The Discovery Doctrine

John Marshall, the Federalist from Virginia and legendary fourth Chief Justice of the Supreme Court, is celebrated today for his impact on the U.S. form of government. To start, there is the decision Marbury v. Madison in 1803. In this ruling, the Court set a far-reaching precedent by declaring a law passed by Congress and signed by the President to be inconsistent with the Constitution – which at that point in time was a document six and a half pages long , its twelve amendments included. However, his Court laid down no other rulings of unconstitutionality of federal laws. So what sort of other stratagems did John Marshall resort to in order to leave his mark? Mystėre.
One way the Marshall Court displayed its power was by means of three important cases involving the status and rights of Native Americans. The logic behind the first of these, Johnson v. McIntosh, is astonishing and the case is used in law schools today as a classic example of a bad decision. The basis of this unanimous decision, written by Marshall himself, is a doctrine so medieval, so racist, so Euro-centric, so intolerant, so violent as to beggar belief. Yet it so buried in the record that few are even remotely aware of it today. It is called the Doctrine of Christian Discovery or just the Discovery Doctrine.
Simply put, this doctrine states that a Christian nation has the right to take possession of any territory whose people are not Christians.
The term “Discovery” refers to the fact that the European voyages of discovery (initially out of Portugal and Spain) opened the coast of Africa and then the Americas to European takeovers.
All this marauding was justified (even ordered) by edicts issued by popes written for Christian monarchs.
In his bull (the term for one of these edicts) entitled Romanus Pontifex (1452), Pope Nicholas V, in a burst of Crusader spirit, ordered the Portuguese King Alfonso V to “capture, vanquish, and subdue the Saracens, pagans, and other enemies of Christ,” to “put them into perpetual slavery,” and “to take all their possessions and property.” Columbus himself sailed with instructions to take possession of lands not ruled by Christian leaders. Alexander VI was the quintessential Renaissance pope, famous among other things for making nepotism something of a science – he was the father of Lucrezia Borgia (the passionate femme fatale of paintings, books and films, click HERE ) and of Cesare Borgia (the model for Machiavelli’s prince, click HERE ). In his Bulls of Donation of 1493, Alexander extended to Spain the right and duty to take sovereignty over all non-Christian territories “discovered” by its explorers and conquistadors; and then on behalf of Spain and Portugal, with the Line of Demarcation, Alexander divided the globe into two zones one for each to subjugate.
Not to be left behind, a century or so later, when England and Holland undertook their own voyages of discovery and colonization, they adopted the Discovery Doctrine for themselves despite the Protestant Reformation; France did as well. What is more, after Independence, the Americans “inherited” this privilege; indeed, in 1792, U.S. Secretary of State Thomas Jefferson declared that the Discovery Doctrine would pass from Europe to the newly created U.S. government – interesting that Jefferson, deist that he was, would resort to Christian privilege to further U.S. interests! In American hands, the Discovery Doctrine also gave rise to doctrines like Manifest Destiny and American Exceptionalism.
The emphasis on enslavement in Romanus Pontifex is dramatic. The bull was followed by Portuguese incursion into Africa and Portuguese involvement in the African slave trade, till then a Muslim monopoly. In the 1500’s, African slavery became the norm in New Spain and in New Portugal. In August 1619, when the Jamestown colony was only 12 years old, a ship that the Dutch had captured from Portuguese slavers reached the English settlement and Africans were traded for provisions – one simple application of the Discovery Doctrine, one fateful day for the U.S.
Papal exhortations to war were not new in 1452. A bull of Innocent III in 1208 instigated a civil war in France, the horrific Albigensian Crusade. Earlier, in 1155 the English conquest of Ireland was launched by a bull of Pope Adrian IV (the only English pope no less); this conquest has proved long and bloody and has created issues still unresolved today. And even earlier there was the cry “God Wills It” (“Deus Vult”) of Pope Urban II and the First Crusade.
Hopping forward to the U.S. of 1823, in Johnson v. McIntosh, the plaintiff group, referred to as “Johnson,” claimed that a purchase of land from Native Americans in Indiana was valid although the defendant McIntosh for his part had a claim to overlapping land from a federal land grant (federal would prove key). An earlier lower court had dismissed the Johnson claim. Now (switching to the historical present) John Marshall, writing for a unanimous court, reaffirms the lower court’s dismissal of the Johnson suit. But that isn’t enough. After a lengthy discussion of the history of the European voyages of discovery in the Americas, Marshall focuses on the manner in which each European power acquired land from the indigenous occupants. He outlines the Discovery Doctrine and how a European power gains sovereignty over land its explorers “discover”; he adds that the U.S. inherited this power from Great Britain and reaches the conclusion that only the Federal Government can obtain title to Native American land. Furthermore, he concludes that indigenous populations only retain the “right of occupancy” in their lands and that this right can still be dissolved by the Federal Government.
One of the immediate upshots of this decision was that only the Federal Government could purchase land from Native Americans. Going forward, this created a market with only one buyer; a monopoly is created when there is only one seller; a market like this one with only one buyer is called a monopsony, a situation which could work against Native American interests – for the pronunciation of monopsony, click HERE . To counter the efforts of the Apple Computer company to muddy the waters, there’s just “one more thing”: the national apple of Canada, the name of the defendant in this case and the name of the inventor of the stylish raincoat are all written “McIntosh” and not “Macintosh.” (“Mc” is the medieval scribes’ abbreviation of “Mac” the Gaelic patronymic of Ireland and Scotland; other variants include “M’c”, “M'” and “Mc” with the “c” raised with two dots or a line underneath it.)
The decision in Johnson formalized the argument made by Jefferson that the Discovery Doctrine applied to relations between the U.S. government and Native Americans. This doctrine is still regularly cited in federal cases and only recently the Discovery Doctrine was invoked by none other than Justice Ruth Bader Ginsburg writing for the majority in City of Sherrill v. Oneida Indian Nation of New York (2005), a decision which ruled against Oneida claims to sovereignty over once tribal lands that the Oneida had managed to re-acquire!
What has happened here with Johnson is that John Marshall made the Discovery Doctrine part of the law of the land thanks to the common law reliance on precedent. A similar thing happens when a ruling draws on the natural law of Christian theology, a practice known as “natural law jurisprudence.” In effect, in both scenarios, the Court is making law in the sense of legislation as well as in the sense of a judicial ruling.
A few years after Johnson, in response to the state of Georgia’s efforts to badger the Cherokee Nation in an effort to drive them off their lands, the Cherokee asked the Supreme Court for an injunction to put a stop to the state’s practices. The case Cherokee Nation v. Georgia (1831) was dismissed by the Court on a technicality drawn from its previous decision – the Cherokee, not being a foreign nation but rather a “ward to its guardian” the Federal Government, did not have standing to sue before the Court; thereby adding injury to the insult that was Johnson.
The next year Marshall actually made a ruling in favor of the Cherokee nation in Worcester v. Georgia (1832) which laid the foundation for tribal sovereignty over their lands. However, this was not enough to stop Andrew Jackson from carrying out the removal of the Cherokee from Georgia in the infamous Trail of Tears. In fact, confronted with Marshall’s decision, Jackson is reported to have said “Let him enforce it.”
The U.S. is not the only country to use the Discovery Doctrine. In the English speaking world, it has been employed in Australia, New Zealand and elsewhere. In the Dutch speaking world, it was used recently in 1975 with the accession of Suriname to independence where it is the basis for the rights (or lack of same) of indigenous peoples. Even more recently in 2007, the Russian Federation invoked it when placing its flag on the floor of the Arctic Ocean to claim oil and gas reserves there. Interesting that Orthodox Christians would honor papal directives once it was in their economic interest – reminiscent of Jefferson
In addition to Marbury and the cases dealing with Native Americans, there are several other Marshall Court decisions that are accorded “landmark” status today such as McCulloch v Maryland (1819), Cohens v. Virginia (1821) and Gibbons v. Ogden (1824) – all of which established the primacy of federal law and authority over the states. This consistent assertion of federal authority is the signature achievement of John Marshall.
Marshall’s term of 34 years is the longest for a Chief Justice. While his Court did declare state laws unconstitutional, for the Supreme Court to declare another federal law unconstitutional would take over half a century after Marbury. This would be the case that plunged the country into civil war. Affaire à suivre. More to come.

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