The Discovery Doctrine, the tribes and the truth

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In 1823, a landmark case came before the U.S. Supreme Court titled Johnson vs. McIntosh (21 U.S. 543).

The initial facts of the case are relatively simple. In the early 1770s, the predecessors of Johnson, an ordinary private citizen, bought some land from the Illinois and Piankashaw tribes in the Illinois region. Some years later, after the United States gained independence from the British, the tribes sold the same land to the United States. The federal government later sold that land to the predecessors of McIntosh, another private citizen.

What the Supreme Court basically had to do was decide who now had valid legal title to the land - Johnson's people, whose claimed title came directly from the tribes - or the McIntosh group, whose title came from the federal government after the United States bought the same land from the tribes. The court had to decide what title the tribes initially had and whether they could sell their land to private parties.

In writing the opinion for the court, Chief Justice John Marshall found that the Discovery Doctrine had been used by the British and that the United States, therefore, inherited whatever land rights and control the British had over Indian lands prior to the British losing the Revolutionary War. Those rights and controls, it was determined, were rather extensive.

In essence, Justice Marshall declared that in the year "1498" (it was actually 1497), when the Italian explorer Juan Caboto (a.k.a. John Cabot) sailed on behalf of Henry the VII of England along the northeastern seaboard of what became the United States, the British took legal title to their newly "discovered" American lands. He further stated that, at that instant, the sovereignty of the tribes within the territory claimed by the British was automatically and "to a considerable extent, impaired."

In exchange for the reduction of tribal sovereignty and the reduction in tribal property rights through the Discovery Doctrine, Justice Marshall explained that the European powers "found no difficulty in convincing themselves that they made ample compensation to the (Indians) ... by bestowing on them civilization and Christianity ..."

What the tribes had left, then, Marshall held, was only a "right of occupancy" in their lands. (This right of occupancy is often referred to as "Indian Title" or "Aboriginal Title.") And, the tribes were all now technically under the superior sovereignty of the British. As the court further declared, the tribal right of occupancy of their lands could be extinguished by purchase or conquest, and such extinguishment could only be done by the "discovering" nation or its successor.

Thus, with regard to the basic dispute between the Johnson and McIntosh factions, the Johnson group lost because Johnson bought the land directly from the tribes. The tribes did not have a right, under the Discovery Doctrine, to sell it to him. They could only sell their right of occupancy to the United States and no one else.

What is perhaps the most revealing language in the opinion, regarding its strong link to the culturally racist origins of the Discovery Doctrine, is Justice Marshall's explanation of how the doctrine is justified. Despite the fact that, on its face, the doctrine is an apparent injustice against human rights, Chief Justice Marshall stated he would not try to defend the seeming injustice. He did, however, say that the inferior "... character and habits of the (Indian) people whose rights have been wrested from them ..." provide "some excuse, if not justification ... " for imposition of the Discovery Doctrine on them. He also said, "the character and religion of ... (American Indian) inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy."

This culturally racist "superior culture and superior religion" concept of the Discovery Doctrine, as formally adopted by the United States. The Johnson vs. McIntosh case of 1823, is now clearly traceable all the way back to the first Crusade of 1095, and even to the equally arrogant ideas of Aristotle's Politics, written in the 4th century BC.

The meaning to tribes today

As Professor Williams and others have shown us, the Discovery Doctrine (which, again, is traceable to Aristotle's philosophy about "masters" and "cultural inferiors") provides the foundation principles of modern federal Indian law. It also provides some of the justification for congressional "plenary" (or near absolute) power over Indian affairs. And, it has always been in the shadows of such federal policies as assimilation, removal, allotment, forced education, the reservation system, partial termination (e.g., Public Law 280), termination, and relocation, etc.

The idea of the "superiority" of the people and institutions of the larger society over Indian people also underlies the latter-day decisions of the Supreme Court that are perpetuating a new termination, i.e., "judicial termination."

A partial list of these modern anti-Indian cases includes the 1977 case of Rosebud Sioux Tribe vs. Kneip on reservation disestablishment, the 1978 case of Oliphant vs. Suquamish Indian Tribe on tribal criminal jurisdiction over non-Indians, the 1982 case of Montana vs. United States on treaty interpretation and tribal land control, the 1983 case of Nevada vs. United States on Pyramid Lake water rights, the 1988 case of Lyng vs. Northwest Indian Cemetery Ass'n on Indian religious freedom, the 1989 case of Yakima Nation vs. Brendale on tribal land use zoning powers, the 1990 case of Duro vs. Reina on tribal criminal jurisdiction over non-member Indians, and the 1998 case of Alaska vs. Native Village of Venetie on the question of the existence of Indian country in Alaska and related tribal sovereign powers.

The list of anti-Indian cases goes on, and it will continue to grow until tribes are reduced to mere remnants of what they are, even today. So, the question arises as to what tribes can do? A conceptual suggestion was made in an article published by this author (1999) in the Native American Law Digest under the title of "Tribal Independence: A Possible American Model."

Specifically, the majority of the founding rules of federal Indian law and policy, starting with the days of "discovery," have been heavily stacked against the tribes. The coin toss saying of "heads I win, tails you lose" is precisely the long-term message of U.S. policy toward the tribes. The only real solution seems to lie in literally changing the rules. This is obviously something that would have to come from the tribes themselves.

No one else will do it.

Editor's Note: Dr. Jack Utter is a former teacher of federal Indian law history at Prescott College and Northern Arizona University. He is employed by the Water Code Administration of the Navajo Nation. He can be reached at P.O. Box 678, Fort Defiance, AZ 86504, or at (520) 729-4146.