Doctrine of Discovery
History
Benjamin Life:
"The legal theory underpinning the land rights that secure the very property where you are likely currently sitting was born in Rome in the mid-fifteenth century. A series of papal bulls, Nicholas V’s Dum Diversas in 1452 and Romanus Pontifexin 1455, then Alexander VI’s Inter Caetera in 1493, issued within months of Columbus’s return, gave Christian monarchs the Church’s blessing to claim lands not ruled by Christians and to subdue the peoples living on them. What came to be called the Doctrine of Discovery was, in its essence, a theological permission slip: land inhabited by non-Christians was, for the purposes of Christendom, unclaimed. Terra nullius. Empty land, with people on it.
You might assume this is the kind of medieval artifact that died with the Inquisition, not something that would be cited as legal precedent as recently as 2005. But it didn’t die, and it was. The Doctrine of Discovery was imported directly into American law in 1823, in a case called Johnson v. M’Intosh, when Chief Justice John Marshall held that discovery gave title to the European government whose subjects made it, leaving Native nations a mere “right of occupancy” on their own homelands. The case itself was, by the account of the legal historian Lindsay Robertson, something closer to a staged test case than a genuine dispute, shaped by the land speculators who stood to profit from it. But it is the next part that I’d ask you to read slowly, because it is one of the most honest sentences ever written by an American court:
“However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned.”
Read it twice. The Chief Justice of the United States concedes that the founding claim may be extravagant, a pretension,and then rules it binding precisely because so much property already depends on it. That is not a finding of legitimacy. It is a finding of sunk cost. Elsewhere in the same opinion Marshall is even blunter: “conquest,” he writes, “gives a title which the courts of the conqueror cannot deny.” As author, attorney and legal scholar Walter Echo-Hawk reflected in his book on the subject, “the Court names itself, out loud, as the conqueror’s court.”
In March of 2023, the Vatican formally repudiated the Doctrine of Discovery, stating that it is not part of Catholic teaching and that the bulls had been manipulated by competing colonial powers to justify immoral acts against Indigenous peoples. It was a meaningful gesture, and Indigenous advocates had spent decades demanding it. But the statement did not formally rescind the bulls themselves. And on the American side, nothing changed at all: Johnson v. M’Intosh has never been overturned, and the Supreme Court cited the doctrine of discovery in a 2005 case against the Oneida Nation.
The Church withdrew its blessing. The courts kept the deed."