Indian injustice

Restore Indigenous peoples’ lands

Americans take our secular government so much for granted that it is difficult for us to realize how our country’s settlement was orchestrated by the pope five centuries ago.

One of the little known but most significant documents in American history is the Doctrine of Discovery, a body of laws based on several papal bulls in the 15th century. These bulls, or declarations, were issued by the pope to allow European nations to own all the land they “discovered” that was not populated by Christian people—such as the entire North American continent. In 15th century Europe, the Roman Catholic Church was synonymous with the state.

In 1455, Pope Nicholas V, based on previous letters, reiterated in part that the Portuguese King Alfonso was “to invade, search out, capture, vanquish, and subdue all Saracens [Muslims] and pagans whatsoever, and other enemies of Christ wheresoever placed, and the kingdoms, dukedoms, principalities, dominions, possessions, and all movable and immovable goods whatsoever held and possessed by them and to reduce their persons to perpetual slavery, and to apply and appropriate to himself and his successors the kingdoms, dukedoms, counties, principalities, dominions, possessions, and goods, and to convert them to his and their use and profit …” (from the Bull Romanus Pontifex, Jan. 8, 1455).

This policy was extended to include all European powers as Alfonso’s successors, and in 1823 was established in U.S. law by the Supreme Court. Justice John Marshall wrote the opinion in a unanimous decision pertaining to Indigenous land title, stating that European powers gained sovereignty over any land they discovered (Johnson v. McIntosh), and that when the U.S. gained independence from Britain, those rights flowed to the new country.

This policy granted the U.S. government the right to take all Indigenous lands and possessions. The Supreme Court ruling has never been enacted into law by Congress.

Considering this doctrine, it is understandable that the European settlers believed they could murder, torture, rape, and enslave the native people in the process of taking their land. They had been given the right— in fact, the commandment—to do so.

Surprisingly, this doctrine from the 1400s is still affecting policy today. In 1955, in Tee-Hit-Ton Indians v. United States, the U.S. Supreme Court ruled against the Tee-Hit-Ton, saying, “This position of the Indian has long been rationalized by the legal theory that discovery and conquest gave the conquerors sovereignty over and ownership of the lands thus obtained.”

As recently as 2005, in the case City of Sherrill v. Oneida Nation, the Supreme Court ruled against the Oneida Nation’s claim that the Nation did not owe property taxes. In its ruling, the U.S. Supreme Court cited earlier cases, County of Oneida v. Oneida Nation (Oneida II, 1985) and County of Oneida v. Oneida Nation (Oneida I, 1974) in footnote 1: “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.” (The majority opinion was written by Ruth Bader Ginsburg. Yes, RBG.)

Efforts have been made to persuade popes to repudiate the bulls of the 1400s. In 2009, the national Episcopal Church passed a resolution renouncing the doctrine “as fundamentally opposed to the Gospel of Jesus Christ and our understanding of the inherent rights that individuals and peoples have received from God.” Since then, many other faith communities have also called for the doctrine’s repudiation, sending petitions to Pope Benedict XVI and then to Pope Francis, but with no response.

It’s astonishing that a statement by a pope five centuries ago is accepted as law in the United States today. It’s equally astonishing that so few people even know that the Doctrine of Discovery exists.

In the past few years, the American public has become increasingly aware of the long-standing injustices inflicted on Indigenous people and are attempting to make restitution.

Some large tracts of land have been restored to tribal nations—land that was stolen or taken by breaking treaties—but the policies established by the Doctrine of Discovery still affect millions of Native Americans. In response, more than 100 bills regarding Indian rights have been introduced to the 117th U.S. Congress in 2021-2022. Seventeen of them have passed the House, but so far none have been introduced to the Senate.

Fairness has always been a hallmark of the American character. It is time we took appropriate steps to restore justice to America’s Indigenous people.