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, resources and self-determination (liberation).
US Settler Colonialism: “Destroy to Replace”
The nationalistic narrative attached to the Doctrine of Discovery inspired the notion of Manifest Destiny and conjured up a social imaginary where intrepid white immigrant pioneers courageously settled a vast continent that was there for the taking. The counter-narrative to this tale is best described by settler colonialism, which frames this undertaking not as a set of distinct historical events, but as a persistent and ongoing cultural, political and economic structure. In their article, “Decolonizing Feminism: Challenging Connections between Settler Colonialism and Heteropatriarchy,” Maile Arvin, Eve Tuck and Angie Morrill explain:
Newcomers/colonizers/settlers come to a place, claim it as their own, and do whatever it takes to disappear the Indigenous peoples that are there. Within settler colonialism, it is exploitation of land that yields supreme value. In order for settlers to usurp the land and extract its value, Indigenous peoples must be destroyed, removed, and made into ghosts.
As a nation-state, the United States is defined by the genocide of Native people and the enslavement of Black people and would not exist without the brutal structure of settler colonialism (and chattel slavery). In fact, genocide is not an aberration of US democracy, but is instead foundational to it.
The colonization of North America by Christian whites — especially after the formation of the US — differed significantly from “franchise colonialism” (or extraction-oriented colonialism) that was practiced in other parts of the world, such as in India under British rule.
As professor Lorenzo Veracini describes it in Settler Colonial Studies journal, franchise colonialism differs from settler colonialism in that its “message to Native populations is ‘You, work for me,'” while “the settler-colonial message is ‘You, go away.'” Settler colonialism, as Wolfe puts it in the Journal of Genocide Research, “destroys to replace” by erecting “a new c