1.2 European Doctrines of Discovery and Conquest

European doctrines of discovery and conquest shaped early American Indian law. These ideas, rooted in papal decrees and treaties, gave Christian nations the right to claim "discovered" lands and ignore indigenous rights.

The Marshall Trilogy, three Supreme Court cases, cemented these concepts in U.S. law. They established tribes as "domestic dependent nations" under federal control, setting the stage for ongoing legal and political challenges.

Origins of European Doctrines

Papal Bulls and Treaty of Tordesillas

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• The Doctrine of Discovery originated in a series of Papal Bulls (official decrees from the Pope) issued in the 15th century, which gave Christian explorers the right to claim lands they "discovered" and lay claim to those lands for their Christian monarchs
• These Bulls played a central role in the Spanish conquest of the New World and in the Portuguese conquest of Brazil (Treaty of Tordesillas in 1494)
• The Treaty of Tordesillas divided the New World lands between Portugal and Spain along a north-south meridian 370 leagues west of the Cape Verde islands, granting Spain all lands to the west and Portugal all lands to the east
• This treaty solidified the Doctrine of Discovery that had been established by earlier Papal Bulls and granted these nations exclusive rights to colonize and exploit the specified regions

Terra Nullius and Aboriginal Title

• The Doctrine of Discovery was used in conjunction with the concept of terra nullius (land belonging to no one) to justify European claims to indigenous lands
• Europeans considered land that was not occupied by Christians as terra nullius and open to claims of ownership and sovereign rights by Christian rulers
• This concept was used to negate any pre-existing rights of the indigenous inhabitants and to justify the acquisition of territory through mere discovery
• The U.S. Supreme Court case Johnson v. M'Intosh (1823) established the principle that private citizens could not purchase lands from Native Americans, as the Doctrine of Discovery had given the U.S. government ultimate title to these lands
• The case also defined the concept of Aboriginal title, declaring that Native Americans had a right to occupy lands but could not hold true title to the land

U.S. Supreme Court Decisions

The Marshall Trilogy

• The Marshall Trilogy refers to three U.S. Supreme Court decisions written by Chief Justice John Marshall in the early 19th century that established foundational principles of federal Indian law
• Johnson v. M'Intosh (1823) was the first case in this series, which held that private citizens could not purchase lands from Native Americans as the U.S. government had ultimate title to the land under the Doctrine of Discovery
• Cherokee Nation v. Georgia (1831) was the second case, which ruled that Native American tribes were not foreign nations but rather "domestic dependent nations" under the sovereignty and dominion of the U.S. government
• Worcester v. Georgia (1832) was the third case, which held that the state of Georgia could not impose its laws on Cherokee tribal lands as the Constitution gives Congress, not the states, authority over Indian affairs

Plenary Power Doctrine

• The Marshall Trilogy cases, particularly Cherokee Nation v. Georgia, laid the groundwork for the plenary power doctrine in federal Indian law
• Under this doctrine, Congress has broad, virtually unlimited power over Native American tribes, who are considered "wards" under the "guardianship" of the federal government
• This paternalistic doctrine asserts that the federal government has both exclusive and unlimited power to legislate on matters affecting the Native American tribes
• The plenary power doctrine has been used to justify Congressional actions that have adversely affected Native American interests, such as the allotment and sale of tribal lands or the termination of tribal status

Justifications and Consequences

Manifest Destiny and Colonialism

• Manifest Destiny was a 19th-century belief that the expansion of the United States across the American continent was inevitable, justified, and divinely ordained
• This ideology was used to rationalize the forced removal of Native American tribes from their ancestral lands and the acquisition of territory through treaties or military conquest
• Manifest Destiny was closely tied to colonialism, a system of control and exploitation by which a central power dominates a territory and its population, often imposing its own culture, religion, and legal systems
• The Doctrine of Discovery and the concept of terra nullius were used as legal and moral justifications for colonial expansion and the dispossession of indigenous peoples

Imperialism and Sovereignty

• Imperialism, the policy of extending a country's power and influence through colonization or other means, was a driving force behind the European conquest of the Americas and the subjugation of Native American tribes
• The Doctrine of Discovery and the Marshall Trilogy cases were used to legitimize U.S. imperialism and to assert U.S. sovereignty over Native American lands and peoples
• Sovereignty refers to the supreme power or authority of a state to govern itself and to control its own affairs, both internally and in its relationships with other states
• The Marshall Trilogy cases, particularly Cherokee Nation v. Georgia, undermined Native American sovereignty by declaring tribes to be "domestic dependent nations" under the dominion of the U.S. government rather than fully sovereign entities

Trust Responsibility

• The trust responsibility is a legal and moral obligation of the U.S. government to protect Native American rights, assets, resources, and lands, which stems from the Marshall Trilogy cases and the notion of tribes as "wards" under federal "guardianship"
• This responsibility arises from the treaties, statutes, and court decisions that have defined the relationship between the federal government and Native American tribes
• The trust responsibility requires the federal government to act in the best interests of the tribes, to defend their rights, and to fulfill its treaty obligations
• However, the trust relationship has often been used to justify paternalistic and coercive policies, such as the allotment of tribal lands or the suppression of traditional religious practices, under the guise of protecting Native American interests