Tuesday, May 1, 2012

The Doctrine of Discovery and Colonialism

The Doctrine of Discovery:
 The International Law of Colonialism

Conference Room Paper
11th Session of the U.N. Permanent Forum on Indigenous Issues
7-18 May 2012

Presented by:   Professor Robert Miller

On January 8, 1455, Pope Nicholas V issued the bull Romanus Pontifex to King Alfonso of Portugal and ordered him in regards Africa:

“to invade, search out, capture, vanquish, and subdue all Saracens [Muslims] and pagans whatsoever, and other enemies of Christ wheresoever placed, and the kingdoms, dukedoms, principalities, dominions, possessions, and all movable and immovable goods whatsoever held and possessed by them and to reduce their persons to perpetual slavery, and to apply and appropriate to himself and his successors the kingdoms, dukedoms, counties, principalities, dominions, possessions, and goods, and to convert them to his . . . use and profit . . . [and to] possess, these islands, lands, harbors, and seas, and they do of right belong and pertain to the said King Alfonso and his successors . . . .”[1]

            The international law that authorized and regulated six hundred years of European colonization of much of the world is known today as the Doctrine of Discovery. Beginning with the Crusades to the Holy Lands in 1096-1271, European countries and the Christian church began developing law to justify their alleged rights to dominate and colonize non-Christian nations.[2] Specifically, Portugal and Spain contributed to the development of this law in the early-1400s in their disputes over islands off the Iberian peninsula and the coast of Africa.[3] The Church got involved and issued papal bulls that claimed to grant Portugal sovereignty and jurisdiction over Indigenous Peoples, and ownership of the islands and the lands in Africa that Portugal claimed to have “discovered.”[4] Additional papal bulls in 1493 purported to grant Spain and Portugal legal rights to colonize and exploit the entire world.[5] Thereafter, Spain and Portugal applied the Doctrine of Discovery in Africa and the Americas,[6] and later England, France, Holland, Russia, and Spain used this international law to claim rights in North America.[7] Spain, Portugal, England, Holland, and France also used the Doctrine to claim rights over Indigenous Peoples and their lands and assets in Asia, the Pacific, and Oceania.[8] The colonial, settler societies that resulted from the European colonization of much of the world continue to apply the Doctrine of Discovery against Indigenous Nations and Peoples today.[9]  

In 1885, thirteen European countries signed a treaty in which they agreed to partition enormous areas of Africa based on several of the elements of the Doctrine.[10] The seven European countries that primarily colonized Africa justified their colonial systems and the theft of lands, assets, and human rights on the elements of the international law of Discovery.[11] For example, European countries signed countless treaties with African nations that, while recognizing African sovereignty and governments to some extent, actually limited African self-determination and self-governance and exploited the peoples, lands, and resources.[12] European countries enacted numerous laws and created colonial administrations to govern and exploit Africa, and European and colonial judicial systems had to resolve many issues about the ownership of Indigenous rights, lands, and resources in Africa.[13]

Scandinavian countries also applied the elements of Discovery against the Sami peoples to attempt to limit Sami rights of self-determination and ownership of their traditional lands and property rights. Preliminary research establishes that court cases from Sweden,[14] and Norway,[15] and historical materials show that the governments of Sweden, Norway, Finland, and Russia have infringed on Sami human rights and land and property rights.[16] The Sami continue to struggle to assert their rights today.[17]

            Clearly, all Indigenous Peoples need to understand how the international law of colonialism was developed; how it was used to denigrate them as human beings and then was used to steal their lands, assets, and rights; and how it has impacted them from the onset of colonization right up to 2012.

A study of the Doctrine of Discovery and its application around the world is facilitated by defining the constituent elements that make up the Doctrine. These elements are well defined in the leading court case on Discovery; the U.S. Supreme Court case of Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823).[18] The Johnson case has been very influential in defining Discovery and in deciding issues regarding colonization and the rights of Indigenous Nations. The case has been cited hundreds of times by courts in Australia,[19] Canada,[20] New Zealand,[21] the United States,[22] and by the English Privy Council in cases about colonization in Africa and Canada.[23]

These elements are reflected, to varying degrees, in the laws, treaties, court cases, policies, and histories of all the European colonial countries and in the settler societies they established around the world. The ten elements that constitute the Doctrine are very useful in analyzing and comparing how settler societies used this international law against Indigenous Nations and Peoples.[24] 

1. First discovery. The first European country that discovered lands unknown to other Europeans claimed property and sovereign rights over the lands and Indigenous Peoples. A first discovery, however, was usually considered to create only an incomplete title to those lands.

2. Actual occupancy and possession.
To turn a “first discovery” into a full title recognized by other Europeans, a European country had to actually occupy and possess the lands it claimed to have discovered. Occupancy was usually proved by building forts or settlements. Physical possession had to be accomplished within a reasonable amount of time after a “first discovery” to create a complete title.

3. Preemption/European title.
European countries that claimed a “first discovery” also purported to have acquired the power of preemption, that is, the sole right to buy the lands of Indigenous Peoples. This is a valuable property right analogous to an exclusive option to purchase land. The European government that claimed the preemption right could prevent or preempt any other European government or individual from buying land from native peoples. Most settler societies still claim this property right over Indigenous Nations and Peoples today.

4. Indigenous/Native title.
After a “first discovery,” European legal systems claimed that Indigenous Peoples and Nations had automatically lost the full ownership of their lands. Europeans claimed that Indigenous Nations only retained the rights to occupy and use their lands. These rights could last indefinitely, however, if the Indigenous Peoples never consented to sell land to the European country that claimed the preemption right. But if Indigenous Nations did choose to sell, they were expected to sell only to the European government that purported to hold the preemption right.

5. Limited Indigenous sovereign and commercial rights.
After a “first discovery,” Europeans claimed that Indigenous Nations and Peoples lost various aspects of their inherent sovereignty and their rights to international trade and diplomacy. Europeans claimed that Indigenous Nations could only interact with the European government that “discovered” them.

6. Contiguity. Europeans claimed a significant amount of land contiguous to and surrounding their actual discoveries and colonial settlements. Contiguity provided, for example, that the discovery of the mouth of a river allegedly granted the European country a claim over all the lands drained by that river.

7. Terra nullius. This phrase means a land or earth that is null, void, or empty. Under Discovery, if lands were not occupied by any person or nation, or even if they were occupied but were not being used in a manner that European legal systems approved, then the lands were purported to be “empty” and available for Discovery claims. Europeans often considered lands that were actually owned, occupied, and being used by Indigenous Nations to be “vacant” and “empty” and available to claim.

8. Christianity. Religion was a very significant aspect of the Doctrine. Christians claimed that non-Christian peoples did not have the same rights to land, sovereignty, and self-determination as Christians.[25] Furthermore, Europeans claimed they had a right and duty to convert non-Christians.

9. Civilization. The European “model” of “civilization” included the idea that Europeans were superior to Indigenous Peoples and their civilizations. European countries claimed that the Christian God had directed them to bring “civilization” to Indigenous Peoples and to exercise paternalism and guardianship powers over them.

10. Conquest. Europeans claimed they could acquire, through military victories, the absolute title and ownership of the lands of Indigenous Nations. By analogy, “conquest” was also used as a term of art to describe the property and sovereignty rights Europeans purported to acquire automatically over Indigenous Nations and Peoples just by claiming to make a “first discovery.”

            Various forms and permutations of the above elements are present in the histories and modern-day laws and policies of all colonizing countries and the colonial, settler societies they established. These elements were used, and are still being used, to try to justify claims to limit the sovereignty, property, and human rights of Indigenous Nations and Peoples. We support the continuing efforts of Indigenous Peoples to oppose the very existence of the Doctrine of Discovery and to repeal its pernicious effects.

Suggested actions to begin eliminating the Doctrine of Discovery

We ask the Permanent Forum to adopt these initial steps to begin the process of repudiating and reversing the six hundred year old Doctrine of Discovery.

1. To adopt the Haudenosaunee, American Indian Law Alliance, and the Indigenous Law Institute conference room paper request for the Permanent Forum on Indigenous Issues to convene an Expert Group Meeting to create an international study of the Doctrine of Discovery and its effects on Indigenous Peoples, and to submit that study, along with recommendations, to the Permanent Forum in 2014.

2. To advocate that all states of the world adopt the U.N. Declaration on the Rights of Indigenous Peoples as binding national law.

3. To advocate that all states review their laws, regulations, and policies impacting Indigenous Nations and Peoples and to repeal laws, regulations, and policies which reflect the ethnocentric, feudal, and religious prejudices of the Doctrine of Discovery. Furthermore, states should undertake these reviews in full consultation with Indigenous Nations and Peoples and with their free, prior, and informed consent.

4. To call on all states to educate their citizens in school curricula and by other means about the true and complete history of colonization and the application of the international law Doctrine of Discovery.

5. To call on all churches to join with Indigenous Peoples in repudiating the Doctrine of Discovery and any role churches may have played in creating the Doctrine and in applying it against Indigenous Nations and Peoples. We recognize that several churches and church organizations have already done so: the Episcopal Church in 2009, the Anglican Church of Canada in 2010, and the World Council of Churches in 2012. We ask other churches to follow their lead.

World Water One

[1] European Treaties Bearing on the History of the United States and Its Dependencies to 1648, at 23 (Frances G. Davenport ed, 1917).
[2] Anthony Pagden, Lords of all the World: Ideologies of Empire in Spain, Britain and France c. 1500-c. 1800 (1995); Robert A. Williams, Jr., The American Indian in Western Legal Thought: The Discourses of Conquest (1990).
[3] See, e.g., Robert J. Miller & Micheline D’Angelis, Brazil, Indigenous Peoples, and the International Law of Discovery, 37 Brooklyn J. Int’l L. 1 (2011); Robert J. Miller, Lisa Lesage & Sebastian Lopez Escarcena, The International Law of Discovery, Indigenous Peoples, and Chile, 89 Neb. L. Rev. 819 (2011).
[4] See, e.g., Williams, supra note 2, at 72 (bull of 1436 regarding the Canary Islands); European Treaties, supra note 1, at 23 (bull of 1455 regarding the west coast of Africa); Church and State Through the Centuries 146-53 (Sidney Z. Ehler & John B. Morrall trans. & eds, 1967).
[5] European Treaties, supra note 1, at 23 (translating four bulls from 1493).
[6] See, e.g., Brazil, supra note 2, at 25-60; Chile, supra note 2, at 850-82.
[7] See, e.g., Robert J. Miller, Jacinta Ruru, Larissa Behrendt & Tracey Lindberg, Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies 26-170 (2010); Robert J. Miller, Native America, Discovered and Conquered: Thomas Jefferson, Lewis & Clark, and Manifest Destiny 17-23, 25-33, 134-35 (2006).
[8] See, e.g., Discovering Indigenous Lands,  supra note 7, at 171-246; Blake A. Watson, The Impact of the American Doctrine of Discovery on Native Land Rights in Australia, Canada, and New Zealand, 34 Seattle U. L. Rev. 507 (2011); Robert J. Miller & Jacinta Ruru, An Indigenous Lens into Comparative Law: The Doctrine of Discovery in the United States and New Zealand, 111 West Vir. L. Rev. 849 (2009).
[9] See, e.g., Robert J. Miller, The International Law of Colonialism: A Comparative Analysis, 15 Lewis & Clark L. Rev. 847 (2012); Discovering Indigenous Lands,  supra note 7, at 36-88, 93-167, 177-98, 208-39; Brazil, supra note 3, at 25-60; Chile, supra note 3, at 850-82; Sherrill v. Oneida Indian Nation, 544 U.S. 197, 203 n.1 (2005).
[10] See, e.g., General Act of the Berlin Conference on West Africa (1885) (at http://africanhistory.about.com/od/eracolonialism/l/bl-BerlinAct1885.htm); S.E. Crowe, The Berlin West African Conference 1884-1885, at 3, 95-191 (1942).
[11] See, e.g., 3 Colonial Africa, 1885-1939 xvii-48 (Toyin Falola ed., 2002); M.E. Chamberlain, The Scramble for Africa 28-83 (2d ed. 1999); 6 The Cambridge History of Africa 1870-1905, at 26-729 (Roland Oliver & G.N. Sanderson eds, 1985); VII U.N. Educational, Scientific and Cultural Organization, General History of Africa: Africa under Colonial Domination 1880-1935 (A. Adu Boahen ed, 1985); Colonialism in Africa 1870-1960 (Peter Duignan & L.H. Gann eds, 1969-1975) (5 volumes); see also Robert J. Miller, The International Law Doctrine of Discovery and the European Colonization of Africa (2012 (work in progress).
[12] See, e.g., 3 Colonial Africa, supra note 11, at 5-6, 8-9, 29, 33; 6 The Cambridge History of Africa, supra note 11, at 127, 442, 449, 453, 724-27. 
[13] See, e.g., The Western Sahara (Advisory Opinion), Int'l Ct Justice 4 (1975); Amodu Tijani v. Secretary, Southern Nigeria, 2 A.C. 399 (1921) (Privy Council); 3 Colonial Africa, supra note 11, at 16-20. 
[14] Cf. North Frostviken Sami Village v. State, S.Ct. Decision No. DT 2, Case No. 324/76 (1981) (Supreme Court of Sweden).
[15] Cf. Landowners and right-holders in Manndalen, et al v. The Norwegian State, Serial No. 5B/2001, No. 340/1999 (2001) (Supreme Court of Norway); Sirum et al v. Essand Reindeer Pasturing District, Seiral No. 4B/2001 (2001) (Norway); Riast/Hylling Sami v. Kjell Bendixvold et al, Frostating Lagmannsrett LF-1995-00034 A, Supreme Court HR-1997-00061 A, No. 96/1996 (1997) (Norway).
[16] See, e.g., Lehtola Veli-Pekka, The Sami siida and the Nordic states from the Middle Ages to the beginning of the 1900s, in Conflict and Cooperation in the North 183-94 (Kristina Karppi & Johan Eriksson, eds, 2000); Einar Niemi, History of Minorities: The Sami and the Kvens, in Making a Historical Culture: Historiography in Norway 325-46 (William H. Hubbard et al, eds, 1995); The Sami National Minority in Sweden 7-140 (Birgitta Jahreskog, ed, 1982).
[17] See, e.g., Eva Josefsen, Norwegian Legislation and Administration - Sami Land Rights, Galdu Cala (No. 1, 2007); Elisabeth Einarsbol, Some legal considerations concerning Saami rights in saltwater, Galdu Cala (No. 1, 2006); Henry Minde, Assimilation of the Sami – Implementation and Consequences, Galdu Cala (No. 3, 2005).
[18] Johnson v. McIntosh is a very important case regarding the Doctrine of Discovery and Indigenous affairs as is demonstrated by the reams of books and articles written about it.  See, e.g., Michael C. Blumm, Why Aboriginal Title is a Fee Simple Absolute, 15 Lewis & Clark L. Rev. 975 (2012); Lindsay G. Robertson, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of their Lands (2005); Eric Kades, The Dark Side of Efficiency: Johnson v. M'Intosh and the Expropriation of American Indian Lands, 148 U. Pa. L. Rev. 1065 (2000).
[19] A computer search reveals that ten Australia cases have cited Johnson v. M’Intosh. See, e.g., Western Australia v. Ward, [2002] 213 CLR 1, 76 ALJR 1098; Mabo v Queensland (No 2), (1992) 175 CLR 1, 107 ALR 1.
[20] A computer search reveals that up to forty-four Canadian cases have cited Johnson v. M’Intosh. See, e.g., R. v. Sparrow, [1990] 70 D.L.R. (4th) 385, 1 S.C.R. 1075 (Supreme Court of Canada); Kwicksutaineuk/Ah-Kwa-Mish First Nation v. British Columbia, [2011] 55 C.E.L.R. (3d) 165, 15 B.C.L.R. (5th) 322 (British Columbia Supreme Court).  
[21] Several New Zealand cases have also cited Johnson v. M’Intosh. See, e.g., Attorney-General v. Ngati Apa, [2003] 2 NZLR 643; Wi Parata v. Bishop of Wellington, [1877] 3 NZ Jur (NS) 72; R. v. Symonds, [1847] NZPCC 387.
[22] Johnson v M’Intosh has been cited hundreds of times by federal and state courts in the United States. See, e.g., City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197, 203 n.1 (2005); Attorney’s Process & Invest. Services v. Sac & Fox Tribe, 609 F.3d 927 (8th Cir. 2010).
[23] Amodu Tijani v. Secretary, Southern Nigeria, 2 A.C. 399 (1921) (Privy Council); In re Southern Rhodesia, A.C. 211 (1918) (Privy Council); Canada v. Ontario, [1910] A.C. 637 (Privy Council); St. Catherine’s Milling and Lumber Co. v. The Queen, (1889) L.R. 14 App. Cas. 46 (Privy Council).
[24] Native America, supra note 7, at 3-5.
[25] See Steven T. Newcomb, Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (2008).