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Newcomb: Joseph Story and the 'right of discovery'

Joseph Story had an illustrious career as an Associate Justice of the U.S. Supreme Court from 1811 - 1845, a span of 34 years. In 1829, he became Dane Professor of Law at Harvard Law School, which provided him time to write. He was also a close friend of Chief Justice John Marshall from 1810 until Marshall's death in 1835.

In early 1833, Story published his ''Commentaries on the Constitution of the United States.'' This three-volume work received high praise. A few months later, he published a one-volume ''Abridgement'' of the ''Commentaries.''

From a Native perspective, ''Commentaries'' is an important work because it sheds considerable light on the ideas used early in the history of the United States to rationalize the treatment of American Indian nations and Indian land rights.

The first chapter of ''Commentaries'' is titled ''Origin and Title to the Territory of the Colonies.'' It begins with a mention of Columbus' historic voyage and quickly moves to England's bid for territorial expansion under the leadership of King Henry VII, and the charter granted by Henry to John Cabot ''to subdue and take possession of any lands unoccupied by any Christian power, in the name of and for the benefit of the crown.''

Story explained how Cabot sailed along the coast of North America and ''claimed for his sovereign the vast region, which stretches from the Gulf of Mexico to the most northern regions.'' ''Such,'' declared Story, ''is the origin of the British title to the territory composing these United States. That title was founded on the right of discovery, a right which was held among the European nations a just and sufficient foundation, on which to rest their respective claims to the American continent.''

Having provided this summary, Story immediately acknowledged that it ''may not be easy on general reasoning to establish the doctrine, that priority of discovery confers any exclusive right to territory. It was probably adopted by the European nations as a convenient and flexible rule, by which to regulate their respective claims.''

Story went on to say that ''in respect to desert and uninhabited lands, there does not seem any important objection, which can be raised against it. But in respect to countries, then inhabited by the natives, it is not easy to perceive, how, in point of justice, or humanity, or general conformity to the law of nature, [the right of discovery] can be successfully vindicated.'' Story acknowledged that the doctrine of ''priority of discovery'' ''could have no authority over the aborigines of America, whether gathered into civilized communities, or scattered in hunting tribes over the wilderness.''

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The right of the Indians to their lands, Story said, ''could not be justly narrowed or extinguished without their own free consent.'' Then, in a remarkable passage, Story wrote: ''There is no doubt, that the Indian tribes, inhabiting this continent at the time of its discovery, maintained a claim to the exclusive possession and occupancy of the territory within their respective limits, as sovereigns and absolute proprietors of the soil. They acknowledged no obedience, or allegiance, or subordination to any foreign sovereign whatsoever; and as far as they have possessed the means, they have ever since asserted this plenary right of dominion, and yielded it up only when lost by the superior force of conquest, or transferred by voluntary cession.''

The Europeans, of course, held a view quite different than that of the Indians. From their prejudiced viewpoint, Story said, ''The Indians were a savage race, sunk in the depths of ignorance and heathenism. If they might not be extirpated for their want of religion and just morals, they might be reclaimed from their errors. They were bound to yield to the superior genius of Europe, and in exchanging their wild and debasing habits, for civilization and Christianity they were deemed to gain more than an equivalent for every sacrifice and suffering.''

Next, Story went on to mention the authority of the pope, and how, ''for the purpose of overthrowing heathenism, and propagating the Catholic religion, Alexander the Sixth, by a bull issued in 1493, granted to the crown of Castile the whole of the immense territory then discovered, or to be discovered, between the poles, so far as it was not then possessed by any Christian prince.'' In this papal document, Story saw the expression of ''the principle, then, that discovery gave title to the government, by whose subjects or by whose authority it was made, against all other European governments.''

The previous quote is noteworthy because that it is taken verbatim (without attribution or quotation marks) from the 1823 Johnson v. M'Intosh decision written by Story's dear friend, Chief Justice John Marshall, at a time when Story was a member of the U.S. Supreme Court. Who better than Story would understand the connection between the principle of discovery expressed in the Johnson ruling and the principle of Christian discovery found in the Inter Caetera papal bull issued by the Vatican in 1493?

In his ''Commentaries,'' Story later said, ''It may be asked, what was the effect of this principle of discovery in respect to the rights of the natives themselves.'' He answered that the Indians ''were admitted to possess a right of occupancy, or use in the soil, which was subordinate to the ultimate dominion of the discovery.''

In a later section of his book, a ''General Review of the Colonies,'' Story explained the religious basis upon which the United States refused to acknowledge Indian peoples as being entitled to a free and independent existence: ''As infidels, heathens, and savages, they were not allowed to possess the prerogatives belonging to completely sovereign, independent nations.'' The question remains: On what basis is this kind of thinking, which is also found in the Johnson v. M'Intosh decision, acceptable in U.S. law?

Steven Newcomb (Shawnee/Lenape) is Indigenous Law Research Coordinator for the Sycuan Education Department, co-founder and co-director of the Indigenous Law Institute, and a columnist for Indian Country Today.