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Miller: Will others follow Episcopal Church’s lead?

During its 76th General Convention in California, the Episcopal Church adopted a resolution entitled “Repudiate the Doctrine of Discovery.” In adopting this resolution, the church said the international law called the Doctrine of Discovery has created “destructive policies. ... that [led] to the colonizing dispossession of the lands of indigenous peoples and the disruption of their way of life.”

The church also called on the United States to review its “historical and contemporary policies that contribute to the continuing colonization of Indigenous Peoples” and for Queen Elizabeth II to “disavow, and repudiate publicly, the claimed validity of the Christian Doctrine of Discovery.”

Some people are hoping the Supreme Court will reverse Johnson v. M’Intosh. That is highly unlikely.

I hope this call to action by the Episcopal Church will be adopted by other Christian churches and governments around the world.

The Doctrine of Discovery is a tenet of international law that was primarily developed by European monarchs and the Catholic Church in the 15th and 16th centuries. Starting with a papal bull issued by Pope Nicholas V in 1455, European Christians declared it was their divine right to own vacant lands around the world and to claim lands that were occupied by “pagans and enemies of Christ.” Europeans then began operating on a first-come, first-served basis and the race was on to “discover” new lands.

In 1493, Pope Alexander VI further defined Discovery when he issued three papal bulls and divided the world for Spanish and Portuguese claims over indigenous peoples and lands.

England and France ultimately established their rights to engage in acquisitions of non-Christian lands. Thereafter, Spanish, French and English explorers planted their flags and crosses in North America and claimed the lands and peoples for their God and kings.

The English colonists and colonial governments also based their claims to land and sovereignty over Native peoples on “first discovery.” The United States Constitution and federal laws reflected the Discovery Doctrine as early as 1787 – 90.

In 1823, the U.S. Supreme Court formally adopted and further defined the Doctrine. In Johnson v. M’Intosh, Chief Justice John Marshall set out the history of European discoveries and claims in North America and held that Discovery had always been the law on this continent.

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The court stated that Indian and tribal rights “to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it.”

In short, Indians no longer owned the full property rights in their tribal lands or their own sovereignty because their discoverers essentially owned those rights. This 600-year-old Doctrine of Discovery and the Johnson v. M’Intosh case is still the law in the United States and under international law. In fact, it remains the dominant legal principle by which many countries, including the U.S., Canada, New Zealand and Australia, continue to control the lands and sovereign powers of their indigenous peoples.

But what would be involved in ending the Doctrine of Discovery and removing its vestiges from American Indian law? In other words, what does the Episcopal Church’s call to action entail?

I hope this call to action by the Episcopal Church will be adopted by other Christian churches and governments around the world.

Some people are hoping the Supreme Court will reverse Johnson v. M’Intosh. That is highly unlikely. Instead, I have called for Congress to work in cooperation with American Indian nations to seriously consider the Doctrine; how it developed and how it injured the Native peoples and tribal governments of the U.S. Congress and tribes could then draft various laws and take actions that would in essence reverse Johnson v. M’Intosh and undo or ameliorate the Doctrine of Discovery. It will obviously take very careful planning and consultation to change federal policies and laws that are up to 200 years old, and to perhaps alter tribal and Indian property rights under federal Indian law.

Some have reasonably asked what would happen to the land and assets that were taken from Indian tribes if the Doctrine of Discovery was repudiated by the federal government.

It seems clear that the real-world effect would probably amount to very little if the Vatican withdrew the 1455 and 1493 papal bulls or if Queen Elizabeth II withdrew the 1496 charter to John Cabot. But on the other hand, if Congress were to seriously consider Discovery and move federal Indian laws and policies away from that feudal, racial, ethnocentric and religiously inspired law there could be important and major advances for American Indians and their governments, and it could result in a more fair legal system in the United States. I hope that Congress will reconsider the total control it has over Indian affairs and the paternalistic guardian/ward relationship it has with tribal governments and Indians under Discovery.

Even if these dramatic events never take place, however, the Episcopal Church has taken a valuable and courageous step by focusing Americans and the world on how European Christians used international law to dominate indigenous peoples and to dispossess them of their lands and assets. Will other Christian churches and the international community have the same courage to look at the foundations, histories and laws that helped create European domination of indigenous peoples?

Robert J. Miller is a professor at Lewis & Clark Law School in Portland, Ore. and a citizen of the Eastern Shawnee Tribe. He is the author of “Native America, Discovered and Conquered: Thomas Jefferson, Lewis & Clark, and Manifest Destiny.”