peoples to a subhuman status in domestic and international politics. The Doctrine of Discovery advanced the structural foundations (political/legal, cultural and economic) for the transatlantic slave trade and the genocidal policies and practices of colonization across the globe.
With the “discovery” of the Americas, the imperialist nations of England and France followed the new doctrine of discovery and quickly used it to claim rights and powers of first discovery in North America. In 1496, England’s King Henry VII issued a Royal Charter, which commissioned an expedition led by John Cabot — in the name of England — “to find, discover and investigate whatsoever islands, countries, regions or provinces of heathens and infidels, in whatsoever part of the world placed, which before this time were unknown to all Christians … to conquer, occupy and possess whatsoever such towns, castles, cities and islands by them.” Based on Cabot’s explorations, England laid claim to his “discoveries” from Newfoundland to Virginia. France contested England’s claims, and declared first discovery rights of ownership and sovereignty over North America. At the time, both countries were Catholic, making them cautious to violate papal bulls. It would not be until the end of the 16th century when France, England and the Netherlands were able to compete with Spain and Portugal for supremacy over the lands and bodies of Indigenous peoples on a global scale.
By the late 16th century, England freed itself from papal rule and attached the name and principles of the 1095 papal bull Terra Nullius to Queen Elizabeth I’s definition of discovery rights, which required the occupancy and actual possession by Europeans of non-Christian lands as crucial elements of a discovery claim.
Thereafter England proclaimed that only Christian nations could discover and claim territory in the Americas (and later Australia), conditioned on the establishment of permanent settlements that cultivated the land. According to the Encyclopedia of Public International Law, this version of the doctrine of Terra Nullius was to become the “eighteenth-century convention of European international law — it being held that any land which was unoccupied or unsettled could be acquired as a new territory by a sovereign State, and that the laws of that State would apply in the new territory.”
In his article, “The Doctrine of Discovery in American Indian Law,” professor Robert Miller documents how “the Doctrine of Discovery was the international law under which America was explored and … was the legal authority the English Crown used to colonize America and to obtain Indian lands.” After the American Revolution, the “Doctrine of Discovery” was embraced by the states and the courts as both common and natural law. Thus, the doctrine became the legal and ideological basis for settler colonialism in the United States, and became further entrenched as the centerpiece of land rights and Native law in the US by the time of the 1823 US Supreme Court decision, Johnson v. M’Intosh. This decision affirmed that the “Doctrine of Discovery” was indeed a well-established legal principle of English and American colonial law and had carried over to become the law of the land in US states and the federal government. According to journalist Julian Brave NoiseCat, “Justice John Marshall used the doctrine to support the majority opinion of the court, which found that Indians … could not own, the ancestral homelands where their people had lived, loved, worshipped, married, mourned and died for millennia.” The Johnson v. M’Intosh decision stands to this day. NoiseCat went on to report:
The doctrine has had a significant influence on Indian law and set a precedent that resonates even in modern decisions. Justice Ruth Bader Ginsburg — widely considered the most liberal justice on the Supreme Court — even cited cases based upon the doctrine as recently as 2005 to deny a land claim brought before the court by the Oneida Nation.
To this day, the doctrine continues to be a structural barrier to Indigenous rights to lands,