In his recent column, Professor David Wilkins (Lumbee) says the doctrine of discovery has gone through many expressions, such as "a theological fiction" of popes, "a political fiction" of European nations, and "a legal fiction" of the United States. And he claims that lately the discovery doctrine has been “dangerously repurposed as popular fiction.”
Professor Wilkins is a brilliant and accomplished scholar, and it is good to see him discuss a subject that his mentor, the late Standing Rock scholar and theologian Vine Deloria, Jr., did so much to publicize. That publicity includes Deloria’s 1972 Open Letter to the Heads of the Christian Churches, and his celebrated 1973 book God is Red, in which he quoted the Inter Caetera papal bull of 1493.
In any case, Wilkins's views are certainly not beyond critique, especially to the extent that his comments are inaccurate or imprecise. He says, for example, that “as originally conceived in Pope Alexander VI’s 1493 papal bull,” discovery “granted the Spanish exclusive interests in the Americas.” Yet Wilkins does not tell us, precisely, what kind of “exclusive interests in the Americas” that the pope purported to bestow upon the Crown of Castile.
In May 2013, Debra Harry (Paiute), Sharon Venne (Cree) and I saw two of the original papal bull documents at the General Archives of the Indies. It was May 4, five hundred and twenty years from the day that one of the papal documents had been issued in 1493. On the back of one of the two velum parchment documents, the Royal Secretary’s notation says that the documents were a concession from Pope Alexander VI to the Crown of Castile “to win and to conquer the Indies,” (“ganaran y conquistaron de las Indias”).
In other words, they were papal concessions authorizing the crown to force "the Indies" under Christian domination. The papal documents expressed an assumed right of Christian, Catholic, and Spanish dominium or “dominorum Christianorum” (Eximae Devotinis, May 3, 1493). That assumption of Christian domination raises the question as to whether the Indian nations were considered, by Christian thinkers, to have sovereignty and dominium, or dominion, on the same level, and to the same degree, as the Catholic Church and the Spanish crown.
Professor Anthony Anghie in his book Imperialism, Sovereignty, and the Making of International Law (2004) says that Spanish theologian Francisco de Vitoria argued that “the Indians were not sovereign because they were pagans.” It was Vitoria’s view that the Indians were not sovereign because they were not Christians. Wilkins says that Vitoria “declared that Native peoples were the true owners of their lands,” and that Vitoria was of the opinion that a Spanish claim of a “title through discovery could only be justified where property was ownerless.” So, we’re dealing with at least two issues: 1) whether, in Vitoria’s view, the Indians were sovereign, and, 2) whether a “title through discovery” applied in a place where non-Christian Indians nations and peoples were already living.
Perhaps Professor Wilkins has not yet come across Vitoria’s argument that the Indians were not sovereign because they were not Christians. Or, perhaps he decided to leave that argument out of his article, while mentioning what he says was Vitoria’s view that the Indians “were the true owners of their lands.”
In any case, the ideas of domination (“ganaran y conquistaron”) expressed in the papal bulls, the claim by Spain and other Christian nations of a right of domination over all non-Christian lands, and Vitoria’s view that the Christian monarchs were sovereign but that non-Christian Indians were not sovereign, resulted in a specific conceptual framework: The dominium or right of dominorum of a Christian Sovereign versus whatever title Christians deemed non-sovereign infidel, heathen, or pagan nations to have.
What would be the result if the Christians conceived of our ancestors as “the true owners” of our lands, beneath and under the power and dominium or dominorum of a Christian Sovereign as a result of the first assertion of Christian sovereignty and dominium over non-Christian lands? The result would be a framework of “The Christian Sovereign’s Title versus a Lesser Title for non-Christian, Non-Sovereign Indians.”
In Wilkins opinion piece, he mentions Felix Cohen’s now famous law review article “Original Indian Title,” published in 1947. In that article we find a subheading: “The Sovereign’s Title: Johnson v. M’Intosh.” With that subheading, Cohen was saying that Johnson v. M’Intosh was about the supposedly superior “Sovereign’s title” of “ascendency,” “ultimate dominion,” or “absolute dominion” as much as it was about an Indian title or right of “occupancy.”
In White v. The University of California, a three judge panel of the Ninth Circuit Court of Appeals recently said that Indian occupancy “is not a property right,” but is merely “an aboriginal interest in lands.” After mentioning in his article the Ninth Circuit Court panel’s citation of Tee-Hit-TonIndians versus United States, Wilkins asks:
But why is there such a drive these days to revert to the long ago discredited papal version of the doctrine of discovery when historical reality clearly shows that it was not used in any practical way by subsequent colonizers after Vitoria’s writings?
He poses this question as if only “a papal version” of the doctrine of discovery is found in the historical record, which is clearly not the case. This is demonstrated by the 1954 U.S. Justice Department legal brief in Tee-Hit-Ton versus United States. In that legal brief, U.S. Solicitor Simon Sebeloff said that what began as a papal doctrine before and at the beginning of the Age of Discovery was later generalized and adopted by “all Christian nations” of Europe.
It was the generalized version rather than the “papal version” of the doctrine of Christian discovery and domination that became the basis for the Johnson v. M’Intosh ruling, and the subheading in Felix Cohen’s law review article (“the Sovereign’s title: Johnson v. M’Intosh”). The doctrine of Christian discovery and domination became the basis for the U.S. government’s argument in its legal brief in Tee-Hit-Ton v. United States.
It became the basis for the U.S. Supreme Court’s ruling in its 1955 decision in Tee-Hit-Ton, as evidenced by the Court’s citation of Henry Wheaton’s Elements of International Law. And, most recently, it was the basis for the citation of Tee-Hit-Ton Indians v. United States by the Ninth Circuit Court of Appeals’ three judge panel this past August 27.
In his chapter “Conquest Masquerading As Law,” in Unlearning the Language of Conquest by Four Arrows, Vine Deloria, Jr. writes that the doctrine of discovery “was broadened so that any Christian nation could ‘discover’ lands previously unknown to Europeans and was immediately vested with legal title regardless of the claims and rights of the existing inhabitants.”
In Johnson v. M’Intosh, Chief Justice Marshall said that “the right of discovery” was confined to countries then unknown to all Christian people.” In other words, the Christian invaders claimed a right of domination over lands previously unknown to Christians and Christian nations. This way of stating the matter is more in keeping with the actual language of papal and royal documents of that time, which is still foundational to U.S. federal Indian law and policy and therefore needs to be dis-established.
Steven Newcomb (Shawnee/Lenape) is co-founder and co-director of the Indigenous Law Institute, author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008). He has had three law review articles published, and he has been researching and writing about U.S. federal Indian law and international law since the early 1980s.