- Discovery Doctrine
The Discovery Doctrine is a concept of
public international law expounded by theUnited States Supreme Court in a series of decisions, most notably "Johnson v. M'Intosh " in1823 . The doctrine was Chief JusticeJohn Marshall 's explanation of the way in which colonial powers laid claim to newly discovered lands during theAge of Discovery . Under it, title to newly discovered lands lay with the government whose subjects discovered new territory. The doctrine has been primarily used to support decisions invalidating or ignoring aboriginal possession of land in favor of colonial or post-colonial governments.John Marshall, who is most credited with describing the doctrine, did not voice wholehearted support of the doctrine even while using it to justify judicial decisions. He pointed to the doctrine as simple fact, looking at the possession-takings which had been supported by it as things which had occurred and had to be recognized. The supposedly inferior character of native cultures was a reason for the doctrine having been used, but whether or not that was justified was not relevant for Marshall.cite news | first = Jack | last = Utter | title = The Discovery Doctrine, the tribes and the truth | url = http://www.indiancountry.com/content.cfm?id=2541 | work = Indian Country Today | publisher = Four Directions Media |date=
2000-06-07 | accessdate = 2007-01-10]Colonial history
The origins of the doctrine can be traced to
Pope Nicholas V 's issuance of thepapal bull Romanus Pontifex in1452 , essentially declaring war against all non-Christian s. The bull allowedPortugal to claim and conquer lands inWest Africa .Pope Alexander VI extended toSpain the right to conquer newly-found lands in1493 , afterChristopher Columbus had already begun doing so. Arguments between Portugal and Spain led Alexander to clarify that only non-Christian lands could thus be taken, as well as drawing theLine of Demarcation to allocate potential discoveries between the two powers.cite journal | last = Newcomb | first = Steve | year = 1992 | month = Fall | title = Five Hundred Years of Injustice | journal = Shaman's Drum | pages = 18–20 | url = http://ili.nativeweb.org/sdrm_art.html | accessdate = 2007-01-10]United States law
According to the United States Supreme Court's decision in
Johnson v. M'Intosh , this theory of Christian expansion and possession of newly discovered lands, despite native presence, was one by which all colonial powers operated. Chief Justice Marshall, writing the decision, held that theUnited Kingdom had taken title to the lands which constituted the United States when the British discovered them. Marshall pointed to the exploration charters given toJohn Cabot as proof that the British had operated under the doctrine. The tribes which occupied the land were, at the moment of discovery, no longer completely sovereign and had noproperty rights but rather merely held a right ofoccupancy . Further, only the discovering nation or its successor could take possession of the land from the natives by conquest or purchase. Natives could not sell the land to private citizens but only to the discovering government.The doctrine was used in numerous other cases as well. With
Cherokee Nation v. Georgia , it supported the concept that tribes were not independent states but "domestic dependent nations". The decisions inOliphant v. Suquamish Indian Tribe andDuro v. Reina used the doctrine to prohibit tribes from criminally prosecuting first non-Indians, then Indians who weren't a member of the prosecuting tribe.cite web | url = http://thorpe.ou.edu/guide/robertson.html | title = Native Americans and the Law: Native Americans Under Current United States Law | accessdate = 2007-01-10 | last = Robertson | first = Lindsay G. | year = 2001 | month = June | work = Native American Constitution and Law Digitization Project | publisher = The University of Oklahoma Law Center]References
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