July 13, 2011
Doctrine of Discovery continued…
Three hundred and thirty years after Alexander VI justifies European expansionist efforts, John Marshall, Chief Justice of the U.S. Supreme Court writes an opinion that not only modernizes the Doctrine of Discovery, but also creates Indian land law that fits the expansionist desires of the United States.
Writing on Johnson & Graham’s Lessee v. M’Intosh, Marshall notes, “all the nations of Europe, who have acquired territory on this continent, have asserted in themselves…the exclusive right of the discoverer to appropriate the lands occupied by the Indians.” He then asks, “Have the American States rejected or adopted this principle?” Arguing the question he says, “Conquest gives a title which the Courts of the conqueror cannot deny” and that which was obtained by Great Britain “have passed to the United States.” He further recognizes that because “the tribes of Indians inhabiting this country were fierce savages…to leave them in possession of their country, was to leave the country a wilderness.” Therefore, “however extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained…it becomes the law of the land, and cannot be questioned.” Thus, Marshall gives modern support to Europeans self-justified right of discovery.
Arguing only the colonizer’s perspective, Marshall claims a God given preference for land for those who reason and develop. Those who do not develop land in a western sense are no more than savages whose creation—whose souls, from a hierarchal perspective, are less than those who reason. As such, Marshall maintains, “Indian inhabitants are…merely…occupants, to be protected…[who are] in possession of their lands, but [are] to be deemed incapable of transferring the absolute title [of their land] to others. However, this restriction may be opposed to natural right…if it be indispensible to that system under which the country has been settled…it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of justice.” In making such an argument, Marshall goes beyond supporting European right of discovery and brings the Christian Doctrine of Discovery to the modern era and embeds it into U.S. land law.
© David B. Bell 2011