Time to Renounce the Doctrine of Discovery

Not much reason amid all the attention on reaching a debt deal that most people, including in the media, would have paid any attention to a meeting of the U.S. Senate Committee on Indian Affairs. Not much reason ever, by normal lights. Still, the happy advent of Gay marriage in New York managed to catch the public attention. In contrast, Indigenous issues continue to be not simply unseen, beneath the radar and the lights, but actually to be seen in the wrong light.

There was, in fact, a June 9 Committee on Indian Affairs Oversight Hearing on Domestic Policy Implications of the UN Declaration on the Rights of Indigenous Peoples. Google it and you’ll be hard pressed to find any but Native links. Longtime Native rights advocate Peter d’Errico reported on the hearing for Indian Country Today.

What was the issue again?

Domestic Policy Implications of the UN Declaration on the Rights of Indigenous Peoples.

Why would there be implications? Because the Declaration 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.

What d’Errico noted about the June 9 meeting were the numerous evasions among the non-Natives who testified regarding the ultimate source of those domestic policy implications. Considerations of self-governance and slow U.S. action in taking a leadership role on the rights of Native people (or even signing the Declaration) went unexplained.

The third expert witness, a law professor from the University of Oklahoma, said the UN Declaration had been “500 years coming,” but did not mention the Doctrine of Christian Discovery in his call for a “reconsideration of fundamentals.” …Again without specifying why, he said self-governance under federal Indian law “is inconsistent with the UN Declaration.”

Why might there be some reluctance to fully articulate the fundamentals that bear reconsideration?

At the Summit of Indigenous Nations held in Bear Butte, South Dakota in 2006, one of the several declarations dating back to 1991 was made calling on the Catholic Church to renounce the Doctrine of Discovery. However, any renunciation by the Church of the Bulls of Donation, and thus the doctrine derived from them, would call into question what is not even discussed in the U.S.: the moral bankruptcy of Johnson v. McIntosh. Imagine, though, if the reasoning and morality of Dred Scott v. Sandford had not been rejected well over a century ago – a civil war fought – and were still accepted in the U.S.

As I argued in “Aboriginal Sin,” this civil rights, this human rights, struggle in the U.S. will be the hardest of all.

It maybe that in this way and others, Native Americans remain for the American polis—and indigenous peoples everywhere for the dominant cultures—radically other. In all these ways they are different from those who conquered and continue to dominate them, and despite the choice of some individual Indians to assimilate, as groups Native Americans do not seek to end this difference. While hyphenated Americans of every kind may retain or seek to reclaim some essential cultural forms, or merely the customary trappings of their origins, they have always ultimately assimilated. But Native American is not hyphenated; the Native is unalterably prior and unassimilable. Whenever Indians assume and act out their native cultural selves, they express not a variation on a human theme, but a different human theme. They remind us that they were not an element in the great, historically evolving American amalgam, but the original state to which that amalgam was applied, and which has been overwhelmed by it, yet continues to resist it. They remind us, uncomfortably, how this all began.

They remind us, so uncomfortably, that this land was not – by any non-existent right of Discovery – naturally ours.

I know from many arguments with the recalcitrant and the politically conservative what are the resistant arguments. Of course, the great migrations of European and then other peoples to the Western Hemisphere and more lands beyond it cannot be undone. But we can acknowledge the truth of how these migrations occurred. For conservatives, no topic concerns and riles them more than that of responsibility. They are, in argument, stunningly incapable of distinguishing between responsibility as guilt and responsibility as obligation and of making any distinction between personal responsibility and national, collective responsibility. They will even argue that modern moral judgments on past human behaviors are anachronistic.

However, renouncing the Doctrine of Discovery and overturning Johnson v. McIntosh require no such imposition of contemporary moral values on the past. (Even though, I believe, the general conservative position is that the greater moral values are absolute, not relative to culture, place, or …time. But that’s an argument, again, for another day.) All that is required is that we declare that we do not believe these things, and no longer hold these values, now – in which cases, there is no reason, for the Papal Bulls, the Doctrine, or the Supreme Court Decision to stand.


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