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The Discovery doctrine is a concept of public international law expounded by the United States Supreme Court in a series of decisions, most notably Johnson v. M'Intosh in 1823. Chief Justice John Marshall justified the way in which colonial powers laid claim to lands belonging to sovereign indigenous nations during the Age of Discovery. Under it, title to lands lay with the government whose subjects explored and occupied a territory whose inhabitants were not subjects of a European Christian monarch. The doctrine has been primarily used to support decisions invalidating or ignoring aboriginal possession of land in favor of colonial or post-colonial governments.
The 1823 case was the result of collusive lawsuits where land speculators worked together to make claims to achieve a desired result. John Marshall explained the Court's reasoning. The supposedly inferior character of native cultures was a reason for the doctrine having been used.
The origins of the doctrine can be traced to Pope Nicholas V's issuance of the papal bull Romanus Pontifex in 1455. The bull allowed Portugal to claim and conquer lands in West Africa. Pope Alexander VI extended to Spain the right to conquer newly found lands in 1493, with the papal bull Inter caetera, after Christopher Columbus had already begun doing so. Arguments between Portugal and Spain led to the Treaty of Tordesillas which clarified that only non-Christian lands could thus be taken, as well as drawing a line of demarcation to allocate potential discoveries between the two powers.
United States law
According to the United States Supreme Court's decision in Johnson v. M'Intosh, this theory of Christian expansion and possession of newly discovered lands, despite native presence, was one by which all colonial powers operated. Chief Justice Marshall, writing the decision, held that the United Kingdom had taken title to the lands which constituted the United States when the British discovered them. Marshall pointed to the exploration charters given to John Cabot as proof that the British had operated under the doctrine. The tribes which occupied the land were, at the moment of discovery, no longer completely sovereign and had no property rights but rather merely held a right of occupancy. Further, only the discovering nation or its successor could take possession of the land from the natives by conquest or purchase. Natives could not sell the land to private citizens but only to the discovering government.
The doctrine was used in numerous other cases as well. With Cherokee Nation v. Georgia, it supported the concept that tribes were not independent states but "domestic dependent nations". The decisions in Oliphant v. Suquamish Indian Tribe and Duro v. Reina used the doctrine to prohibit tribes from criminally prosecuting first non-Indians, then Indians who were not a member of the prosecuting tribe.
Discovery doctrine has been severely condemned as socially unjust, racist and in violation of basic and fundamental human rights. United Nations Permanent Forum on Indigenous Issues noted that Discovery doctrine "as the foundation of the violation of their (Indigenous people) human rights".
- How the Indians Lost Their Land: Law and Power on the Frontier Stuart Banner, 2005, pg 171-2
- The Dark Side of Efficiency: Johnson v. M'Intosh and the Expropriation of American Indian Lands, Eric Kades, 148 U. Pa. L. Rev. 1065 2000, pg 148
- Newcomb, Steve (Fall 1992). "Five Hundred Years of Injustice". Shaman's Drum: 18–20. Retrieved 2007-01-10.
- "Doctrine of Discovery". HR/5088. United Nations Economic and Social Council. 8 May 2012. Retrieved 21 November 2013.
- Robertson, Lindsay G. (June 2001). "Native Americans and the Law: Native Americans Under Current United States Law". Native American Constitution and Law Digitization Project. The University of Oklahoma Law Center. Retrieved 2007-01-10.
- Concluding session, Permanent Forum says impact of racist ‘Doctrine of Discovery’
- "Preliminary study of the impact on indigenous peoples of the international legal construct known as the Doctrine of Discovery". United Nations Economic and Social Council. 4 Feb 2010. Retrieved 4 January 2014.
- Five Hundred Years of Injustice: The Legacy of Fifteenth Century Religious Prejudice, by Steve Newcomb
- Public Native America: Tribal Self Representation in Casinos, Museums and Powwows
- REDIRECT 
, by Mary Lawlor (Rutgers University Press, 2006)