Professor Robert J. Miller of Lewis & Clark Law School has posted The International Law of Colonialism: A Comparative Analysis.  The paper explores the history of legitimizing the colonization of the non-European world—including American expansion following Independence—through the international legal precept of the “Doctrine of Discovery.”  Under the Doctrine of Discovery, conquering powers gain exclusive title to lands previously held by conquered nations—here, the native tribes of North and South America.  Professor Miller finds historical similarity in each nations’ use of the Doctrine of Discovery and urges all nations to repudiate it.

According to Miller, the Doctrine of Discovery contained two elements of ethnocentrism particularly relevant to the CLR Forum:  (1) Christianity, whereby non-Christian nations were deemed to lack the same rights of ownership, sovereignty, and self-determination as Christians.  (Indeed, in the fifteenth century, the Vatican issued papal bulls granting ownership to Portugal and Spain over inhabited South American land.)  And (2) Civilization, whereby European society was deemed superior to those of native, non-European cultures, thus engendering a divine mandate—and entitlement—to dominate and educate these non-“civilized” cultures in the customs of Christian society.  (For example, the Spanish crown ordered all conquistadors to bring clerics with them to convert indigenous peoples to the Catholic faith.  In the United States, conversion was often used as a pretext for trespass on native territory, and certain denominations were granted tribal lands; in addition, Native American traditions and religious beliefs were outlawed for over one-hundred years).

For more information on the Doctrine of Discovery’s continuing presence in American law, and Professor Miller’s abstract, please follow the jump.

Miller points out that the Doctrine of Discovery is still, at least in theory, enshrined in U.S. law.  In Johnson v. M’Intosh, 21 U.S. 543 (Wheat) (1823), which has never been overturned, the Supreme Court determined—upon a survey of British, Spanish, French, and other European custom—that European “discovery”—arrival, conquering, and settlement—extinguished American natives’ title and transferred it exclusively to whichever European power had arrived and conquered a particular land first.  See generally id. at 572–79.  This European entitlement, wrote Justice Marshall, arose from the aspects of the Doctrine of Discovery listed in paragraph two above:  (1) The “character and religion” of the natives as “fierce savages” and (2) occupants of “wilderness . . . over whom the superior genius of Europe might claim ascendancy.”  See id. at 573, 590.  Ultimately, the court held that Native American tribes—their title having been extinguished—had no right to transfer their lands to private individuals.  See id. at 586, 604–05.

Professor Miller’s abstract further explains his argument:

The majority of the non-European world was colonized under an international law that is known as the Doctrine of Discovery.  Under this legal principle, European countries claimed superior rights over Indigenous nations.  When European explorers planted flags and crosses in the lands of native peoples, they were making legal claims of ownership and domination over the lands, assets, and peoples they had “discovered.”  These claims were justified by racial, ethnocentric, and religious ideas of the alleged superiority of European Christians.  This Article examines the application of Discovery by Spain, Portugal, and England in the settler societies of Australia, Brazil, Canada, Chile, New Zealand, and the United States.  The comparative law analysis used in this Article demonstrates that these three colonizing countries applied the elements of the Doctrine in nearly identical ways against Indigenous peoples.  Furthermore, the six settler societies analyzed here continue to apply this law today to restrict the human, property, and sovereign rights of Indigenous nations and peoples.  This Article concludes that basic fairness and a restoration of the self-determination rights of Indigenous peoples mandates that these countries work to remove the vestiges of the Doctrine of Discovery from their modern day laws and policies.

Enjoy.

—DRS, CLR Fellow