Steven Newcomb: The religious basis of Doctrine of Discovery

In his brilliant book The American Indian in Western Legal Thought (1990) Robert A. Williams says that Chief Justice John Marshall and the other justices of the U.S. Supreme Court “were well aware of the historical paternity of this bastardized” (illegitimate) doctrine of discovery. Williams quotes Chief Justice Marshall’s good friend Justice Joseph Story as saying European nations claimed on the basis of that doctrine: "an absolute dominion over the whole territories afterwards occupied by them, not in virtue of any conquest of, or cession by, the Indian natives, but as a right acquired by discovery."

The title of the Indians was not treated as a right of property and dominion, but as a mere right of occupancy.

After informing his readers of Story’s view that colonizers claimed “an absolute dominion” as “a right acquired by discovery,” Williams could have asked: “What was the rationale for treating the title of the Indians as not being a right of property and dominion, but as a mere right of occupancy?” An accurate answer, using Justice Story’s own religious wording, is this: “The reason why the title of the Indians was treated as ‘a mere right of occupancy,’ and not as a right of property and dominion, is because the Christians were controlling the terms of the discussion by classifying the Indians as ‘infidels, heathens, and savages’.” Christians claimed the power to allow or disallow non-Christians “to possess the prerogatives belonging to absolute, sovereign, and independent nations.” They made this presumption on the basis of their claim of what Chief Justice Marshall called “an ascendancy,” which is defined as “controlling or governing power : domination.”

What is missing from Williams account is a follow up on Story’s explicit and bigoted religious language, or on Story’s specific acknowledgment that the claim of “absolute dominion” was not a claim made “in virtue of any conquest.”