David Wilkins: Abandon the Doctrine of Discovery in Indian law

David E. Wilkins

Professor David E. Wilkins deconstructs the Doctrine of Christian Discovery:
There’s been a lot of talk lately about the so-called Doctrine of Discovery, originally a theological fiction produced in the 1400s, 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. Today it has been dangerously repurposed as popular fiction that serves to revise neo-colonial history, fuel oppressive legal decisions, and assuage majority culture guilt. Left unchallenged, the myths generated pose grave threats to our identities as peoples with inalienable sovereign rights to governance and territory.

Without question the doctrine of discovery is one of the most important tenets of federal Indian law, working in tandem with several other doctrines--trust, plenary power, and reserved rights—to provide the ambiguous and uneven political framework for modern day Indigenous/State relationships. Notwithstanding its general acceptance, the concept has been so misused to distort perceptions of past and present oppression that it should be stricken from the federal government’s political and legal vocabulary.

Discovery, as originally conceived in Pope Alexander VI’s 1493 papal bull, granted the Spanish exclusive interests in the Americas. When Portugal petitioned for a share of the spoils the following year the Treaty of Tordesillas granted both countries the authority to divide much of the Western hemisphere between them and to ignore the territorial rights of existing Native nations in the process. This sanctified division is what most people remember about the doctrine.

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David Wilkins: Deconstructing the Doctrine of Discovery (Indian Country Today 10/24)

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