Part I : The Discovery Doctrine, the tribes, and the truth
When most of us first heard, and then thought we understood, the term "Discovery Doctrine," we were probably in high school.
We also likely tended to think the term had its origins with an exceedingly ambitious Italian named Columbus. Many of us may have further imagined Columbus getting together with the king and queen of Spain in the early 1490s to identify and refine some type of international legal theory whereby explorers of the so-called Age of Discovery could justify taking land away from the peoples of any newly "discovered" areas of the world.
As it turns out, such thoughts about when and how the Discovery Doctrine was started, and by whom, were incorrect. Law Professor Robert Williams Jr. (1990 and 1991) added greatly to earlier scholarship by Jennings (1975), Washburn (1988), and others cited by these two authors, to show us we were about 400 years off in our thinking. The legal doctrine itself was formalized in the late 11th century on starkly prejudiced European religious and cultural biases, and not on any equitable or "just" international laws.
Begin at the Beginning
As will be more fully presented in the following section, the Discovery Doctrine was institutionalized through the Christian Crusades of the first several centuries of the second millennium. However, there was an even more distant beginning for the philosophy behind the doctrine which reaches back more than 1,800 years before Columbus set sail for the Western Hemisphere.
Aristotle (384 to 322 BC), the founder of the science of logic and one of the most influential philosophical figures in the western world, wrote a number of treatises that profoundly affected the evolution of Western civilization. One was Politics, which addressed the function and conduct of the "state" i.e., official government. It is the institutionalized superiority of one people over another, found in the Discovery Doctrine, whose roots we seek to locate in Aristotle's writings. Moffitt and Sebastian (1996, p. 6) have done this very succinctly in the following passage from their revealing book.
"Like all his peers, Aristotle drew a careful distinction between Greeks, real men, and the barbaroi, near beasts. A (Greek) was rational; the semi-human barbarian was only emotional, irrational for being only "ruled by his passions." In his Politics, ... Aristotle advanced a dangerous thesis about those who need to be ruled by their more rational betters. As 'masters,' these superior humans may even properly make slaves of their cultural inferiors ... As Aristotle declared (Politics, I.2), 'barbarian and slave are, by nature, identical.' In this world there are but two kinds of men, "that kind which naturally rules, and that which naturally is ruled ... (There is the inferior who is meant to provide labor, and he is) by nature, ruled; he is a slave to the superior being. ...(Further,) [d]omesticated animals are, by nature, superior to untamed ones." (The same held true for Aristotle regarding the "civilized" Greeks and the "wild" peoples of the known world.)"
Spanish secular and church authorities and legal scholars, recognized today for being the first to apply the Discovery Doctrine to the Western Hemisphere and for having developed foundations of modern federal Indian law (Cohen 1942), customarily relied on Aristotle's writings (and those of the Church) to justify their actions and adventures in the "New World."
Further, Aristotle's ancient writings provided a philosophical or cultural license for the Spanish and other Europeans, to combine with their religious license, in justifying the displacement, dispossession, and even destruction of other perceived inferior peoples, including the Native peoples of North and South America.
An irony arises when we remember that Aristotle was obviously non-Christian, having lived his entire life several hundred years before the time of Christ. Therefore, when he wrote of the "superior" peoples of his time (who he said had superior property rights as well as a natural dominion, in his view, over other groups) he was writing of observed cultural differences between peoples, not religious differences per se. Thus the fact his "superior" groups were necessarily non-Christian caused some difficulty for the later Christian scholars and church leaders who were looking for revered and time-honored philosophical justifications for a Christian religious superiority over non-Christian peoples. They did this by combining their cultural and Christian differences into a New World view.
This concept of molding a self-perceived cultural and religious superiority into the most powerful and destructive legal doctrine to ever be applied to the Native peoples of the Western Hemisphere is probed below.
The Role of the Crusades
In 1095, Pope Urban II of the Roman Catholic Church called for the first Crusade to what is commonly called the Holy Land. The Crusades went on from the 11th through the 13th centuries. Their basic justification was that the "heathens and infidels," (i.e., the non-Christian peoples) who held Jerusalem and the region surrounding it could be legally conquered and displaced by Christian European armies acting on orders of whatever pope happened to be in power at the time.
Reading the history of the Crusades, and the papal documents developed to justify the actions of the Crusaders, can lead one to almost hear each of the medieval popes asserting, "I am the Vicar of Christ. As such, I have sovereignty over the souls of all humanity, including non-Christians. I therefore declare that non-Christian rulers are unlawful rulers who must bow to the superior rights and superior sovereignty of the Christian cultures of Europe that are endorsed by me."
In the 13th century, Pope Innocent IV did in fact declare, "There is only one right way of life for mankind," his way. His predecessor, Innocent III (1198-1216), also determined the biblical command from Christ to Peter to "feed my sheep" was a mandate for authority over all people. He specifically said, "the pope has jurisdiction over all men and power over them in law (if) not in fact" (Williams 1990, p. 45).
The papal trend continued well after the Crusades as, for example, in 1453, when Pope Nicholas V gave Portugal's king the supposed right to enslave and seize the land and property of "all ... pagans whatsoever, and all enemies of Christ wheresoever placed." Once again, in 1493, Pope Alexander VI granted to Spain all the world that was not already held or claimed by Christian states. Alexander's generally stated motive was to allow the Spanish to bring heathens "to embrace the Catholic faith and be trained in good morals."
Returning to the end of the 11th century, right after the first Crusade, four Euro-Christian states were established in the Holy Land region after the local rulers were defeated. From south to north they were the Kingdom of Jerusalem (roughly similar to today's Israel), the Countship of Tripoli (covering some of what we know as Lebanon), the Principality of Antioch (in what is now northwestern Syria next to the Mediterranean) and the Countship of Edessa (incorporating an area of Turkey adjacent to today's northern Syria).
Thus, millions of acres of non-Christian lands in the Middle East were summarily taken over and governed by papally sanctioned European rulers because of the perceived and unquestioned "superior culture and superior religion" of the Christian Europeans.
Over time, this culturally racist "justification" became a foundation of international law pertaining to lands inhabited by non-Christian peoples , because of (1), the power of the Pope and, (2), the large body of legal opinions and theories developing during the Crusades which helped legitimate taking lands and property from "infidel" peoples.
By the time Columbus carried the Discovery Doctrine to the Western Hemisphere, it was four centuries old and had already been applied to African peoples by the Portuguese, to Baltic peoples by German knights, to the "wild Irish tribesmen" and the "savage" Scottish highlanders by the English, and to others.
Regarding the Irish and Scottish, in particular, in the 14th through mid-18th centuries, these people differed little from the rural English population. The three groups were even all Catholics, at least in the pre-Reformation era, but the Irish and Scottish were deemed to be the "wrong kind" of Catholics. Their greatest difference with the English, however, was their culture of independent tribes and clans, which contrasted greatly with the English feudal culture and system of government. The English kings and queens could not tolerate this deviation from their "superior" norms of right behavior, culture and government. They, therefore, eventually conquered and ruled the "deviant" Irish and Scottish peoples.
The Discovery Doctrine was therefore applied to any race of people whose religion and culture varied from a primary Christian European norm. That is why the doctrine is often referred to as a "culturally racist" precept, as opposed to a biologically racist one - the latter having been applied to peoples who were routinely perceived as biologically inferior to the European conquerors and colonizers. These groups included such well-known victims as "black Africans" and Australian Aborigines.
People who had the wrong culture and religion, no matter what their color, were candidates for the Discovery Doctrine. It is this "Doctrine" (which is ultimately a legal fiction) that has formed the legal basis of the transfer of 97 percent of America from Indian to non-Indian ownership.
(To be continued)
Editor's note: Dr. Jack Utter is a former teacher of federal Indian law at Prescott College and Northern Arizona University. He is employed by the Water Code Administration of the Navajo Nation. He can be reached at
P.O. Box 678
or (520) 729-4146.