“I’m Going to Go Home and Read the DOCTRINE OF DISCOVERY”

After hearing, sadly for the first time, about the Doctrine of Discovery, many a well-educated and well- meaning person says, “When I get home from this conference, I am going to sit down and read the Doctrine Discovery!” Unfortunately, there is no such thing as a single piece of paper or action with   title “The Doctrine of Discovery”.  Rather  the DOD is a collective term – an umbrella word — used to refer to various legally binding documents and policies of Church and State which together are now referred to as “the Doctrine of Discovery”, and in legal language is known as “Discovery”.

The term “Doctrine of Discovery” is standard law school terminology  in American Indian Law for a wide range of legal (secular governments) and legally binding church documents dating back to the middle ages, (11th C, )  still found in legal usage in the United States as recently as 2005. These documents include papal bulls, royal letters and charters, laws and legal rulings of the U.S. Supreme Court, and public policies, such as Manifest Destiny.

10 Elements of “Discovery” a la Robert, J. Miller, Law School, at Lewis & Clark

1 First Discovery. Representatives of the first European King/ Queen to “discover” lands previously unknown to Europeans were seen to have “gained property and sovereign rights” over those lands for that King/Queen.

2. Actual occupancy and current possession. The claim to legal title of these newly “discovered” lands was established by occupying them through the building of a military fort or settlement.

3. Preemption / European title. In addition to the claim of legal “discovery”, there was a binding claim, whereby Native people were (and are*) not allowed to sell their land to anyone (governments or individuals) other than the U.S. Government. (*now with supervision)

4. Indian title. “Discovery” was taken to mean that Indian Nations have “lost the full property rights and ownership of their lands.” If  proven that consent was never given for sale of their land, they could retain their rights to occupy and use, in the usual and accustomed manner, their own land. Native people do not own their own lands “free and clear” as does anyone else in this Nation.

5. Tribal limited sovereignty and commercial rights. Although Indian Nations are recognized as inherently sovereign nations, that sovereignty is limited, for purposes of commerce and diplomatic international relations, to dealing only with the U.S. Government.

6. Contiguity. (state of being near to, having proximity to) “Discovery” came to be understood that not only actually occupied land belonged to the “discovers”, but also a “reasonable and significant amount of land contiguous to and surrounding the settlements” were no longer Indian lands. Thus,  a river, and its mouth, and ALL of the land in the drainage field, all the way up to the source of that river was claimed as the territory of the “discovers.” (Columbia River mouth means… most of the State of WA.)

7.Terra nullius. “Land that is empty” became a means to legally acquire any land not being used, occupied, inhabited, etc. according to Euro-American standards of usage. Given the considerable differences** between Euro-American and Native economic and religious practices a great deal of Native land was declared empty and available for European settlement.

8. Christianity. Non-Christians were not deemed legally, or ecclesially (by many, but not all, branches of Christianity), to be worthy of respect and dignity as human beings. The rights of “land, sovereignty, and self-determination” pertaining to (Christian males) were not extended to Native people.

9. Civilization. According to Euro-American understandings, only that which followed Euro-American political, economic, religious, ethical, cultural, social, and aesthetic sensibilities was “civilized.” In spite of glaring injustice and violent practices employed by Euro-Americans towards Native people, marked by “paternalism and guardianship powers over them”, the “settlers” were “civilized” and the Native people were legally labeled as “savages.”

10. Conquest.  Two meanings: (1) A “military victory”, in which the “invasion and conquest of Indian lands is justified in certain circumstances” (2) also as “term of art”, with meaning particular to the time it was used. Differing from the European legal definition, the U.S. Supreme Court modified the meaning of “conquest” to restrict the property rights of Native people because “the Indian Nations could not be left in complete ownership of the lands in America.”

Based on:  Miller, Robert J., and Elizabeth Nurse. Native America, Discovered and Conquered: Thomas Jefferson, Lewis & Clark, and Manifest Destiny. Westport, Conn: Praetor Publishers, 2006, pp. 3-5.

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Here below is a collection of English translations of the actual documents – papal bulls, royal letters and charters, laws, and national policies that together have come to be known as the Doctrine of Discovery:

1095    Pope Urban II, Council of Clermont (according to Fulcher of Chartres)  ..a speech calling for the Crusades… “Although, O sons of God, you have promised more firmly than ever to keep the peace  among yourselves and to preserve the rights of the church, there remains still an important work for  you to do. Freshly quickened by the divine correction, you must apply the strength of your righteousness to another matter which concerns you as well as God. For your brethren who live in the east are in urgent  need of your help, and you must hasten to give them the aid which has often been promised them.  For, as the most of you have heard, the Turks and Arabs have attacked them and have conquered the territory of Romania [the Greek empire] as far west as the shore of the Mediterranean and the Hellespont, which is called the Arm of St. George. They have occupied more and more of the lands of  those Christians, and have overcome them in seven battles. They have killed and captured many, and have destroyed the churches and devastated the empire. If you permit them to continue thus for awhile with impurity, the faithful of God will be much more widely attacked by them. On this account I, or  rather the Lord, beseech you as Christ’s heralds to publish this everywhere and to    persuade all people of   whatever rank, foot-soldiers and knights, poor and rich, to carry aid promptly to those Christians and to  destroy that vile race from the lands of our friends. I say this to those who are present, it meant also for   those who are absent. Moreover, Christ commands it”….

 1452    Papal Bull Dum Diversas (Nicholas V) 18 June “ “We grant you [Kings of Spain and Portugal] by  these present documents, with our Apostolic Authority, full and free permission to invade, search out,  capture, and subjugate the Saracens and pagans and any other unbelievers and enemies of Christ wherever they may be, as well as their kingdoms, duchies, counties, principalities, and other property […]  and to reduce their persons into perpetual slavery.

1454    Papal Bull Romanus Pontifex (Nicholas V) January 8...”The Roman pontiff, successor of the key-bearer of the heavenly kingdom and vicar of Jesus Christ, contemplating with a father’s mind all the several climes of the world and the characteristics of all the nations dwelling in them and seeking and  desiring the salvation of all, wholesomely ordains and disposes upon careful deliberation those things  which he sees will be agreeable to the Divine Majesty and by which he may bring the sheep entrusted to   him by God into the single divine fold, and may acquire for them the reward of eternal felicity, and obtain  pardon for their souls. This we believe will more certainly come to pass, through the aid of the Lord, if we  bestow suitable favors and special graces on those Catholic kings and princes, who, like athletes and intrepid champions of the Christian faith, as we know by the evidence of facts, not only restrain the savage excesses of the Saracens and of other infidels, enemies of the Christian name, but also for the  defense and increase of the faith vanquish them and their kingdoms and habitations, though situated in the remotest parts unknown to us, and subject them to their own temporal dominion, sparing no labor and  expense, …”

1493    Papal Bull Inter Caetera (Alexander VI) May 4,  ..Alexander, bishop, servant of the servants of  God, to the illustrious sovereigns, our very dear son in Christ, Ferdinand, king, and our very dear daughter  in Christ, Isabella, queen of Castile, Leon, Aragon, Sicily, and Granada, health and apostolic benediction. Among other works well pleasing to the Divine Majesty and cherished of our heart, this assuredly ranks highest, that in our times especially the Catholic faith and the Christian religion be exalted and be everywhere increased and spread, that the health of souls be cared for and that barbarous nations be overthrown and brought to the faith itself….Moreover, as your aforesaid envoys are of opinion, these very peoples living in the said islands and countries believe in one God, the Creator in heaven, and seem  sufficiently disposed to embrace the Catholic faith and be trained in good morals. And it is hoped that, were they instructed, the name of the Savior, our Lord Jesus Christ, would easily be introduced into the  said countries and islands….Furthermore, under penalty of excommunication late sententie to be incurred ipso facto, should anyone thus contravene, we strictly forbid all persons of whatsoever rank, even imperial  and royal, or of whatsoever estate, degree, order, or condition, to dare, without your special permit or  that of your aforesaid heirs and successors, to go for the purpose of trade or any other reason to the  islands or 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 to the Antarctic pole, no matter whether the mainlands and islands, found and to be found, lie in the direction of India or toward any other quarter   whatsoever, the said line to be distant one hundred leagues towards the west and south, as is aforesaid, from any of the islands commonly known as the Azores and Cape Verde; apostolic constitutions and    ordinances and other decrees whatsoever to the contrary notwithstanding. We trust in Him from whom     empires and governments and all good things proceed, that, should you, with the Lord’s guidance, pursue this holy and praiseworthy undertaking…

1496    Patent Granted by King Henry VII (of England) to John Cabot and his Sons, March 5,

1606    Jamestown Charter …” We, greatly commending, and graciously accepting of, their Desires for the Furtherance of so noble a  Work, which may, by the Providence of Almighty God, hereafter tend to the Glory of his Divine Majesty, in  propagating of Christian Religion to such People, as yet live in Darkness and  miserable Ignorance of the true  Knowledge and Worship of God, and may in time bring the Infidels and  Savages, living in those parts, to  human Civility, and to a settled and quiet Government:…

1765    New Jersey history – “defined the English claims as being based on Cabot’s voyage, discovery & possession

1803-06 Lewis & Clark Expedition

1823    Johnson  v. M’Intosh – (U.S. Supreme Court Case)  March 10 – Continues to this day to be significant in that “almost all land titles in the U.S….because  Indian title is the original link to most land.”(Miller 50)

1823    The Monroe Doctrine December 2 – proclaimed and end to “Discovery”, i.e. for European nations, but not the U.S.

                …from the Supreme Court Decision:

The United States, then, have unequivocally acceded to that great and broad rule [Discovery] by which its civilized inhabitants now hold this county. They hold, and assert in themselves, the title by which it was acquired. They maintain, as others have maintained, that discovery gave an exclusive right to extinguish Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of  sovereignty, as the circumstances of the people would allow them to exercise.

1845    Manifest Destiny – “used to define American expansion to the Pacific Ocean” (Miller, 114),   which  grew out of  the Doctrine of Discovery, and linked to Thomas  Jefferson’s Louisiana Purchase, policy of the removal of all eastern tribes to the west of the Mississippi,  and the Lewis & Clark Expedition

 A PUBLIC DECLARATION TO THE TRIBAL COUNCILS AND TRADITIONAL  SPIRITUAL LEADERS OF THE INDIAN AND ESKIMO PEOPLES OF THE PACIFIC NORTHWEST November 12 1987  c/o Jewell Praying Wolf James, Lummi

Dear Brothers and Sisters,

This is a formal apology on behalf of our churches for their long-standing participation in the destruction of traditional Native American spiritual practices. We call upon our people for recognition of and respect for your traditional ways of life and for protection of your sacred places and ceremonial objects. We have frequently been unconscious and insensitive and not come to your aid when you have been victimized by unjust federal policies and practices. In many other circumstances we reflected the rampant racism and prejudice of the dominant culture with which we too willingly identified. During this two hundredth anniversary year of the United States Constitution we, as leaders of our churches in the Pacific Northwest, extend our apology. We ask for your forgiveness and blessing.

As the Creator continues to renew the earth, the plants, the animals, and all living things, we call upon the people of our denominations and fellowships to a commitment of mutual support in your efforts to reclaim and protect the legacy of your own traditional spiritual teachings. To that end we pledge our support and assistance in upholding the American Religious Freedom Act (P. L. 95-134, 1978) and within  that legal precedent affirm the following:

(1) The rights of the Native Peoples to practice and participate in traditional ceremonies and rituals with the same protection offered all religions under the Constitution.

(2) Access to and protection of sacred Sites and public lands for ceremonial purposes.

 (3) The use of religious symbols (feathers, tobacco, sweet grass, bone, etc.) for use in traditional ceremonies and rituals. The spiritual power of the land and the ancient wisdom of your indigenous religions can be, we believe, great gifts to the Christian churches. We offer our commitment to support you in the righting of previous wrongs: to protect your people’s efforts to enhance Native spiritual teachings; to encourage the members of our churches to stand in solidarity with you on these important religious issues; to provide advocacy and mediation, when appropriate, for ongoing negotiations with State agencies and Federal officials regarding these matters.

May the promises of this day go on public record with all the congregations of our communions and be communicated to the Native American Peoples of the Pacific Northwest. May the God of Abraham and Sarah, and the Spirit who lives in both the cedar and Salmon People, be honored and celebrated.

Sincerely,

Executive The Rev. Thomas L. Blevins, Bishop                    The Most Rev. Raymond G. Hunthausen Pacific Northwest Synod –                                                                                 Archbishop of Seattle                                                  Lutheran Church in America                                          Roman Catholic Archdiocese of Seattle

The Rev. Dr. Robert ,                                                                      The Rev. Elizabeth Knott Executive Minister Synod  Northwest Synod Alaska-Northwest                               American Baptist Churches                                               of the Presbyterian Church

The Rev. Robert Brock                                                                   The Rev. Lowell Knutson, Bishop N.W. Regional Christian Church North Pacific District                                        American Lutheran Church

The Right Rev. Robert H. Cochrane                                          The Most Rev. Thomas Murphy   (BCA)             Episcopal Diocese of Olympia                                                 Roman Catholic Archdiocese of Seattle

The Rev. W. James Halfaker                                                        The Rev. Melvin G. Talbert, Bishop                 Conference Minister United Church of Christ                  United Methodist Church Washington North Idaho Conference                                                              Pacific Northwest Conference