And God said, Let us make man in our image, after our likeness: and let them have dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and over all the earth, and over every creeping thing that creepeth upon the earth.
So God created man in his own image, in the image of God created he him; male and female created he them.
And God blessed them, and God said unto them, Be fruitful, and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth.
~ Genesis 1:26-28 (King James Version)
Conventional wisdom holds that the Doctrine of Discovery originated with a series of papal bulls issued by several 15th-Century popes. But it is unlikely that the doctrine sprang, fully-formed, from the head of Pope Alexander VI in 1493. Rather, the doctrine can be traced all the way back to the Book of Genesis.
The Doctrine of Discovery isn’t just some religious concept gone awry, either. It is quite literally the foundation of all property law in the United States. Beginning with the infamous case Johnson v. M’Intosh (1823) and continuing even into the 21^st^ century in City of Sherill v. Oneida Nation (2005), the United States Supreme Court has unerringly applied the Doctrine of Discovery as though it were settled law, binding upon all persons (indigenous or not) in the United States. It is time to rethink that concept.
Any effort to dislodge the Doctrine of Discovery through the courts, however, must expose the fallacy that it is based upon (and which entered the American legal system beginning with Johnson v. M’Intosh). That fallacy is a concept I am calling the Myth of Divine Right. Stated simply, the Myth of Divine Right posits that God favors one society over all others, giving that society the right, or maybe even the sacred duty, to spread their society and their values over all other societies, by any means necessary (including extreme physical violence). The Doctrine of Discovery is merely one way in which that Myth lives on in the American legal system.
I. Our Relationship to the Earth
Indigenous people from Turtle Island and European immigrants to North America have a fundamentally different, even irreconcilable, difference in how their cultures relate to the Earth. To the Euro-American, the Earth is a dead thing, to be divided up, “owned,” and exploited. Euro-Americans measure their “wealth” in terms of how much stuff they have accumulated, or how much land they “own.” Indigenous societies, however, view the Earth as a living thing. Depending on their tradition, the Earth is their mother or their grandmother. It is where they came from, and where they will return once their time among the living is concluded. The Earth must be revered and cared for, not used and despoiled.
It is this essential difference that led directly to the conflict between the indigenous population and the European immigrants when they first encountered each other on this continent. The Europeans wanted to use the land to accumulate wealth, and they did not understand or appreciate the very different relationship that the Indigenous people had with the Earth. The Europeans could not understand why the Indigenous people were satisfied with simply taking from the Earth what they needed to subsist, and why they weren’t trying to achieve greater wealth through commerce and exploitation of the earth’s “natural resources.”
The Doctrine of Discovery is also based on this fundamental disagreement about how humans should relate to the land. The papal bulls of the 15th Century, most importantly Pope Alexander VI’s bulls of confiscation in 1493, were nothing more than after-the-fact rationalization for the actions of Christopher Columbus in subjugating the indigenous people of Hispaniola and stealing whatever gold he could get his hands on. But those bulls were based on the Biblical view that the Earth was created by God solely to serve the needs of humans, and that humankind therefore had every right to exploit the earth and take from her whatever they desired.
II. The Biblical origins of the Doctrine of Discovery
Pope Alexander VI’s bull Inter Caetera purported to be the will of God (expressed through his appointed representative on Earth, the pope). The bull granted to King Ferdinand and Queen Isabel full authority of every kind over the islands “discovered” by Christopher Columbus. (A “papal bull” is nothing more than an edict issued by a Pope, purporting to pronounce the law as given to the Pope by God himself, binding upon all souls on Earth.) While the bull claims that the purpose of the declaration is to spread the Catholic faith and instruct the population of the inhabitants of those islands “in good morals,” the bull notes that “[i]n the islands and countries already discovered are found gold, spices, and very many other precious things of divers kinds and qualities.” The acquisition of possessions pleasing to the Europeans was clearly near the top of the Pope’s mind when he granted to the European king and queen “all rights, jurisdictions, and appurtenances, all islands and mainlands found and to be found, discovered and to be discovered.”1
The notion that the Earth is a thing to be conquered, possessed and exploited is clearly derived from the Bible. The Genesis quotation above is the most explicit, but not the only, passage that purports to give humans “dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth.” The passage even explicitly gives humans not just the right, but the duty, to “subdue” the Earth.
But there is more. Genesis 2:15 (KJV) says that “the LORD God took the man, and put him into the garden of Eden to dress it and to keep it.” In Deuteronomy 8:7-9, Earth is declared to be a blessing for humans: God gives to humans “a good land, a land of brooks of water, of fountains and depths that spring out of valleys and hills; a land of wheat, and barley, and vines, and fig trees, and pomegranates; a land of oil olive, and honey;” a land where humans shall not lack anything. All humans had to do to live in such a paradise was to follow God’s commands.
What a deal! God created humans, and a paradise for them to live in. Was it too much to ask that the humans obey a few rules? Or, in legal terms, adhere to this contract with God?
Some may object that this synopsis presents a skewed or even unfair portrait of Christianity. That may be. But it is also true that there is some subset of believers who maintain that the Bible is the inerrant Word of God, and that every word of the Bible is literally true. But even more importantly, it is very hard to deny this basic truth: European culture, which historically has been tightly interwoven with Christianity, does tend to place much more value on property and things than does any Indigenous culture. Correlation may not equal causation, but at least it creates probable cause to investigate further.
III. The Exodus story and Manifest Destiny
Any doubt about how the Doctrine of Discovery originates in the Bible may be dispelled by comparing the “settlement” of the American West with the Exodus story.
In Genesis, God promises Canaan (modern-day Israel) to Abraham, despite the fact that it was then occupied by the Canaanites. But rather than take possession of Canaan immediately, Abraham led his people into Egypt for a while. There, Abraham and his family fulfilled God’s command to “be fruitful and multiply,” but eventually found themselves enslaved by the Egyptians. God then nominated Moses to lead his people out of Egypt and to reclaim Canaan. After escaping Egypt through the miracle of parting the seas, Moses then turned over leadership to Joshua, who was instructed by God to retake Canaan. The only problem was, Canaan was full of people who didn’t want to give up their land. God instructed Joshua to “drive out” the Canaanites from the land. And thus began the battle for the Promised Land in which the Israelites waged war against the Canaanites, seeking to take the land for themselves. While some Canaanites were sent into exile, according to the Bible many others (including children and non-combatants) were killed by the Israelites.
How does God justify the killing of innocent people so that his favored people can take their land? Simple: he demonizes them. Several books in the Bible portray the Canaanites as evil, from worshiping the wrong God, deviant sexual practices, even human sacrifices. God tells the Israelites:
It is not for your righteousness or for the uprightness of your heart that you are going to possess their land, but it is because of the wickedness of these nations that the Lord your God is driving them out before you, in order to confirm the oath which the Lord swore to your fathers, to Abraham, Isaac and Jacob.
In other words, God favors the Israelites as his chosen people, and he desires that they live in the land known as Canaan. He tells the Israelites that their religion and their views are morally superior to the current occupants of the land, and that therefore they have not only the right, but the moral imperative to force the indigenous people off of their land, and to occupy it against their wishes.
The Doctrine of Manifest Destiny, which is derived directly from the Doctrine of Discovery, uses different words, but has the exact same intention and effect: the European immigrants decided that God wanted them to have the North American continent, because they were morally superior to the indigenous population. The clearest expression of Manifest Destiny is attributed to the newspaper editor John L. O’Sullivan, who wrote an editorial in his newspaper the United States Magazine and Democratic Review in July, 1845:
To state the truth at once in its neglected simplicity, our claim [to Oregon] is by the right of our manifest destiny to overspread and possess the whole of the continent which Providence has given us for the development of the great experiment of liberty and federated self-government entrusted to us.2
The “right … which Providence has given us” to “overspread and possess the whole continent.” If “Providence” (God) gave the continent to “us,” isn’t O’Sullivan just claiming that the American West is “the Promised Land?” Weren’t the European settlers therefore just re-enacting the Exodus story? In this analogy, the Europeans play the role of the Israelites and the indigenous peoples were the Canaanites.
IV. The Myth of Divine Right
Why does the Doctrine of Discovery still have such potency, more than 500 years after its most explicit declaration in the bulls of Pope Alexander VI? Haven’t we outgrown such an antiquated and manifestly flawed doctrine?
Part of the reason for this is the revered judicial principle of stare decisis: the concept of precedent. Courts have long prided themselves on creating a stable body of law that is predictable and “neutral.” Judges strive to create rules that appear to be based on prior decisions, and do not go off in new directions unpredictably, lest they be accused of being “judicial activists.” They study what has happened before and then apply those rules to new cases, only making small, incremental changes in the rules to suit the situation that is presented in the new case. All too often, however, the courts do not engage in an objective evaluation of whether the prior law was working well, or even whether it was based on sound logic or good public policy. The doctrine of precedent has an ossifying power: what happened previously shall always be, and the longer ago the precedent occurred, the more rigid it becomes. Thus does a precedent like Johnson v. M’Intosh, decided by men with little understanding of the harm that the Doctrine of Discovery had wrought on the indigenous population, become as hard as granite.
Worse still, the courts are reluctant to revisit Johnson v. M’Intosh because its holding just appears to be common sense to modern jurists. Everybody owns private property; it is not just normal, but in the minds of many people of European descent, it is the entire basis for modern society. “Private property rights” are just taken for granted. Those rights are often deified as natural, God-given rights. To many they form the backbone for ordered liberty in the modern world. Any judge that questioned that baseline principle would be seen as a heretic, untrustworthy, possibly even open to impeachment or recall for holding such a radical, “un-American” view.
As I noted above, I believe the Doctrine of Discovery is based on the fallacy I’m calling the Myth of Divine Right. I use the term “myth” very intentionally and very precisely here. Myths are commonly misunderstood as mere falsehoods, like an old wives’ tale that people like to pass harmlessly around. If that were true, however, myths could be easily defeated: just replace the lie with the truth, and presto! Problem solved. But myths are far more persistent than that. They resist all efforts to dispel them. They are impervious to facts and truth-telling. That’s because a myth, properly understood, represents something far more significant (and powerful!) than a mere lie.
Many scholars have attempted to define what a “myth” is. I have distilled some of that scholarship into my own working definition of “myth:”
A myth is an often-repeated story that attempts to explain some moral value or to explain something beyond the comprehension of humans. Although the story is not grounded in historical or scientific fact, it is regarded by a social group as a true statement of the group’s moral or other values.3
Many scholars focus on the concept of “significance,” something that my working definition gets to only indirectly. Myths, these scholars hold, are adhered to because they represent something “significant” to the group that believes in the myth.4 (This is what I refer to in my definition as “some moral value” or “something beyond the comprehension of humans.”) It is this significance that makes myth so resistant to truth or facts. Myths validate some core belief or value deep within one’s psyche. To let go of that belief or value is to change who you fundamentally are as a person.
The “significance” of the Myth of Divine Right is simply this: God wants us to be happy. Therefore, he gave us the Earth, or the Promised Land, as our reward for worshipping him. And if we can rid the world of those troublesome Others who do not worship our God, then he will be happy and allow us to enjoy the rewards he has put before us. We therefore have the right, given to us by our God, to take what we want from those Others, to prove that we are worthy and they are not.
The Myth of Divine Right is the root of the problem. It explains how European immigrants justified the conquest of the inhabitants of Turtle Island, but it is much more than that. It explains American Exceptionalism. It explains, at least in part, racism and white supremacy (or at least how some people try to justify those beliefs in religious terms).
V. What would a post-Doctrine of Discovery world look like?
It is not possible, in this brief essay, to explore all of the ramifications of discarding the Doctrine of Discovery from our legal system. But a few broad propositions can be stated:
1. Discarding the Doctrine of Discovery means, at base, rejecting the Myth of Divine Right
The problem with the Doctrine of Discovery is that it is a symptom of a deeper and more harmful problem: the Myth of Divine Right. Pope Alexander VI’s bulls of confiscation are explicitly based upon that myth. The Pope claimed to be God’s spokesman on Earth, claiming that Christianity was the only true path to salvation. Therefore, in his view, Christians were superior to all others, and therefore were the true objects of God’s bounty. This is the central tenet of the Myth. Rejecting that myth requires Western culture to give up its superiority complex, and truly accept that other cultures are equal.
2. Western culture does not need to subordinate itself to other cultures
The corollary to the previous point is that, while Western culture is not superior to other cultures, neither is it inferior. Core aspects of how Westerners relate to each other need not change: private property rights, capitalism, and sovereignty (i.e. the social contract that empowers governments to make rules for members of that society) can remain intact, as between members of that culture. The concepts of private property are too deeply entrenched, and too central to modern society, to be discarded. They serve the interests of Western society well enough, as between members of that society.
3. There is no need (or reason) to impose Western culture upon members of indigenous societies
But even if Western concepts of property, capitalism and sovereignty work reasonably well for members of that society, forcing Indian cultures to abide by those concepts is destructive to those cultures. The Myth of Divine Right (and its derivative the Doctrine of Discovery) is the tool by which Indians continue to be subjugated by Western law. What would America look like today if, instead of living by the Myth of Divine Right, Indian culture was accepted by Westerners as equal? What if Westerners stopped trying to impose their values and legal systems upon Indian nations, and recognized those nations as true, and equal, sovereigns (as the indigenous nations understand “sovereignty”)?
Truly embracing an “equal sovereigns” regime would take some effort, surely. Since Western culture and Indian cultures inhabit the same ecosphere, often in close proximity to each other, certain accommodations would need to be reached around issues such as environmental protection, hunting rights, and similar things. And some long-held Western beliefs about Indian nations, such as the concept of Indians as members of “domestic dependent nations” (Cherokee Nation v. Georgia, 1831) would need to be abandoned. The rules of commerce between the “equal sovereign” nations would have to be negotiated too, but we already have many examples of how that can be done smoothly and fairly.
None of this will be easy, but pursuit of this ideal could go a long way toward true, peaceful co-existence of these two very different cultures.
Quoted in Will Bagley, So Rugged and Mountainous: Blazing the Trails to Oregon and California, 1812-1848 (University of Oklahoma Press 2010), at 290. ↩
Kenneth Chestek, The Myth of Divine Right (unpublished manuscript on file with the author), Chapter 2. ↩
See, e.g., Hans Hans Blumenberg, Work on Myth (MIT Press 1988) (Robert M. Wallace, trans.), at 67; Chiara Bottici, A Philosophy of Political Myth (Cambridge U. Press 2007), at 123. ↩
Kenneth Chestek, "The Myth of Divine Right and the Doctrine of Discovery," Doctrine of Discovery Project (27 April 2023), https://doctrineofdiscovery.org/blog/divine-right/.