Discovery Doctrine
Encyclopedia
The Discovery doctrine is a concept of public international law expounded by the United States Supreme Court in a series of decisions, most notably Johnson v. M'Intosh
Johnson v. M'Intosh
Johnson v. M'Intosh, 21 U.S. 543 , is a landmark decision of the U.S. Supreme Court that held that private citizens could not purchase lands from Native Americans...

in 1823. Chief Justice John Marshall
John Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...

 justified the way in which colonial powers laid claim to lands belonging to sovereign indigenous nations during the Age of Discovery
Age of Discovery
The Age of Discovery, also known as the Age of Exploration and the Great Navigations , was a period in history starting in the early 15th century and continuing into the early 17th century during which Europeans engaged in intensive exploration of the world, establishing direct contacts with...

. Under it, title
Title (property)
Title is a legal term for a bundle of rights in a piece of property in which a party may own either a legal interest or an equitable interest. The rights in the bundle may be separated and held by different parties. It may also refer to a formal document that serves as evidence of ownership...

 to lands lay with the government whose subjects explored and occupied a territory whose inhabitants were not subjects of a European Christian monarch. The doctrine has been primarily used to support decisions invalidating or ignoring aboriginal
Indigenous peoples
Indigenous peoples are ethnic groups that are defined as indigenous according to one of the various definitions of the term, there is no universally accepted definition but most of which carry connotations of being the "original inhabitants" of a territory....

 possession of land in favor of colonial or post-colonial governments.

The 1823 case was the result of collusive lawsuits where land speculators worked together to make claims to achieve a desired result. John Marshall explained the Court's reasoning. The supposedly inferior character of native cultures was a reason for the doctrine having been used.

Colonial history

The origins of the doctrine can be traced to Pope Nicholas V
Pope Nicholas V
Pope Nicholas V , born Tommaso Parentucelli, was Pope from March 6, 1447 to his death in 1455.-Biography:He was born at Sarzana, Liguria, where his father was a physician...

's issuance of the papal bull
Papal bull
A Papal bull is a particular type of letters patent or charter issued by a Pope of the Catholic Church. It is named after the bulla that was appended to the end in order to authenticate it....

 Romanus Pontifex
Romanus Pontifex
Romanus Pontifex is a papal bull written January 8, 1455 by Pope Nicholas V to King Afonso V of Portugal. As a follow-up to the Dum Diversas, it confirmed to the Crown of Portugal dominion over all lands discovered or conquered during the Age of Discovery. Along with encouraging the seizure of the...

in 1452. The bull allowed Portugal
Portugal
Portugal , officially the Portuguese Republic is a country situated in southwestern Europe on the Iberian Peninsula. Portugal is the westernmost country of Europe, and is bordered by the Atlantic Ocean to the West and South and by Spain to the North and East. The Atlantic archipelagos of the...

 to claim and conquer lands in West Africa
West Africa
West Africa or Western Africa is the westernmost region of the African continent. Geopolitically, the UN definition of Western Africa includes the following 16 countries and an area of approximately 5 million square km:-Flags of West Africa:...

. Pope Alexander VI
Pope Alexander VI
Pope Alexander VI , born Roderic Llançol i Borja was Pope from 1492 until his death on 18 August 1503. He is one of the most controversial of the Renaissance popes, and his Italianized surname—Borgia—became a byword for the debased standards of the Papacy of that era, most notoriously the Banquet...

 extended to Spain
Spain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...

 the right to conquer newly-found lands in 1493, with the papal bull Inter caetera
Inter caetera
Inter caetera was a papal bull issued by Pope Alexander VI on , which granted to Spain all lands to the "west and south" of a pole-to-pole line 100 leagues west and south of any of the islands of the Azores or the Cape Verde Islands.It remains unclear to the present whether the pope was issuing a...

, after Christopher Columbus
Christopher Columbus
Christopher Columbus was an explorer, colonizer, and navigator, born in the Republic of Genoa, in northwestern Italy. Under the auspices of the Catholic Monarchs of Spain, he completed four voyages across the Atlantic Ocean that led to general European awareness of the American continents in the...

 had already begun doing so. Arguments between Portugal and Spain led to the Treaty of Tordesillas
Treaty of Tordesillas
The Treaty of Tordesillas , signed at Tordesillas , , divided the newly discovered lands outside Europe between Spain and Portugal along a meridian 370 leagueswest of the Cape Verde islands...

 which clarified that only non-Christian lands could thus be taken, as well as drawing a line of demarcation to allocate potential discoveries between the two powers.
It should be noted that despite the doctrine, European nation-states could not support distant colonies and also could not afford to enter into wars with many of the militarily powerful Indian Nations. As a result, they had no choice but to recognize Indian Nation sovereignty and ownership of lands.

United States law

According to the United States Supreme Court's decision in Johnson v. M'Intosh
Johnson v. M'Intosh
Johnson v. M'Intosh, 21 U.S. 543 , is a landmark decision of the U.S. Supreme Court that held that private citizens could not purchase lands from Native Americans...

, this theory of Christian expansion and possession of newly discovered lands, despite native presence, was one by which all colonial powers operated. Chief Justice Marshall, writing the decision, held that the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

 had taken title to the lands which constituted the United States when the British discovered them. Marshall pointed to the exploration charters given to John Cabot
John Cabot
John Cabot was an Italian navigator and explorer whose 1497 discovery of parts of North America is commonly held to have been the first European encounter with the continent of North America since the Norse Vikings in the eleventh century...

 as proof that the British had operated under the doctrine. The tribes which occupied the land were, at the moment of discovery, no longer completely sovereign
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...

 and had no property
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...

 rights but rather merely held a right of occupancy
Occupancy
Occupancy in building construction and building codes is the use or intended use of a building or part thereof for the shelter or support of persons, animals or property. A closely related meaning is the number of units in such a building that are rented or leased, or otherwise in-use...

. Further, only the discovering nation or its successor could take possession of the land from the natives by conquest or purchase. Natives could not sell the land to private citizens but only to the discovering government.

The doctrine was used in numerous other cases as well. With Cherokee Nation v. Georgia
Cherokee Nation v. Georgia
Cherokee Nation v. Georgia, , was a United States Supreme Court case. The Cherokee Nation sought a federal injunction against laws passed by the state of Georgia depriving them of rights within its boundaries, but the Supreme Court did not hear the case on its merits...

, it supported the concept that tribes were not independent states but "domestic dependent nations". The decisions in Oliphant v. Suquamish Indian Tribe
Oliphant v. Suquamish Indian Tribe
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 is a United States Supreme Court case regarding the criminal jurisdiction of Tribal courts over non-Indians. The case was decided on March 6, 1978, with a 6-2 majority. The court opinion was written by William Rehnquist; a dissenting opinion was...

and Duro v. Reina
Duro v. Reina
In Duro v. Reina, 495 U.S. 676 , the U.S. Supreme Court concluded that Indian tribes could not prosecute Indians who were members of other tribes for crimes committed by those nonmember Indians on their reservations...

used the doctrine to prohibit tribes from criminally prosecuting first non-Indians, then Indians who weren't a member of the prosecuting tribe.
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