The Doctrine of Discovery - Part 2

Legal Developments

This second article in my six part series on the Doctrine of Discovery deals with what I call “Legal developments” and considers the case of Johnson and Grahams Lessee v McIntosh, a decision of the US Supreme Court which is used by advocates of the Doctrine to establish it as a rule of law. The discussion will demonstrate how and why this reliance is misplaced. The second article will then turn to some of the New Zealand developments that are used to support the existence of the Doctrine although no New Zealand case mentions it in that way.

Legal Developments

Those who argue that there is a coherent Doctrine of Discovery that has underpinned European colonization and treatment of indigenous people place a considerable amount of weight on the 1823 decision of the United States Supreme Court in Johnson & Grahams Lessee v McIntosh. I shall now proceed to examine this case.

Johnson & Grahams Lessee v McIntosh[1]

The background to the case was this.

On October 18, 1775, in Vincennes, Indiana, eleven Piankeshaw chiefs “for good and valuable consideration” deeded an immense tract of land to Lord Dunmore, the royal governor of Virginia, his son, and eighteen other persons from Maryland, Pennsylvania, Great Britain, and the Illinois Country.

However, on December 30, 1805, the Piankeshaw ceded much of the same land to the United States in a treaty negotiated by William Henry Harrison, governor of the Indiana Territory.

Following that a Vincennes resident William McIntosh—according to the jointly submitted statement of the case—purchased a portion of the land in question from the federal government, thus setting up a conflict in title.

The plaintiffs were the heirs of Thomas Johnson who was one of the original purchasers. The argument was that if the Piankeshaw Tribe sold the property in 1775, they had nothing left to cede to the United States in 1805. Thus, the government had nothing that it could sell to William McIntosh.

The lawyers representing McIntosh were compelled to argue that the 1775 purchase was invalid. The tribes, it was argued, lacked the legal capacity to sell the land to private individuals.

According the Chief Justice Marshall the issue to be decided was “the power of Indians to give, and of private individuals to receive, a title which can be sustained in the Courts of this country.”[2]

The Court was unanimous. Marshall CJ announced that following ““the discovery of this immense continent,” Indians in America no longer enjoyed the “power to dispose of the soil, at their own will, to whomsoever they pleased” and that, consequently, “the plaintiffs do not exhibit a title which can be sustained in the Courts of the United States.”

Watson observes that “The decision in Johnson v. McIntosh was a crushing defeat for the Illinois and Wabash Land Company, which in 1779 had united the investors in the Piankeshaw (or Wabash) pur-chase with an overlapping group of individuals who had acquired a similarly large tract of land in 1773 from the Illinois Indians.”[3]

It is from this statement that Robert Williams Jr concludes that the Doctrine of Discovery presented itself as a convenient fiction one which masked the Revolutionary era political struggle by which Indian Nations were denied rights and status in their lands.”[4]

Marshall CJ’s authority for his finding of discovery rights in Johnson v. McIntosh was primarily based on historical documents, legal precedents, and his own historical research.

He relied on various sources, including papal bulls, European treaties, historical practice, the Royal Proclamation of 1763, historical accounts, royal charters and grants, colonial laws and policies, the writings of legal scholars and historians, and his own understanding of American history. Marshall sought to establish the rights attendant upon discovery as a recognized legal principle that formed the basis for European claims to land in America.

But was there a Doctrine of Discovery or are subsequent scholars attributing too much weight to Marshall CJ’s dictum? An examination of the decision by Watson describes the doctrine of discovery as a complex and contested concept with varying interpretations among European nations.

It highlights that different European writers had different views on the doctrine, with some believing it only applied to vacant land and others asserting that it applied to territories inhabited by indigenous peoples.

Watson also criticizes the doctrine as a tool of efficient expropriation of Indian lands and argues for its removal from the federal government's political and legal vocabulary. Additionally, he mentions the belief that European discovery of the land diminished the power of Native American nations to dispose of the soil at their own will.

Overall, Watson portrays the doctrine of discovery as a controversial and contentious rationale used to justify European colonization and the displacement of indigenous peoples.

As an example of the approaches to discovery as a means of conferring title some European writers believed that the discovery only applied to vacant or uninhabited land. According to this view, European nations had the right to claim and settle lands that were not already occupied by indigenous peoples.

Other writers argued that discovery applied to territories inhabited by indigenous peoples as well. They believed that European discovery of the land gave them exclusive title and diminished the power of Native American nations to dispose of the soil at their own will.

In fact there was no uniform or universally accepted view of the “doctrine of discovery” among European writers during the age of discovery.

“While the writings of theorists and the practices of colonizing nations lend support for Marshall’s conclusions, the Chief Justice’s claim of “universal recognition” of the principles underlying Johnson v. McIntosh is belied by the historical record. The Illinois and Wabash purchases at issue in Johnson v. McIntosh, whereby native lands were sold in 1773 and 1775 to private individuals, were by no means un-precedented.”[5]

Following upon the starting point of the Papal Bulls, Miller and Ruru rely on Marshall CJ’s statements in Johnson v McIntosh  as support for the assertion of a coherent Doctrine of Discovery. In fact the case has become, according to Miller and Ruru the definitive word on the Doctrine of Discovery in American law, and is the leading case that New Zealand, Canadian, and Australian courts have relied on to apply Discovery in their countries.[6]

What perhaps is significant is the fact that by 1832, Marshell CJ recognized that his history in Johnson v McIntosh was wrong and observed in Worcester v Georgia[7]

“Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the part of the Crown to interfere with the internal affairs of the Indians farther than to keep out the agents of foreign powers, who, as traders or otherwise, might seduce them into foreign alliances. The king purchased their land when they were willing to sell, at a price they were willing to take, but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self government, so far as respected themselves only.”

“Initially the founding members of the international law community comprised only the Christian and later civilized nations, that is to say the European states and, following its establishment, the United States. However, during European expansion, the European powers and the United States recognized numerous non-European communities as powers capable of maintaining relations under international law. With this recognition, the Indian nations became a part of the international law community. They acquired the ability to act in international law by dint of recognition.

The doctrine of the non-sovereign territories, the "community of civilized nations" and the lack of international law sovereignty of the non European communities as well as the theory of discovery with the concept of civilization justified breaches of treaties and morally legitimized the actions of the Europeans and later the United States. However, from the start, this doctrine was at odds with state practice. The deciding factor in international law sovereignty was to what extent non-European communities were regarded as being willing and able to enter into and observe treaty relations”

This is a significant set back from the suggestion of discovery rights articulated in Johnson v McIntosh. But McMahon suggests that Johnson v Mcintosh  was a reflection of the times.

“The U.S. Supreme Court’s decision in Johnson v. M’Intosh, while it described an elaborate variation of the doctrine of discovery, was very clear: no white court was going to second-guess the conquests of the white invaders. The papal bulls had little to no effect on England or France’s explorations of Canada.”[8]

Dieter Dorr in commenting on Johnson v McIntosh observes that

“In  M'Intosh, Marshall defends his opinion of the history of the colonization of North America. In doing so, he misses the historical practices of Europe, and later the United States, which are a central and decisive factor in international law. The practice of signing treaties with non-European communities represents a remarkable contradiction to the theory of discovery. Today the existence of these treaties is rarely acknowledged, usually found only in individual cases in the European international law literature. The reason for this lack of attention could be that a large number of older treaty collections did not contain colonial treaties”[9]

Miller and Hobbs on the other hand place a great deal of weight upon Marshall CJ’s decision[10]. Professor Miller’s position merely continues to rearticulate the theory that he has developed in earlier publications. They refer to Marshall CJ’s decision as influential and that the Doctrine expressed in that (which has become latterly the Doctrine of Discovery) is one of the earliest examples of international law; that is, the rules that nations agree to abide by in their interactions with other nations.

“As European powers began their voyages of “discovery” and established colonies and empires, they saw the need to agree on rules of conduct that would control their own competition”[11].

From that point Miller and Hobbs rearticulate the ten elements identified by Miller and Ruru in their 2008 article. Perhaps it is hoped that authority will be attracted by mere repetition.

But the passage about rules of conduct is critical to an understanding of the development of the theory of the Doctrine of Discovery. It is clear that it was not – in the fifteenth and sixteenth centuries or after the shift to secular international law – a coherent doctrine expressed as such. It is a concept that has been constructed by the historians of colonialism to explain the conflict between indigenous and colonial people. It has been developed through a critical theory approach of the empowered vs the disempowered and has elements of neo-Marxism to it. European colonial powers did not point to a coherent “doctrine of discovery” to justify their activities. To suggest that this was so is to ignore reality and the fact that the “doctrine” is a modern construct to encompass a critique of colonialism.