On March 30, 2023, the Vatican officially repudiated its Doctrine of Discovery. For more than 500 years, European colonialism used the Doctrine of Discovery to justify taking Native American lands and natural resources. In its simplest terms, the Doctrine of Discovery held that European or Christian nations had an exclusive right to extinguish the title to Native lands solely by virtue of being the first European nation to “discover” those lands.
In its statement, the Vatican acknowledged that several papal bulls, the Dum Diversas (1452), Romanus Pontifex (1455), and Inter Caetera (1493), have been used as the foundation for the Doctrine of Discovery. The Vatican went on to say that the “Catholic Church . . . repudiates those concepts that fail to recognize the inherent human rights of indigenous peoples, including what has become known as the ‘doctrine of discovery.’”
The Vatican’s Joint Statement of the Dicasteries for Culture and Education for Promoting Integral Human Development on the “Doctrine of Discovery” can be found here.
Notably, the Vatican distanced itself from the implementation of the Doctrine of Discovery. The Vatican stated that the “’doctrine of discovery’ is not part of the teaching of the Catholic Church.” And the “papal documents in question, written in a specific historical period and linked to political questions, have never been considered expressions of the Catholic faith.”
Despite these claims, the papal bulls and the Doctrine of Discovery had devasting impacts on Native Americans. The Doctrine of Discovery was central to the foundation of federal Indian law. In a series of decisions from 1823 to 1832 known as the Marshall Trilogy, the U.S. Supreme Court justified the taking of Indian lands and resources through the Doctrine of Discovery. The Doctrine of Discovery was also used in these decisions to justify the diminishment of tribal sovereignty as a consequence of “discovery,” labeling Tribes as “domestic dependent nations.”
These decisions provided a basis for the federal government to take property rights from tribes and gain sovereign governmental authority over Indian people without their consent. The Supreme Court recognized that “the Constitution does not dictate the metes and bounds of tribal autonomy,” and so instead, the Court relied on the Doctrine of Discovery to justify its holdings and early precedent that tribes only retained limited sovereignty and that Congress had plenary power over tribes. The repudiation of the Doctrine of Discovery brings the very foundation of federal Indian law cases into question.
For example, the Doctrine of Discovery is the basis for the legal precedent of the United States annexing Tribal territory and diminishing Indian property rights to mere occupancy. In 1823, in Johnson v. McIntosh, Chief Justice John Marshall relied on the Doctrine of Discovery to hold that land transfers from Native Americans to private individuals were void because tribes only had the right to live on the land and could not transfer the land, because title to the land had been transferred to the United States upon discovery. As recently as 2005, in City of Sherrill v. Oneida Indian Nation of New York, the Supreme Court again relied on the Doctrine of Discovery to justify its holding.
Supreme Court opinions limiting the scope of tribal criminal and civil regulatory and adjudicatory jurisdiction within tribal borders have also focused on the limited sovereignty of tribes as a result of the Doctrine of Discovery. The Supreme Court has consistently held that Tribes lack the inherent authority and jurisdiction to address crime and regulate business conducted within their territory because of the “overriding sovereignty” of the United States.
The Doctrine of Discovery further reflected the European belief that Native Americans were uncivilized and that their discoverer should bring civilized forms of living, education, and religion to the Native people. This paternalistic, ethnocentric, and racist view was the basis for Indian boarding schools, suppression of Indian culture and religion, and many federal policies that had devastating impacts on Tribes and Native individuals.
The Vatican’s repudiation of the flawed concept of the Doctrine Discovery calls into question the foundation of federal Indian law cases in the United States. The door is now open to challenge this precedent and instead emphasize the countless treaties, land transactions, and statutes recognizing tribal self-government and the nation-to-nation relationship that exists with the Federal and state governments.
For example, in 1832, in Worcester v. Georgia, the Supreme Court held that tribes retain “their original natural rights as the undisputed possessors of the soil from time immemorial.” If the Doctrine of Discovery no longer stands, then perhaps this and other holdings in these early cases could be used to shift the analysis in federal Indian law. Repudiating the Doctrine of Discovery could be used to reformulate federal Indian law and policy so that it fairly and accurately depicts the inherent sovereignty of Indian tribes and sets the stage for a fair and equitable basis for tribal government’s political relations with state and federal governments.
Patterson Earnhart Real Bird & Wilson LLP is dedicated to the representation of American Indian tribes, tribal entities, and individual Indians across the United States. Our mission is to support and advance the sovereignty, self-sufficiency, and self-governance of our tribal clients. To learn more about how we can assist your tribe, contact our Colorado office at (303) 926-5292.