The discovery doctrine, or doctrine of discovery, is a disputed interpretation of international law during the Age of Discovery, introduced into United States municipal law by the US Supreme Court Justice John Marshall in Johnson v. McIntosh (1823). In Marshall's formulation of the doctrine, discovery of territory previously unknown to Europeans gave the discovering nation title to that territory against all other European nations, and this title could be perfected by possession. A number of legal scholars have criticized Marshall's interpretation of the relevant international law. In recent decades, advocates for Indigenous rights have campaigned against the doctrine, which purportedly stemmed from some Papal bulls. In 2023, the Roman Curia of the Vatican formally repudiated the doctrine.
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👉 Discovery doctrine in the context of European colonization of the Americas
During the Age of Discovery, a large scale colonization of the Americas, involving European countries, took place primarily between the late 15th century and early 19th century. The Norse settled areas of the North Atlantic, colonizing Greenland and creating a short-term settlement near the northern tip of Newfoundland circa 1000 AD. However, due to its long duration and importance, the later colonization by Europeans, after Christopher Columbus’s voyages, is more well-known. During this time, the European colonial empires of Spain, Portugal, Great Britain, France, Russia, the Netherlands, Denmark, and Sweden began to explore and claim the Americas, its natural resources, and human capital, leading to the displacement, disestablishment, enslavement, and genocide of the Indigenous peoples in the Americas, and the establishment of several settler colonial states.
The rapid rate at which some European nations grew in wealth and power was unforeseeable in the early 15th century because it had been preoccupied with internal wars and it was slowly recovering from the loss of population caused by the Black Death. The Ottoman Empire's domination of trade routes to Asia prompted Western European monarchs to search for alternatives, resulting in the voyages of Christopher Columbus and his accidental arrival at the New World. With the signing of the Treaty of Tordesillas in 1494, Portugal and Spain agreed to divide the Earth in two, with Portugal having dominion over non-Christian lands in the world's eastern half, and Spain over those in the western half. Spanish claims essentially included all of the Americas; however, the Treaty of Tordesillas granted the eastern tip of South America to Portugal, where it established Brazil in the early 1500s, and the East Indies to Spain, where It established the Philippines. The city of Santo Domingo, in the current-day Dominican Republic, founded in 1496 by Columbus, is credited as the oldest continuously inhabited European-established settlement in the Americas.
Discovery doctrine in the context of Johnson v. McIntosh
Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823), also written M‘Intosh, is a landmark decision of the U.S. Supreme Court that held that private citizens could not purchase lands from Native Americans. As the facts were recited by Chief Justice John Marshall, the successor in interest to a private purchase from the Piankeshaw attempted to maintain an action of ejectment against the holder of a federal land patent.
The case is one of the most influential and well-known decisions of the Marshall Court, a fixture of the first-year curriculum in nearly all U.S. law schools. Marshall's opinion lays down the foundations of the doctrine of aboriginal title in the United States, and the related doctrine of discovery. However, the vast majority of the opinion is dicta; as valid title is a basic element of the cause of action for ejectment, the holding does not extend to the validity of McIntosh's title, much less the property rights of the Piankeshaw. Thus, all that the opinion holds with respect to aboriginal title is that it is inalienable, a principle that remains well-established law in nearly all common law jurisdictions.