A portrait of Pope Francis, the current leader of the Roman Catholic Church, in France. Photo: Thierry Ehrmann

Opinion

Doug George-Kanentiio: Religious doctrines remain at root of 'Indian' law

Wednesday, July 19, 2017

The Doctrines of Discovery -- There are Many

By Doug George-Kanentiio

At the Akwesasne Indigenous Foundation Education gathering on June 28-29 the subjects of how and why the Europeans came to justify the theft of the western hemisphere were discussed.

During my presentation I spoke as to the origins of domination, subjugation and oppression came about. How did the Europeans who came into contact with the Natives of the west rationalize their claims to the land and their right to control its peoples? Where are the roots of colonialism and how does it affect our lives at this time and upon Mohawk territory?

This topic which is all important to our history is not a part of the formal educational curriculum in any of our schools. It is not taught in any "American Indian" law course that I know of but it is something which needs to be understood if it is to be removed.

When Europeans began their various sea faring ventures off the coast of their homelands they had to first make use of navigation technologies which enabled sailors to travel beyond the sight of land. Compasses were invented in China and brought to the west which meant that distance and position could be determined with improved accuracy. Adding more sails and improving the designs of the ships gave additional speed to the vessels while making them more seaworthy. Changes in the social and political structure of Europe resulting from the Black Plague meant the demise of feudalism and the centralization of economic and administrative power within a central state ruled by monarchs and a small class of nobility. With this came the resources necessary to expand trade and build ships which were able to carry large cargoes of goods.

The Portuguese were the first Europeans after the ancient Phoenicians to leave the shorelines and sail to the south and west along the coast of Africa. They landed at two clusters of islands to the west of Africa, Cape Verde and the Azores land clusters. These islands provided necessary water and food for the Portuguese as to continued south in search of gold and African slaves. The Azores lie due west of Portugal and Spain; they are actually closed to Nova Scotia than Africa. The ocean currents which flow past the islands are circular in nature and provide an easy channel for ships to reach the western hemisphere, a fact used by Cristobal Colon on his voyage west in August of 1492.

The Portuguese were more concerned with their African trade and, later, protecting their monopoly on the sea routes to India and Asia. Yet they were faced with the question as to the status of the lands they saw and the people who lived in regions previously unknown to the Europeans.

Appeals were made to the Papacy to give Portugal a legal means to engage in slavery and to take land they claimed to have discovered. Pope Nicholas V gave them the cover they needed. On June 18, 1452 he issued a papal bull called Dum Diversas which decreed that slavery was justified along with perpetual servitude because the Africans were pagans and therefore enemies of Christ. This allowed the Protuguese king Alfonso V to used physical force to defeat these enemies and to confiscate their lands.

The Pope reached back into Roman law to form the basis for his decision. The Romans wanted to codify their taking of lands from other people as they believed such thefts required popular approval and the support of their allies which could only be obtained if such actions had justification.

The Romans created the legal theories of ius gentium, ius inter gentes and foedera pacis to form what they called natural law. This required the Romans to follow a set of procedures before engaging in jus ad bellum-just war-to get what they wanted. According to them any group of people could be attacked if they refused to acknowledge the supremacy of Rome and thereby defy the will of Jupiter. To begin war a priest called the fetial would stand at the border of a nation and demand its concession to Roman rule. It did not matter if the people understood Latin. Should they refuse than war commenced and if they lost they were enslaved and their property confiscated.

The Romans would also declare the coveted lands “territorium nullius” (empty lands) and “vacuum domicilium” (empty domicile)-since their opponents were not fully human the places they occupied were open to colonization.

The popes followed the Roman example. Pagans existed outside of the Church and were therefore a danger to its teachings. By the will of the Christian god they could be converted but would always be in a place of submission. Since pagans were not Christian they did not understand the rituals and customs of the Church and those regents who were its agents on earth, hence they were as children and had no rights to the land beyond their surface needs.

The Dum Diversas was affirmed in 1456 which also gave the Portuguese the exclusive right to control all trade along the African coast and would ultimately form the basis for that nation’s claim to oversee all travel by sea to India and southeast Asia. The colonies of Mozambique and Madagascar were established by Portugal using this basis.

In 1454 Pope Nicholas issued the bull Romanus Ponifex which further solidified Portuguese dominion over most of western Africa. Now that Portugal had this “right” the Spaniards elected to avoid confrontation by using wealth stolen from the Jews and Muslims (Saracens) by financing the expedition of Colon who provided King Ferdinand and Queen Isabella with evidence that if he sailed west he could bypass the Portuguese and reach Asia.

Upon his return to Spain Colon went to Barcelona where he presented Isabella with enslaved Natives, exotic birds and enough gold to warrant a return to the Bahamas. As did Alonso the Spanish monarchs appealed to Pope Alexander VI, the notorious Rodrigo Borgia (1431-1503), a native of Valencia in Aragon, Spain.

Borgia was elected pope in August, 1492 just as Colon was fitting his three ships in the Spanish port of Palos de la Frontera-the same place where Jews were being expelled to North Africa.

Alexander was beholden to the Spanish crown who used bribes to facilitate his election. Since he was held by the provisions of the papacy’s previous rulings he issued his own beginning with the Inter Caetera on May 3, 1493 and the Eximiae Devontionis the next day.

Both papal bulls gave the Spaniards possession of all lands unoccupied by pagans 100 leagues west of the Azores. This was followed by the Dudum Siquidem in September of 1493 which declared all islands and mainlands as belonging to whichever European Christian power ‘discovered’ them first.

In order to prevent war based on these ‘discoveries’ Alexander oversaw the 1494 Treaty of Tordesillas which placed the line of demarcation between Portugal and Spain 370 leagues west of the Azores. This line went around the earth and would later impact the Spanish conquest of the Phillipines and the Portuguese entry into Japan. Modifications in Tordesillas were made by the bull Praecelsae Devotonis in 1514 and the 1529 Treaty of Zaragoza.

Together, the papal bulls and Roman laws constitute the Doctrines of Discovery.

When the Spaniards sought to justify its brutal treatment of Native people when it adopted the Roman bellum iustrum (just war).

Using what it called the Requiremento (requirement) in which a Catholic priest would stand at the border of a native nation, or even remain on board a ship, and demand the indigenous people acknowledge the Catholic Church and the jurisdiction of the Christian monarchs who found them living in a state of perpetual sin.

As the Romans the Spaniards forced the Natives to live on reserved lands and to labor under servitude to their lords. The lands and labors were referred to as the “encomienda” system which became, under U.S. and Canadian laws, the reservation-reserve system which Natives as infantile and therefore “wards” of the European sovereign.

All European powers based their colonial policies on the edicts of Nicholas V and Alexander VI even when the Protestant Reformation took place in large part because of the excesses of the Borgia pope.

These doctrines has become codified in U.S. and Canadian statutes cited over the past two hundred years to rationalize the taking of Natives lands, the forcible relocation of millions of people, the creation of the residential school system and the imposition of band and tribal councils to replace traditional governance.

Millions have died because of the doctrines and while there is a movement for their repeal they remain as the root of all contemporary “Indian” law.

Doug George-Kanentiio,Akwesasne Mohawk, is the vice-president of the Hiawatha Institute for Indigenous Knowledge. He has served as a Trustee for the National Museum of the American Indian, is a former land claims negotiator for the Mohawk Nation and is the author of numerous books and articles about the Mohawk people. He may be reached via e-mail at: Kanentiio@aol.com or by calling 315-415-7288.