Indian Country

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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Indian Country

Developments in Indian Country

The Ninth Session of the United Nations Permanent Forum on Indigenous Issues concludes today after eleven days.  Among the documents produced, according to Indian Country Today was a “groundbreaking report examining the roots of Christian domination over indigenous peoples and their lands”:

North American Representative to the Permanent Forum Tonya Gonnella Frichner, an attorney and founder of the American Indian Law Alliance, presented a preliminary study on the “Doctrine of Discovery” and its historical impacts on indigenous peoples, with a focus on how it became part of United States laws.

“The first thing indigenous peoples share is the experience of having been invaded by those who treated us without compassion because they considered us to be less than human,” said Frichner, a citizen of the Onondaga Nation serving her first term on the 16-member UNPFII.

“Dehumanization leads to the second thing indigenous peoples share in common: Being treated on the basis of the belief that those who invaded our territories have a right of lordship or dominance over our existence and, therefore, have the right to take, grant, and dispose of our lands, territories, and resources without our permission or consent.”

Frichner said human rights violations faced by indigenous peoples can all be traced to the Doctrine of Discovery and its interpretive framework which has been used for five centuries to take Native lands.

I wrote about the Doctrine of Discovery in The Legal Justification for the Native Conquest. A rough equivalent to the Dred Scott decision for African-Americans, the 1823 Supreme Court decision Johnson v. M’Intosh affirmed U.S. rights through inheritance of the Christian, European doctrine. Unlike Dred Scott, Johnson v. M’Intosh has never been nullified by the Court and is used to this day as legal foundation in Native American cases that come before the Court.

The Vatican’s Doctrine of Discovery was based on the premise that all non-Christian land belonged to no one because no Christians were living there and no Christian monarch or lord had yet claimed dominion. Once Christian monarchies like Spain or France claimed the right of dominion, that claim was transferred to political successors over centuries.

The Vatican observer to the Forum responded that

the papal bulls that paved the way for European expansion had been abrogated over centuries. He insisted the Church had upheld the rights of indigenous peoples to their ancestral lands, regardless of whether the inhabitants were Christian or not.

Yet as I discussed in “Aboriginal Sin,” (pdf) in Tikkun,

During his visit to Brazil of May, 2007, Pope Benedict outraged many South American indigenous groups by suggesting that the deliverance of Christian faith to the native populations of South America had been a benefit of the colonial era—a benefit, indeed, for which the indigenous peoples had been “silently longing” and that had “shaped their culture for 500 years.” Speaking defensively, and in denial of the historical record, he declared, “The proclamation of Jesus and of his Gospel did not at any point involve an alienation of the pre-Columbus cultures, nor was it the imposition of a foreign culture.”

The colonial conquest of the Americas is inseparable in its project from the Christian European mission to spread the faith.

Other, surprising news from the Forum came on the first day, when New Zealand, one of only four nations to vote against the 2007 U.N. Declaration on the Rights of Indigenous Peoples, announced that it was reversing it decision and supporting the Declaration. Australia, another negative vote, had previously announced its reversal. Canada has given signs of a reversal, though it hasn’t yet formally announced. If it does, that would leave the United States as the sole nation standing in opposition to the Declaration.

In the face of such isolation, U.S. Ambassador Susan Rice to the U.N. “announced that the United States is undertaking a review of its opposition”:

During President Obama’s first year in office, tribal leaders encouraged the United States to re-examine its position on the Declaration – an important recommendation that directly complements our commitment to work together with the international community on the many challenges that indigenous peoples face. We will be conducting a formal review of the Declaration and the U.S. position on it.

There is no American history without Native American history. There can be no just and decent future for our nation that does not directly tackle the legacy of bitter discrimination and sorrow that the first Americans still live with. And America cannot be fully whole until its first inhabitants enjoy all the blessings of liberty, prosperity, and dignity. Let there be no doubt of our commitment. We stand ready to be judged by the results.


Others were disappointed that the United States – a country that postures itself as a champion of democracy and human rights worldwide – did not support it outright.

“We’ve already been there. It seems extraordinary to review it again since it has already been debated and adopted by the international community,” said Debra Harry, Indigenous People’s Council on Biocolonialism executive director. “We’d like to see the United States adopt it now, and then let’s talk about how to implement it domestically.”

The U.S. delegation offered that such significant acts require extensive review across federal agencies in preparation for implementation, all of which sounds on its face very reasonable when considering the nature of mammoth government bureaucracies, but consider, too, that bureaucratic sluggishness, to the point of disingenuousness is the history of U.S. government relations with Native America.

Consider that I wrote here in the middle of December last year about a negotiated settlement between the U.S. and plaintiff in the historic thirteen-year-old Individual Money Trust Fund suit. Consider that announced intent then was the Congress would ratify the settlement by the end of December 2009. Didn’t happen, as Indian Country Today reports:

The possibility of two substantial financial settlements involving Indian interests continues to hang in the balance, with several well-publicized deadlines having passed without federal action.

The separate and unique cases are known as Cobell v. Salazar and Keepseagle v. Vilsack. The former centers on claims by thousands of Indians that the federal government mismanaged billions of dollars in oil, gas, grazing, timber and other royalties overseen by the Department of the Interior for Indian trustees since 1887. The latter involves thousands of tribal plaintiffs who contend that Department of Agriculture officials denied or delayed a number of farm and ranch loans and emergency assistance applications by Indians.

Cobell has been ongoing since 1996; Keepseagle since 1999. Many Indians who would have benefited from settlement in both cases have passed away, according to their lawyers and plaintiffs. Many who survive live in extreme poverty.

Three deadlines have expired for Congress to approve a settlement for Cobell, worked out between the Indian plaintiffs and the Obama administration in early December. The expired deadlines were in December, February, and now April.

Judge James Robertson, presiding over Cobell has announced that he will not sanction further extensions beyond the latest, to May 31. Should the Congress not act by then, the likelihood increases that Robertson will enact his own settlement terms, which had already promised to be far below the already meager dollar amount, given the many tens of billions of dollars sued for, offered by the Obama administration.

How might we expect Native America to respond to yet one more – to count would be a laughing matter – insincerity and indifference?

What should we think – really, what should we think – about this prospect, currently being urged by some in Native America, that John Ecohawk, long-time director of the Native American Rights Fund be considered to fill the pending Supreme Court vacancy?

Imagine the doctrines of discovery that would lead to. But who wants to read them?