Thu Jan 15, 2015 4:51AM
The “Doctrine of Discovery” is a cornerstone of US federal Indian law, and yet this ancient legal paper, written in 1823, stands in utter contradiction to the documents – and even more, the very ideas – involved in the creation of the United States.
In claiming that White Christians from Europe are entitled to full control of native land, the doctrine also directly conflicts with the principles of our modern world. Even more alarmingly, the Discovery Doctrine flies in the face of international law. The Universal Declaration of Human Rights, developed and conceived in the years following the Holocaust, soundly trumps the Doctrine of Discovery.
Growing up as young Americans, our tender curious brains are deceivingly saturated with lessons about the greatness of discovery. We digest the sagas of the ruthless Hernando Cortez, and we learn about so-called discoverers, Amerigo Vespucci, Christopher Columbus, and Lewis and Clark. But US education is void with regard to the foundational truth of this young country, and that is an indisputable fact. North America existed in a pristine state until the arrival of the colonizing European Christians and their belief system about racial prejudice toward indigenous peoples.
For more than 500 years, the aspirations of colonizing European nations, which truly are/were bloodthirsty in nature, have choked any semblance of honor that Americans so love to possess. It is all a ruse, and the victims of the deceptive tactics of the European/Americans, millions of living, breathing, human beings, could never be counted.
As Steven Newcomb wrote in the article “Toward Disestablishing the Doctrine of Christian Domination,” papal concessions allowed the crown to force “the Indies,” as they were called, under the boot heel of Christian domination. Literally viewed as savages, Native Americans had every rug pulled from under their feet, every treaty broken, and to this day, large numbers live in squalor, without adequate needs and certainly without compensation. The Discovery Doctrine, to this day, is highly regarded in America’s courts.
Newcomb, in “Five Hundred Years of Injustice: The Legacy of Fifteenth Century Religious Prejudice,” explains how the Christian Doctrine of Discovery was quietly adopted by the Supreme Court in 1823. It happened in relation to Johnson v. McIntosh. In fact, it was Chief Justice John Marshall, a hero of the Revolutionary War, who observed that Christian European nations had assumed “ultimate dominion” over the lands of America during the Age of Discovery. Marshall stated that upon “discovery,” the Indians had lost “their rights to complete sovereignty, as independent nations,” and only retained a right of “occupancy” in their lands. In the starkest terms, it means that Indian nations fell under the ultimate authority of the first nation of Christendom to claim possession of a given region of Indian lands.
The 1823, Johnson v. M’Intosh decision handed down by Marshall’s court, declared that land could not be owned outright by the indigenous people. This meant that Indians only had rights to occupy lands. It further stated that only the US federal government could settle native land rights. Indians were banned from selling land to individuals, and states lost legal jurisdiction to settle aboriginal land claims.
As a matter of perspective, the Doctrine of Discovery remains law in a modern world where Jewish people are so highly compensated for their losses during WWII that an entire country, Palestine, is seized and handed over to the Israeli Zionists. By 1967, Israel had seized almost all of Palestine, killing and imprisoning those who refused to flee their homeland as refugees. Israeli people are apparently entitled to take the land of others, whereas America’s victims of racism and genocide – African and Native Americans – receive absolutely nothing.
Professor David Wilkins, the Lester Kissel Professor of Law at Harvard Law School, says the doctrine of discovery has gone through many expressions. It has been called a “theological fiction” of popes, “a political fiction” of European nations, and “a legal fiction” of the United States. He also says that the discovery doctrine has been “dangerously re-purposed as popular fiction.”
Who was John Marshall?
Chief Justice John Marshall was appointed to the Supreme Court by John Adams at the end of the Federalist period in 1801. He served as Chief Justice for 34 years and is astonishingly remembered by many as one of the greatest chief justices of the Supreme Court. The followers of Thomas Jefferson, who believed the US would be run by the people, Jeffersonians as they were called, believed in the state’s rights and did not admire Marshall, who many believe bent the rules and superseded authority.
Marshall was a huge proponent of “Judicial Nationalism.” He believed in increasing the power of the federal government through judicial decisions. He is remembered for establishing the prestige associated with the Supreme Court.
The Marshall Court did make a number of important decisions relating to federalism, shaping the balance of power between the federal government and the states, among those decisions are the three cases that form the basic framework of federal Indian law in the United States, referred to as the Marshall Trilogy.
How has such antiquated thinking remained central to US law when the US Declaration of Independence itself states that, “All men are created equal?” It was Thomas Jefferson, a slave owner, who first used the words. Benjamin Franklin is said to have stylized the final form of the expression. The 1823 Doctrine of Discovery more than skirts that basic proclamation and sullies the words of true greatness. Just as so many have said, it is strikingly clear that the United States is built on a foundation of false claims and double standards.
Native Americans today suffer just as they did one hundred or five hundred years ago.