E’ECATL

El Viento de Aztlan

Tribuna Política

Tlacatenco Julio Atenco Vidal

atencoguerra2@yahoo.com.mx

WHAT INDEPENDENCE SHALL THE INDIGENOUS PEOPLES CELEBRATE IN MEXICO?

Part I

The commemoration of the bicentennial of the Independence of Mexico is an excellent new opportunity for the Indigenous Peoples, millennial inhabitants of the territory that is now called Mexico, to review our place in terms of our social and political conditions in relation to the country as a whole.  It is an opportunity for all Mexicans and the national Mexican State to conscientiously revise before the entire nation the character of the social and political relationships that have been imposed upon the Tribes and Original Nations of Mexico.  It is a new opportunity to act accordingly.

Are the Indigenous Peoples an organic part of the Mexican nation?

In 1993 I did an analysis on the Human Rights and the living conditions of our Indigenous Peoples in the Sierra de Zongolica, Veracruz.  My interlocutor was from a foreign Nongovernmental Organization. She told me that at first she believed me, but deep down she really questioned whether my reporting was objective or was it exaggeration.  To my dismay she explained that at the time an international event was occurring in Belgium where the government of Mexico had mounted a booth with presentations of cultural elements from different regions of the country. Highlighting the presentations was the presence of human subjects in the traditional dress of indigenous Mexicans and that the question of living conditions in their villages and the relationship with the national government drew a response which painted a benevolent national government and Indigenous Peoples as satisfied and happy.  Mexico and "their indigenous people" were well on the way into the first world.

There have been numerous and enormous efforts by the National Indigenous Movement to make known to all Mexicans and the world at large the truths of reality: the conditions of oppression, domination, segregation and poverty endured by our Indigenous Peoples of Mexico and our struggle for a just change, yet these have been insufficient to overcome the state media propaganda.

The EZLN armed uprising in January 1994 tore a gash into the monopoly over the truth by the State exposing its corrupt government. The intelligent media management by the armed struggle in Chiapas tore off the gag order imposed by the Government on the mass media, and the presence of international media finally confirmed that the Mexican Government was a liar and a cheat.  Such events, by extension vindicated the denunciations by indigenous representatives both inside and outside of the country, as we condemned historical injustices and engaged in democratic struggle for our liberation.  The EZLN, constituted by an indigenous majority, was not an ethnic movement but their uprising eventually linked the principal elements of the national indigenous movement.  For this reason, we happily accepted to serve as advisers during the Dialogues of St. Andres in October 1995.

Paradoxically, it must be acknowledged that it was President Carlos Salinas de Gortari who initiated the process of recognition of the existence of Indigenous Peoples in Mexico. In 1991 he agreed to sign Convention 169 of the International Labor Organization on Indigenous and Tribal Peoples (1989).  This Convention was the first international instrument in history that established certain rights of the Indigenous Peoples within the Nation State of Mexico, and was binding - that is to say: it was Law.

Without dwelling on the conceptual and legal limitations of the Convention, many of us saw the hope of ILO Convention 169 like a solitary piece of wood floating on the ocean. The content of 169 included the concept of fundamental indigenous rights, such as the right to Consultation which has served much to the good for our people.

But when Salinas sent the Convention to the Senate for ratification, it was revealed that Convention 169 was inconsistent with our national Constitution by being an instrument to protect certain rights of Indigenous Peoples, whose legal existence as Indigenous Peoples was entirely absent in the Mexican Federal Constitution.  Was this simply  "historical neglect”?  No, it instead reflected the institution of conscious political decisions instituted historically by the Mexican political establishment.

In the early nineteenth century 8 out of 10 Mexicans were speakers of an indigenous language. Nevertheless, throughout the preparations for the insurrection in the late eighteenth century until the completion of the process of independence of Mexico from Spain, the insurgents had employed the “Indians” only as shock troops, or foot soldiers at most.  Influenced by French liberal ideology and even doctrines of Spanish monarchy, the rebels never thought of a proposing multi-ethnic nation.  To we “Indians” independence produced a change in masters, and the promise of the return of some land but never were we integrated as part of the new state.  We were never offered recognition as human beings.

With the completion of the project of independence, the few surviving insurgents (a few acculturated, others isolated) and most being Hispanic Criollo and Spanish independents, both openly colonialists, consciously decided to exclude the Indigenous Peoples, Tribes and Original Nations from their national project.  The overwhelming majority of political leaders of the time shielded themselves within an idyllic liberal notion of a Unitary national project, under the liberal slogan that all would be equal before the law and so denominated all of the inhabitants of the territory as generic Mexican nationals. Thus, with the swoop of a pen, the new Mexicans banned politically the Indigenous Peoples of Mexico as collective constituents of Tribes and Original Nations of Indigenous Peoples.

President Salinas wanted to be in tune with the developed world and was so loose with his supposed popularity that he pretended to respond to the demands of the national indigenous movement and simultaneously played as the role of statesman benefactor before the first world (promoting a seat for Mexico in the World Trade Organization and even leadership of the organization).  This then resulted in the conditions of that allowed promoting constitutional change that would be created in the adoption of Article 4.  This article of the amended Mexican Constitution would not confer any rights, but would for the first time recognize the existence in Mexico of the Indigenous Peoples as the original sustenance of the Mexican nation.  I emphasize once again the Mexican Republic was constituted originally with an 80% indigenous population and only 20% of the population that was not indigenous. Thus, since 1992, Convention 169 was already established as national law, its ranking being less than the Federal Constitution, at the same level of federal laws, but higher than local constitutions.

After 182 years finally Indigenous Peoples were MENTIONED in the fundamental Law of Mexico, yet WITHOUT A SINGLE LEGAL RIGHT but simply recognition was given to the existence of these groups called Indigenous Peoples (Pueblos Indigenas) that IN THE PAST were the SUSTENANCE of the formation of the Mexican nation.

This strategy of the state whose intent in 1992 sought to reduce us to entities of the past and merely folkloric elements that would serve to clothe our mysticism and values onto the Mexican nation vanished at the conjuncture in 1994 with the armed uprising of the “Indios” of Chiapas. The Republic of Mexican States did not carry the Indigenous Peoples in their soul; they had them under their feet, as oppressed subjects.

Beginning in 1995 with the conjunction of the EZLN and the national indigenous movement that gave body to the Accords of San Andrés, the Indigenous Peoples of the Mexican nation continue to make evident that we remain strangers in our own land; we are excluded from the Mexican state; of its institutions and its public policy, that there is a historic policy of segregation and ethnocide via extreme impoverishment and acculturation that forces us to stop being indigenous in order to be Mexican. 

We demand before the entire nation a new Federal Pact that establishes full recognition of our autonomous rights as Indigenous Peoples, original societies that continue to exist historically and culturally differentiated.  In short, the Indigenous Peoples provide the revelation of one of Mexico's great national problems that must be resolved so that we may truly be Mexicanos, living in peace - and with something to actually celebrate.

###

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E/C.19/2010/13 Impact on Indigenous Peoples of the International Legal construct known as the Doctrine of Discovery, which has served as the Foundation of the Violation of their Human Rights

http://www.un.org/esa/socdev/unpfii/en/session_ninth.html

Permanent Forum on Indigenous Issues

Ninth session

New York, 19 - 30 April 2010

Item 4 and 7 of the provisional agenda

Impact on Indigenous Peoples of the International Legal construct known as the Doctrine of Discovery, which has served as the Foundation of the Violation of their Human Rights[1]

A Preliminary Study submitted by Tonya Gonnella Frichner, Special Rapporteur

Table of Contents

I.            Introduction…………………………………………………………………………3

II.            Future Work on the Global Scope of the Doctrine of Discovery.............................. 4

III.            Global Scope and History of the Doctrine of Discovery............................................

IV.            The Framework of Dominance...................................................................................

V.            The Doctrine of Discovery and the USA....................................................................

VI.            Terra Nullius, Terra Nullius, and Johnson v. M’Intosh...............................................

VII.            The Doctrine of Discovery in Contemporary Times..................................................

VIII.            Conclusion..................................................................................................................

IX.            Recommendation........................................................................................................

Annex……………………………………………………………………………………….

“We maintain, that the principle declared in the fifteenth century as the law of Christendom, that discovery gave title to assume sovereignty over, and to govern the unconverted natives of Africa, Asia, and North and South America, has been recognized as a part of the national law [Law of Nations], for nearly four centuries, and that it is now so recognized by every Christian power, in its political department and its judicial.” Judge John Catron for the Supreme Court of Tennessee in the case State v. Foreman[3] (USA)

I.            Introduction:

1. The UN Permanent Forum on Indigenous Issues has a mandate to discuss issues related to indigenous “economic and social development, culture, the environment, education, health and human rights.” This preliminary study will examine the impact on indigenous peoples of the international legal construct known as the Doctrine of Discovery, which has served as the foundation of the violation of their human rights.

2. Part of the objective of this preliminary study is to draw attention to differences in world view between indigenous peoples and state actors, with the understanding that focusing on those differences will be conducive to further dialogue and clearer communication between them.

3. The UN Declaration on the Rights of Indigenous Peoples (Declaration) is the product of efforts spanning three decades.[4] The Declaration addresses human rights grievances and other concerns that indigenous peoples’ representatives have brought to the international arena since the early 1900’s, during the days of the League of Nations in Geneva, Switzerland. The adoption of the Declaration presents the opportunity to clearly identify what lies at the root of those grievances and concerns, namely, the historic tendency of state actors to assert a sovereign dominant authority over indigenous peoples, based on claims to and assertions of ultimate or superior title to indigenous peoples' lands, territories, and resources. This paper demonstrates that the Doctrine of Discovery lies at the root of such claims and assertions of dominance by states.

II.            Future Work on the Global Scope of the Doctrine of Discovery

4. The extent to which the Doctrine of Discovery and the Framework of Dominance[5] have been applied in case law and policy in regions Africa, Asia, Central and South America will need to be thoroughly investigated and addressed as a follow up to this preliminary study. As countries that emerged from the imperial and colonial history of the British crown, Canada, New Zealand, and Australia will also need to be made part of any future study. We fully recognize and appreciate that our indigenous brothers and sisters are dealing with the impacts of the Doctrine of Discovery and the Framework of Dominance in their geographical regions. However, given the limited constraints of a preliminary study, our focus has been primarily on USA federal Indian law. This preliminary study is intended to serve as a model that sets forth a direction for future research in other regions of the world. Future study will be required to address the seven official regions as set forth by the Permanent Forum. USA federal Indian law, which has been referenced in case law in other countries of the world,[6] is treated in this preliminary study as a prototypical example of the application of the Doctrine of Discovery and the dominance framework.

III.            Global Scope and History of the Discovery of Discovery           

5. What is now called “international law” was previously known as the Law of Nations.[7] In the late nineteenth century, for example, international law scholar Thomas Erskine Holland referred to the law of nations as “the law of Christendom; as little applicable to infidels as was the ‘common law’ of the Greek cities...to societies of barbarians.”[8] In 1835, Judge John Catron (1786-1865), while seated on the Supreme Court of the State of Tennessee (USA),[9] officially identified “a principle” as part of “the law of Christendom,” specifically, “that discovery gave title to assume sovereignty over, and to govern the unconverted [non-Christian] peoples of Africa, Asia, and North and South America.”[10] Catron declared that this principle had been recognized as a part of the Law of Nations “for nearly four centuries, and that it is now so recognized by every Christian power, in its political department and its judicial.”[11]

6. This preliminary study establishes that the terminology of early international law, such as “Christendom” and “every Christian power,”[12]  is in keeping with terminology found in key documents from the fifteenth and later centuries. The Doctrine of Discovery is more accurately termed the Doctrine of Christian Discovery.

7. Judge Catron’s mention of “four centuries” prior to his era, points back to the mid-fifteenth century, the time of numerous documents issued from the Vatican by the Holy See, notably the papal bulls Dum diversas and Romanus Pontifex.[13] Those decrees are part of the record of the genesis of competing claims by Christian monarchies and states in Europe to a right of conquest, sovereignty, and dominance over non-Christian peoples, along with their lands, territories, and resources during the so-called Age of Discovery.[14]

8. In 1917, the Carnegie Institution published Frances Gardiner Davenport's, “European Treaties bearing on the History of the United States and its Dependencies” to 1648,”[15] “European Treaties,” provides insight into the semantics of so-called discovery, and an international Framework of Dominance to which indigenous peoples have been and are still being subjected, in violation of their individual and collective human rights. [16] As we shall demonstrate, the category “newly discovered lands” includes the lands of indigenous peoples categorized at that time by various Christian powers of Europe[17] as non-Christians, for example, “heathens,” “pagans,” “gentiles,” and “infidels”[18]

9. The papal bull[19] Romanus pontifex, issued in 1455, serves as a starting point to understand the Doctrine of Discovery, specifically, the historic efforts by Christian monarchies and states of Europe in the fifteenth and later centuries to assume and exert conquest rights and dominance over non-Christian indigenous peoples in order to take over and profit from their lands and territories. The overall purpose of these efforts was to accumulate wealth by engaging in unlimited resource extraction, particularly mining, within the traditional territories of indigenous nations and peoples. The text of Roman Pontifex is illustrative of the doctrine or right of discovery. Centuries of destruction and ethnocide, and resulted from the application of the Doctrine of Discovery and framework of dominance to indigenous peoples, and to their lands, territories, and resources.[20]

10. Written by Pietro da Noceto, private secretary and confidant of Pope Nicolas V, the decree Romanus Pontifex begins by saying that the document was issued for “a perpetual remembrance.” It was to be remembered, in other words, in perpetuity.[21] The Roman pontiff was said to be empowered to ordain and dispose of “those things which he sees will be agreeable to the Divine Majesty and by which he may bring the sheep entrusted to him by God into the single divine fold, and may acquire for them the reward of eternal felicity, and obtain pardon for their souls.”[22] This language is suggestive of religious conversion, and the document goes on to reveal the Framework of Dominance to be applied to non-Christian lands previously unknown to Western Christendom.

11. That Romanus Pontifex constituted and projected into the world a Framework of Dominance, conversion, and violence is revealed by terms such as “vanquish.” The objectives of the Holy See and the Portuguese monarch were more likely to come to pass, said Pope Nicholas, “if we bestow suitable favors and special graces on those Catholic kings and princes, who...restrain the excesses of the Saracens and of other infidel enemies of the Christian name [and] ...vanquish…their kingdoms and habitations, though situated in the remotest parts unknown to us.”[23] The document praises vanquishing actions that “subject” non-Christians to the Catholic kings’ and princes’ “own temporal dominion, sparing no labor or expense.” Thus, the Holy See decreed a vanquishing violence to achieve dominance and control, as lords, over non-Christian peoples, and possession of their lands, territories, and resources.

12. Romanus Pontifex further demonstrates the Framework of Dominance with Pope Nicholas’ mention of Prince Henry of Portugal as a “true solder of Christ” who "would best perform his duty to God” if he “might...be able...to subdue certain gentile or pagan peoples... and to preach and cause to be preached to them the unknown but most sacred name of Christ.”[24] To endeavor to use violence and religious conversion to “subject” non-Christian peoples is to work toward their dominance and subjugation.

13. Portuguese ships, said the papal bull, had explored and taken possession of very many harbors, islands, and seas, eventually arriving at “the province of Guinuea [sic] [in western Africa]. As a result, the Portuguese had, “taken possession of some islands and harbors and the sea adjacent to that province.” Eventually, the Portuguese voyagers “came to the mouth of a certain great river commonly supposed to be the Nile.” They then waged war “for some years against the [gentile or pagan] peoples of those parts in the name of the said King Alfonso and of the infante.”[25]

14. Romanus Pontifex further explains that as a result of years of war, other islands in western Africa “were subdued and peacefully possessed” along “with the adjacent sea.” King Alfonso and Prince Henry had explored, “acquired and possessed such harbors, islands, and seas...as the true lords of them...” And, King Alfonso and Prince Henry had “ordained that none...should presume to sail to the said provinces or to trade in their ports or to fish in the sea” without their license, permission, and payment of tribute.[26] With the Holy See’s blessing and sanction, King Alfonso assumed a right of complete control as against “gentile or pagan” peoples, and over their lands, territories, and resources. Such presumptions or claims by potentates, states, and their successors, of a right to “grant,” “discover,” “subdue,” “acquire” and “possess,” and permanently control non-Christian indigenous peoples, along with their lands, territories, and resources, is what this preliminary study refers to as the Framework of Dominance.

15. Pope Nicholas authorized King Alfonso to assume and take control over non-Christian lands because the Holy See “had formerly by other letters of ours [e.g., in the bull Dum diversas of 1452][27] granted among other things free and ample faculty[28] to the aforesaid King Alfonso—to invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever, and other enemies of Christ wheresoever placed, and the kingdoms, dukedoms, principalities, dominions, possessions, and all movable and immovable goods whatsoever held and possessed by them and to reduce their persons to perpetual slavery, and to apply and appropriate to himself and his successors the kingdoms, dukedoms, counties, principalities, dominions, possessions, and goods, and [the right] to convert them [those things] to his and their use and profit...”[29] This “faculty” granted by the Holy See to King Alfonso to “apply and appropriate to himself “the kingdoms, dukedoms, principalities, dominions, possessions, and [all movable and immovable] goods, is a papal license for the forced taking of all indigenous lands and territories in the regions located, and to engage in unlimited resource extraction for the monarch’s “use and profit.”

In this context, the secular meaning of “convert” is “to appropriate dishonestly or illegally” that which belongs to another.”[30] To make the forced appropriation seem “lawful” and “right” Pope Nicholas declared that because the Apostolic See had previously issued the “faculty” to engage in such work, and because the king had thereby “secured the said faculty,” “the said King Alfonso...justly and lawfully has acquired and possessed, and doth possess, these islands, lands, harbors, and seas, and they do of right belong to...the said King Alfonso and his successors....”[31] (emphasis added).

16. Thus, Romanus Pontifex clearly illustrates the pattern of contemporary claims by states to rights of conquest and dominance with regard to indigenous peoples, their lands, territories, and natural resources. It is for this reason that the papal bull Romanus Pontifex serves as a powerful template illustrative of the Framework of Dominance that lies at the root of the violations of indigenous peoples’ human rights, both individual and collective.

17. As noted, the “right of conquest” granted by Pope Nicholas in Romanus Pontifex is made forever: “And by force of those and the present letters [papal bulls] of faculty the acquisitions already made, and what hereafter shall happen to be acquired...forever of right do belong and pertain, to the aforesaid king and his successors and to the infante, and that the right of conquest....has belonged and pertained, and forever of right belongs and pertains, to the said King Alfonso, his successors, and the infante [prince], and not to any others.”[32] (emphasis added). Mention of King Alfonso’s “successors” refers to rights of conquest and dominance being transferable by treaty between the states of Europe, otherwise known as the “family of nations.”  Many modern states of the world are the political successors of such claimed rights of conquest and dominance based on the Doctrine of Discovery.

IV.            The Framework of Dominance

18. The bull Romanus Pontifex—along with all other such Vatican documents and royal charters—provides evidence of the Doctrine of Discovery used by the Christian states of Europe (and their successors in the Americas and elsewhere)[33] to promote on a global scale a framework of dominance and the theft of indigenous peoples’ lands, territories, and resources, under the disguise of activities that are deemed “just” and “lawful.” The dominance framework was acknowledged in a working definition of “indigenous peoples” put forth in the early 1970s. The highlighted words below invoke the Framework of Dominance:

Indigenous populations are composed of the existing descendents of the peoples

who inhabited the present territory of a country wholly or partially at the time

when persons or a different culture or ethnic origin arrived there from other parts

of the world, overcame them and, by conquest, settlement or other means,

reduced them to a non-dominant or colonial condition; who today live more in

conformity with their particular social, economic and cultural customs and

traditions than with the institutions of the country of which now form part, under

a State structure which incorporates mainly the national, social and cultural

characteristics of other segments of the population which are predominant.

(emphasis added).[34]

19. Another example will further illustrate this point. In 1995, the United Nations Office of the High Commissioner for Human Rights issued a document entitled, “Fact Sheet No. 9 (Rev. 1), The Rights of Indigenous Peoples.”[35] In the Introduction to Fact Sheet No. 9, we find: “Indigenous or aboriginal peoples are so-called because they were living on their lands before settlers came from elsewhere.” (emphasis added). The phrase “before settlers came” is an acknowledgment that Indigenous peoples were originally living on their own lands when other people arrived and claimed to be “dominant through conquest, occupation, settlement, or other means.” (emphasis added). Fact Sheet No. 9 also refers to the “settlers” as “the new arrivals” who became “dominant” through “conquest, occupation, settlement, or other means.” This mention of “dominant” and “conquest” acknowledges a history of invasion and forced imposition.

20. Elsewhere, Fact Sheet No. 9 again recognizes claims of dominance and the taking of indigenous lands by force: “Throughout human history, whenever dominant neighbouring peoples have expanded their territories or settlers from far away have acquired new lands by force, the cultures and livelihoods – even the existence – of indigenous peoples have been endangered.” (emphasis added). Referring to non-indigenous peoples being “dominant” over indigenous peoples, and to “settlers” acquiring indigenous lands “by force,” pinpoints what it is that has resulted in “the cultures and livelihoods—even the existence of indigenous peoples” being endangered. Issues of ethnocide[36] and linguicide[37] are included in the reference to the existence of indigenous peoples being endangered by those monarchies and states claiming “effective dominance” over them, their lands, and territories, in violation of indigenous peoples’ individual and collective human rights.

21. On 30 July 1981, UN Special Rapporteur Mr. José Martínez Cobo issued his Final Report “Study of the Problem of Discrimination Against Indigenous Populations.” In 1982, Mr. Martínez Cobo employed key concepts that identify and acknowledge dominance as the context of indigenous peoples’ issues:

            Indigenous communities, peoples, and nations are those which, having a

            historical continuity with pre-invasion and pre-colonial societies that

            developed on their territories, consider themselves distinct from other

            sectors of the societies now prevailing on those territories, or parts of

            them. They form at present non-dominant sectors of society and are

            determined to preserve, develop and transmit to future generations their

            ancestral territories, and their ethnic identity, as the basis of their

            continued existence as peoples, in accordance with their own cultural

            patterns, social institutions and legal systems.[38]

22. In the above working definition we find the same conceptual pattern mentioned previously. The term “pre-invasion,” acknowledges the invasion of indigenous peoples’ territories. “Pre-colonial” acknowledges the patterns of colonialism and colonization that have had a negative impact on indigenous peoples, their lands, territories, and resources. The statement, “societies now prevailing on those [indigenous] territories,” views non-Indigenous societies as presuming to have a “superior force or influence,” over indigenous peoples and their territories. And, finally, referring to indigenous peoples as “non-dominant” acknowledges the fact that invading societies claim dominance over indigenous peoples in violation of their individual and collective human rights.

V.            The Doctrine of Discovery and the USA

23. Below we shall focus in detail on USA federal Indian law as a prototypical example of the application of the Doctrine of Discovery and the Framework of Dominance to indigenous nations and peoples. This information will illustrate the extent to which national laws, particularly property laws, regarding indigenous peoples, have rested and continue to rest on the Doctrine of Discovery and the Framework of Dominance.[39]

24. The USA federal Indian law system is comprised of thousands of statutes, a voluminous body of case law, hundreds of treaties, both ratified and unratified, and more than two hundred years of federal Indian policy development.[40]This preliminary study of the Doctrine of Discovery, however, will remain narrowly focused on the conceptual starting point or premise of that overall system as embodied in the USA Supreme Court ruling Johnson v. M’Intosh 8 Wheat. 543 (1823).[41]

25. The premise of the USA federal Indian law system has become even more problematic in recent years because of recently disclosed evidence of fraud in the Johnson case.[42] The case was feigned; it was the result of act of collusion between the two parties, “for effect.”[43] In 1774 and 1775 respectively, the Illinois and Wabash Land Companies purchased lands directly from the Illinois and Piankeshaw Indian nations in violation of a bar the British crown had placed on such land purchases by the Royal Proclamation of 1763.[44] The two land purchases were made from the two free and independent Indian nations[45] just prior to the Declaration of Independence and the Revolutionary War between the newly declared United States and Great Britain. Nearly fifty years after those land purchases, two relatives and heirs of Thomas Johnson, one of the original investors in the land purchases, filed suit in U.S. District Court for the District of Illinois. The attorneys for the plaintiffs had gone in search of a defendant, whom they found in the person of Mr. William M’Intosh[46]. The attorneys for the plaintiffs hired the attorneys for the defendant, Mr. M’Intosh.[47]

26. Additionally, Chief Justice John Marshall (1755-1835) had large real estate holdings (as did his family and friends) that would have been affected if the case were decided contrary to those interests.[48] Rather than remove himself from the case, however, the chief justice wrote the decision for a unanimous USA Supreme Court.[49]

27. The newly formed United States needed to manufacture an American Indian political identity and concept of Indian land title that would open the way for the United States in its westward colonial expansion. The principle that the United States Supreme Court devised for this purpose in the Johnson ruling was “that, discovery gave title to the government, by whose subjects, or by whose authority it was made, against all other European governments, which title might be consummated by possession.”[50] Based on the concept of “discovery,” the USA Supreme Court constructed an Indian title of “mere occupancy.” In keeping with this concept, it has often been argued that the Indian title of “occupancy” is merely a temporary right, inferior and subject to the absolute title and ultimate dominion of early Christian European powers, [51] and later state actors such as the USA.[52]

28. To illustrate the origin of the “principle” of “discovery,” Marshall examined the language of the John Cabot charter and a number of other royal charters issued by the British crown:

“No one of the powers of Europe gave its full assent to this principle, more unequivocally than England. The documents upon this subject are ample and complete. So early as the year 1496, her monarch granted a commission to the Cabots, to discover countries then unknown to Christian people [original emphasis], and to take possession of them in the name of the king of England. Two years afterwards, Cabot proceeded on this voyage, and discovered the continent of North America, along which he sailed as far south as Virginia. To this discovery the English trace their title.”[53]

29. The above quoted language from King Henry VII’s charter to John Cabot and his sons traces directly back to the long tradition of the Vatican papal bulls mentioned above. With that language, the British crown was acting on the view that previous papal grants to Portugal and Spain could not rightfully bar the British crown from voyaging and appropriating lands of “the heathen and infidel,” which before this time “have been unknown to all Christian people.” The Johnson ruling continues by saying that the Cabot charter constitutes “a complete recognition” of the “principle” or doctrine of discovery:

“In this first effort made by the English government to acquire territory on this continent, we perceive a complete recognition of the principle [of discovery] which has been mentioned. The right of discovery given by this commission, is confined to countries 'then unknown to all Christian people;' and of these countries Cabot was empowered to take possession in the name of the king of England. Thus asserting a right to take possession, notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery.”[54]

30. The Supreme Court’s language once again invokes the Framework of Dominance. Earlier in the Johnson decision Marshall also identified that same framework through his use of the concept “dominion”: “While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.”[55] (emphasis added)

31. As the U.S. Supreme Court viewed the matter in Johnson, the English royal charters expressed the doctrine that “Christian people,” on the basis of a claim of “discovery,” had asserted a right to take possession of any lands inhabited by “natives, who were heathens,” meaning, non-Christians. (emphasis added) Political philosopher Thomas Hobbes, in his work Leviathan, stated that “the right of possession is called Dominion.”[56] Thus, asserting “a right to take possession” is simply another way of saying “asserting a right of dominion,” or dominance.[57]

32. In the Johnson v. M’Intosh ruling, the USA Supreme Court claimed that the original rights of American Indians, “to complete sovereignty, as independent nations,” had been “necessarily diminished” by the right of discovery. This “right” of “discovery,” said the Court, was confined to countries “unknown to Christian people.” The Supreme Court claimed, in other words, that Christian people locating lands in the Americas that until then had been “unknown to Christian people” had ended the right of American Indian nations to be free and independent. On the basis of the above language, the United States Supreme Court used the Doctrine of Discovery to prevent the application of the first principle of international law to American Indian nations and their traditional territories: “The authority of a nation within its own territory is absolute and exclusive.”[58] To give themselves unfettered access to the lands, territories, and resources of indigenous peoples, the Christian States of Europe,[59] and later state actors considered this principle only applicable to themselves.[60]

33. No one could sensibly argue against the idea that the existence of American Indian nations and peoples was originally free of the Doctrine of Discovery and Christian European claims and assertions of dominance.[61] Justice Joseph Story (1779-1845) revealed the argument against that original free existence when he wrote “As [because they were] “infidels, heathens, and savages,” the Indians “were not allowed to possess the prerogatives belonging to completely sovereign independent nations.”[62] Once the concepts of “discovery” and “ultimate dominion” (traced back to Vatican papal bulls such as Romanus Pontifex) were institutionalized in USA law and policy, this resulted in the imposition of a Framework of Dominance over indigenous nations and peoples. This enabled the USA government to appropriate and grant away Indian lands, territories, and resources, with impunity, in violation of indigenous peoples’ individual and collective human rights.

VI.            Terra Nullius, Terra Nullus and the Johnson v. M’Intosh Ruling           

34.  There are two terms that have been used against indigenous peoples historically, both of which mean, “devoid of human beings.” The two terms have resulted in the dehumanization of indigenous peoples. The first of these terms is terra nullius, a category applied by Roman lawyers to enemy lands, and places such as desert islands.[63] The second term is terra nullus, which, according to Mr. Francis Lieber, the first American political scientist noted jurist and political philosopher of the nineteenth century, was based on the fact that the original indigenous inhabitants of a geographical area during the so-called Age of Discovery were not baptized as Christians.[64]

35. Francis Lieber (1800-1872) was a German-American who emigrated to the USA in 1827 and became one of the foremost political scholars of the nineteenth century.[65] Lieber identified the doctrine of “terra nullus,” which referenced a land inhabited by heathens, pagans, infidels, or unbaptized persons, whom Christians treated in a fundamental sense as not existing.[66] The concept of Terra nullus led to the view that lands inhabited by non-Christians were vacant or “unoccupied lands,”[67] and “therefore open to a right of possession by Christians.”[68] “Paganism,” wrote Lieber, which meant being unbaptized, deprived the individual [non-Christian] of those rights which a true...morality considers inherent in each human being.”[69]

36. In an 1888 essay, Burke Aaron Hinsdale (1837-1900) documented that the Right of Discovery was founded “on the principle that what belongs to no one [may] be appropriated by the finder.”[70] Following Lieber’s thinking, Hinsdale noted that the argument only became effective when supplemented by the Church definition of nullius. The Church definition, said Hinsdale, “supplied the necessary premise.”[71] “Grant that res nullius is the property of the finder; that an infidel is nullius [non-existing]; that the American [Indian] savage is an infidel [nullius, or non-existing] and the argument is complete.”[72] Hinsdale said that this argument, premised on the unbaptized status of the original inhabitants of “discovered” lands was “the origin of the Right of Discovery, the criterion to which the nations that divided the New World appealed in territorial controversies, and the ultimate ground of title throughout the United States.”[73] Here Hinsdale referenced the Johnson & Graham’s Lessee v. M’Intosh. ruling. Hinsdale said that the Right of Discovery formed “the ultimate ground of title throughout the United States”[74]

37. USA Supreme Court Justice Joseph Story was a contemporary of Francis Lieber. For a time, the two men moved in the same intellectual circles, and Story contributed more than 120 pages to Lieber’s Encyclopaedia Americana.[75] Justice Joseph Story also helped to decide the 1823 Johnson v. M’Intosh case. One decade after the Johnson decision, in 1833, Story published his “Commentaries on the Constitution of the United States,” in which he examined the “Origin and Title to the Territory of the Colonies.” In sections 5 and 6 of Chapter One of his Commentaries, Story wrote the following regarding the origin of European title in the Americas and the Inter Caetera papal bull of the fifteenth century:

§ 5. ...The Indians were a savage race, sunk in the depths of ignorance and heathenism. If they

might not be extirpated for their want of religion and just morals, they might be reclaimed from

their errors. They were bound to yield to the superior genius of Europe, and in exchanging their

wild and debasing habits for civilization and Christianity they were deemed to gain more than an equivalent for every sacrifice and suffering.[76] The Papal authority, too, was brought in aid of

these great designs; and for the purpose of overthrowing heathenism, and propagating the Catholic

religion, Alexander the Sixth, by a Bull issued in 1493, granted to the crown of Castile the whole

 of the immense territory then discovered, or to be discovered, between the poles, so far as it was

not then possessed by any Christian prince.[77]

§ 6. The principle, then, that discovery gave title to the government, by whose subjects or by whose authority it was made, against all other European governments,[78] being once established, it followed almost as a matter of course, that every government within the limits of its discoveries excluded all other persons from any right to acquire the soil by any grant whatsoever from the natives.[79] (emphasis added).

38. In the two paragraphs above, Story made a direct connection between the Inter Caetera papal bull of 1493 and the right of discovery expressed in the Johnson decision.[80] By doing so, Story thereby placed the Johnson v. M’Intosh ruling—the starting point of USA federal Indian case law—in the context of not only the decree Inter Caetera, but in the larger context of the numerous Vatican documents issued to the Portuguese and Spanish crowns during the so-called Age of Discovery, including the framework of dominance found in the papal bulls Dum diversas and Romanus Pontifex.

39. On the basis of Terra Nullus and the Doctrine of Discovery, the USA Supreme Court stated in the Johnson decision that the [British] crown, had made “no distinction...between vacant lands and lands occupied by Indians.”[81] The USA Supreme Court claimed, in other words, that the British crown treated American Indian lands as if they were vacant lands. In The International Law of John Marshall, Professor Benjamin Munn Ziegler explained the Court’s statement about vacant lands as follows: “[o]ne of the oldest means by which nations have acquired territory has been through the discovery of previously unoccupied lands.”[82] In an explanatory note, Ziegler further said: “The term ‘unoccupied lands’ refers of course to lands in America which when discovered were ‘occupied by Indians’ but ‘unoccupied by Christians’.”[83]

40. George Grafton Wilson (1863-1951)--a professor in the USA at Brown University, Harvard University, the Fletcher School of Law and Diplomacy, and the United States Naval War College--expressed the same point. On the basis of the Johnson v. M’Intosh ruling, Wilson stated that “England, France, Holland, Portugal, and Spain alike maintained that discovery of lands previously unknown to Christian people gave the Christian discoverer the right to take possession.”[84]

VII.            The Doctrine of Discovery in Contemporary Times

41.  In the mid-twentieth century, the USA Supreme Court reaffirmed and embraced the Doctrine of Discovery. Five hundred years after the issuance of Romanus Pontifex, the United States Supreme Court handed down its decision in Tee Hit Ton Indians v. The United States.[85] The case had to do with the Tee-Hit-Ton people whose language is Tlingit, and whose “customs, laws, and traditions [are] similar to other Tlingit peoples” in what is now called Alaska.[86]  In 1947, the USA Congress authorized the U.S. Secretary of Agriculture to sell the timber of the Tongass National Forest, a national forest that the USA Congress had established in an area that partly encompassed the traditional territory of the Tee Hit Ton and the Tlingit.[87] On 20 August, 1951, the USA Forest Service sold Ketchikan Pulp and Paper Company “the right to all harvestable in the Tongass National Forest, estimated at 1,500,000 cubic feet.”[88] Shortly thereafter, the Tee-Hit-Ton sued, arguing that they “were the sole owners of the land and water in dispute; that they had never sold or conveyed the land to any other party; and they asked for a judgment for the losses and damages from the Tongass taking, plus interest.”[89]

42.  Eventually, USA government attorneys filed a brief with the USA Supreme Court that was based in part on the Doctrine of Discovery and the era of the Vatican papal bulls.[90] The USA attorneys argued that it was a well recognized principle in international law that “the lands of heathens and infidels” were open to acquisition (taking) by “Christian nations.”[91] A few comments will place the USA’s legal argument about “Christian nations” in context: Until 1856, there existed a collective international political identity, comprised of different monarchies and states, called variously by such names as “Christendom,” “the Christian common wealth,” and “the Family of Nations” (“the Christian nations of Europe and their offshoots in America”).[92] In keeping with this history, the USA attorneys began their “Summary of Argument” with the Johnson decision: “It is a well established principle of international law that with respect to the lands of this continent “discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.” “Johnson v. McIntosh, 8 Wheat. 543, 573.” The USA attorneys continued: “...the discovering nations asserted in themselves, by virtue of the principle of discovery, the complete and exclusive title to the land-subject only to a right of occupancy in the Indians, such right being retained by the Indians only by the grace of the sovereign.”[93]

43. Under the heading “Argument” the USA attorneys referred back to the centuries-long era of “the Christian nations of Europe.” They included a discussion of the era of the papal bull Romanus Pontifex: “Prior to the great era of discovery beginning in the latter part of the fifteenth century, the Christian nations of Europe acquired jurisdiction over newly discovered lands by virtue of grants from the Popes, who claimed the power to grant to Christian monarchs the right to acquire territory in the possession of heathens and infidels.”[94]

44. The USA attorneys continued with the following line of argument in Tee-Hit-Ton based on the Vatican papal bulls: “For example, in 1344, Clement VI had granted the Canary Islands to Louis of Spain upon his promise to lead the islanders to the worship of Christ, and, following the discovery of the New World by Columbus, Alexander VI in 1493 and 1494 issued bulls granting to Spain all lands not under Christian rule west of a line 100 leagues west of the Azores and Cape Verde Islands. Ibid., p. 125; Cambridge Modern History (1934), Vol. 1, p. 23. The latter papal grant, because of the breaking down of the papal authority and the vastness of the territory covered, was not accepted by the other nations or even greatly relied upon by Spain, and it was necessary for the civilized, Christian nations of Europe to develop a new principle which all could acknowledge as the law by which they should regulate, as between themselves, the right of acquisition of territory in the New World, which they had found to be inhabited by Indians who were heathens and uncivilized according to European standards. Lawrence, Principles of International Law (7th ed., 1923), pp. 146-147; Lindley, ibid., pp. 126-129. (emphasis added).[95]

45. Justice Stanley Forman Reed delivered the majority decision for the USA Supreme Court in Tee Hit Ton Indians v. The United States. However, before explaining the Court’s ruling in Tee Hit Ton, it is necessary to first mention the 1946 Supreme Court case Alcea Band of Tillamooks v. The United States.[96] In the Alcea Band case, the majority of the USA Supreme Court decided that the Alcea Band of Tillamook Indians in Oregon (USA) were entitled to monetary compensation for a taking of their ancestral lands by the USA government.[97] However, Justice Reed, who wrote the minority opinion, disagreed. Justice Reed relied on the Johnson v. M’Intosh ruling of 1823 to make his argument that the Alcea Band of Tillamook Indians were not entitled to monetary compensation for a taking of their ancestral lands by the USA government.

46. As the main support for his argument, Justice Reed characterized the Johnson v. M’Intosh ruling as having advanced the theory that the “discovery” of Indian lands “by Christian nations gave them sovereignty over and title to the lands discovered.”[98] This, of course, matches Judge Catron’s claim in State v. Foreman that it was “the law of Christendom” that “discovery gave title to assume sovereignty over, and to govern the unconverted [unbaptized] natives...”[99]

47. When Justice Reed wrote the majority opinion for the USA Supreme Court in Tee Hit Ton, he concurred with the argument made by the USA attorneys. He also applied the same line of reasoning regarding Doctrine of Discovery that he had previously expressed in Alcea Band of Tillamooks. Justice Reed referenced Johnson v. M’Intosh, and Henry Wheaton’s Elements of International Law.[100] 52. Based on the Doctrine of Discovery, Justice Stanley Reed wrote for the majority of the USA Supreme Court in Tee-Hit-Ton. He said that it was “well settled” that American Indians held claim to lands in North America “after the coming of the white man, under what is sometimes termed Indian title or permission from the whites to occupy. That description means mere possession not specifically recognized as ownership by Congress. After conquest they were permitted to occupy portions of territory over which they had previously exercised ‘sovereignty,’ as we use that term. This is not a property right but amounts to a right of occupancy which the sovereign grants.”[101] He further said that “this right of occupancy may be terminated and such lands fully disposed of by the sovereign itself without any legally enforceable obligation to compensate the Indians.”[102] Mention of “conquest” references the Framework of Dominance, and Justice Reed went on to say: “This position of the Indians has long been rationalized under the theory that discovery and conquest give the conquerors sovereignty over and ownership of the lands thus obtained.” Here Justice Reed cited “1 Wheaton’s International Law, c[hapter] V.”[103]

48. In his Elements of International Law, under “Rights of Property,” Wheaton wrote the following which, based on Justice Reed’s citation reveals the context of the USA Supreme Court’s ruling in Tee-Hit-Ton:

The Spaniards and the Portuguese took the lead among the nations of Europe, in the           splendid maritime discoveries in the East and the West, during the fifteenth and                 sixteenth centuries. According to the European ideas of that age, the heathen nations of the other quarters of the globe were the lawful spoil and prey of their civilized conquerors, and as between the Christian powers themselves, the Sovereign Pontiff was the supreme arbiter of conflicting claims...Thus the bull of Pope Alexander VI. reserved from the grant to Spain all lands, which had been previously occupied by any other Christian [original emphasis] nation; and the patent granted by Henry VII. of England to John Cabot and his sons, authorized them ‘to seek out and discover all islands, regions, and provinces whatsoever, that may belong to heathens and infidels’’; and “to subdue, occupy, and possess these territories, as his vassals and lieutenants.” In the same manner, the grant from Queen Elizabeth to Sir Humphrey Gilbert empowers him to ‘discover such remote and barbarous lands, countries, and territories, not actually possessed by any Christian prince or people, and to hold, occupy, and enjoy the same, with all their commodities, jurisdictions, and royalties.’ It thus became a maxim of policy and of law, that the right of the native Indians was subordinate to that of the first Christian discoverers, whose paramount claim excluded that of every other civilized nation, and gradually extinguished that of the natives.[104]

49. That the Doctrine of Discovery is still being used as an active legal principle by the USA Supreme Court in the twentieth-first century is revealed in the case City of Sherrill v. Oneida Indian Nation of New York[105] decided in March, 2005, exactly fifty years after the Tee-Hit-Ton ruling. The case involved a dispute over taxation of ancestral lands of the Oneida Indian Nation. During oral arguments, it became clear that Sherrill would hinge on whether, in the opinion of the Court, the Oneida Indian nation “has sovereignty status” with regard to the ancestral lands the Oneida Nation had reacquired. To contextualize the Court’s decision and to decide the sovereign status of the Oneida Indian Nation, the Supreme Court relied upon the Doctrine of Discovery. This is revealed in footnote number one of Justice Ruth Bader Ginsberg’s decision for the Court majority: “Under the 'Doctrine of Discovery',” wrote Justice Ginsberg, “... fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign - first the discovering European nation and later the original states and the United States.'' As documented by this preliminary study, the Supreme Court’s reference to the Doctrine of Discovery places the context for the Court’s decision in Sherrill v. Oneida Indian Nation of New York within the Framework of Dominance, dating back to the era of the Vatican papal bulls.

 VIII.            Conclusion

50. This preliminary study has documented that for more than five hundred years the Doctrine of Discovery has been global in scope and application. At least two governments other than the United States, Canada and Australia, have cited the Johnson v. M’Intosh ruling to enforce the Doctrine of Discovery. When they have done so they have cited to the Doctrine of Discovery and the Framework of Dominance.  Non-indigenous legal scholars and state actors have interwoven the Doctrine of Discovery into international and domestic law.  Within the context of the USA, such persons include: Chief Justice John Marshall, Justice Joseph Story, Henry Wheaton, Justice John Catron, Francis Lieber, B. A. Hinsdale, Alpheus Snow, George Grafton Wilson, Justice Stanley Reed, the USA attorneys who wrote the legal brief filed for Tee-Hit-Ton v. The United States, and Justice Ruth Bader Ginsberg. They all relied upon the Doctrine of Discovery that, as this preliminary study has demonstrated, is rooted in and perpetuates the Framework of Dominance passed down, generation to generation, from the era of Christendom and the Vatican papal bulls.[106]

IX.            Recommendation

51. The information and material presented in this preliminary study of the international construct known as the Doctrine of Discovery indicates the need for further study and review, and for a more comprehensive assessment and exploration of issues raised here on the violations of indigenous peoples’ inherent rights, particularly as recognized in the UN Declaration on the Rights of Indigenous Peoples.   Therefore, we recommend that an international expert group meeting be convened to discuss in detail the findings and implications of this preliminary study of the Doctrine of Discovery and to present its findings to the annual session of the UN Permanent Forum on Indigenous Issues.

ANNEX

Books & Articles & References

Brandon, William. New Worlds for Old: Reports from the New World and Their Effects on the Development of Social Thought in Europe, 1500-1800 (Athens, Ohio Univ. Press, 1986).

Cohen, Felix. Handbook of Federal Indian Law, (Washington: Government Printing Office, 1942); (reprint ed., Albuquerque, N. Mexico: University of New Mexico, 1972).

Davenport, Francis Gardiner, ed. European Treaties Bearing on the History of the United States and Its Dependencies to 1648. (Washington DC: Carnegie Institution of Washington, 1917).

Deloria, Vine. Behind the Trail of Broken Treaties: An Indian Declaration of Independence, (Austin: University of Texas Press, 1974).

Deloria, Vine. “Conquest Masquerading as Law,” in Unlearning the Language of Conquest (Texas University Press, 2006),

d’Errico, Peter. “John Marshall: Indian Lover?” Journal of the West, Vol. 39: 3, Summer 2000 (pp. 19-30).

Hinsdale, B.A. “The Right of Discovery,” Ohio Archaeological and Historical Quarterly, Vol. II, 1888.

Wilkins, David E. American Indian Sovereignty and the United States Supreme Court: The Masking of Justice (Austin: University of Texas Press, 1995).

Hobbes, Thomas. Leviathan: Or Matter, Form, and Power of a Commonwealth, Ecclesiastical and Civil (Chicago: Encyclop?dia Britannica, Inc., 1952).

Issac, Thomas. Aboriginal Law: Cases, Materials and Commentary, (Saskatoon: Purich Publishing, 1995).

Lindley, Mark F. The Acquisition and Government of Backward Territory in International Law (London: Longmans, Green and Co., 1926),

Linguist, Sven.  Terra Nullius: A Journey Through No One’s Land (The New Press, 2007).

Lyons, Oren, and Mohawk, John, eds. Exiled in the Land of the Free: Democracy, Indian Nations, and the U.S. Constitution, ed., (Santa Fe: Clear Light Press, 1992). 

Newcomb, Steven T.  Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008).

Newcomb, Steven T. “Pagans in the Promised Land: A Primer on Religious Freedom,” American Indian Law Alliance, www.ailanyc.org.

Newcomb, Steven T.  “The Evidence of Christian Nationalism in Federal Indian Law: The Doctrine of Discovery, Johnson v. M’Intosh, and Plenary Power,” in Review of Law and Social Change, Volume 20, No. 2, 303-327, 1992, New York University School of Law

Robertson, Lindsay. Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands (Oxford Univ. Press, 2005).

Scott, James Brown. The Catholic Conception of International Law: Francisco De Vitoria, Founder of the Modern Law of Nations, Francisco Suarez, Founder of the Modern Philosophy of Law in General and In Particular of the Law of Nations (Washington, DC: Georgetown University Press,1934).

State of the World’s Indigenous Peoples, United Nations Publication ST/ESA/328, 2009.

Story, Joseph. Commentaries on the Constitution of the United States: With A Preliminary Review of the Constitutional History of the Colonies and States Before the Adoption of the Constitution, Vol. I., (De Capo Press, 1970) (An unabridged republication of the first edition published in Boston in 1833).

Vattel, Emmerich. The Law of Nations; or, Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns, (Joseph Chitty ed., Philadelphia, T. & J.W. Johnson Co., Law Booksellers, 1859) (1758).

Wheaton, Henry. Elements of International Law, 3^rd ed. (Philadelphia: Lea and Blanchard, 1846).

Wheaton, Henry. Elements of International Law 2d. annotated edition (William Beach Lawrence edition), (London: Sampson Low, Son and Co., Boston: Little, Brown and Company,1864)

Williamson, James A., The Cabot Voyages and Bristol Discovery under Henry VII (Cambridge: Hakluyt Society, 1962).

Wilson, George Grafton. “International Law and the Constitution,” 13 B.U. L.  Rev. 234 (1933).

Ziegler, Benjamin Munn. The International Law of John Marshall: A Study of First Principles (Chapel Hill University of North Carolina Press, 1939).

Wharton, Francis. A Digest of International Law of the United States, Volume I, (Washington, DC: U.S. Government Printing Office,1887).