is in this context of listening to indigenous peoples that the Church has heard the importance of addressing the concept referred to as the “doctrine of discovery.” The legal concept of “discovery” was debated by colonial powers from the sixteenth century onward and found particular expression in the nineteenth-century jurisprudence of courts in several countries, according to which the discovery of lands by settlers granted an exclusive right to extinguish, either by purchase or conquest, the title to or possession of those lands by indigenous peoples…The “doctrine of discovery” is not part of the teaching of the Catholic Church.”

This rejection of a principle that is the basis for the founding of nations made the news. It remains to be seen if it will create a change in policy or law outside the Catholic Church.

Sources

KBR29.5 .C38 1870 Catholic Church. Pope. Bullarium Patronatus Portugalliae Regum.

United Nations E /C.19/2010/13 Economic and Social Council Distr.: General 4 February 2010 Original: English 10-23102 (E) 020310 *1023102* Permanent Forum on Indigenous Issues Ninth Session New York, 19-30 April 2010 Items 4 and 7 of the Provisional Agenda* Human Rights Future Work of the Permanent Forum, Including Issues of the Economic and Social Council and Emerging Issues Preliminary Study of the Impact on Indigenous Peoples of the International Legal Construct Known as the Doctrine of Discovery, 19 Apr. 2010, Accessed 7 July 2023.

E99.D1 E87 2019   Estes, Nick. Our History Is the Future: Standing Rock versus the Dakota Access Pipeline, and the Long Tradition of Indigenous Resistance.

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