In 2014, at Indian Country Today, Dr. David Wilkins (Lumbee) published an essay titled, “Deconstructing the Doctrine of Discovery.” (here) In the article, he takes issue with the way that the doctrine of discovery has been interpreted and discussed in recent years. He says that many people have been discussing the doctrine in a manner that is “historically inaccurate” and thus less than helpful. I responded after the article was first published (here), and now I’d like to add to my previous commentary.
In his article, Wilkins calls the discovery doctrine “one of the most important tenets of federal Indian law.” He points out that it has “gained general acceptance.” But he cautions that the doctrine has been “misused to distort perceptions of past and present oppressions.” Yet rather than provide a clear means of arguing against the doctrine and challenging it, he says that U.S. government officials should never mention or write about the doctrine.
Since the doctrine of discovery has been institutionalized in U.S. Indian law and policy for generations, including by the U.S. Supreme Court, the question arises whether the recommendation to have the U.S. government strike the phrase “the doctrine of discovery” from its “vocabulary” is a form of denial. Wilkins’ recommendation appears to be based on the idea that if the U.S. government no longer uses the phrase “the doctrine of discovery,” and never mentions it, that this will enable us to pretend the doctrine no longer exists, even though the phrase and the reasoning based on the phrase is still written into Supreme Court rulings.
Importantly, Wilkins’ acknowledgment of “past and present oppression,” provides us with an entry point for discussing the “past and present domination” of Native nations and peoples. Unfortunately, nowhere in his essay does Wilkins examine the patterns of domination found in the Vatican papal bulls of the fifteenth century and in U.S. federal Indian law. Perhaps this is because he seems to believe that, with regard to the papal bulls, those patterns were rejected by theologian Francisco de Vitoria during his lectures in the 1530’s.
As a result of his presumption that there is no connection between what Wilkins calls “the papal version of the doctrine of discovery” and present day U.S. federal Indian law, he never asks to what extent, if any, the system of ideas called U.S. federal Indian law was created from the conceptual patterns found in those 15th-century Vatican documents.
At one point in his essay, Professor Wilkins does mention “Christian domination.” However, he never makes that topic a specific focus of his overall analysis. Nor does he clarify that “discovery” refers to the ancient effort by the Christian nations of Europe to seek out and find non-Christian places over which a right of Christian domination had not yet been claimed.
He also fails to mention that the United States currently purports to be the successor to the first claim of a right of Christian domination asserted by the monarchies of, for example, England, Spain, and France. This is spelled out by Chief Justice John Marshall in the Johnson v. McIntosh ruling of 1823, in his discussion of “ascendancy” (at 573) and “ultimate dominion.” (at 574).
Instead of informing his readers about the well-documented intention of the Christian world to claim a right of Christian domination over non-Christian lands (the lands of heathens, pagans, and infidels), Wilkins says “[d]iscovery, as originally conceived in papal bulls of Pope Alexander VI, granted the Spanish exclusive interests in the Americas.” The term “interests,” which not a theme found in the papal bulls, is a euphemism for the patterns of domination that are found in the four papal documents issued in 1493 (Davenport, pp. 56-83) , as well as the patterns of domination found in other papal documents dating back to at least 1452. (Davenport, p. 23).
The fourth and last document in the series of Vatican documents issued in 1493, shortly after Columbus returned from his first voyage, is dated September 26, 1493. (Davenport, pp. 79-83). Language from that document quoted below identifies the claim of a right of domination that the pope purported to “gave, conveyed, and assigned forever” to the monarchs of Castile and Aragon-Leon. (Davenport, p. 82)
In European Treaties Bearing on the History of the United States, published by the Carnegie Institution in 1917, the English language version of the papal bull dated September 26, 1493 refers to: “all islands and mainlands whatsoever, discovered and to be discovered, that were not under the actual temporal domination of any Christian dominators.” (Ibid.)
The original Latin language version of that sentence reads: “omnes et singulas, insulas et terra firmas, inventas et invendiendas versus occidentem et meridiem, que sub actuali dominio [domination] temporali aliquorum dominorum Christianorum [Christian dominators] constitute non essent. . .” (p. 80) (emphasis added)
In other words, the pope purported to grant to Queen Isabel, of Castile, and King Ferdinand, of Aragon-Leon, the right to claim a right of domination over any “islands and mainlands that were not yet constituted or established under the domination (“dominio”) of any Christian dominators” (“dominorum Christianorum”) [emphasis added].
The same wording is found in the earlier papal bull of May 3, 1493. (Davenport, p. 64-70) And that language forms a central part of the foundation of Spanish crown law everywhere on the planet where Spain engaged in colonization. This claim of a right of domination was also made by all other countries that sent colonizing voyages in search of distant non-Christian lands. And that intention to establish domination over “heathen” and “infidel” lands forms a key part of the foundation of U.S. federal Indian law!
One has to wonder whether Wilkins has ever read the above language from the papal bulls of May 3 and September 26, 1493, as well as theologian Luis Rivera-Pagán’s A Violent Evangelism (1992), and whether he has had the opportunity to factor that information into his thinking. For he goes on to make the odd assertion that, “In reality, the absolute denial of Native land rights was replaced less than fifty years later” meaning during the time of Francisco de Vitoria. Does this mean Wilkins believes that the Spanish crown’s claim of a right of domination was also replaced and ended? Or is the issue of domination simply not part of his analysis?
If Wilkins is under the impression that the “absolute denial of Native land rights” was a result of the claim of a right of domination by the colonizing powers, we have to ask: When was that claim of a right of domination ended? The historical record shows that it never was.
Wilkins claims that the denial of Native land rights was ended as a result of ideas expressed by the theologian Francisco de Vitoria. He accurately describes Vitoria as “a prominent theologian” who was asked by Emperor Charles V to explain, from a legal, moral, and theological view, “what rights the Spanish could legally and morally claim in the New World.”
And Wilkins points out that Vitoria expressed the view that the Indians “were the true owners of their lands.” And this is evidently the source of confusion on Professor Wilkins’ part. This may be the result of him conflating two separate issues. The first issue is whether the Spanish crown eventually regarded the Indians as the “true owners” of their lands existing under the crown’s claim of a right of domination. And the second issue is whether, after Vitoria’s lectures, Spain and other Christian powers continued to claim a right of domination over non-Christian lands, and over the original non-Christian nations living there.
Wilkins stays narrowly focused on the question of whether, as a result of Francisco de Vitoria’s lectures, the Spanish crown accepted the view that the Indians were “the true owners” of their lands. One question Wilkins does not address, however, is whether, even after Vitoria’s lectures, Spain continued to claim a right of domination over those Native nations, on the basis of the papal bulls of 1493. He also does not deal with the issue of whether the U.S. government, by means of the Johnson v. McIntosh ruling, claimed, and still claims, to be the rightful successor to the first claim of a right of domination made by Great Britain, France, and Spain.
According to Wilkins, Vitoria argued that “the Spanish could not claim title through discovery because this action could only be justified where property was ownerless.” Rivera-Pagán notes that Immanuel Kant “at the end of the eighteenth century, had set his eye on the concept of ‘the discovery of America’.” (p. 11). Rivera-Pagán then quotes Kant: “When America was discovered. . . it was considered to without owners since the inhabitants were considered as nothing.” To this Rivera-Pagán adds: “They were considered ‘as nothing’ for they were not Christian.” (original emphasis).
So, what is meant by the word “title” in this context? The question arises: Did Vitoria express the view that Spain did not claim a title of domination over the Indians and their lands because those lands had non-Christian “owners”? Rivera-Pagán points out that “Pedro Mártir de Anglería, noted humanist and member of the Council of the Indies,” “defended European hegemony over every place in the New World that is ‘empty of Christians’.” To this he adds: “The discussion became theoretically more complex later in the century as seen in Vitoria’s De indis, but the result was the same: namely, the supremacy of the rights of the Christians over that of the indigenous ‘infidels’.” (Ibid.)
Certainly there is no caveat or exception to be found in the papal bulls of 1493, stating that the “barbarous nations” were the “true owners” of their lands. Quite the opposite. It was widely assumed by the monarchs of Castile and Aragon-Leon, and explicitly stated by Pope Alexander VI, that the crowns of Castile and Aragon-Leon, as “dominorum Christianorum” (Christian dominators) had the perfect right to claim a right of domination (“dominio”) in relation to any lands, “discovered and to be discovered,” where non-Christians were living. This is entirely consistent with the language of the papal bulls, especially the Latin language versions of those documents.
Wilkins ought to have acknowledged that Vitoria premised his lectures on the idea, which he explicitly stated, that the Indians had already been forced under the “sway” (dicio, in Latin) of the Spanish crown. (I obtained Vitoria’s use of the Latin word dicio from Anthony Pagden, one of the world’s foremost authorities on this subject). The term sway traces to “a preponderating force or pressure : a controlling influence : sovereign power : DOMINION “The ability to exercise influence or authority : DOMINANCE.”
In other words, Vitoria began his lectures on “the Indies,” on the basis of the presumption that the Indians were already existing under Spanish sway or domination, and the question was, How shall Spain treat the Indians who are presumed to be living under the Spanish system of domination. According to Rivera-Pagán:
It should be recognized that, according to Vitoria, in order to justify Castilian domination over the New World, that domination must be “just.” The problem is that in his analysis the determination of justice should not have remained . . . at the theoretical level, without clarifying the events. The quaestio iuris cannot be separated from the quaestio facti. The juridical question is based on the supposition, clearly sketched in the first part of the lecture, of the irreversible reality of the Spanish empire[‘s domination]. (p. 83)
Rivera-Pagán continues: “Contrary to the anti-imperialist interpretation of Vitoria made by Teófilo Urdanoz, I consider more correct the observations made by Luciano Pereña: “Francisco de Vitoria never . . . questioned the legitimacy of the conquest [domination]. It [Spanish domination] was a proposition that he took for granted. This axiom was his [Vitoria’s”] starting point.” (p. 84) Rivera-Pagán further quotes Pereña :
Vitoria delivers his lectures on the Indies at Salamanca not to attack the emperor nor open a discussion of his right but rather to justify him against attacks being made by Frances I of France . . . to defend the Spanish monopoly against the protests of the French king. (Ibid.)
And Rivera-Pagán further adds: “Pereña then generalizes with respect to the school of Salamanca and the disciples of Vitoria”:
From 1534 to 1573, the teachers at the School. . . unanimously condemned the abuses of the conquerors. . . The abuses were condemned without reserve from Vitoria to Acosta. But . . . the personal or individual behaviors [of the conquistadors] did not invalidate the fundamental right of the Crown to Spanish domination. [emphasis added] They did not even doubt the legitimacy of the Spanish presence in the Indies. . . . They never questioned the conquest [the claim of a right of domination] by considering it from a global perspective. They supposed it was legitimate. (Ibid.)
Given this information about the claim of a right of domination, why does Wilkins remain narrowly focused on whether “the absolute denial of Native land rights was replaced less than fifty years later” by the ideas of Francisco de Vitoria. According to the findings of Rivera-Pagán, the claim of a right of Spanish domination over the original Native nations and their lands was taken for granted and never questioned, not even by Vitoria. We have evidence that the claim of a right of domination was still being maintained by Spain in the 1680’s. Rivera-Pagán points out:
In the juridical area, the Alexandrian bulls maintained their authorized character, as shown by the first sentence in the first law of the first chapter of the third book of “The Compilation of the Leyes de Indias” (1680), which recognizes them as the first foundation for the possession in perpetuity of the Americas by the Crown of Castilla. (p. 32)
He then quotes the following language from the Emperor in “the Laws of the Indies” from 1680:
By donation from the Apostolic Holy See . . . we are Lord of the Western Indies, isles and mainlands of the Ocean Sea, discovered and to be discovered and incorporated into our Royal Crown of Castilla. . . . [so that] they may always remain united for their greater perpetuity and firmness, we forbid their being taken away. And we give our faith and royal word, and the kings our successors, so that they [the isles and mainlands] can never be taken away or separated, in all or in part, for any reason or cause whatsoever. (Ibid.)
Even if we were to assume that fifty years after 1493 the Spanish crown decided to no longer engage in an “absolute” denial of Native land rights, because of the powerful lectures of Vitoria, it does not follow that the Spanish crown ever gave up or relinquished its claim of a right of Christian domination over the lands where the Native nations were living. Whatever “Native land rights” the Spanish crown was willing to acknowledge, were regarded, from the viewpoint of the crown, as “Native land rights” that were existing under and subject to the Spanish system of domination, which was eventually passed on the other political successor states.
This conclusion is consistent with “the letter of Carlos V, dated November 10, 1539, to the prior of the Dominican faculty at Salamanca, forbidding discussion of the legitimacy of Spanish dominion [domination] over the New World and ordering him [the prior] to gather all dissertation copies treating this theme, a clear reference to Vitoria’s theological lectures about the Indians.” (Rivera-Pagan, p. 84)
That was two years after Pope Paul III issued the papal bull Sublimis Deus in 1537. In that document, the pope declared Indians to be “truly men” who should not be enslaved, and should not be deprived of their property. (Hanke, 1959, p. 19) But as Rivera-Pagan observes with regard to that wording: “Well and good, but their concrete predominant experience is defeat, suffering, decimation, and subjugation.” (Rivera-Pagán, 202)
Additionally, under pressure from Emperor Charles V, the pope withdrew any ecclesiastical penalties attached to Sublimis Deus. This meant the document had no “teeth” and no means of enforcement. There were no penalties to impose on those who violated the papal decree of 1537. (Hanke, 1937, p. 88-91)
In other words, Sublimis Deus must be read and interpreted in the context of the assumption of Spanish domination over the Indies, which was claimed on the basis of the papal bulls from 1493. And that assumption was so taken for granted by Emperor Charles V that he forbade scholars to even discuss that assumed right of domination.
Yet despite the theme of domination being such an important part of the historical record, Wilkins makes the strange assertion that the “papal doctrine of discovery was discarded early on in favor of [Francisco de] Vitoria’s view of Indigenous property rights.” However, as Dr. Luis Rivera-Pagan notes: “The Spanish empire produced eloquent apologists who defended the military conquest of the Americas, the forced servitude imposed upon the nations, and the coerced Christianization of its peoples.” (p. 271) Rivera-Pagán continues:
The elegant style and clarity of thought of Juan Ginés Sepúlveda is an obvious example. Spain also produced eminent thinkers who, like Francisco de Vitoria, dealt theoretically with the complex issue of building a “just dominion,” an empire built upon law and faith, but also upon expropriation of land and slave labor. (Ibid)
When the representatives of a particular monarch were able to identify the geographical location of non-Christian lands, a place where a right of domination (“dominio”) had not already been claimed by Christian dominators (“dominorum Christianorum”), they were able begin the brutal and dehumanizing process of establishing a system of domination in that place. The Christian world presumed that the locating Christian monarch, and his or her “heirs and successors,” had the right to claim a right of Christian domination over the vast area that had been newly located. The Spanish crown never rejected this framework or this premise.
Wilkins says “historical reality clearly show[s]” that “the papal version of the doctrine of discovery was not used in any practical way by subsequent colonizers after Vitoria’s writings.” But this is contradicted by the Laws of the Indies from 1680, quoted above. Wilkins evidently does not realize, that in the Johnson v. McIntosh ruling, the U.S. Supreme Court relied upon “the papal version” of the doctrine of domination, which Justice Joseph Story admitted in his Commentaries on the Constitution of the United States (1833).
In Chapter 1 of Volume 1 of his Commentaries, in §5, footnote 7, Story quotes Latin language from the May 4, 1493 papal bull (“ac barbarae nationes__deprimantur,” i.e., “and barbarous nations be reduced”) and then connects that Latin quote to the principle of discovery found in the Johnson ruling: “that discovery gave title to the government, by whose subjects and by whose authority it was made, against all other European governments.” Story did so without quotation marks and without reference to the Johnson ruling. This made it nearly impossible for scholars to identify that text in Story’s Commentaries. It’s a finding I stumbled upon in 1991 after a decade spent obsessing over the Johnson ruling and Story’s text.
In any case, it appears that Wilkins is avoiding a central fact: Both before and after Vitoria’s writings, the Christian European colonizers, and their successors, continued to claim a right of domination over Native nations and their lands. And even today countries such as the United States and Canada, and many other state governments (i.e., countries), are continuing to claim a right of domination over and against our nations and peoples.
In the Johnson v. McIntosh ruling, that claim is called “ultimate dominion,” and the Indian title of “occupancy” expressed by Marshall is considered subject to the colonizers’ claimed right of sovereignty and dominion. Marshall deflects attention away from this point when he says that the assertion of “ultimate dominion” is “subject to the Indian right of occupancy,” which means it is “subject to” next to nothing.
In Canada, the dominating concept of dominion is expressed as “the Crown’s assertion sovereignty,” which is to be “reconciled” with the pre-existing fact of the original Native cultures and societies of the continent, and with “Indigenous sovereignty.” This is to be accomplished in large part by the phrase “honour [sic] of the Crown,” a term of rhetorical art which places the concept of “Crown” at the top of a hierarchy with original nations subordinated beneath “the Crown.”
Wilkins says that treaty-making “between tribal nations and Europeans, and later the U.S. affirmed that Native peoples were recognized as land-_owning_ nations on par with any other political power.” (emphasis added) But “ownership” is a term of domination, and the U.S. Supreme Court invented the concept of an “Indian right of occupancy” as a means of refusing, based the Bible and Christianity, to recognize Native nations as having any right of domination (property) in relation to their traditional lands, for a Native nation right of domination would permanently bar the colonizers from the territories of Native nations.
In White v. University of California, a Kumeyaay ancestral remains case which Wilkins references in his article, the court explicitly says in footnote 2 that the Kumeyaay nation only has an “aboriginal interest” in its traditional territory, but “this is not a property right.” Land owning Indigenous nations “on par with any other political power,” as Wilkins posits, would have a recognized property right in their lands, meaning a right of domination that would be both exclusive and absolute, as stated in the Johnson v. McIntosh ruling of 1823.
To this, Wilkins adds the assertion that “Had Pope Alexander’s original sweeping decree of unlimited Christian domination held sway, there would have been no reason for colonizers to bother with treaties.” But when we think about it, it’s the interpretation of the treaties that is most critical. To undercut those treaties with Native nations, it was only necessary for the United States to interpret them in a manner consistent with the U.S. claim of a right of domination over native nations and over and to their territories. And this is exactly how the United States has interpreted all Indian treaties.
There is evidence of the U.S. government interpreting Indian treaties in a manner consistent with the U.S. claim of a right of domination over Native nations. Take, for example, Volume VII of the congressional Statutes At Large, “Treaties Between the United States and the Indian Tribes.” The volume was published in 1842, and was edited by Richard Peters, the fourth reporter for the U.S. Supreme Court, who served in that role for fifteen years from 1828 to 1843.
Who would be better suited to know the true significance of the Johnson v. McIntosh ruling in relation to U.S. treaties with Native nations than an attorney who served for a decade- and-a-half as the reporter for the U.S. Supreme Court? At the opening of Volume VII of the Statutes At Large, Peters replicates the Johnson v. McIntosh ruling in its entirety.
In Richard Peter’s introduction to the Johnson ruling in Volume VII of the Statutes At Large, he indicates that the Johnson ruling is the framework within which all Indian treaties have been and will continue to be interpreted by the United States government. The treaties will, in other words, will be interpreted in a manner that is in sync with the U.S. claim of a right of domination (“sovereignty”) over and to the continent.
Toward the end of his essay, Wilkins states: “To accept a dumbed-down version of history is to relegate our people to the role of victim. It is to accept that we have been conquered. . . ” However, when we forthrightly oppose and challenge the claim of a right of Christian domination in U.S. federal Indian law, or in Canadian law, to cite just two examples, this is the opposite of considering ourselves to be “victims” who have been “conquered.”
The word victim is related to the word victory; a victim is on the receiving end of a victory. However, to claim a right of domination is no victory, for such a claim is premised on that which is not valid and never will be. The dominator claims the right to deprive free and independent nations and peoples, by various means of despotism, of the very ability to retain and maintain a free existence.
Wilkins seems to be suggesting that those of us who have dared to delve deeply into the historical record, and use our findings to explicitly challenge the claim of a right of Christian domination by the various monarchies of Christendom, and by the United States and Canada as the political successor to those colonial claims, are doing something that is highly detrimental to Native nations and peoples. As if to say, “If we admit that a right of Christian domination has been claimed, and is still being claimed against our nations and peoples, then we are giving into and reverting to what Wilkins calls “the long ago discredited papal version of the doctrine of discovery.”
He adds: “To simplistically explain away loss of territory as the fault of the doctrine of discovery is to ignore our own retained land rights and forget that our ancestors were determined, intelligent, and politically astute people who defended their sovereign territories through strength and reason.” How so?
It is certainly possible to not shy away from and accurately explain the manner in which our lands and territories have been overrun on the basis of the Christian world’s claim of a right of domination over all non-Christians and their descendants (namely, our generation). This is called “fighting the good fight,” and we are able to do so without casting any aspersions on our ancestors, or questioning their strength, determination, and intelligence.
As a matter of fact, one would think that our ancestors would honored to know that after decades of diligent research and a review the massive amount of information in the historical record, we are now challenging the claim of a right of Christian domination over our nations and our territories, while keeping foremost in mind the original free and independent existence of our nations and peoples. All Our Relations.
- Johnson & Graham’s Lessee v. McIntosh 21 U.S. (8 Wheat.) 543 (1823).
- Lewis Hanke, “Pope Paul III and the American Indians,” Harvard Theological Review, 30:65-102, 1937.
- Lewis Hanke, Aristotle and the American Indians: A Study in Race Prejudice in the Modern World, (Bloomington: Indiana University Press), 1959.
- Richard Peter’s, Statutes At Large, Vol. VII, Treaties Between the United States and the Indian Tribes (Washington: Government Printing Office).
- Dr. Luis Rivera-Pagán, A Violent Evangelism: The Political and Religious Conquest of America, 1992, (Louisville, KY: Westminster/John Knox Press).
- Joseph Story, Commentaries on the Constitution of the United States, Vol. I, (Boston: Hilliard, Gray and Company), 1933. https://lonang.com/library/reference/story-commentaries-us-constitution/