{"id":29710,"date":"2023-11-07T21:32:07","date_gmt":"2023-11-08T05:32:07","guid":{"rendered":"https:\/\/occupysf.net\/?p=29710"},"modified":"2023-11-07T21:32:08","modified_gmt":"2023-11-08T05:32:08","slug":"doctrine-of-discovery","status":"publish","type":"post","link":"https:\/\/occupysf.net\/index.php\/2023\/11\/07\/doctrine-of-discovery\/","title":{"rendered":"DOCTRINE OF DISCOVERY"},"content":{"rendered":"\n

From Wikipedia, the free encyclopedia<\/p>\n\n\n\n

This article is about the discovery of land under public international law. For pre-trial phase of a lawsuit, see Discovery (law)<\/a>.<\/p>\n\n\n\n

PROPERTY LAW<\/a><\/th><\/tr>
Part of the common law<\/a> series<\/td><\/tr>
TYPES<\/th><\/tr>
Real property<\/a>Personal property<\/a>Community property<\/a>Unowned property<\/a><\/td><\/tr>
ACQUISITION<\/th><\/tr>
Gift<\/a>Adverse possession<\/a>Deed<\/a>Conquest<\/a>Discovery<\/a>Accession<\/a>Lost, mislaid, and abandoned property<\/a>Treasure trove<\/a>Bailment<\/a>License<\/a>Alienation<\/a><\/td><\/tr>
ESTATES IN LAND<\/a><\/th><\/tr>
Allodial title<\/a>Fee simple<\/a>Fee tail<\/a>
Life estate<\/a>Defeasible estate<\/a>Future interest<\/a> remainder<\/a>Concurrent estate<\/a>Leasehold estate<\/a>Condominiums<\/a>Real estate<\/a>Land tenure<\/a><\/td><\/tr>
CONVEYANCING<\/a><\/th><\/tr>
Bona fide<\/em> purchaser<\/a>Torrens title<\/a>
Strata title<\/a>Deeds registration<\/a>Estoppel by deed<\/a>Quitclaim deed<\/a>Mortgage<\/a>Equitable conversion<\/a>Action to quiet title<\/a>Escheat<\/a><\/td><\/tr>
FUTURE USE<\/a> CONTROL<\/th><\/tr>
Restraint on alienation<\/a>Rule against perpetuities<\/a>Rule in Shelley\u2019s Case<\/em><\/a>Doctrine of worthier title<\/a><\/td><\/tr>
NONPOSSESSORY INTEREST<\/a><\/th><\/tr>
Lien<\/a>Easement<\/a>Profit<\/a>Usufruct<\/a>Covenant<\/a>Equitable servitude<\/a><\/td><\/tr>
RELATED TOPICS<\/th><\/tr>
Fixtures<\/a>Waste<\/a>Partition<\/a>Practicing without a license<\/a>
Property rights<\/a>Mineral rights<\/a>Water rights<\/a> prior appropriation<\/a>riparian<\/a>Lateral and subjacent support<\/a>Assignment<\/a>Nemo dat<\/a><\/em>Quicquid plantatur<\/a><\/em>Conflict of property laws<\/a>Blackacre<\/a>Security deposit<\/a><\/td><\/tr>
OTHER COMMON LAW<\/a> AREAS<\/th><\/tr>
Contract law<\/a>Tort law<\/a>Wills<\/a>, trusts<\/a> and estates<\/a>Criminal law<\/a>Evidence<\/a>Higher category:<\/em> Law<\/a> and Common law<\/a><\/td><\/tr>
v<\/abbr><\/a>t<\/abbr><\/a>e<\/abbr><\/a><\/td><\/tr><\/tbody><\/table><\/figure>\n\n\n\n

The discovery doctrine<\/strong>, or doctrine of discovery<\/strong>, is a disputed interpretation of international law<\/a> during the Age of Discovery<\/a>, introduced into United States municipal law<\/a> by the US Supreme Court<\/a> Justice John Marshall<\/a> in Johnson v. McIntosh<\/a><\/em> (1823).<\/em> In Marshall\u2019s formulation of the doctrine, discovery of territory previously unknown to Europeans gave the discovering nation title to that territory against all other European nations, and this title could be perfected by possession. A number of legal scholars have criticized Marshall\u2019s interpretation of the relevant international law. In recent decades, advocates for Indigenous rights have campaigned against the doctrine. In 2023, the Vatican formally repudiated the doctrine.[1]<\/a><\/sup><\/p>\n\n\n\n

Discovery in international law<\/h2>\n\n\n\n

The means by which a state can acquire territory in international law are conquest, cession<\/a> by agreement, occupation of land which belongs to no state (terra nullius<\/a><\/em>), and prescription<\/a> through the continuous exercise of sovereignty.[2]<\/a><\/sup>[3]<\/a><\/sup> Discovery of a territory creates a mere inchoate title which must be completed within a reasonable period by effective occupation of that territory.[3]<\/a><\/sup><\/p>\n\n\n\n

Robert J. Miller states that by 1493, \u201cThe idea that the Doctrine [of discovery] granted European monarchs ownership rights in newly discovered lands and sovereign and commercial rights over Indigenous peoples due to first discovery by European Christians was now established international law, at least to Europeans.\u201d[4]<\/a><\/sup> Kent McNeil, however, states, \u201cit is not apparent that such a rule was ever part of the European law of nations.\u201d[5]<\/a><\/sup><\/p>\n\n\n\n

Historical background<\/h2>\n\n\n\n

Miller and others trace the doctrine of discovery back to papal bulls<\/a> which authorized various European powers to conquer the lands of non-Christians.[6]<\/a><\/sup>[7]<\/a><\/sup> In 1452, Pope Nicholas V<\/a> issued the bull Dum Diversas<\/a><\/em>, which authorized King Afonso V of Portugal<\/a> to \u201csubjugate the Saracens<\/a> and pagans and any other unbelievers and enemies of Christ\u201d, and \u201creduce their persons to perpetual servitude\u201d, to take their belongings, including land, \u201cto convert them to you, and your use, and your successors the Kings of Portugal.\u201d[8]<\/a><\/sup> In 1455, Pope Nicholas V issued Romanus Pontifex<\/a><\/em>, which extended Portugal\u2019s authority to conquer the lands of infidels and pagans for \u201cthe salvation of all\u201d in order to \u201cpardon \u2026 their souls\u201d. The document also granted Portugal a specific right to conquest in West Africa and to trade with Saracens and infidels in designated areas.[8]<\/a><\/sup>[9]<\/a><\/sup> Charles and Rah argue that these bulls were used to justify the Atlantic slave trade<\/a>.[7]<\/a><\/sup><\/p>\n\n\n\n

In 1493, following a dispute between Portugal and Spain over the discovery of non-Christian lands in the Americas, Pope Alexander VI<\/a> issued Inter Caetera<\/a><\/em> which drew a north-south line 100 leagues West of the Cape Verde Islands<\/a> and gave the Spanish Crown exclusive rights to travel and trade west of that line, and to \u201cbring under your sway the said mainland and islands with their residents and inhabitants and to bring them to the Catholic faith.\u201d In 1494 Portugal and Spain signed the Treaty of Tordesillas<\/a> which moved the line separating their spheres of influence to 300 leagues west of the Cape Verde Islands.[8]<\/a><\/sup> The treaty was eventually endorsed by Pope Julius II<\/a> in the 1506 bull Ea quae pro bono pacis<\/a><\/em>.[10]<\/a><\/sup><\/p>\n\n\n\n

Throughout the sixteenth century, Spain and Portugal claimed that papal authority had given them exclusive rights of discovery, trade and conquest of non-Christian lands in their respective spheres of influence. These claims were challenged by theorists of natural law such as the Spanish theologians Domingo de Soto<\/a> and Francisco di Vitoria<\/a>. In 1539 Vitoria wrote that the Spanish discovery of the Americas provides \u201cno support for possession of these lands, any more than it would if they had discovered us.\u201d[11]<\/a><\/sup><\/p>\n\n\n\n

France and England also made claims to territories inhabited by non-Christians based on first discovery, but disputed the notion that papal bulls, or discovery by itself, could provide title over lands. In 1541, French plans to establish colonies in Canada drew protests from Spain. In response, France effectively repudiated the papal bulls and claims based on discovery without possession, the French king stating that \u201cPopes hold spiritual jurisdiction, and it does not lie with them to distribute land amongst kings\u201d and that \u201cpassing by and discovering with the eye was not taking possession.\u201d[12]<\/a><\/sup><\/p>\n\n\n\n

Similarly, when in 1580 Spain protested to Elizabeth I<\/a> about Francis Drake<\/a>\u2018s violation of the Spanish sphere, the English queen replied that popes had no right to grant the world to princes, that she owed no allegiance to the Pope, and that mere symbolic gestures (such as erecting monuments or naming rivers) did not give property rights.[13]<\/a><\/sup><\/p>\n\n\n\n

From the sixteenth century, France and England asserted a right to explore and colonize any non-Christian territory not under the actual possession of a Christian sovereign.[14]<\/a><\/sup> The stated justifications for this included the spread of Christianity, the duty to bring civilization to barbarian peoples, the natural right to explore and trade freely with other peoples, and the right to settle and cultivate uninhabited or uncultivated land.[15]<\/a><\/sup><\/p>\n\n\n\n

Hugo Grotius<\/a>, writing in 1625, stated that discovery does not give a right to sovereignty over inhabited land, \u201cFor discovery applies to those things which belong to no one.\u201d Dutch policy was to acquire land in North America by purchase from indigenous peoples.[16]<\/a><\/sup><\/p>\n\n\n\n

By the eighteenth century, some leading theorists of international law argued that territorial rights over land could stem from the settlement and cultivation of that land. William Blackstone<\/a>, in 1756, wrote, \u201cPlantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother-country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations.\u201d[17]<\/a><\/sup> Two years after Blackstone, Emer de Vattel<\/a>, in his Le droit des gents<\/em> (1758), drew a distinction between land that was effectively occupied and cultivated, and the unsettled and uncultivated land of nomads which was open to colonization.[18]<\/a><\/sup><\/p>\n\n\n\n

All imperial European states enacted symbolic rituals to give notice of discovery and possession of lands to other states. These rituals included burying plates, raising flags, erecting signs, and naming territories, rivers or other features. More concrete claims of possession ranged from building forts to establishing settlements. Rituals of a transfer of sovereignty often involved trials, executions and other acts to symbolize that the laws of the colonizing power were in force.[19]<\/a><\/sup>[20]<\/a><\/sup><\/p>\n\n\n\n

European monarchs often asserted sovereignty over large areas of non-Christian territory based on purported discoveries and symbolic acts of possession. They frequently issued charters and commissions giving the grantees the power to represent the Crown and acquire property. While European states often acknowledged that indigenous peoples inhabiting these lands had property rights which had to be acquired through conquest, treaty or purchase, they sometimes acted as if territories were uninhabited and sovereignty and property rights could be acquired through occupation.[21]<\/a><\/sup>[22]<\/a><\/sup><\/p>\n\n\n\n

Summarizing the practices European states used to justify their acquisition of territory inhabited by indigenous peoples, McNeil states, \u201cWhile Spain and Portugal favoured discovery and papal grants because it was generally in their interests to do so, France and Britain relied more on symbolic acts, colonial charters, and occupation.\u201d[21]<\/a><\/sup> Benton and Strauman argue that European powers often adopted multiple, sometimes contradictory, legal rationales for their acquisition of territory as a deliberate strategy in defending their claims against European rivals.[23]<\/a><\/sup><\/p>\n\n\n\n

North American jurisprudence<\/h2>\n\n\n\n
\"\"\/<\/a>
Chief Justice John Marshall<\/figcaption><\/figure>\n\n\n\n

In 1792, U.S. Secretary of State Thomas Jefferson<\/a> claimed that the doctrine of discovery was international law which was applicable to the new United States government as well.[24]<\/a><\/sup><\/p>\n\n\n\n

The discovery doctrine was expounded by the United States Supreme Court<\/a> in a series of decisions, most notably Johnson v. McIntosh<\/a><\/em> in 1823. In that case, Chief Justice<\/a> John Marshall<\/a> held that under generally accepted principles of international law:<\/p>\n\n\n\n

    \n
  1. Discovery of lands previously unknown to Europeans gave the discovering nation title to that land against all other European nations, and this title could be perfected by possession.<\/li>\n\n\n\n
  2. The nation discovering that land had \u201cthe sole right of acquiring the soil from the natives, and establishing settlements upon it.\u201d<\/li>\n\n\n\n
  3. On discovery, the sovereignty of the indigenous peoples and their rights to sell their land were diminished, but their right of occupancy remained.<\/li>\n\n\n\n
  4. The discovering nation, having ultimate title to the land, had the right to sell the land of indigenous peoples, subject to the latter\u2019s right of occupancy.<\/li>\n\n\n\n
  5. This ultimate title of the discovering nation (in this case Britain) passed to the individual states after the Declaration of Independence<\/a>, then to the United States in 1789.[25]<\/a><\/sup><\/li>\n<\/ol>\n\n\n\n

    Dunbar-Oritz states that the doctrine outlined in this case continues to influence American imperialism<\/a> and treatment of indigenous peoples.[24]<\/a><\/sup><\/p>\n\n\n\n

    Johnson v. McIntosh<\/em><\/h3>\n\n\n\n

    Main article: Johnson v. McIntosh<\/a><\/p>\n\n\n\n

    Banner and Kades argue that the 1823 case was the result of collusive lawsuits<\/a> where land speculators worked together to make claims to achieve a desired result.[26]<\/a><\/sup>[27]<\/a><\/sup> The plaintiff, Johnson, had inherited land originally purchased from the Piankeshaw<\/a> tribes. Defendant McIntosh claimed the same land, having purchased it under a grant from the United States. In 1775, members of the Piankeshaw tribe sold certain land in the Indiana Territory<\/a> to Lord Dunmore<\/a>, Royal Governor of Virginia, and others. In 1805, the Piankeshaw conveyed much of the same land to William Henry Harrison<\/a>, governor of the Indiana Territory, thus giving rise to conflicting claims of title.[28]<\/a><\/sup> The court found, on three grounds, that it should not recognize the land titles obtained from Native Americans prior to American independence. A number of academics and Indigenous rights activists have argued that Chief Justice John Marshall<\/a> had large real estate holdings that would have been affected if the case were decided in favor of Johnson.[29]<\/a><\/sup><\/p>\n\n\n\n

    Decision<\/h4>\n\n\n\n

    Marshall found that ultimate title to land comes into existence by virtue of discovery and possession of that land, a rule that had been observed by all European countries with settlements in the New World. The United States had ultimate title of the land, as against other European nations, because it inherited that title<\/a> from the original discoverers Britain<\/a> and France, as part of the sovereign rights the U.S. had won from the British crown through war<\/a>.<\/p>\n\n\n\n

    Marshall noted:<\/p>\n\n\n\n

    \n

    On the discovery of this immense continent, the great nations of Europe \u2026 as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. \u2026 The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles.[30]<\/a><\/sup><\/p>\n<\/blockquote>\n\n\n\n

    Marshall noted the 1455 papal bull Romanus Pontifex<\/a><\/em> approved Portugal<\/a>\u2018s claims to lands discovered along the coast of West Africa<\/a>, and the 1493 Inter caetera<\/a><\/em> had ratified Spain<\/a>\u2018s right to conquer newly found lands. Marshall stated, however, \u201cSpain did not rest her title solely on the grant of the Pope. Her discussions respecting boundary, with France, with Great Britain, and with the United States, all show that she placed it on the rights given by discovery. Portugal sustained her claim to the Brazils by the same title.\u201d[30]<\/a><\/sup> Marshall pointed to the exploration charters given to the explorer John Cabot<\/a> as proof that other nations had accepted the doctrine.[31]<\/a><\/sup><\/p>\n\n\n\n

    Legal critique<\/h4>\n\n\n\n

    Allison Dussias states that the Piankeshaw were not party to the litigation and therefore, \u201cno Indian voices were heard in a case which had, and continues to have, profound effects on Indian property rights.\u201d[32]<\/a><\/sup><\/p>\n\n\n\n

    McNeil states that the authority for the doctrine of discovery, as formulated by Marshall, was \u201cflimsy\u201d. Furthermore, Indigenous nations in North America were factually independent and sovereign prior to the arrival of Europeans and therefore the European powers should not have been able to acquire territorial sovereignty by discovery and settlement, but only by conquest or cession.[33]<\/a><\/sup><\/p>\n\n\n\n

    Pagden states that Marshall did not sufficiently consider Francisco de Vitoria<\/a>\u2018s critique of the claim that discovery gave a right to possession of inhabited lands.[34]<\/a><\/sup> Vitoria, however, stated that the Spanish could claim possession of the Americas by conquest if indigenous populations violated principles of natural law.[35]<\/a><\/sup><\/p>\n\n\n\n

    Blake Watson states that Marshall overlooked evidence showing that the Dutch and some English settlers acknowledged the right of Indians to their land and favored purchase as a means of acquiring title. Watson and others, such as Robert A. Williams Jr.<\/a>, state that Marshall misinterpreted the \u201cdiscovery doctrine\u201d as giving exclusive right to lands discovered, rather than the exclusive right to treaty with the inhabitants who owned that land.[36]<\/a><\/sup><\/p>\n\n\n\n

    Other United States cases<\/h3>\n\n\n\n

    In Cherokee Nation v. Georgia<\/a><\/em> (1831), the US Supreme Court found that the Cherokee Nation was a \u201cdomestic dependent nation\u201d with no standing to take action against the state of Georgia.[37]<\/a><\/sup><\/p>\n\n\n\n

    In Worcester v Georgia<\/a><\/em> (1832), Marshall re-interpreted the doctrine of discovery. He stated that discovery did not give the discovering nation title to land, but only \u201cthe sole right of acquiring the soil and making settlements on it.\u201d This was a right of preemption which only applied between the colonizing powers and did not diminish the sovereignty of the indigenous inhabitants. \u201cIt regulated the right given by discovery among the European discoverers, but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man.\u201d[38]<\/a><\/sup><\/p>\n\n\n\n

    In five further cases decided between 1836 and 1842, Mitchel I<\/em>, Fernandez<\/em>, Clark<\/em>, Mitchel II<\/em>, and Martin<\/em>, the Supreme Court restored the rule in Johnson that discovery gave the discovering nation ultimate title to land, subject to a right of occupancy held by indigenous peoples.[39]<\/a><\/sup><\/p>\n\n\n\n

    In Oliphant v. Suquamish Indian Tribe<\/a><\/em> (1979), the Supreme Court held that discovery deprived tribes of the right to prosecute non-Indians. In Duro v. Reina<\/a><\/em> (1990) the court held that tribes could not prosecute Indians who were not a member of the prosecuting tribe.[40]<\/a><\/sup> However in November 1990, the Indian Civil Rights Act<\/a> was amended by Congress to permit inter-tribal prosecutions.[41]<\/a><\/sup>[42]<\/a><\/sup><\/p>\n\n\n\n

    As of March 2023, the most recent time the doctrine was cited by the Supreme Court is in the 2005 case City of Sherrill v. Oneida Indian Nation of New York<\/a><\/em>, by Justice Ruth Bader Ginsburg<\/a> in the majority decision.[43]<\/a><\/sup><\/p>\n\n\n\n

    More at: https:\/\/en.wikipedia.org\/wiki\/Discovery_doctrine<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

    From Wikipedia, the free encyclopedia This article is about the discovery of land under public international law. For pre-trial phase of a lawsuit, see Discovery (law). PROPERTY LAW Part of the common law series TYPES Real propertyPersonal propertyCommunity propertyUnowned property ACQUISITION GiftAdverse possessionDeedConquestDiscoveryAccessionLost, mislaid, and abandoned propertyTreasure troveBailmentLicenseAlienation ESTATES IN LAND Allodial titleFee… Continue reading → <\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[1376],"_links":{"self":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/29710"}],"collection":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/comments?post=29710"}],"version-history":[{"count":1,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/29710\/revisions"}],"predecessor-version":[{"id":29711,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/29710\/revisions\/29711"}],"wp:attachment":[{"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/media?parent=29710"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/categories?post=29710"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/tags?post=29710"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}