Impact on U.S. Law

The Discovery Doctrine has been embedded in U.S. case law for nearly two centuries in a secular form. It first appeared in the U.S. Supreme Court decision Johnson v. M’Intosh in 1823. The New York Quakers provide the following summary:

“The court denied individuals permission to buy land from American Indian tribes [nations]. Under the doctrine, the court assumed only a sovereign United States could acquire the land, should the Indians choose to sell. In this decision, Indians were given a limited right of “occupancy” without full title to their own land, and could thus lose their land if they could not prove continuous occupancy. The doctrine was reframed in secular terms, in which the criterion for sovereignty became ‘cultivators of land’ instead of ‘Christians.’”

An analysis by the Unitarian Universalist Association of Congregations concludes that the Discovery Doctrine “is still the basis used by courts today to violate existing treaties with Native peoples and take away their mineral and water rights. As people of faith, we are called to understand and dislodge the Doctrine of Discovery and its present-day effects …”

The Doctrine of Discovery was cited as recently as the 2005 decision in City of Sherrill v. Oneida Indian Nation of New York, affirming U.S. government sovereignty over Indian land. U.S. Supreme Court Justice Ruth Bader Ginsburg wrote the opinion, affirming the government’s sovereignty over lands, even if they’re sold to an Indian tribe.

“The doctrine of discovery put us in the same place as the buffaloes and rabbits, roaming the land,” said Oren Lyons, a faith keeper of the Turtle Clan in the Onondaga nation. “We didn’t have right of title to land, but rather occupancy.” If the church were to dissavow the decree, Lyons said it would remove a legal argument against tribal land claims.

Growing pressure from U.S. religious communities to repudiate the Doctrine of Discovery could be more than just a symbolic act. Ultimately, pressure from religious communities could affect U.S. case law and Indian sovereignty.