This Day in History, 2005: The Doctrine of Discovery Alive and Well

OK, now which way to the City of Sherrill?
“OK, now which way to the City of Sherrill?”

On this date in history, a mere 11 years ago on March 29, 2005, the U.S. Supreme Court again cited the Doctrine of Discovery as it  limited tribal sovereignty in its ruling on the City of Sherrill v. Oneida Nation.

The Doctrine of Discovery refers to the religious and legal justification used by Europe’s colonial powers to claim lands occupied by indigenous peoples, seize their property and forcibly convert or enslave them. The Doctrine has its roots in 15th Century papal edicts granting Spain and Portugal permission to seize foreign lands as long as no baptized Christians had a prior claim. The “Discovery Doctrine” was later embedded in U.S. law through a series of 19th Century Supreme Court decisions, notably Johnson v. M’Intosh (1823). And as the City of Sherrill case, shows, it is still being cited today.

The Doctrine effectively eliminates any legal claim that Native peoples have to their original lands. Chief Justice John Marshall wrote in 1823 there was “universal recognition” of the principal that European discovery of land also conveyed title to the land, first to European monarchs and then to the successor United States. Native American peoples did not have title, only a “right of occupancy.”

Now, flash forward to the 21st Century. Native nations are gaining strength. There is more recognition of tribal sovereignty and self government. The Oneida Nation of New York starts to buy land in what is now the City of Sherrill — land that was inside the boundaries of its original 300,000 acre reservation. The Oneida Nation sought not only to reclaim its land but also to reassert its tribal sovereignty there. For instance, it sought an exemption from the local property tax. The City of Sherrill opposed the move.

According to the Supreme Court’s decision, the tribe last possessed the land in question in 1805. Since then, it has been governed by the State of New York and its municipal governments. The Court acknowledged “ancient wrongdoings” in how the Oneida land was acquired by the state of New York. (The state acquired the reservation land without the federal government’s approval, something required by the U.S. Constitution.) However, the Court rejected the Oneida’s attempt to reclaim its sovereignty on its newly acquired lands. Justice Ginsberg wrote:

Generations have passed during which non-Indians have owned and developed the area that once composed the Tribe’s historic reservation. And at least since the middle years of the 19th century, most of the Oneidas have resided elsewhere. Given the longstanding, distinctly non-Indian character of the area and its inhabitants, the regulatory authority constantly exercised by New York State and its counties and towns, and the Oneidas’ long delay in seeking judicial relief against parties other than the United States, we hold that the Tribe cannot unilaterally revive its ancient sovereignty … The Oneidas long ago relinquished the reins of government and cannot regain them through open-market purchases from current titleholders.

It basically says that the Oneida waited too long to seek relief, without acknowledging the realities of the intervening centuries. In the 1800s and 1900s, federal policies sought to take Native lands and assimilate Native peoples into U.S. culture. As recently as the 1960s, the U.S. government was trying to terminate reservations altogether. Indian nations had little power to get a fair hearing.

Of particular interest is Footnote #1 in the Opinion. In reaching its decision, the Court easserts the Doctrine of Discovery:

“ Under the “doctrine of discovery,” … “fee title 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, …”

Several major Protestant denominations have taken action to formally repudiate the Doctrine of Discovery. There currently are efforts by Native leaders to get the Pope to rescind the Doctrine of Discovery. How such action might affect the claims of the Oneida people and other tribal nations is not clear, but it would certainly help open up an important conversation about the past injustices that took place on this continent.

A Doctrine of Discovery Thought Experiment

Imagine an agnostic Libertarian and a representative of the U.S. government talking outside the Libertarian’s modest two-bedroom home. The home sits on the site of a planned major retail development, the Nina, Pinta, and Santa Maria Mall.

The government representative is a recently arrived immigrant from Spain, who, for the sake of argument, we will call Columbus. “I’ve got some good news and some bad news,” he tells the Libertarian. “The good news is that we are not taking your property by eminent domain.”

“Darn right,” the Libertarian says.

“The bad news,” continues Columbus, “is that since you are not Christian and since I just discovered your land, you are not really the title holder. Well, you do have a right of occupancy but you are going to have to move anyway. And … well … we don’t have to give you fair market value, either. However, we will give you a barren patch of land two states over.”

Question: What does the Libertarian say next? What would you say next?

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