The Anglican Communion News Service headline blared, Indigenous bishop slams the 'doctrine of discovery.' The article reports criticism made by Bishop Mark MacDonald, national Indigenous Bishop of Canada, during a visit to Australia, where he met with aboriginal and Torres Strait Islander Anglican leaders. The announcement adds to a long and growing list of churches and church leaders speaking out against the Doctrine. However, like other critiques, this one avoids naming the Doctrine accurately. The actual name of the Doctrine—the Doctrine of Christian Discovery—perhaps explains why the churches don't want to name it.
Christian discovery doctrine originated with the colonizing powers of 15th century Christendom—lands where Christianity was the dominant religion (including Spain, Portugal, England, France). When representatives of these countries "discovered" the "new world," they claimed dominion over the Indigenous Peoples and their lands. They relied on the supposed legal right of "Christian Discovery." They did not mince words; they insisted, as royal charters and papal bulls stated, that "Christian princes" owned all the lands they "discovered" that had not already been "discovered" by another "Christian prince."
The Christian powers asserted that the Indigenous Peoples were inferior to Christians because the Indigenous Peoples were heathens—i.e., they were not Christian. Some of the "discoverers" concluded from this that the Indigenous Peoples were beasts of burden who could be harnessed and forced to work for the Christian invaders. Other "discoverers" argued against this kind of slavery, on the grounds that the Indigenous Peoples could be "converted" to Christianity and would thereby become equal to Christian humans. Both groups—the enslavers and the converters—justified Christian colonization of indigenous lands and held Christianity to be a superior religion.
In 1823, the U.S. Supreme Court brought the doctrine of Christian Discovery into the core property law of the United States. The court's decision in Johnson v. M’Intosh cited the royal charters made by England "to acquire territory on this continent." The court quoted the first English charter, in 1496 to John Cabot, commissioning him "to discover countries then unknown to Christian people, and to take possession of them in the name of the king of England." The court then stated, "The right of discovery given by this commission… confined to countries ‘then unknown to all Christian people;’ … [asserts] a right to take possession, notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery." The court added, "Thus has our whole country been granted by the crown while in the occupation of the Indians." The court ruled that the U.S. federal government "now possessed" the power claimed by the crown, namely, "the absolute title of the crown, subject only to the Indian right of occupancy, and … the absolute title of the crown to extinguish that right."
Johnson v. M’Intosh remains the law of the land in the United States. Courts—apparently as embarrassed as churches—frequently drop "Christian" and refer to the "Doctrine of Discovery." In some cases, courts try to further cover the religious tracks of the Doctrine by not referring to the Johnson case, so the "Christian" part gets laundered out. Strange as it seems (only months after the U.S. Supreme Court outlawed racial segregation in Brown v. Board of Education), in 1954 the U.S. Justice Department submitted a blatant statement of the full Christian Discovery doctrine in a brief to the Supreme Court in the case of Tee-Hit-Ton Indians v. United States. The brief not only quoted Johnson (14 times!), it reinforced the Johnson ruling by insisting "that the doctrine of title by discovery is not merely a Roman Catholic doctrine, but rather a principle adhered to by all the Christian nations."
The Anglican news article opens by defining "the 'doctrine of discovery'" as "the idea that indigenous people need to be discovered and westernized." That definition elides the core religious content and origin of the doctrine: "westernized" becomes a euphemism for "Christianized."
Churches, including the Anglican church and Bishop MacDonald, keep talking about "reconciliation." MacDonald visited Australia at the invitation of Australia’s national Anglican Aboriginal bishop, Chris McLeod, as part of the Anglican Board of Mission’s reconciliation project. But reconcile what with what? The verb "reconcile" means "to restore friendly relations between." The verb also carries the connotation of accepting a disagreeable or unwelcome thing—"reconcile yourself to it," "get over it." Interestingly, "reconciliation" also refers to one of the seven sacraments of the Catholic Church, in which people who have "sinned" are "reconciled" with the church.
One might say the churches need to "reconcile" themselves with their own history, to quit trying to hide it. The churches might consider themselves as the "sinners" and seek atonement, but they must start with an acknowledgment of the "sin," which was not a generic "westernization" effort, but a specifically religious effort to "convert" Indigenous Peoples. This effort did not just happen; it was intended policy and practice. Moreover, it only started in the early days of colonization; it grew from there into national institutions—"Boarding schools," "reservations"—aimed at the same goal—"conversion," sometimes under the heading "assimilation."
Bishop MacDonald, to his credit, made no pretense that the effects of the doctrine are in the past. He acknowledged "that the doctrine of discovery was at the heart of the mistreatment of indigenous people that is historical and ongoing." But it seems that the "conversion" project also "is historical and ongoing," for the bishop also said, "indigenous churches were growing… and … the Western church has much to learn from indigenous wisdom – especially when facing the task of incarnating and inculturating the Gospel for younger generations." The word "incarnating" means "giving body"; it has a deep religious meaning in the Christian idea that "Jesus was God become flesh." The word "inculturating" likewise carries a specifically Christian meaning, referring to adaptation of Christianity to different cultures.
What does it mean that "Indigenous churches are growing"? Phillip Deere once commented, referring to invitations for him to speak to churches, that the future of the churches themselves rested on Indigenous Peoples—a turnabout from the days when churches had no use for traditional indigenous teachings. Does the growth of indigenous churches mean the success of Christian conversion? Does continued Christian evangelization, proselytizing, seeking incarnation and inculturation amount to a continuation of "Christian discovery" under a new name—or do we see Christianity itself changing? These are questions for the people in those churches, indigenous and non-indigenous.
What do we say in the face of churches covering up the religious core of the Doctrine of Christian Discovery while they criticize it? Their denunciations may help draw attention to the historical record and consequences of colonization, but—unless they name the Doctrine correctly—their actions will not spur legal action addressing the property law issues that are buried in the Doctrine. Legal change will require acknowledgment of the religious domination inherent in the Doctrine, so that the jurisprudential critique becomes clear: religious domination has no place in a modern system of property law.
Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinébe’iiná Náhiiłna be Agha’diit’ahii Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on Indigenous issues.