On this day in history, Feb. 28, 1823, the U.S. Supreme Court issued its decision in Johnson v. M’Intosh which adopted a secular form of 15th Century Papal decrees into U.S. case law. The decision said when explorers representing European monarchs “discovered” this land, it was the same as them taking title to the land.
Here is a verbatim from the decision, issued by Chief Justice Marshall:
On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants [Native Americans] afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence.But, as they [European monarchs] were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. [Emphasis added.]
In more vernacular language, here are three claims this passage makes.
- The character and religion of Native Americans made it OK for Europeans and their “superior genius” to claim domination over them.
- Even though Native Americans lost their land, they still got a fair deal because the Europeans gave them civilization, Christianity, and “unlimited independence.”
- “Discovery” of the land by European monarchs gave them title. (Therefore, as the United States bought the land from European nations, or won it in war, the United States now is the title holder.)
Johnson v. M’Intosh continues to be cited by the Supreme Court, and it remains the law of the land. This legal doctrine has its roots in religious doctrine. From the mid 1400s to the early 1500s, Catholic Popes issued a series of decrees which collectively have come to be known as the Doctrine of Discovery. Among other things, they granted Spain and Portugal permission to seize foreign lands and claim title, as long as no baptized Christians had a prior claim. (More background on this history can be found on Healing Minnesota Stories website.)
Several Native American organizations have been putting pressure on the Pope and the Catholic Church to officially reverse the Doctrine of Discovery. One example is the Long March to Rome. Organizers will arrive at St. Peters Square on May 1 and ask Pope Frances to rescind the Doctrine of Discovery.
Filmmaker Sheldon Wolfchild, who is Dakota, also has released a documentary called: The Doctrine of Discovery: Unmasking the Domination Code. It is available for purchase on line or Healing Minnesota Stories can help coordinate a screening at your congregation or civic organization. Contact us at firstname.lastname@example.org.
Recently, several Christian denominations have taken formal action to repudiate the Doctrine of Discovery. Here is a list of denominational statements.
The legal impact of rescinding the Doctrine of Discovery is not immediately clear, but it would certainly open up important, difficult, and painful conversations to a broader audience.