Discovery doctrine

"[8] Miller and others trace the doctrine of discovery back to papal bulls which authorized various European powers to conquer the lands of non-Christians.

"[11] In 1455, Pope Nicholas V issued Romanus Pontifex, which extended Portugal's authority to conquer the lands of infidels and pagans for "the salvation of all" in order to "pardon ... their souls".

In 1494, Portugal and Spain signed the Treaty of Tordesillas, which moved the line separating their spheres of influence to 300 leagues west of the Cape Verde Islands.

[13] Throughout the sixteenth century, Spain and Portugal claimed that papal authority had given them exclusive rights of discovery, trade and conquest of non-Christian lands in their respective spheres of influence.

These claims were challenged by theorists of natural law such as the Spanish theologians Domingo de Soto and Francisco di Vitoria.

[16] From the sixteenth century, France and England asserted a right to explore and colonize any non-Christian territory not under the actual possession of a Christian sovereign.

William Blackstone, in 1756, wrote, "Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother-country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties.

[22][23] European monarchs often asserted sovereignty over large areas of non-Christian territory based on purported discoveries and symbolic acts of possession.

In 1805, the Piankeshaw conveyed much of the same land to William Henry Harrison, governor of the Indiana Territory, thus giving rise to conflicting claims of title.

A number of academics and Indigenous rights activists have argued that Chief Justice John Marshall had large real estate holdings that would have been affected if the case were decided in favor of Johnson.

Marshall noted: On the discovery of this immense continent, the great nations of Europe ... as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves.

[36] Pagden states that Marshall did not sufficiently consider Francisco de Vitoria's critique of the claim that discovery gave a right to possession of inhabited lands.

[38] Blake Watson states that Marshall overlooked evidence showing that the Dutch and some English settlers acknowledged the right of Indians to their land and favored purchase as a means of acquiring title.

He stated that discovery did not give the discovering nation title to land, but only "the sole right of acquiring the soil and making settlements on it."

[44][45] As of March 2023[update], the most recent time the doctrine was cited by the Supreme Court is in the 2005 case City of Sherrill v. Oneida Indian Nation of New York, by Justice Ruth Bader Ginsburg in the majority decision.

[54] During the Ninth Session of the United Nations Permanent Forum on Indigenous Issues in April 2010, the Holy See addressed the doctrine, saying that it had been abrogated as early as 1494 by subsequent papal bulls, encyclicals, and pronouncements.

[57] In 2014, Ruth Hopkins, a tribal attorney and former judge, wrote to Pope Francis asking him to formally revoke the Inter caetera papal bull of 1493.

[58] At the 2016 Synod, 10–17 June in Grand Rapids, Michigan, delegates to the annual general assembly of the Christian Reformed Church rejected the doctrine of discovery as heresy in response to a study report on the topic.

That report was approved by the 223rd General Assembly (2018), along with recommendations for a variety of additional actions that could be taken by the church at all levels to acknowledge indigenous peoples and to confront racism against them.

[61] On November 3, 2016, a group of 524 clergy publicly burned copies of Inter caetera,[62] as part of the Dakota Access Pipeline protests near the Standing Rock Indian Reservation.

[65] The General Assembly of the Christian Church (Disciples of Christ) condemned and repudiated the Doctrine of Discovery in July 2017, noting it "continues to facilitate genocide, oppression, dehumanization, and the removal of Peoples from ancestral lands in the United States, Canada and globally".

[69] On March 30, 2023, the Vatican's Dicasteries for Culture and Education and for Promoting Integral Human Development jointly repudiated the doctrine of discovery as "not part of the teaching of the Catholic Church".

[71] The Vatican's statement pointed to the 1537 papal bull, Sublimis Deus, which affirmed the liberty and property rights of indigenous peoples and prohibited their enslavement.