May 2nd Reading

Side bar – The Doctrine of Discovery

(1) From 1492 forward, European countries and the United States justified their dealings with the natives and American Indian tribes in North and South America under the “doctrine of discovery.” Under this principle, the European country that first discovered a new area where Christian Europeans had not yet arrived could claim the territory for their own country. This did not mean that the natives lost the right to live on the land or to farm and hunt animals on it but it did mean that the natives could only sell their land to the one European country that “discovered” them and that they should only deal politically with that one European country. In most situations, the Europeans also enforced the doctrine of discovery against themselves because they recognized and agreed to be bound by the principle that the discovering country earned a protectible property right in newly discovered territories. The audacity of one country “discovering” and claiming lands already occupied and owned by American Indians came from the idea that Christians and white Europeans were superior to people of other races and religions. When European countries first came to the New World, they were not strong enough militarily to just take the land from the Indian tribes. Thus, they entered treaties with tribes to make the transactions look legal and valid, and they bought the lands they wanted. In addition, influential scholars in England and Spain, for example, believed that Indians had a legal right as free people to continue to own their lands and that a European country could only take lands by force in an honorable war.

(2) In exercising its control over the American continent, the United States also enforced the doctrine of discovery. Thus, as the United States Supreme Court stated in 1823, in the case of Johnson v. McIntosh, 21 U.S. (8 Wheat) 543 (1823), the United States acquired the sole right to buy lands from Indian tribal governments under the doctrine of discovery. Thus, sales of land that Indians had made to persons other than to the United States government were invalid. Tribes continued to have the right to use and occupy their lands but their governmental sovereign powers were restricted in that they could only sell their lands to the United States. Johnson, 21 U.S. at 573-74. The United States gained this power under the doctrine of discovery from England and from other European countries as the U.S. bought or acquired the “discovery” authority of these European countries over various parts of the American continent.

(3) In upholding this power of discovery over Indian tribes for the United States, the Supreme Court had to ignore its own opinion that Indians possessed natural rights to their lands. In fact, the Supreme Court refused to say why American farmers, “merchants and manufacturers have a right, on abstract principles, to expel hunters from the territory they possess” or to limit the tribal rights. Instead, in determining tribal rights to sell their lands, the Court relied on the doctrine of discovery and the fact that the United States had beaten some tribes in war to decide that only the United States could buy Indian lands. “Conquest gives a title [to the land] which the Courts of the conqueror cannot deny . . . .” Id. at 588.



© Copyright 2006 Robert J. Miller




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