CLAY JENKINSON: The Future In Context — What The Repudiation Of The Doctrine Of Discovery Means For Indian Country

Pope Francis repudiated the 'Doctrine of Discovery,' which underpinned colonialism. The doctrine, with origins in the 15th century, was invoked as a legal and religious standing by Europeans who "discovered" new lands and violently seized it from people who had been living there. (Jon R. Elvrom)
Pope Francis repudiated the ‘Doctrine of Discovery,’ which underpinned colonialism. The doctrine, with origins in the 15th century, was invoked as a legal and religious standing by Europeans who “discovered” new lands and violently seized it from people who had been living there. (Jon R. Elvrom)

On March 30, 2023, Pope Francis renounced the 550-year-old Doctrine of Discovery, which granted European nations the right to claim the new lands they discovered on behalf of Christendom. According to the statement issued by the Vatican, the Catholic Church formally “repudiates those concepts that fail to recognize the inherent human rights of Indigenous peoples, including what has become known as the legal and political ‘doctrine of discovery’ … the church acknowledges that these papal bulls did not adequately reflect the equal dignity and rights of Indigenous peoples.”

The renunciation follows Pope Francis’ 2022 visit to Canada, during which he formally apologized to Canada’s Indigenous peoples for the religious boarding schools that attempted to kill the Indian, save the man,” as U.S. Captain Richard Henry Pratt put it in Denver in 1892. Pratt was one of the founders of the Carlisle Indian School in Pennsylvania. The First Nations who met with Pope Francis in 2022 asked him to renounce and repudiate the Doctrine of Discovery. At that time, Francis declined to issue the repudiation, but expressed deep sympathy with both the pain and the demands of Indigenous peoples around the world.

In July, 2022, Pope Francis visited Canada on what he called a “penitence trip” in an effort to reconcile with Indigenous peoples, First Nations, Métis and Inuit.

Divvying Up the World

Just a year after Columbus bumped into the New World, on May 4, 1493, Pope Alexander VI issued a papal bull known as “Inter Caetera.” That pronouncement, along with three others of the same decade, gave Spain and Portugal the papacy’s explicit endorsement to expand their national sovereignty into Africa and the Western Hemisphere for the purpose of converting Indigenous people to Christianity. That papal document, issued under the umbrella of an innocuous-sounding title, which translates as “Among Other Things,” was one of the most consequential pronouncements of human history.

As it was interpreted by Spain, Portugal, France, Britain, the Netherlands and Germany, “Inter Caetera” led to the ruthless subjugation, dispossession, forced conversion, enslavement and cultural genocide of thousands of Indigenous tribes and communities — and millions of individuals — on five continents: Africa, Asia, Australia/Oceana, North America and South America. The papal bull declared that lands not already inhabited by Christians could be claimed by these colonial powers,and that “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.”

Like me, back in your school days, you probably learned about the “Line of Demarcation” that divided up the “unknown world” of new exploration between Portugal and Spain. The Line of Demarcation was a provision of the June 7, 1494, Treaty of Tordesillas signed by Spain and Portugal. It drew the line 300 leagues (approximately 1,000 miles) west of the Azores and Cape Verde Islands and granted Spain the exclusive right to acquire territorial possessions and to trade in all lands west of that line. When other European nations joined the exploration and colonization bandwagon over the next century, they conveniently employed derivative conceptions of the papal doctrine to justify their appropriation of native lands and resources.

The Doctrine of Discovery has been endlessly invoked by European nations and the United States to justify their imperial policies in what we now call the Third World. In effect, the nation that “discovers” a zone of land not previously claimed by another European power can claim it as its own. That’s how Portugal claimed Brazil (and why the official language of Brazil is Portuguese), how Spain claimed most of Central and South America, how the Dutch claimed New York (New Amsterdam) and South Africa and how the British claimed the front tier of what became the United States in 1776.

When Lewis and Clark left their 1805-1806 winter quarters at Fort Clatsop near the mouth of the Columbia River, they tacked a rudimentary map and a short list of their discoveries on the walls of the compound. They did this for two reasons. First, as exemplars of the Enlightenment, they wanted to make sure that their discoveries would be incorporated into the world’s knowledge base — in geography, ethnology, hydrology — even if they perished on their long return journey. And they were using English peoples’ discovery procedures for establishing an American claim to the lower Columbia basin. As late as 1846, the United States invoked the Doctrine of Discovery to take possession of the Oregon Country from Britain.

Patricia Seed is an American historian and professor in the University of California, Irvine's Department of History. (uci.edu)
Patricia Seed is an American historian and professor in the University of California, Irvine’s Department of History. (uci.edu)

Patricia Seed’s brilliant monograph, “Ceremonies of Possession in the Europe’s Conquest of the New World: 1492-1640,” explores the various protocols by which European nations invoked the Doctrine of Discovery. In simplest terms, Seed argues, “Englishmen held that they acquired rights to the New World by physical objects (fences, compounds, gardens), Frenchmen by gestures (pageantry), Spaniards by speech (Christian rites), Portuguese by numbers [science], Dutch by description [land surveys].” As the primacy of the Catholic Church yielded to the first iterations of international law, each of these rituals or protocols was recognized as legally binding.

To say that Indigenous peoples have chafed at this legal absurdity — that nations 3,000 or more miles away have a “right” to show up uninvited and claim lands already possessed by sovereign peoples who were never consulted by Pope Alexander VI or anyone else — is a grave understatement.

Robert Miller, professor of Law, Sandra Day O'Connor College of Law, Arizona State University. (asu.edu)
Robert Miller, professor of Law, Sandra Day O’Connor College of Law, Arizona State University. (asu.edu)

Robert Miller, a professor of Indian law, an enrolled member of the Eastern Shawnee Tribe, and the author of “Native America, Discovered and Conquered: Thomas Jefferson, Lewis and Clark, and Manifest Destiny,” has written:

“The Doctrine is not just an interesting relic of world history but instead is still applicable in many countries and limits the human, sovereign, commercial, and property rights of Indigenous Peoples and their governments. The Doctrine was used by European nations to justify their desires to acquire riches and empires around the world. The European powers primarily justified these acquisitions and their ambitions by ethnocentric allegations of cultural, racial, governmental, and religious superiority over the rest of the world.”

In America

The doctrine achieved its more modern formulation in the 1823 U.S. Supreme Court case Johnson v. M’Intosh. Chief Justice John Marshall’s opinion in that landmark case held that,

“On the discovery of this immense continent, the great nations of Europe … in order to avoid conflicting settlements, and consequent war with each other … established a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments. …  The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles.”

The enormous historical potency of the Doctrine of Discovery, as it was embodied into American constitutional law, can be seen in a Supreme Court decision authored as recently as 2005. In that case, the most liberal of recent justices, Ruth Bader Ginsburg, invoked the doctrine, in ruling against a land claim by the Oneida Indians (of the New York and Great Lakes region).

So Now What?

It is not clear just what the ramifications of Pope Francis’ renunciation will be. All of these “discoveries” happened so long ago, and the Europeanization of the planet is now so baked in (as the current cliché has it), that it is hard to imagine that the pope’s pronouncement will bring much serious change.

A papal pronouncement is not a papal bull, and a papal bull of the 21st century does not have the same potency as one issued in the late 15th century, before the shattering of the Reformation (1517-1648), the Enlightenment (1680-1826), the rise of nationalism (1550-1900) and the secularization of much of the world. It is impossible to imagine any significant withdrawal of European-derived settler populations from the lands they claimed between 1493 and the mid-19th century.

Nor does Pope Francis’ renunciation have any formal legal status. He renounced, but he did not rescind. It may be that Indigenous people will base future legal claims in part on the pope’s statement. It is possible to imagine that the apologetic trend of our times with respect to colonialism and genocide (embraced by the current pope, the first from South America) will lead to increased support for cultural restoration in Indigenous communities and perhaps even to reparations, mostly financial, but not necessarily excluding modest restorations of lands.

Philip P. Arnold is associate professor and chair of the Department of Religion at Syracuse University, as well as a core faculty member of Native American and Indigenous Studies. (thecollege.syr.edu)
Philip P. Arnold is associate professor and chair of the Department of Religion at Syracuse University, as well as a core faculty member of Native American and Indigenous Studies. (thecollege.syr.edu)

Somewhat optimistically, Phil Arnold, a professor of religion at Syracuse University, has said, “The pope repudiating the Doctrine of Discovery might have the effect of pulling the rug out from these legal frameworks that are all built on top of that religious or theological perspective. And then there might be a future for further conversations — in churches or in a variety of parishes — that might spark a conversation about what justice would mean for Indigenous peoples around the world.”

“On the surface it sounds good, it looks good,” said Ernie Daniels, a former chief of Canada’s Long Plain First Nation, “but there has to be a fundamental change in attitudes, behavior, laws and policies from that statement. Worldwide, bureaucracy has to change, politics have to change, the churches have to change, the corporate world has to change towards Indigenous people, because there’s still a mentality out there — they want to assimilate, decimate, terminate, eradicate Indigenous people.”

Miller suggests that “all governments review their laws, regulations and policies that impact Indigenous peoples and repeal those that are based on the prejudices and fallacies of the doctrine. Furthermore, these governments should undertake such reviews in full consultation with Indigenous nations and peoples.”

Most people I know, some of them highly educated, confess that they know little or nothing about the Doctrine of Discovery and — now — the ramifications and possibilities that may follow its repudiation. The learning curve is going to be steep. It is possible that the pope’s pronouncement will set the stage for significant reforms in white-native relations over the next decades. It is equally possible that it will have no measurable impact. Still, a papal apology cannot be regarded as insignificant.

You can also hear more of Clay Jenkinson’s views on American history and the humanities on his long-running nationally syndicated public radio program and podcast, The Thomas Jefferson Hour,” and the Governing podcast, Listening to America.” Clay’s most recent book, “The Language of Cottonwoods: Essays on the Future of North Dakota,” is available through AmazonBarnes and Noble and your local independent book seller. Clay welcomes your comments and critiques of his essays and interviews. You can reach him directly by writing cjenkinson@governing.com or tweeting @ClayJenkinson.

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