discovery

What happened

In Johnson v. M'Intosh (1823), Chief Justice Marshall wrote for the Supreme Court that the European powers had adopted a principle "that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments." The discovering nation, he said, gained "the sole right of acquiring the soil from the natives." Native peoples were left with a right of occupancy, and Marshall wrote that their "power to dispose of the soil at their own will, to whomsoever they pleased, was denied."

The Court has repeated the doctrine in later cases. In City of Sherrill v. Oneida Indian Nation (2005), it explained that under the doctrine of discovery, "fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign — first the discovering European nation and later the original States and the United States."

The doctrine has also been criticized outside the courts. In March 2023, two offices of the Holy See issued a joint statement. It said that the "doctrine of discovery" is "not part of the teaching of the Catholic Church," and that "the Catholic Church therefore repudiates those concepts that fail to recognize the inherent human rights of indigenous peoples." The statement did not address U.S. law.

The doctrine's role in federal law today runs through the related rules of aboriginal title and the Nonintercourse Act.

Good to know. The Vatican's 2023 statement is a religious body's statement, not a change in U.S. law.

Summarized with AI assistance from 4 sources and checked against their words; not yet reviewed by historians or by the nations. Report an error