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The Discovery Doctrine: A Crash Course

Anyone wanna learn about one of the the most important legal concepts no one knows about?

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According to Columbus, the Catholic Church, Spain and the Western world, Columbus "discovered" America in 1492 when he sailed over yonder...

Instead, Columbus and his cronies were violent aggressors towards the Indigenous peoples who had lived here for so long before.

Giphy / Via giphy.com

An incident that has left these groups marginalized, oppressed and unable to freely exist in the land they have always been entitled to.

A precursor to this heinous oppression was the Discovery Doctrine, a compilation of 3 papal bulls issued between 1452 and 1493.

Via nlm.nih.gov

This was central to the Spanish conquest of the "new world" because it asserted that Spain was entitled to any land that Columbus "discovered." The caveat being that land was only considered "occupied" if Christians lived in it. Given that the Indigenous groups who lived in the Americas were not Christian, they were not viewed as land-inhabitants according to this document.

The Discovery Doctrine was conceptually introduced into public international law after the 1823 case of Johnson v. M'Intosh.

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In the 1823 case, the plaintiff, Johnson had inherited lands that had initially been purchased from the Piankeshaw tribes. The defendant, M'Intosh, claimed he was entitled to the same land because he had purchased it using a grant from the United States Government. Ultimately, the Chief Justice John Marshall opined that ownership of land comes with the "discovery" of it. Therefore, the United States owned the land and had sovereignty over the land that they had "discovered." This decision, in turn, gave the United States the "right of occupancy" to the land, and moreover, the right to expel the occupants who inhabit it, namely indigenous residents.

The effects of the 1823 decision are longstanding, and in 2005, a case between The City of Sherrill v. The Oneida Tribe was taken all the way to the Supreme Court.

Giphy / Via giphy.com

The Oneida Tribe had repurchased land in Sherrill that had once belonged to them. In purchasing this land, the tribe hoped to regain sovereignty over it, but the Supreme Court stated that since it had been 200 years since the Oneida Tribe had the land, they could not reassert sovereignty over it, especially because non-indigenous people now inhabited the land. Moreover, the Court cited the Discovery Doctrine in their concluding decision, stating that the correct way for the Oneida Tribe to regain sovereignty over the land would be for the tribe to place the land in a United States Trust under the Department of the Interior.

Many Catholics (among others) are outraged that a religious decree legitimizes The Discovery Doctrine and are demanding that Pope Francis formally rescind the Papal Bull, which has excused all of these legal decisions.

Giphy / Via giphy.com

We believe that the Discovery Doctrine has the potential to be rescinded now because of Pope Francis. Pope Francis recently went to Bolivia and publicly apologized for the behavior of the Catholic church by stating, “I say this to you with regret: Many grave sins were committed against the native people of America in the name of God.” Even though this public apology is a big step for the Vatican and by extension, the Catholic community, we still think Pope Francis needs to rescind the Discovery Doctrine.

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