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Law and its interpretation by the courts regarding American Indians in the United States are based on two concepts: (1) the U.S. Constitution, and (2) legal precedents from international law, primarily a legal fiction known as the Doctrine of Discovery.

In 1787, the United States adopted a constitution which is considered the supreme law of the land. Article I, Section 8, Clause 3 delegates to Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes” and thus dealings with the tribes are to be federal. Most of the litigation regarding Indian matters concerns this clause. However, it has not been unusual for legal scholars, including one Supreme Court Chief Justice, and for many politicians and government leaders to ignore this clause.

The Doctrine of Discovery is not well-known to people who are not: (a) historians, (b) legal scholars, or (c) American Indians. In brief, this is an ancient European Christian legal concept which says that Christian nations have a right, if not an obligation, to rule over all non-Christian nations. Thus, the European nations, and the United States after 1787, felt that they had a legal right to govern American Indians. The Doctrine of Discovery gave Christian nations, including the United States, the right to take land away from indigenous peoples paying for it with the gift of Christianity.

The Popes and Spanish Law:

The Catholic Pope in 1452 laid the foundation for the Doctrine of Discovery by issuing the papal bull dum diversas which instructed the Portuguese monarchy “to invade, capture, vanquish, and subdue all Saracens, pagans, and other enemies of Christ, to put them into perpetual slavery, and to take away all their possessions and property.” The ideas found in this papal document were later woven into U.S. Indian law and continues to guide U.S. Indian policy.

A papal bull is a special kind of patent or charter issued by a pope. It is called a “bull” because of the seal (bulla) which was appended to the end of it and served to authenticate the document.

The original papal bull, which is still in force, was strengthened in 1455 with another papal bull, Romanus Pontifex, which sanctified the seizure of non-Christian lands and encouraged the slavery of natives. Following the discovery of the Americas by the Europeans, Papal bulls by Pope Alexander VI in 1493 granted Spain and Portugal all of the lands in the Americas which were not under Christian rule. This began the European assumption that the native people of the area didn’t really own the land because they were not Christian. The Pope decreed that:

 

“barbarous nations be overthrown and brought to the faith itself.”
The Inter Caetera papal bull stated:
“We trust in Him from whom empires, and governments, and all good things proceed.”
This laid the legal foundation for assuming that government comes only from the Christian god and therefore Christian nations have a legal right to rule over non-Christian nations. Indian writer Vine Deloria would later comment:
“Thus armed with a totally bogus title issued by God’s representative on earth, the Spaniards then began a brutal conquest in the Americas which virtually obliterated the native populations in the Caribbean within a generation.”
The Doctrine of Discovery provided Europeans with the legal right to claim the Americas. While non-Christian Indian nations owned the land, the European nations, as Christian nations, had the right to rule Indian nations. If the Indian nations failed to recognize this right, then the Christian nations could wage a just war against them.

By 1513, Palacios Rubios, Spain’s master jurist, had refined the Doctrine of Discovery into a document which was to be read aloud, in Spanish or in Latin, when new peoples and/or lands were encountered. The fact that the indigenous people might not speak Spanish or Latin was not seen as relevant. The document recited the Christian history of the world and then demanded that the Natives accept this version of history and submit themselves to the authority of the Christian Spanish King. The indigenous people were told that God has declared that the Pope rules all people, regardless of their law, sect, or belief. This includes Christians, Moors, Jews, Gentiles, or any other sect. The Native Americans were to come forward of their own free will to convert to Catholicism or

“with the help of God we shall use force against you, declaring war upon you from all sides and with all possible means, and we shall bind you to the yoke of the Church and Their Highnesses; we shall enslave your persons, wives, and sons, sell you or dispose of you as the King sees fit; we shall seize your possessions and harm you as much as we can as disobedient and resisting vassals.”
Furthermore, the Natives who resist are to be held guilty of all resulting deaths and injuries from the “just” war waged against them.

American Law:

The Doctrine of Discovery entered into American jurisprudence in 1823 when the Supreme Court ruled on Johnson and Graham’s Lessee versus McIntosh. The Court found that the Doctrine of Discovery gave sovereignty of Indian lands to England and then to the United States. Indian nations, under this Doctrine, have a right of occupancy to the land. Christian nations, such as England and the United States, have superior rights over the inferior culture and inferior religion of the Indians. According to the Court, Indians have been compensated for their lands by having the gift of Christianity bestowed upon them.

The Supreme Court’s use of the Doctrine of Discovery in Johnson and Graham’s Lessee versus McIntosh laid the foundation for Indian law that still continues. The decision reinforced the superiority of Christianity as a governing philosophy and paid little attention to either Indian history or the possibility of Indian religions.

In 1954, the United States Supreme Court heard arguments in the Tee-Hit-Ton case. The government argued that under international law Christian nations can acquire lands occupied by heathens and infidels. It was an argument made by the United States government on the basis of the Christian religion. In their argument, the United States government not only cited the nineteenth century case of Johnson v M’Intosh, but also the Papal bulls of the fifteenth century and the Old Testament from the Bible.

In 1955, the Supreme Court announced its decision which denied the Tee-Hit-Ton any compensation for the taking of the timber. According to the Court:

“The Christian nations of Europe acquired jurisdiction over newly discovered lands by virtue of grants from the Popes, who claimed the power to grant Christian monarchs the right to acquire territory in the possession of heathens and infidels.”
The Tee-Hit-Ton case reaffirmed the Doctrine of Discovery as the basis for U.S. law with regard to Indian nations. It reaffirmed this Christian doctrine as the principle to be used in judging American Indians and discounted American Indian history and religious traditions. It denied that Indians had any legal rights as pagan nations.

In 2005, the Supreme Court once again cited the Discovery Doctrine in City of Sherrill v Oneida Indian Nation of New York. Justice Ruth Bader Ginsburg wrote:

“Under the ‘doctrine of discovery,’ fee title to the lands occupied by the Indians when the colonists arrived became vested in the sovereign—first the discovering European nation and later the original States and the United States.”
In 2008, the International Council of Thirteen Indigenous Grandmothers traveled to the Vatican to ask Pope Benedict XVI to rescind historic church doctrine—the Discovery Doctrine—that has encouraged the genocide of millions of indigenous people. Vatican police, however, claimed that the women were engaged in conducting anti-Catholic demonstrations.

In 2009, Onondaga Chief Oren Lyons asked Pope Benedict XVI to renounce the Doctrine of Discovery. While the Pope declined, thus indicating that this Doctrine continues as Church policy, the Episcopal Church adopted a resolution repudiating the Doctrine of Discovery. The resolution called on the United States to review its historical and contemporary policies that contribute to the continued colonization of native peoples. The resolution also called for Queen Elizabeth II to repudiate publicly the validity of the Doctrine of Discovery.

In 2010, “A Preliminary Study on the Doctrine of Discovery” was presented to the United Nations Permanent Forum on Indigenous Issues by Tonya Gonnella Frichner (Onondaga). According to the study, the Doctrine of Discovery has been used to justify indigenous genocide and is one of the underlying reasons for the worldwide violations of the human rights of indigenous peoples. In 2012, the 11th Session of the United Nations Permanent Forum on Indigenous Issues discussed the Doctrine of Discovery.

On numerous other occasions, Indian leaders in the Americas have formally asked the Pope to renounce the Doctrine of Discovery. At the present time, it would appear that this is still the policy of the Catholic Church and is a part of American law.

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 An ongoing series sponsored by the Native American Netroots team focusing on the current issues faced by American Indian Tribes and current solutions to those issues.

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Originally posted to Native American Netroots on Thu Jul 19, 2012 at 08:11 AM PDT.

Also republished by History for Kossacks and Street Prophets .

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