The Ongoing Harm of the Doctrine of Discovery

This article by Coalition member Sarah Augustine was recently published in Response, a magazine of the United Methodist Women. Sarah is an assistant professor of sociology and the director of student spirituality at Heritage University in Toppenish, Washington. She is also co-founder of Suriname Indigenous Health Fund.

The Doctrine of Discovery is a body of law and policy that justifies the seizure of land from indigenous peoples based on an ethical framework created by the church in the 15th century that gave racial preference to Europeans. This framework defined non-Christians as qualitatively different from Europeans. It further gave European rulers the right to “discover” indigenous lands and to claim title to those lands.

In our secular society it is hard to grasp that in lands colonized by Europe (North, Central and South America, Africa, parts of Asia, Australia and New Zealand), the land-tenure system is based on a religious doctrine. Whether the racist assumptions or motivations are currently held by decision makers is irrelevant — racial superiority is enshrined in the law.

Impact of Doctrine of Discovery

The Doctrine of Discovery shapes current reality for indigenous peoples. I would argue there are no instances in which land rights have been restored or the impact of the Doctrine of Discovery lost to time.

I work with indigenous peoples in Suriname, South America, who face illness, death, displacement, denied access to their livelihood and militarization due to gold mining and other “economic development” projects in their traditional lands. They enjoy no recognition or legal protections, as the national government holds exclusive title to lands in Suriname.

The government provides concessions to mining companies that pollute indigenous territories with mercury and cyanide — even receiving foreign aid to do this. Small-scale mining has caused major pollution to the rivers indigenous peoples depend on for food and water. As economic interests have pushed them out of their traditional lands, indigenous peoples have lost access to their livelihood, alternatives to which neither their government nor global economic interests are willing to provide. They become refugees in their own country, fleeing violence imposed by private militias that are controlled by mining interests and concession holders.

The Netherlands colonized Suriname in the 17th century, and the Dutch held sovereignty over Suriname and thus retained title to all lands and ownership over all resources. When Suriname was granted independence in 1975, land sovereignty flowed from the Netherlands to the national government of Suriname. The rights of indigenous peoples were not recognized by the Dutch, and they are not recognized by the national government of Suriname. The flow of sovereignty is designed to exclude indigenous peoples.

The Doctrine of Discovery, and the power it has wielded in shaping our society, determines who shapes our institutions. It defines how we define justice. It is not unusual in our culture to define justice in terms of “fairness” rather than equity. Fairness is often described in the terms of the powerful, without context. Fairness for the powerful is defined as equal distribution of a good without acknowledgement of unequal standing. According to conventional wisdom about fairness, the majority has a right to the majority of resources and therefore has a right to the most power.

The flow of sovereignty

In the United States, the Discovery Doctrine was enshrined in U.S. law by Supreme Court Justice John Marshall in 1823. In his landmark decision pertaining to indigenous land title, he explained that a European power gains radical title, or sovereignty, to any land it discovers. Indigenous peoples who pre-date European or American sovereignty retain only the right of occupancy, which can still be dissolved by the federal government.

When the United States gained independence from Britain, sovereignty flowed from Britain to the U.S. government. The flow of sovereignty excludes indigenous peoples, here in the United States and in lands around the world where the Doctrine of Discovery provides legal preference to Europeans. The Doctrine of Discovery was cited by the U.S. Supreme Court as the basis of our laws as recently as 2005. In the case City of Sherrill, NY v. Oneida Nation, justice Ruth Bader Ginsburg wrote the opinion on behalf of the court: “Under the ‘doctrine of discovery’ … ‘fee title [ownership] 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,'” quoting the 1974 case Oneida Indian Nation of N.Y. v. County of Oneida.

When Congress passed the National Defense Authorization Act of 2015, traditional ceremonial and burial sites sacred to the Apache People were sold to a foreign mining interest despite Apache protests that continued for more than a year. Senator John McCain ushered this defense spending bill through and included a rider handing off the land. The rider gave access to 2,400 acres of national forest land to Rio Tinto mine. As a national forest, this land was owned by the American People, and the Apache have been able to practice ceremony there. This land has enjoyed a special mining ban since 1955. With the passage of the Defense Authorization Act, it has become the private property of a foreign corporation, and a massive copper mine is planned.

Many people do not know that the apartheid system in South Africa was based on the reservation system in the United States and Canada. In 1910, the newly independent South Africa sent a delegation to Canada and the United States to observe how to develop a reservation system. They passed the Native Lands act in 1913, which ultimately left 87 percent of national lands for Whites only, with remaining 13 percent divided into “reserves.”

Although South Africa’s apartheid came to an end in 1994, our reservation system prevails. American Indian reservations do not enjoy representation in Congress. Indigenous tribes are considered “domestic dependent nations,” and the Bureau of Indian Affairs, a federal agency, acts as guardian over indigenous peoples and their assets.

“The Interior Department had failed to account for billions of dollars that they were supposed to collect on behalf of more than 300,000 Native Americans,” President Barack Obama stated upon the passing of Elouise Cobell, Niitsítapi elder and activist and lead plaintiff in the groundbreaking litigation Cobell v. Salazar, which challenged the Interior Department’s mismanagement of funds.

Skewed context of fairness

Native Americans are some of the most impoverished Americans. This is because their wealth and assets were taken from them and given to members of another group. This reality has not changed. Those who have reaped the economic benefit of the lands and resources of the United States have become wealthier over generations, while Native Americans remain impoverished.

On the Yakama Indian Reservation, my family and I live as guests on the homeland of the Yakama Nation on an organic beef ranch. Several years ago my husband hired a teenage neighbor to help with our summer farm stand at weekend farmers’ markets. Our neighbor helped package beef, carry packages to customers’ cars and make change. One weekend we noticed that a significant amount of money was missing from our cash box — we kept it in a safe place in our home known to only ourselves and our teen neighbor. Before our weekly deposit, we realized that nearly an entire weekend of sales was missing. When confronted, our young neighbor admitted he had taken and spent the money and could not repay it.

According to the law, we would have been justified in calling the police and changing this young man’s life. Fairness, according to the law, dictates that he took the money — the context of his crime began when he entered our home without our consent and ended when he took our money. The fact that this young man lived in a two-bedroom home with his single mother and seven other children would not be taken into account. The fact that as the eldest, he was responsible for the well-being of the younger children would not be taken into account. That he was working for us, people financially benefiting from his traditional homeland, would not be taken into account.

Conventional notions of fairness do not account for the original theft, where the laws in the United States transferred ownership of land from my neighbor’s family to mine. Conventional notions of “fairness” do not account for the wealth accumulated by settlers because of these laws. The law is completely on the side of settlers because it was created with settlers in mind.

How institutions reflect bias, amnesia

Using the logic of democracy, we equate “representation” with justice. But representation without institutional change only ensures that institutional power and levers are maneuvered by “diverse” people of power — the outcomes will be the same unless principles of equity are envisioned and embraced.

In the United States, the wealth and influence wielded by those in power was taken from the first peoples of this land by force. Those dispossessed are assumed to be represented according to the conventional wisdom of fairness. This fairness assumes we all have equal footing, we all begin from the same context. When those with power assume this, indigenous peoples’ experience, lived context, is denied.

The church is called, as the Body of Christ, to seek to establish the kin-dom of God. We cannot do this by collaborating with or by giving our consent to unjust and violent structures.

Our world is arranged by a system of institutions and laws. Slavery was an institution that was once pervasive in the world economy and enshrined in the laws of colonized countries. It did not fade away on its own — it had to be dismantled. Slavery came to an end when the laws that codified it and the policies of institutions that enforced it was dismantled. The same is true for apartheid and segregation. It was not easy to dismantle apartheid or segregation. But it was necessary. To affirm the human dignity of those oppressed by these structures, we must oppose the structures that are oppressive.

Collective change

I find that many people are timid in imagining what they can do. We often think about change only in terms of our individual actions. What we can do as individuals is limited. But when we act collectively our voice is magnified. Collectively, we have power.

We have the power to change policy. We as a people of faith populate the only institutions on earth that can speak with moral authority. We can go to the development banks and negotiate on behalf of communities impacted by mining and other extractive industries propped up in the name of “economic development.” We can ask them to negotiate with us. The Inter-American Development bank has a liaison to the faith community because they can’t do what they do without our cooperation. They depend on us to pay externalized costs; we are in a powerful position to negotiate.

We can challenge the constitutionality of the Doctrine of Discovery in our own country. Slavery was once codified in our constitution, and a constitutional amendment reversed it.

We can challenge the validity of the Doctrine of Discovery in developing countries. We can urge our Congress not to provide military aid to nations that use these funds to drive indigenous peoples from their homelands in the name of national security or in the name of economic growth. We can talk to our representatives about allocating “foreign aid” and withdraw our support for aid that displaces indigenous and vulnerable peoples.

We can negotiate directly with corporations. Everything extractive industry is doing on indigenous lands now is perfectly legal — but it is immoral. It is time we not only said this publicly but asked for the opportunity to negotiate for change.

We can organize ourselves in ways I don’t have the creativity to imagine, we can live into a call to Justice, we can support solutions that are not yet envisioned. We must act, even though we can’t fully predict the outcomes. This is the definition of living in faith.