Last month, Chief Justice Marshall’s opinion in Johnson v. McIntosh turned 200 years old. Most 1Ls read this case in property. In this canonical decision, Marshall explained that European explorers “acquired” land in the Americas pursuant to the discovery doctrine. Of course, indigenous people already resided on this territory, but those “fierce savages,” as Marshall called them, did not have any property rights. Thus, European explorers could “discover” these new lands, as if they were uninhabited.
Here is how Marshall described the discovery doctrine:
Discovery is the foundation of title, in European nations, and this overlooks all proprietary rights in the natives… All the proprietary rights of civilized nations on this continent are founded on this principle. The right derived from discovery and conquest, can rest on no other basis; and all existing titles depend on the fundamental title of the crown by discovery….
On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented.
The discovery doctrine was grounded, in part, on religion. Christians were superior and the native people were inferior. Indeed, according to the doctrine, Christians were helping the native people by bestowing “civilization and Christianity” on them. The Catholic Church, in particular, had endorsed these principles when it approved various European expeditions. Indeed, some of these papal decrees stretch back to the 1400s.
The doctrine was laid out in a series of papal “bulls,” or decrees; the first one was issued in 1452. They authorized colonial powers such as Spain and Portugal to seize lands and subjugate people in Africa and the “New World,” as long as people on the lands were not Christians.
Scholars widely note three bulls: Pope Nicholas V’s Dum diversas (1452) and Romanus Pontifex (1455); and Pope Alexander VI’s Inter caetera (1493).
Now, the Vatican has taken the action to repudiate these decrees. Or more precisely, the Vatican stated that these decrees were never actually part of the teachings of the Catholic church:
5. It is in this context of listening to indigenous peoples that the Church has heard the importance of addressing the concept referred to as the “doctrine of discovery.” The legal concept of “discovery” was debated by colonial powers from the sixteenth century onward and found particular expression in the nineteenth century jurisprudence of courts in several countries, according to which the discovery of lands by settlers granted an exclusive right to extinguish, either by purchase or conquest, the title to or possession of those lands by indigenous peoples. Certain scholars have argued that the basis of the aforementioned “doctrine” is to be found in several papal documents, such as the Bulls Dum Diversas (1452), Romanus Pontifex (1455) and Inter Caetera (1493).
6. The “doctrine of discovery” is not part of the teaching of the Catholic Church. Historical research clearly demonstrates that the papal documents in question, written in a specific historical period and linked to political questions, have never been considered expressions of the Catholic faith. At the same time, the Church acknowledges that these papal bulls did not adequately reflect the equal dignity and rights of indigenous peoples. The Church is also aware that the contents of these documents were manipulated for political purposes by competing colonial powers in order to justify immoral acts against indigenous peoples that were carried out, at times, without opposition from ecclesiastical authorities. It is only just to recognize these errors, acknowledge the terrible effects of the assimilation policies and the pain experienced by indigenous peoples, and ask for pardon. Furthermore, Pope Francis has urged: “Never again can the Christian community allow itself to be infected by the idea that one culture is superior to others, or that it is legitimate to employ ways of coercing others.”
7. In no uncertain terms, the Church’s magisterium upholds the respect due to every human being. The Catholic Church therefore repudiates those concepts that fail to recognize the inherent human rights of indigenous peoples, including what has become known as the legal and political “doctrine of discovery”.
Johnson v. McIntosh remains good law. If there is any reason to cancel John Marshall, this is it.