Imagine the Dred Scott Decision Were Still the Law of the Land


An Indigenous People Forum on the Impact of the Doctrine of Discovery was held on March 23 on the floor of the Arizona State House of Representatives. “The event was hosted by the Native American Caucus of the Arizona State Legislature, and presided over by the O’otham Hemuchkam upon whose traditional territories as O’otham Nations the capitol complex now stands.” The forum was held in advance of the upcoming Eleventh Session of the United Nations Permanent Forum on Indigenous Issues (UNPFII), the special theme of which is

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).

As I limned the history in “Time to Renounce the Doctrine of Discovery,”

the Declaration [on the Rights of Indigenous Peoples] explicitly acknowledges the historic crimes against Indigenous Peoples. In so doing, it implicitly points to the conceptual justification in history for those crimes: the Papal Bulls, beginning with the 1493 “Inter Caetera” of Pope Alexander VI, jointly known as the “Bulls of Donation.” ( Pope Alexander VI, by the way, and for fans of Showtime cable, is otherwise known as Rodrigo Borgia, an estimable figure upon whose judgment to found a half millennia of conquest and genocide.) From these Bulls was promulgated the Doctrine of Discovery, according to which the European nations justified their colonization of the Western Hemisphere and their physical and spiritual subjugation of its existing populations.

As I wrote in “The Legal Justification for the Native Conquest,” the Discovery Doctrine, by which the European nations rationalized their policies, was adopted by the succeeding United States of America, explicitly in the little discussed Supreme Court case, Johnson v. McIntosh. In the Court’s decision, Chief Justice John Marshall declared that the U.S. had become a successor in the right of “discovery” acquiring the power of “dominion” over the lands to which it claimed sovereignty from Great Britain. This decision is the basis for all subsequent U.S. Indian law.

To simplify dramatically, but essentially, the legal and moral claim of the United States to its lands in the Western Hemisphere begins and still stands on the ground of gifts from the man the Encyclopedia Britannica describes as a

corrupt, worldly, and ambitious pope (1492–1503), whose neglect of the spiritual inheritance of the church contributed to the development of the Protestant Reformation.


Neither as corrupt as depicted by Machiavelli and by gossip nor as useful to the church’s expansion as apologists would make him, Alexander VI holds a high place on the list of the so-called bad popes.

At the concluded Indigenous People Forum, Professor Robert J Miller, Lewis & Clark Law School, outlined ten fundamental elements of the Discovery Doctrine.

1. First discovery.
The first European country to discover lands unknown to other Europeans claimed property and sovereign rights over the lands and native peoples. First discovery, however, was usually considered to have created only an incomplete title.

2. Actual occupancy and current possession.
To turn first discovery into recognized title, a European country had to actually occupy and possess newly found lands. This was usually done by building forts or settlements. Physical possession had to be accomplished within a reasonable amount of time after the first discovery to create a complete title.

3. Preemption/European title.

Discovering European countries also claimed the power of preemption, that is, the sole right to buy the land from Indigenous peoples. This is a valuable property right similar to an exclusive option to purchase land. The government that owned the preemption right prevented or preempted any other European government or individual from buying land from the native owners.  The United States still claims this power over Indian lands today. 25 U.S.C. section 177 (2006).

4. Indian or Native title.
After first discovery, Euro-American legal systems claimed that Indigenous Peoples and nations had lost their full property rights and full ownership of their lands. Europeans claimed that Indigenous nations only retained the rights to occupy and use their lands. Nevertheless, these rights could last forever if they never consented to sell to the European country that claimed the preemption power. If Indigenous nations did choose to sell, they were only supposed to deal with the government that held the preemption right. Thus, “Indian title” in the United States, and ‘Maori title’ in New Zealand, and Indigenous titles elsewhere allegedly defined limited ownership rights.

5. Tribal limited sovereign and commercial rights.

After a first discovery, Europeans considered that Indigenous Nations and Peoples had lost some aspects of their inherent sovereign powers and their rights to international free trade and diplomatic relations. Thereafter, they were only supposed to deal with the European government that had first discovered them.

6. Contiguity.
Under Discovery, Europeans claimed a significant amount of land contiguous to and surrounding their actual discoveries and settlements in the New World. Contiguity became very important when different European countries had settlements somewhat close together. In that situation, each country claimed to hold rights over the unoccupied lands between their settlements to a point half way between the actual settlements. Moreover, contiguity held that the discovery of the mouth of a river gave the discovering country a claim over all the lands drained by that river; even if that was thousands of miles of territory. For example, refer to the boundaries of the Louisiana Territory and Oregon country as defined by the United States.

7. Terra nullius.
 This phrase literally means a land or earth that is null or void or empty. This element stated that if lands were not possessed or occupied by any person or nation, or even if they were occupied but were not being used in a fashion that European legal and property systems approved, then the lands were considered to be “empty” and available for Discovery claims. Europeans were very liberal in applying this element and often considered lands that were actually owned, occupied, and being used by Indigenous Peoples to be “vacant” and available for Discovery claims if they were not being “used” according to Euro-American laws and cultural mores.

8. Christianity.
Religion was a significant aspect of the Doctrine of Discovery. Under Discovery, non-Christian peoples were not deemed to have the same rights to land, sovereignty, and self-determination as Christians.

9. Civilization.
The European ideals of civilization were important parts of Discovery and of ideas of superiority. Europeans thought that God had directed them to bring civilized ways and education and religion to Indigenous Peoples and to exercise paternalism and guardianship powers over them.

10. Conquest.
 This element claimed that Europeans could acquire Indian title by military victories in “just” and “necessary” wars. In addition, conquest was also used as a term of art to describe the property rights Europeans claimed to have gained automatically over Indigenous Nations just by showing up and making a “first discovery.”

Imagine the Dred Scott decision were still the presiding law of the land. That is what Johnson v. McIntosh, with its claim of inherited European rights of discovery, is for Native America. And it is still the law.


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3 thoughts on “Imagine the Dred Scott Decision Were Still the Law of the Land

  1. Thanks for sharing, Jay…kinda ironic(to put it politely) that the Navahos want to create a Disneyland on their Grand Canyon land and the “white man” is opposed to the development. Of course, the Navaho are split on this issue. What’s your position on this issue, Professor?

    1. charlie K, the contemporary ramifications of this history are endlessly complex. The Navajo Grand Canyon development plan surely contradicts the traditional philosophy that motivates much current Indigenous activism, but as is so in any culture, there are Native peoples on all sides of the issue. And it is not as if non-Native peoples haven’t pursued projects like it countless times. This tourism would provide much needed revenue to the Navajo. Indian self-sufficiency is a perpetual area of concern from many quarters. The overriding principle for me is that Navajo sovereignty over their land be upheld in the course these plans follow, whatever that is, and that organizations like the Sierra Club, whatever the value of their views, not become the latest manifestation of Western cultures pretending to represent a superior morality.

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