Seeing the Round Corners

February 12, 2018

ABRAHAM LINCOLN AND THE AMERICAN INDIAN –

        THE DOCTORINE OF DISCOVERY

“Again, were we to inquire by what law or authority you set up a claim [to our land], I answer none! Your laws extend not into our country, nor ever did. You talk of the law of nature and the law of nations, and they are both against you.” – Corn Tassel (Cherokee) 1785

   That quote was vocalized in 1785. With the American Indian’s respect for Mother Earth and way of life being to do no harm, it brings to mind these questions:

• How different would the world have been if the American Indian had been explorers and went about the world seeking to impose their peaceful way of life and respect for Mother Earth on countries throughout the world? The American Indian’s lack of “owning” man and the land as the white man was so obsessed with doing, was unknown to the Europeans.
• Here is maybe the deepest of questions – How can two races of human beings so different as the American Indians and Europeans were when America was discovered (they did not know each other existed)?

  Once America was discovered, the Doctrine of Discovery, a “theological fiction produced in the 1400s,” was “later transformed into a political fiction by European heads of state, and then into a legal fiction by U. S. Supreme Court Chief Justice John Marshall in 1823.”

Readers should keep in mind Francisco de Vitoria, a prominent theologian’s advice to Charles V, the devoutly religious Spanish emperor. 

The Doctrine of Discovery by Pope Alexander VI’s 1493 Papal Bull gave Spain exclusive interests in the Americas, but protests by Portugal lead to somewhat of a revision dividing (partitioning) the Western  hemisphere between Spain and Portugal, and ignoring the territorial rights of existing American Indians in the process.

Only 50 years after the Papal Bull by Pope Alexander VI (1493), Vitoria declared to Charles V in a clear rebuttal to the Pope and discovery notion, “that Native Peoples were the true owners of their lands. He reasoned the Spanish could not claim title through discovery because this action could only be justified where property was ownerless.” (writer’s emphasis added)

As further modern-day credibility to Vitoria’s statement, Felix Cohen, a leading architect on federal Indian law, wrote in his well-known Handbook on Federal Indian Law (1941), “even the Pope has no right to partition the property of the Indians, and in the absence of a just war, only the voluntary consent of the aborigines could justify the annexation of their territory.”(writer’s emphasis added)

Professor David E. Wilkins (Lumbee tribe), who holds the McKnight Presidential Professorship in American Indian Studies at the University of Minnesota, writes, “So, in fact the original no-holds barred papal doctrine of the discovery was discarded early on in favor of Vitoria’s view of indigenous property rights. Subsequent legal and political relations between Native nations and competing European powers over the following three centuries were generally based on this philosophical understanding of Natives as true landowners.”

Treaty making between tribal nations and Europeans, and later the U. S. government affirmed that Native peoples were recognized as land-owning nations on par with any other political powers.

As present-day readers are seeing over and over, it has become the in-thing to re-write history to serve various purposes depending on who is doing the re-writing. The downright deletion of the American Indians from historical accounts totally misrepresents, revises, and many times falsifies neo-colonial history.

The Doctrine of Discovery that started out as a theological fiction, later transformed into a political fiction by European heads of state, has lead to oppressive legal decisions according to Professor Wilkins.

Consider this very significant statement by Professor Wilkins:  “Had Pope Alexander’s original sweeping decree of unlimited Christian domination held sway, there would have been no reason for colonizers to bother with treaties.” “. . . the historical record, both written and oral, shows that legal ownership remained with tribal nations.”

Next week, more about the Doctrine of Discovery.

The reader's comments or questions are always welcome. E-mail me at doris@dorisbeaver.com.