One of the definitions of the doctrine of discovery is the European 'expansive' definition which proposes that discovery of Americas land by European explorers gave the discovering nation legal right and title to ownership of American land. However, in 1986, a federal district court acknowledged this law as a "legal fiction" meaning it had no foundation in law, despite its popular use (Core, 1987). The second definition is the absolute definition, which just like the expansive definition, holds that legal rights to ownership of American land should be given to European nations that discovered the land. Compared to absolute and expansive, the most accurate definition is the preemptive doctrine of discovery, which states that discovery of land only granted the discovering nations an exclusive and preemptive right to be the first to purchase the land, if the tribal owners agree to sell any of its territories. This paper criticizes and provides an analysis of the doctrine of discovery.
Both expansive and absolute definitions of discovery doctrines were against the autonomy and property rights of the Native American Indian tribes that inhabited the land when the Europeans discovered it since they give the Indian tribes a second-class citizenship status, but give the European nations full ownership right to the American land. These doctrines did not consider fundamental human rights; therefore, they are socially unjust to the Indian tribal nations. The expansive definition implies that although the tribes have the right to possess and occupy the land, they lack the competence to manage and utilize their land, making the Europeans benevolent fathers who hold the full legal right to own the lands (Robinson, 2007). The absolute definition also portrays discovery as complete conquest, meaning that indigenous nations did not have a right to own or use their land.
Although Indian tribes had inhabited the land since time immemorial, their title to land was declared aboriginal and not legal. The expansive and absolute definitions of the doctrine of discovery can be equated to the doctrine of conquest, which theoretically transfers land ownership from the defeated nation to the victorious nation during a war, making it an unfair policy to the peacefully living indigenous tribes.
Different nations, for instance, Spain, French, Britain and the United States of America recognized the Indian title differently. In 1532, when the Spanish theologian named de Victoria delivered his lecture entitled "On the Indians Lately Discovered," he indeed confirmed that the indigenous people were the true owners of the land they inhabited (Wilkins & Lomawaima, 2001). Therefore, the discovery doctrine could only allow the Spanish to claim the title of the Indian land if it was vacant and owners did not exist. Instead of using the doctrine of discovery to take Indian land, the French were willing to have close interaction with the Indians and peacefully coexist with them without violating their property rights. The British were more interested in establishing permanent settlements for themselves in the Indian land than creating alliances and starting trade with the Indians. However, the doctrine of discovery did not limit Indian land ownership rights since the British had to take the land through treaties and deeds. For instance, in 1665, October 3rd, the Esopus Indians traded a track of land for blankets and other supplies in a peace treaty with Governor Richard Nicolls of New York (Wilkins & Lomawaima, 2001).
Although the United States of America preferred the absolute or expansive definition of the principle of discovery in the early days, the country was not able to conquer or take their land by the principle of conquest. According to recorded statements of indigenous leaders from 1780s to early 1800s, the federal government exercised exclusive preemptive definition of the doctrine of discovery when dealing with the tribes (Core, 1987). The tribal nations had a treaty relationship with the United States which meant the Indian land could only change ownership only if the tribal nations decided to sell it.
Judicial Analysis of the Doctrine of Discovery
In a court case to decide whose title was right, the defendant William McIntosh had purchased land in 1773 and 1775 in two different transactions, from the US, and the same lands were part of the territory that Johnson et al. had purchased from the Piankeshaw tribes. The question was if private individuals could purchase the Indian land, or only the government had the ability, suggesting that the Indian tribes had a title (Wilkins & Lomawaima, 2001). Judge Marshall of the Court used the expansive doctrine of discovery stating that the tribes were the rightful occupants of the soil, but their claims to ownership of the land were secondary to the claim of the United States, denying the clans the ability to sell the land. Therefore, the court automatically ruled in favor of William McIntosh since the tribe had no authority to sell the land to any individual.
According to Marshall, the doctrine of discovery meant that the European nations that discovered the land, and the US as heir Britain's discovery rights in North America, had gained a superior title to both occupied and vacant indigenous lands (Robinson, 2007). This meant that the relationship of the tribes with federal government did not mean sole ownership of the land by the tribal clans since they lost that right when they decided to sell their land to European nations through treaties. Marshall further ruled that by being the heir of Great Britain, the United States had acquired an exclusive and absolute legal title to all of the American lands.
However, according to historical records, after the 1738 Paris treaty and the 1814 treaty of Ghent, the United States had only gained legal title to the lands Great Britain had already purchased from the native tribes (Robinson, 2007). From the above instances, it is arguably true that Marshall intentionally misinterpreted the doctrine of discovery to protect the federal government. The preemptive doctrine of discovery also appeared in court in two different occasions- Worcester v. Georgia (1882) and Mitchel v. the United States (1835), but in both, the court made it clear that the discovery did not in any way restrict the Indians ownership of the land.
As an international law, France, Spain, and England did not question the discovery principle since they shared cultural and imperial premises and they had devised the principle as a way of minimizing international conflicts. However, the doctrine of discovery was openly criticized by the indigenous Indian tribes whose land was being taken.
According to historical evidence, the ownership of North America rested in the hands of the indigenous people, contrary to the discovery principle by the Europeans. The absolute definition of the doctrine of discovery can be equated to colonialism since it gave European nations power over most parts of the world, such as the North American continent. The expansive definition of the doctrine of discovery can be referred to as benevolent paternalism, for example, where the United States assumed legal ownership of the Indian land without buying it. Therefore, these forms of the doctrine of discovery should be abolished from the international law, apart from the preemptive definition which respects ownership rights of the indigenous people.
Core, M. A. (1987). Tribal Sovereignty: Federal Court Review of Tribal Court Decisions: Judicial Intrusion into Tribal Sovereignty. American Indian Law Review, 13(2), 175. doi:10.2307/20068275
Robinson, E. H. (2007). Infringing Sovereignty: Should Federal Courts Protect Patents and Copyrights from Tribal Infringement? American Indian Law Review, 32(1), 233. doi:10.2307/20070816
Wilkins, D. E., & Lomawaima, K. T. (2001). Uneven Ground: American Indian Sovereignty and Federal Law. Norman: U of Oklahoma P.
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