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Newcomb: The Doctrine of Discovery

On Sept. 18, Larry Echo Hawk, assistant secretary of the Interior for Indian Affairs, gave a keynote address at Taos Pueblo during the 40th anniversary of the “return” of the Sacred Blue Lake to the Taos people. The United States, Mr. Echo Hawk remarked, has “a long history, with many dark chapters.” In this context he went on to explain the Doctrine of Discovery.

“When the Europeans discovered a land that was unknown to them, if the land was inhabited by natives, the Europeans owned the land. … This seems to me a very arrogant area of the law.”

It is quite possible that the Blue Lake Commemoration at Taos Pueblo marks the first time in history that a high-level U.S. government official has spoken officially, and critically, of the Doctrine of Discovery. It is a welcomed development.

What was missing from Mr. Echo Hawk’s comments, however, was an explanation of the basis for the argument (an argument to be firmly rejected) that “if the land was inhabited by natives, the Europeans owned the land.” The basis for this argument is found in the 1823 U.S. Supreme Court ruling Johnson v. M’Intosh. In keeping with the verbatim language found in the Johnson decision, Mr. Echo Hawk’s explanation needs to be slightly modified.

In Johnson v. M’Intosh, Chief Justice Marshall, writing for a unanimous Supreme Court, used the example of England as a means of illustrating the Doctrine of Discovery. “No one of the powers of Europe gave its full assent to this principle [of discovery] than England. The documents upon this subject are ample and complete.”

Marshall then quoted from specific documents that expressed the Doctrine: “So early as the year 1496, her [England’s] monarch granted a commission to the Cabots, to discover countries then unknown to Christian people, and to take possession of them in the name of the king of England.” Marshall is the one who put italics on the words “Christian people” to emphasize them.

From whom would they receive ‘perfect independence?’ They would receive it from themselves.

To make certain the Supreme Court emphasized its reference to “Christian people,” Marshall further said: “The same principle [of discovery] continued to be recognized. The charter to Sir Humphry Gilbert, in 1578, authorizes him to discover and take possession of such remote and barbarous lands, as were not actually possessed by any Christian prince or people. This charter was afterwards renewed to Sir Walter Raleigh, in nearly the same terms.

“By the charter of 1606, under which the first permanent English settlement on this continent was made, James I. granted to Sir Thomas Gates and others, those territories in America, lying on the sea-coast, between the 34th and 41st degrees of north latitude, and which either belonged to that monarch, or were not possessed by any other Christian prince or people.”

Mr. Echo Hawk’s explanation, as good as it was, would have been more precise if he had followed the actual reasoning used by the Supreme Court in Johnson: If the land was inhabited by “natives, who were heathens,” (the Supreme Court’s words) and not under the sovereignty of any Christian prince or people, then the discovering Christian sovereign was presumed to have dominion over the land.

On the basis of this Christian religious framework, the Supreme Court said the “perfect independence” of “civilized nations,” was “acknowledged.” When read along with what the court said about the charters of England, this statement was the court’s way of saying that nations categorized as “uncivilized” and “heathen” supposedly became less than free and independent when Christians arrived.

As the Supreme Court put the matter, “The character and religion of the continent’s [native] inhabitants provided an excuse for considering the native inhabitants to be a people over whom the superior genius of Europe might claim an ascendency.” Ascendency is another word for an elevated position, or a position of dominance.

What the Supreme Court was saying is that the monarchs of Christendom had used the character and non-Christian identity of the Indians as an excuse for the Christians assuming unto themselves “ultimate title” to and “ultimate dominion” over the continent. They “assumed the ultimate dominion to be in themselves,” wrote Marshall.

It is quite possible that this marks the first time a high-level U.S. government official has spoken officially, and critically, of the Doctrine of Discovery. It is a welcomed development.

The Supreme Court also said the potentates of the old world convinced themselves that European “civilization” and “Christianity” provided the Indians with adequate compensation “in exchange for perfect independence.” By “exchange” the Supreme Court was referring to a form of trade: The Christian Europeans would intend to bestow European civilization and Christianity on the Indians. In exchange for this, the Christian Europeans would “receive” independence.

From whom would they receive “perfect independence?” They would receive it from themselves. They would “pay” themselves political independence on the continent as a means of compensating themselves for intending to spread Christianity and Christian European “civilization” to the Indians.

What Echo Hawk could have said at Taos Pueblo is this: According to the Doctrine of Discovery in Johnson v. M’Intosh, because the lands, territories, and resources of Indian nations “were not actually possessed by any Christian prince or people,” Indian “rights to complete sovereignty, as independent nations” were supposedly “diminished” by the claim that Christian discovery gave a right of dominance to the first Christian discoverers of the lands of “heathens” and “infidels.”

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Steven Newcomb is co-founder and co-director of the Indigenous Law Institute and author of "Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery.”