Doctrine of Discovery

Background

The Doctrine of Discovery emerged during the European Age of Exploration in the 15th and 16th centuries. However, scholars have traced its origins to the 5th century. During this period, Europeans believed in creating a universal Christian commonwealth (see also Christianity). This idea further developed between the 11th and 13th centuries as Christian crusaders sought to recover the Holy Land. The exploration, trade and conquest of lands by Portugal and Spain in the 14th and 15th centuries required the papacy to issue bulls to justify and legalize these nations’ activities. Papal bulls are official letters issued by the Pope on matters of great importance. In 1436, the papacy issued a bull known as the Romanus Pontifex. This bull authorized Portugal to control and Christianize the Canary Islands on behalf of the Pope. In 1452, it was followed by Dum Diversas. Dum Diversas granted Portugal the right “to invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever, and other enemies of Christ wheresoever placed… 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.” Similarly, in 1455, the Romanus Pontifex granted Portugal the right to conquer non-Christian lands and promote Christianity. Later, Spain requested papal legitimation of Christopher Columbus’s claims on behalf of Spain to inhabited Indigenous lands. In response, Pope Alexander VI issued the Inter Caetera in 1493. The Inter Caetera drew a line between Spanish and Portuguese explorations and claims to prevent conflict between the two kingdoms. The Inter Caetera also offered Christian validation for European claims. Together, these bulls established religious support for the conversion, civilization, occupation and rights to lands Spain and Portugal had acquired. They also lay the groundwork for future acquisitions by emerging colonial powers, such as France, England and the Netherlands.

England and France, as well as other nations seeking lands and resources, rejected the division of the world by the Inter Caetera. However, they utilized the general principles of the Doctrine of Discovery and contributed to its definition. England and France maintained that, in addition to discovery, trade, conquest and the spreading of Christianity, the claiming nation needed to occupy the claimed lands. England also added the concept of terra nullius, a Latin phrase meaning “nobody’s land,” to justify its claims. It argued that terra nullius included territory without a European recognized sovereign, where no one lived, or areas where the people were not recognized by European-defined international law.

Did you know?
To claim discovery, European nations engaged in acts of symbolism. Representatives planted flags, buried coins or inscribed lead plates, erected markers and read declarations to state a claim. While the Doctrine of Discovery is no longer considered valid, the theory remains applicable to space exploration. One example of this is the planting of flags on the moon. Based on discovery claims, companies are selling properties on Mars and the moon, as well as rights to distant stars.

By the 1600s, the Doctrine of Discovery was firmly established within international law. It delineated European claims and laid out rules regarding what constituted the right to claim a particular territory. While the Doctrine aimed to regulate European claims and limit conflict between colonizing powers, disputes still occurred over opposing claims. However, the idea that Indigenous peoples and lands were subject to Europeans was never contested. The Doctrine was based on European assumptions of superiority. Therefore, it maintained that upon discovery, Indigenous laws and sovereignties were subordinate to the discovering nation.

McIntosh Decision

In 1823, the United States Supreme Court distilled the Doctrine of Discovery in Johnson v. McIntosh. Chief Justice Marshall stated that “discovery is the foundation of title, in European nations, and this overlooks all proprietary rights in the native.” He further noted that “a nation that has passed under the dominion of another, is no longer a sovereign state.” Overall, the McIntosh case contained 10 defining elements of the Doctrine of Discovery:

1. Discovery of lands granted the discovering European nation sovereign rights to it;
2. Title gained by discovery was incomplete without occupation;
3. Discovering nations held the sole right to buy lands from Indigenous peoples;
4. Indigenous nations, upon discovery, only retained occupation and use rights to the land;
5. Indigenous nations’ sovereignty was reduced to dealing solely with the discovering nation;
6. European claims were limited to lands that were contiguous to their sites of occupation;
7. European nations could occupy vacant or unpossessed lands, including lands of Indigenous peoples who failed to live up to European definitions of land use and governance;
8. Non-Christian peoples did not hold the same rights as Christian peoples and nations;
9. Nations judged to be uncivilized by European standards were not entitled to full sovereignty;
10. Conquest over peoples and lands could be achieved through a “just war” or through the assertion and implementation of European laws.

The Doctrine, outlined by Marshall and drawn from historical records and actions, continues to have implications for Indigenous peoples globally. Canada’s foundation and current relationship with Indigenous peoples draws from the Doctrine of Discovery.

Doctrine of Discovery Today

The Doctrine of Discovery and subsequent colonial policies informed by it have continued impacts today. Following the Treaty of Paris, signed on 10 February 1763, the colony of New France became a British possession. Shortly thereafter, King George III aimed to politically organize his newly acquired territories through the Royal Proclamation of 1763. This document established British sovereignty by claiming underlying title to Indigenous lands, limiting Indigenous rights to occupancy and enshrining the sale of lands to the Crown (see also Rights of Indigenous Peoples in Canada). It also placed Indigenous peoples under the Crown’s protection. The Royal Proclamation of 1763 is a founding document of Canada and is part of Canada’s Constitution Act, 1982.

Overall, the Doctrine of Discovery is the legal theory behind colonialism in Canada. The assumption of European superiority and dominance has led to such policies and events as the Indian Act, residential schools and the Sixties Scoop. These assumptions have also been present in Supreme Court of Canada decisions, including the Delgamuukw case. The Delgamuukw case, decided in 1997, was brought forward by hereditary chiefs of the Gitxsan and Wet’suwet’un First Nations. The court’s decision helped to clarify the definition of Aboriginal title. It did so by providing a series of requirements for Indigenous people seeking to prove their title to ancestral territories. For example, Indigenous peoples are required to prove their exclusive occupancy of a territory prior to the Crown assertion sovereignty over the land. By comparison, the Supreme Court accepts the Crown’s claims to sovereignty as simply existing after it had originally asserted authority over Indigenous peoples and lands.

Pope Francis repudiated the Doctrine of Discovery on 30 March 2023. Specifically, the Pope stated that it failed to respect the “inherent human rights of indigenous peoples” and allowed “forced assimilation.” Despite the repudiation of the legal theory, the papacy failed to repeal the papal bulls that serve as the foundation of the Doctrine.