The Doctrine of Discovery

The Doctrine of Discovery

By Hwaa Irfan

You can always tell the state of a nation, when an ethnic/religious group have to have their own media in order for their voice to be heard. It was in one such media outlet Indian Country Today that I discovered that a female Native American had presented a report/study on the “Doctrine of Discovery”. Tonya Gonnella Frichner is her name, and founder of the American Indian Law Alliance, but my mind stalled at the “Doctrine of Discovery” which sounded serious given the degree of “silence” that surrounds the occupation of the U.S. Many around the world want a better world on many levels, but sometimes the extent of the harm caused by one group of people upon another requires redress in order for there to be reconciliation. To my alarm, the study focuses on an agreement between the Catholic Church, and State Heads that gave European sovereignty the right to claim, conquer, and rule a land, and to enslave if not convert Africa, The Americas, and Asia as subjects of the Christian kingdom.

Frichner a lawyer presented what is considered a “preliminary study” on the “Doctrine of Discovery” using the example of its impact on Native Americans in April 2010 at the United Nations Permanent Forum on Indigenous Issues.

“Clearly, (we) have joined the debate by declaring definitively that we are human beings. However, for more than five centuries, the doctrines of discovery and dehumanization have been institutionalized, and this is the context of the work we are doing on the U.N. Declaration on the Rights of Indigenous Peoples,” Frichner said to Indian Country Today.

Various Christian sects are up in arms, and are denying responsibility at one level or another. So what is the fuss about!

The fuss is the Catholic church on behalf of Christendom 5 centuries ago made it official for certain Western powers to plunder, occupy, dehumanize and convert entire peoples from the continents of Africa, Asia, and the Americas as well as rape those lands of their natural resources for the benefit of the Christian empire on the basis that Christians are superior and everyone else was heathen. One recalls a series of “ one-to-one meetings that took place with Pope John Paul II and presidents like G.W. Bush junior. Strange how it occurred out of the blue!

The study as presented by Frichner demands on behalf of indigenous peoples everywhere a thorough investigation into the impact of what was essentially colonialism on those peoples. The study explained its purpose as follows:

U.N. Document E/C.19/2010/13
Ninth Session
New York, 19 – 30 April 2010

Impact on Indigenous Peoples of the International Legal Construct Known as the Doctrine of Discovery, which has Served as the Foundation of the Violation of Their Human Rights

In the language that the Native Americans are governed by, the study focuses on the centuries (5) of destruction that has without limit extracted the natural resources from the “traditional territories of indigenous peoples, which has resulted in dispossessing, and impoverishing a people, and that the legal framework for the “Doctrine of Discovery” is still considered legal by the U.S. government. Even though the study focuses on the U.S., it is as an example for indigenous peoples everywhere on the following premise:
“We maintain, that the principle declared in the fifteenth century as the law of Christendom, that discovery gave title to assume sovereignty over, and to govern the unconverted natives of Africa, Asia, and North and South America, has been recognized as a part of the national law [Law of Nations], for nearly four centuries, and that it is now so recognized by every Christian power, in its political department and its judicial.” Judge John Catron for the Supreme Court of Tennessee in the case State v. Foreman (USA)
The hope is that all countries with indigenous peoples will be investigated under the terms of the Doctrine of Discovery and the Framework of Dominance recognizing the differences from one people to another.

International Law
Looking at international law, which derived from the Law of Nations, and prior to that “the law of Christendom” according to the study, reference here is made to a Judge John Catron (1786 – 1865) who whilst on the Supreme Court of the State of Tennessee:

“… officially identified “a principle” as part of the “law of Christendom”, specifically, “that discovery gave title to assume sovereignty over, and to govern the unconverted [non-Christian] peoples of Africa, Asia, North and South America” Catron had declared that this principle had been recognized as part of the Law of Nations “for nearly four centuries, and that it is now so recognized by every Christian power, in its political department and its judicial”

From the mid-15th century, we find many documents from the Vatican known as the “papal bulls”, which are decrees claiming right of conquest , sovereignty, and dominance by Christian European monarchies. For example the papal bull Dum diversas was issued by Pope Nicholas V, in 1452.

The papal bull Romanus Pontifex was also issued by Pope Nicholas V, in 1455 also to Alphonso. However it was the papal bull Dum diversas which ushered in the West African Slave Trade, to conquer the people and to put them in indefinite slavery. The irony is that the bull that lays the foundation is Dum diversas, of which a copy does not even exists within the Pope’s encyclical library online. Romanus Pontifex yes, but not Dum diversas. From the Romanus Pontifex we discover the manner of procurement of Africa, The Americas, and Asia was to and does take place as directed by the Pope Nicholas V:

“We [therefore] weighing all and singular the premises with due meditation, and noting that since we had formerly by other letters of ours granted among other things free and ample faculty to the aforesaid King Alfonso — to invade, search out, capture, vanquish, and subdue all Saracens 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 and their use and profit — by having secured the said faculty, the said King Alfonso, or, by his authority, the aforesaid infante, justly and lawfully has acquired and possessed, and doth possess, these islands, lands, harbors, and seas, and they do of right belong and pertain to the said King Alfonso and his successors, nor without special license from King Alfonso and his successors themselves has any other even of the faithful of Christ been entitled hitherto, nor is he by any means now entitled lawfully to meddle therewith — in order that King Alfonso himself and his successors and the infante may be able the more zealously to pursue and may pursue this most pious and noble work, and most worthy of perpetual remembrance (which, since the salvation of souls, increase of the faith, and overthrow of its enemies may be procured thereby, we regard as a work wherein the glory of God, and faith in Him, and His commonwealth, the Universal Church, are concerned) in proportion as they, having been relieved of all the greater obstacles, shall find themselves supported by us and by the Apostolic See with favors and graces…

Some of the decrees issued in this context were:

Rex Regum, 1436, issued by Eugene IV gave the Portuguese king the right to wage war against “enemies of Christianity, but enjoined other Christian kings to do so as well. Lands appropriated would then come under the sovereignty of Portugal with Brazil as the standing legacy to successful colonization .

Dum Diversas 1432, According to A.J. R. Russell-Wood, demonstrated Papal authority and support “to attack, conquer and subdue Saracens, pagans, and enemies of Christianity; to reduce them to perpetual slavery for the purpose of converting them to Christianity; to capture their lands and possessions; and to transfer their lands and properties to the crown of Portugal”.

Romanus Pontifex, reaffirmed the previous papal bulls, but this time included control of the seas, and fishing rights, and prevented any other country from interfering in the “rights” of Portugal whether that was through discovery or conquest

Inter Caetera, 1456 issued by Calixtus III, set the scene for global balkanization in 1493. It was issued after Christopher Columbus returned from his discoveries granting by request of Ferdinand and Isobel of Spain the right to claim lands founded by Columbus, and any land Spaim might find in the future. According to Russell-Wood this:

“granted to the Order of Christ “all power, dominion and spiritual jurisdiction” over lands conquered and to be conquered from “Cape Bojador and Cape Nun to the Indies”

The Treaty of Alcacovas 1479 and 1480 with Portugal acknowledging the rights of Spain over the Canaries, which was later extended to include the Caribbean and the Americas, whilst Spain acknowledged the rights of Portugal over the Madeiras, Azores, Cape Verdes and Africa with exclusivity over Guinea. This was recognized by the papal bull Aeterni Regis Clementia, 1481, which provided the groundwork for the Treaty of Tordesillas.

Here, we will only focus on one of the papal bulls, the Inter Caetera. It praises Christopher Columbus for the “discovery” of lands, and peoples for the propagation of the Catholic faith (on the premise of fulfilling a divine duty in the name of Christendom) with the gold, spices and others “precious things” found in these lands to be befitting of “Catholic kings and princes”. In terms of balkanization the Inter Caetera states:

“Almighty God conferred upon us in blessed Peter and of the vicarship of Jesus Christ, which we hold on earth, do by tenor of these presents, should any of said islands have been found by your heirs and successors, kings of Castille and Leon, forever, together with all their dominions, cities, camos, places, and villages, and all rights, jurisdictions, and appurtenances, all islands and mainlands found and to be found, discovered and to be discovered towards the west and south, by drawing and establishing a line from the Arctic pole, namely the north, to the Antarctic pole, namely the south, no matter whether the said mainlands, and islands are found and to be found in the direction of India or towards any other quarter, the said line to be distant one hundred leagues towards the west, and south from any of the islands commonly known as the Azores and Cape Verde…”

The Inter Caetera was incorporated into European Treaties, and in 1823, the Christian initiative, the Doctrine of Discovery was adopted by American law by the Supreme Court. The vehicle for this adoption was the case Johnson v. McIntosh in 1823, which was presided over by Chief Justice John Marshall. Since 1984, advocates of American natives have been campaigning for Pope John Paul II to revoke the Christian Doctrine of Discovery as follows:

1984, a letter to Pope John Paul II via the Secretary of State to the Vatican got a response commenting on the employment of the authors, the Anasazi Alliance.

1992, the Indigenous Law Institute begin a global campaign calling for Pope John Paul II to revoke the Christian Doctrine of Discovery

1993, 60 indigenous representatives submit a draft resolution to the Parliament of World Religions, Australia calling for Pope John Paul II to revoke the Christian Doctrine of Discovery. There is concensus, but the Parliament of World Religions overturn the vote the next day.

1993, via the UN Human Rights Center to the Observer Mission of the Holy See to the U.N, send a letter to Pope John Paul II calling for him to revoke the Christian Doctrine of Discovery. There was no response.

1993, a resolution is passed by the Indigenous Intellectual Property Conference, calling for the papal bulls to be revoked.

1994, a call to revoke the papal bulls the Romanus Pontifex, and the Inter Caetera at the conference of the Parliament of World Religions, U.S., by the Indigenous Law Institute.

1999, the United Church of Christ sponsor a UCC resolution passed by the Pacific Islander and Asian American Ministries calling upon those of conscience within the Catholic church to persuade Pope John Paul II to revoke papal bulls Dum diversas and Inter Caetera by 2000.

2000 a delegation of indigenous peoples meet with the Vatican Council for Peace and Justice

2005, the Permanent Observer of the Holy See to the U.N. sends a letter to Steven Newcomb of the Indigenous Law Institute ask for information on the work of the Pontifical Committee for Historical Sciences pertaining to the papal bull Inter Caetera. The letter states that:

“… taken from the context of the political climate at the time, the notion of international law and the geographical notions then extant, the bull Inter Caetera, like other documents of that era, has become ipso facto, obsolete and with no effect”

2005, the International Council of Thirteen Indigenous Grandmothers send a letter to the Vatican calling for Pope Benedict XVI to revoke the papal bulls Dum diversas, Romanus Pontifex, and the Inter Caetera. There was no response. The International Council of Thirteen Indigenous Grandmothers go to the Vatican in 2008 calling for Pope Benedict XVI to revoke the 3 previously mentioned papal bulls.

Null and Void
If in reality the papal bulls that we are concerned with here had become “ipso facto” i.e. obsolete, when did this happen?

In the case of Johnson vs. M’Intosh, in Illinois claim by Johnson and Graham was made to land bought from the Piankeshaw Indians given as grant to these Indians by the U.S. 1823 the Doctrine of Discovery was referred to as follows:

“On the part of the defendants, it was insisted, that the uniform understanding and practice of European nations, and the settled law, as laid down by the tribunals of civilized states, denied the right of the Indians to be considered as independent communities, having a permanent property in the soil, capable of alienation to private individuals. They remain in a state of nature, and have never been admitted into the general society of nations. Footnote All the treaties and negotiations between the civilized powers of Europe and of this continent, from the treaty of Utrecht, in 1713, to that of Ghent, in 1814, have uniformly disregarded their supposed right to the territory included within the jurisdictional limits of those powers. Footnote Not only has the practice of all civilized nations been in conformity with this doctrine, but the whole theory of their titles to lands in America, rests upon the hypothesis, that the Indians had no right of soil as sovereign, independent states. Discovery is the foundation of title, in European nations, and this overlooks all proprietary rights in the natives”.

In the case of the Cherokee Nation vs. Georgia where the Cherokee Nation claimed non-allegiance to the U.S., and to be the original land owners reference to the Doctrine of Discovery was made as follows:

“The bill states the grant, by a charter in 1732, of the country on this continent lying between the Savannah and Alatahama rivers, by George the Second, “monarch of several islands on the eastern coast of the Atlantic,” the same country being then in the ownership of several distinct, sovereign, and independent nations of Indians, and amongst them the Cherokee Nation.

“The foundation of this charter, the bill states, is asserted to be the right of discovery to the territory granted; a ship manned by the subjects of the king having, about two centuries and a half before, sailed along the coast of the western hemisphere, from the fifty-sixth to the thirty-eighth degree of north latitude, and looked upon the face of that coast without even landing on any part of it”.

“This right, as affecting the right of the Indian nation, the bill denies, and asserts that the whole length to which the right of discovery is claimed to extend among European nations is to give to the first discoverer the prior and exclusive right to purchase these lands from the Indian proprietors, against all other European sovereigns, to which principle the Indians have never assented, and which they deny to be a principle of the natural law of nations or obligatory on them”.

In 1985 in the case of the County of Oneida, New York vs. Oneida Indian Nation.

“[D]iscovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.

“The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. . . .

“The rights thus acquired being exclusive, no other power could interpose between [the discoverer and the natives].

“In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it.”

In the more recent 2005 case of City of Sherill, New York vs. the Oneida Indian Nation of New York.

Under the “doctrine of discovery:

” County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226, 234 (1985) (Oneida II), “fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign–first the discovering European nation and later the original States and the United States,” Oneida Indian Nation of N. Y. v. County of Oneida, 414 U. S. 661, 667 (1974) (Oneida I). In the original 13 States, “fee title to Indian lands,” or “the pre-emptive right to purchase from the Indians, was in the State.”

In Their Own Voice

An Indigenous Peoples’ Statement to the World
Delivered at The Parliament of the World’s Religions
Convened at Melbourne, Australia
on the Traditional Lands of the Wurundjeri People of the Kulin Nation
December 9, 2009

“In keeping with the theme of this year’s Parliament: “Make a World of Difference: Hearing each other, Healing the earth,” We, the Indigenous Peoples participating in this Parliament hereby issue this statement:

“We are Indigenous Peoples and Nations who honor our ancestors and care for our future generations by preserving our lands and cultures. For thousands of years, Indigenous peoples have maintained a fundamental and sacred relationship with Mother Earth. As peoples of the land, we declare our inherent rights to our present and continuing survival within our sacred homelands and territories throughout the world.

“We commend the Australian government’s recent support for the United Nations Declaration on the Rights of Indigenous Peoples adopted on September 13, 2007. We call on all governments to support and implementthe provisions of the UN Declaration, particularly the right of self-determination.

“Since time immemorial we have lived in keeping with our sacred laws, principles, and spiritual values, given by the Creator. Our ways of life are based on thousands of years of accumulated ecological knowledge, a great respect for our Mother Earth, a reverence and respect for all our Natural World relations and the survival of our languages, cultures, and traditions;

“The Indigenous instructions of sharing and the responsibility of leadership to future generations are wise and enduring. As the traditional nations of our lands we affirm the right to educate our children in our earth-based education systems in order to maintain our indigenous knowledge systems and cultures. These have also contributed to our spiritual, physical and mental health;

“Indigenous people’s concept of health and survival is holistic, collective and individual. It encompasses the spiritual, the intellectual, the physical and the emotional. Expressions of culture relevant to health and survival of Indigenous Peoples includes relationships, families, and kinship, social institutions, traditional laws, music, dances, songs and songlines, reindeer and caribou, ceremonies and dreamtime, our ritual performances and practices, games, sports, language, mythologies, names, lands, sea, water, every life forms, and all documented forms and aspects of culture, including burial and sacred sites, human genetic materials, ancestral remains so often stolen, and our artifacts;

“Unfortunately, certain doctrines have been threatening to the survival of our cultures, our languages, and our peoples, and devastating to our ways of life. These are found in particular colonizing documents such as the Inter Caetera papal bull of 1493, which called for the subjugation of non-Christian nations and peoples and “the propagation of the Christian empire.” This is the root of the Doctrine of Christian Discovery that is still interwoven into laws and policies today that must be changed. The principles of subjugation contained in this and other such documents, and in the religious texts and documents of other religions, have been and continue to be destructive to our ways of life (religions), cultures, and the survival of our Indigenous nations and peoples. This oppressive tradition is what led to the boarding schools, the residential schools, and the Stolen Generation, resulting in the trauma of Indigenous peoples being cut off from their languages and cultures, resulting in language death and loss of family integrity from the actions of churches and governments. We call on those churches and governments to put as much time, effort, energy and money into assisting with the revitalization of our languages and cultures as they put into attempting to destroy
them;

“The doctrines of colonization and dominion have laid the groundwork for contemporary problems of racism and dispossession. These problems include the industrial processes of resource exploitation and extraction by governments and corporations that has consistently meant the use of imposed laws to force the removal of Indigenous peoples from our traditional territories, and to desecrate and destroy our sacred sites and places. The result is a great depletion of biodiversity and the loss of our traditional ways of life, as well as the depletion and contamination of the waters of Mother Earth from mining and colonization.

“Such policies and practices do not take into account that water is the first law of life and a gift from the Creator for all beings. Clean, healthy, safe, and free water is necessary for the continuity and well being of all living things. The commercialization and poisoning of water is a crime against life.

“The negative ethics of contemporary society, discovery, conquest, dominion, exploitation, extraction, and industrialization, have brought us to today’s crisis of global warming. Climate change is now our most urgent issue and affecting the lives of indigenous peoples at an alarming rate. Many of our people’s lives are in crisis due to the rapid global warming. The ice melt in the north and rapid sea rise continue to accelerate, and the time for action is brief.

“The Earth’s resources are finite and the present global consumption levels are unsustainable and continue to affect our peoples and all peoples. Therefore, we join the other members of the Parliament in calling for prompt, immediate, and effective action at Copenhagen to combat climate change;

“In July 2009, the Episcopal Church in the United States adopted a resolution at its 76th General Convention, repudiating and disavowing the dehumanizing Doctrine of Christian Discovery. By doing so, the Church took particular note of the charter issued by King Henry VII of England to John Cabot and his sons, which authorized the colonizing of North America.

“It was by this ‘boss over’ tradition of Christian discovery that the British crown eventually laid claim to the traditional territories of the Aboriginal nations of the continent now called Australia, under terra nullius and terra nullus. This step by the Episcopal Church was an act of conscience and moral leadership by one of the world’s major religions. Religious bodies of Quakers and Unitarians have taken similar supportive actions.

“In Conclusion, we appeal to all people of conscience to join with us in support of the
following issues:

“1) Climate Change and its far-reaching impacts on our Peoples and homelands—for this we
need immediate action.

2) The protection Indigenous peoples significant and sacred sites within their traditional
homelands and territories and working to eradicate discrimination and intolerance against earth based Indigenous spiritual and ceremonial traditions.

3) Protection of Sacred Places used for prayer and ceremonies. At these special places we
Minister to the earth and heal her sacred soul.

4) The critical need to strengthen and continue our unique cultures and languages,
particularly by bringing together elder cultural and wisdom keepers and Indigenous youth.

5) The return of the bones of our ancestors and our sacred items.

6) The immediate support and implementation of the United Nations Declaration on the Rights of Indigenous Peoples.

8) To call upon Pope Benedict XVI and the Vatican to publicly acknowledge and repudiate the papal decrees that legitimized the original activities that have evolved into the dehumanizing Doctrine of Christian Discovery and dominion in laws and policies”.

Sources:

An Indigenous Peoples’ Statement to the World http://www.doctrineofdiscovery.org/

Findlaw. The County of Oneida vs. The Oneida Indian Nation
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=470&invol=226

Findlaw. City of Sherill vs. Oneida Indian Nation of N.Y.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-855

Grandmothers Council. Timeline of the Efforts by Indigenous Nations and Peoples Calling upon the Vatican to Revoke the Inter Caetera Papal Bull of 1493 http://www.grandmotherscouncil.com/docs/timeline.pdf

Johnson vs. M’Intosh http://www.doctrineofdiscovery.org/johnvmac.htm

Legal Information Institute. “Cherokee Nation v. Georgia” http://www.law.cornell.edu/supct/html/historics/USSC_CR_0030_0001_ZS.html

Newcomb, S. “Five Hundred Years of Injustice: The Legacy of 15th Century Religious Prejudice – Origins of the Doctrine of Discovery” http://ili.nativeweb.org/sdrm_art.html

Pope Alexander VI “The Inter Caetera” http://www.kwabs.com/bull_of_1493.html

Pope Nicholas V “The Bull Romanus Pontifex (Nicholas V), January 8, 1455” http://www.nativeweb.org/pages/legal/indig-romanus-pontifex.html

Popes for Slavery http://www.romancatholicism.org/popes-slavery.htm

Talliman, V. “Christian ‘Doctrine’ Fueled Dehumanization: UNPFII Report

Talliman, V. “Revoke the Inter Cetera Bull http://ili.nativeweb.org/ricb.html

Wood-Russell, A. J.R. “Settlement, Colonization, and Integration in the Portuguese-Influenced World, 1415-1570”. Portuguese Studies Review 15: 1-2 (2007) 1 – 35. John Hopkins University

Related Topic:
The Flowering Tree