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U.N. Permanent Forum Raises Stakes on Christian Discovery Doctrine

Professor Joshua Jeffers, a History Ph.D. candidate and instructor at Purdue University, authored an important study of the Doctrine of Christian Discovery, published in the Maryland Historical Magazine (Spring 2013). Jeffers began his scholarly review with a discussion of the 1823 U.S. Supreme Court decision in Johnson v. M'Intosh, which made the Doctrine "the fundamental legal principle on which United States land title was based…with devastating consequences for Native Americans."

After a thorough analysis of the trajectory of the Doctrine of Christian Discovery from its origins in 15th century papal decrees, Jeffers explores the ways in which this once-obscure religious-legal doctrine has emerged into open discussion in our time. He describes the current situation as "increasing ferment over this issue." Readers of Indian Country Today are witnesses to this ferment, as columnists and news articles report the growing movement to focus United Nations attention on Christian Discovery as a colonial and imperial doctrine.

In a provocative conclusion, Jeffers suggests that Native Peoples' 21st century challenge to the doctrine are as significant as the 16th century debates that examined theological and legal underpinnings of Spanish colonialism. He points out that the current reexamination of Johnson v. McIntosh, calling into question its legitimacy as a precedent, also echoes arguments among 17th century British land speculators and 18th and 19th century American legal theorists.

Jeffers's conclusion about the historical significance of the present moment seems amply supported by the facts. As he notes, "in the past two decades more than 750 articles and several books, from scholars as varied as political scientists, legal theorists, and colonial historians, have critically evaluated the Johnson ruling."

Not only has there been an explosion of scholarship and commentary, the critique has broken out of the academic arena and into the regular press and the international political arena.

The 11th session (2012) of the United Nations Permanent Forum on Indigenous Issues examined the Doctrine of Christian Discovery as a "special theme." The session involved a panel of international experts, preparation of a conference paper, and statements from indigenous peoples around the globe. The Report of the session recommended that a formal study be undertaken on behalf of the Permanent Forum itself.

The study recommended by the special session was prepared by Mr. Edward John, a member of the Forum, and is now in final editing stage. It will be presented at the 13th session of the Forum, scheduled for 12-23 May 2014. Mr. John investigates not only the "impacts" of the Doctrine of Christian Discovery, but also "mechanisms, processes and instruments of redress."

The Study will indeed reach the level of historical significance suggested by Prof. Jeffers: it portends a worldwide examination of the notion of Christian Discovery, with implications for law, politics, and economics, as well as for the proper place of religion in the activities of government. The question is whether the discussion will focus on "redress" as the verb meaning "put on new clothes," or "redress" as the noun and verb meaning "put back into a stable, upright position."

For starters, it is significant to refer to the doctrine by its full and proper name—Doctrine of Christian Discovery—and not by the common phrase used by most writers, even those who are critical—Doctrine of Discovery. This emphasizes that the doctrine is rooted in religion. It is not a secular rule, but a rule of religious discrimination.

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We owe it to Steven Newcomb for laying the scholarly groundwork demonstrating the historical and documentary record of "discovery" as a religious doctrine. It was Newcomb who hammered on "Christian Discovery," at a time when most writers were simply referring to "European Discovery."

The historical record that "European Discovery" is "Christian Discovery" is clear all the way back to the initial colonial intrusion, when Christopher Columbus planted the Spanish flag in the "New World" in 1492.

In the 1493 Bull "Inter Caetera," Pope Alexander VI praised "our beloved son, Christopher Columbus"; and, for the Spanish Crown that financed Columbus, the Pope did "give, grant, and assign to you and your heirs and successors, kings of Castile and Leon, forever, …all rights, jurisdictions, and appurtenances, all islands and mainlands found and to be found, discovered and to be discovered." The only limit to the Pope's grant was if the lands were already "in the actual possession of any Christian king or prince." Columbus' name bears witness to the doctrine: As the Oxford English Dictionary states, "Christopher" means "Christ-bearing."

As Prof. Jeffers points out, the doctrinal roots of Christian Discovery go back even further, to 13th century Pope Innocent IV, who "gave Christians the legal authority to circumscribe non-Christian property and sovereignty rights." By the 16th and 17th centuries, legal scholars such as Franciscus de Victoria and Hugo Grotius began to develop what they called international law (i.e., the law of the nation state system). They built on papal precedents "legitimating the confiscation of the land, property, and sovereignty of non-Christian peoples."

Johnson v. McIntosh admitted this religious origin. As Chief Justice Marshall wrote, "No one of the powers of Europe gave its full assent to this principle, more unequivocally than England. The documents upon this subject are ample and complete. So early as the year 1496, her 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."

The United States was similarly blunt when it claimed title to the lands of the Tee-Hit-Ton Indians in 1955. The U.S. Brief explicitly based its claim on the Doctrine of Christian Discovery: "The doctrine of title by discovery is not merely a Roman Catholic doctrine, but rather a principle adhered to by all the Christian nations." The Brief explained that even though the U.S. did not "recognize the Popes as the source of their titles," the concept of title by discovery was "based upon the same idea that lands occupied by heathens and infidels were open to acquisition by the Christian nations."

Johnson v. McIntosh and Tee-Hit-Ton are both still considered valid precedents in U.S. law. Courts at all levels cite these decisions frequently. Most of the time nowadays, the courts do not elaborate on the underlying religious basis for these decisions. As Jeffers puts it, the names of the cases are now "a short-hand rationale for declaring that Native title to land was inferior to that of European title."

It would be embarrassing today for the colonial powers and their descendants in the various nation states of the world to talk openly about the religious basis of laws regarding Native Nations. This is not to say there aren't people who embrace religion in government (from Zionists to Evangelical Christians to Islamist political parties); but it is to say that the formal position of member states of the United Nations is now generally cleansed of such rhetoric.

The forthcoming Permanent Forum Study will raise the rhetorical stakes of international discourse about Native peoples to the highest level in 500 years. This is an opportunity and a challenge. The Study's repeated references to "redress" might just mean "new clothes" for an old doctrine; such redecoration can only be prevented if references to "self-government," "control of lands," and other aspects of "effective sovereignty" are grasped and emphasized.

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.