The Doctrine of Discovery
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Sarah McConnell: When early European settlers first arrived and planted their crosses on the beaches of North America, they weren’t just thanking God for a safe voyage across the sea, they were claiming the land based on a legal principle called the doctrine of discovery. It provided that, by law and divine intention, European Christian countries gained power and legal rights over non-Christian natives immediately upon their discovery by Europeans. Thomas Jefferson understood the doctrine of discovery very well and used its principles in the Lewis and Clark Expedition to secure America’s claim to the Pacific Northwest. I’m Sarah McConnell and this is With Good Reason.
When the British planted a cross and their flag on territory previously unclaimed by European nations, they were invoking the doctrine of discovery that dates as far back as the time of the Crusades. Robert Miller is a Shawnee Indian, a law professor, and author of a new book about the doctrine of discovery called Native America, Discovered and Conquered: Thomas Jefferson, Lewis and Clark, and Manifest Destiny. Robert Miller is my first guest today, along with Karenne Wood, who’s a Monacan Indian and director of the Virginia Indian Heritage Program.
You write that the doctrine of discovery really formed a legal basis for taking the Indian lands, right from the start.
Miller: The doctrine of discovery was the international law for claiming areas of the world that were unknown or un-yet found by European Christian people. Being able to point to a legal doctrine and to a justification for why Country X owns something served several purposes: the rest of the world was warned to stay away because we’ve acquired this through some legal, international law and also the native people are now subject to us as our subjects, or vassals, or something.
Wood: It’s more complicated than finders-keepers. The Indian people were already there, they were the finders, but they were considered not to have the rights to their land because they hadn’t improved it and they weren’t using it in a civilized way.
Miller: Absolutely. First off, native people had improved the land in many cases by being farmers, in some cases by managing forests, by using fire to control the use of various animals. So Europeans were blind to the fact that native cultures and native people, certainly in North America, were improving and using the land. So this idea of planting your flag somewhere, I mean, it’s part of law and always has been.
McConnell: Are we still observing the legality of the doctrine of discovery?
Miller: We saw the application of the doctrine of discovery just by the fact that the American flag is on the moon and by the fact that Russia planted its flag on the bottom of the Arctic Ocean in August of 2007 to claim the oil and gas that is there. Most of the countries that didn’t beat Russia to putting their flag on the bottom of the Arctic Ocean laughed at Russia for doing that, and they said this isn’t the fifteenth century anymore, you can’t go around the world doing that. Well, Russia did it, now they are of course making an argument under United Nations law and under a treaty that they signed called the Convention on the Law of the Seas, but if Russia loses then I think their back-up argument is that they stuck their flag there in 2007. So again, they did not do that just for a publicity stunt.
McConnell: So how far back, Robert, do the roots of the doctrine of discovery go?
Miller: The doctrine of discovery is literally considered the original international law. It was a legal principle designed to control the conduct of European countries vis-à-vis each other. Some scholars have traced the doctrine of discovery certainly to the Crusades, but for our purposes the discovery doctrine was really developed and turned into international law in the 1400s, when the Spanish and the Portuguese started claiming lands outside the site of Europe. For instance, in 1496 when Henry VII chartered John Cabot to go to North America and to make various claims for England, every few hundred miles he would row ashore and what would he do? Well, he’d stick his flag and his cross in the soil and he was doing exactly what King Henry VII told him to do, "Go where no Christian prince has yet been and acquire land, sovereignty, and title for me." The Spanish crown developed regulations for how the conquistadors were to claim and acquire lands in the New World. Conquistadors had to read a notice called the requiremiento to the native people informing them that there now was a new government, a new king and queen they had to obey, and a new religion they had to adopt. But what just is so ironic is the conquistadors apparently got worried that native people might actually convert their religion and their government, so the conquistadors started reading this document into their beard: they would just mumble the words or they would read it from their ship at night to the lands and they would consider that as putting on notice all the native people that they had to convert both religion and government or they could be killed.
Wood: They weren’t just thanking God for landing in a safe place after their voyage, they were actually claiming the land when they arrived and Christopher Newport did the same thing when he came to Virginia. He planted a cross, then he wrote that he lied to the native people and told them that he was just thanking God and that was their way of expressing their faith. But he put in the document, "I was claiming the land on behalf of our king." They continue to sail up the river and to plant crosses. In fact, when John Smith published his map of 1612 there are a number of crosses located on that map. We see it today, it’s a very famous map.
McConnell: The cross has legal significance, for claiming land?
Wood: It does. The Christian nations believed that only Christian princes had the right to own land and they therefore could distribute it to people and this is why you see kings giving large tracts of land to their favorite subjects.
Miller: This was reminiscent of a legal procedure that was used in England for the transfer of property for hundreds and hundreds of years. Before you had county recording offices to record deeds, how’d you prove you had sold property? Well, the person who had long lived there would bring the new person on the property, that they were selling it to, and they would call their neighbors around to watch while they shoveled up a piece of dirt and the original owner would hand the new owner a dirt clod. So this idea of planting the flag is a symbol like that, so that everyone can see what you’re doing and watch what you’re doing.
Wood: Well, and wasn’t Lewis and Clark, weren’t they following the trail west in order to reach the spot on the Northwest coast that had already been claimed for the United States, so that they could claim all of that land along the trail?
Miller: Absolutely, Thomas Jefferson directed Meriwether Lewis very specifically to travel down the Columbia River, to its discharge into the Pacific Ocean, to show that the United States had now occupied it. And of course don’t forget that Meriwether Lewis carried with him his branding iron, that he used to brand trees wherever he went, and that Clark and the men would use their knives to carve their names, to prove that you had been there.
Wood: What bothers me about this whole story is the idea that Thomas Jefferson wasn’t really enacting a democratic ideal in quite the perfect way we imagine it. He was building an empire.
Miller: That’s exactly correct. Some historians call Thomas Jefferson the most aggressive expansionist president we’ve ever had. And this idea we have of Jefferson, of this peace-loving man of the Enlightenment—maybe he was personally, but outwardly he saw the United States as dominating this entire continent. In fact he wrote that we are the people that will "nest" all of North and South America. Now that’s a pretty aggressive statement. In the War of 1812 he wrote President Madison to invade Canada and to invade Cuba. I mean, he was very interested in expanding American territory.
Wood: Lewis and Clark were also traveling west handing out peace medals with the image of Jefferson to the Indian nations they encountered and telling those nations that they now had a new great white father in Washington to whom they were subject. But Jefferson had a very high regard for native people in general, having worked with Iroquoian tribal leaders in New York state, he was part of some of those treaty negotiations. He wrote about their oratorical skill and admired their diplomatic prowess. At the same time he felt it necessary for Indian people to become absorbed into the American population and on many occasions made speeches to the effect of, "You will become one with us, your blood will mingle with our blood, your civilization will mingle with our civilization," and he felt that was the only outcome possible, the only satisfactory outcome possible for native people.
McConnell: By "mingling blood," he means "your women and men will marry our women and men"?
McConnell: How interesting.
Wood: Which is very much opposed to the policy of Virginia later on when it outlawed marriage between people of different races.
McConnell: So there was more to the doctrine of discovery, legally, than simply planting the flag and the cross because we later engaged in a lot of treaties with Native Americans.
Miller: Absolutely, another one of the elements of the doctrine of discovery is that even after Europeans showed up you could not acquire native lands without the consent of the tribal leadership and without some sort of payment. And you can read treaties that the United States, the Jefferson administration, signed with tribes that the tribe could own and live on their lands forever if they wished, but if they ever wanted to sell it could only be to the United States.
Wood: Thomas Jefferson was well aware of the treaty negotiations that took place between the Iroquois Nation and the Virginia colonists, in which the Iroquois nations ceded to the colonists all of the land they called Virginia, which at that time included western Virginia, all of West Virginia, and up into Ohio. Interestingly, the Iroquois nations had never lived on that land, they claimed to have conquered all of the tribes in the region and so that was also a legal farce, if you will, in that the colonists knew they were buying land that had never been occupied by the nations that sold it to them.
Miller: The English were just glad to have any Indian sign any document so that they could show other countries or other colonies perhaps, "Hey, we just acquired this from the actual Indian owner," so some of it was just a farce.
McConnell: Were some of the early Founding Fathers in a quandary over how to make these deals with the Indians, a moral quandary?
Miller: I’ve never found any one of what we would call our classic Founding Fathers being in any conflict that it was the United States’ destiny to acquire these lands. George Washington made a famous statement in 1783, he wrote a letter to the Articles of Confederation Congress. They had asked him his advice on how we should deal with the tribes, who mostly had fought for the British in the Revolutionary War, and he says, "We don’t have to fight the tribes," he said, "We will get their lands as soon as we need them." And he said, "What happens to the animals of the forest when we advance our frontiers and cut all the trees down?" He said, "Why they retreat, don’t they?" and then, I can almost quote this, he says, "The same with the Indian, the savage as the wolf." So he was advocating, let’s not fight wars with tribes, just natural attrition of the native and the natural increase of Americans, we’ll get it all.
Wood: And beyond that, globally, there was a term called the white man’s burden, the idea being it was incumbent upon Caucasian people as the most civilized people on Earth to spread across the globe their doctrine of Christianity and their message of civilization. They were under the impression that it was their job, their obligation, to go around the world converting people and claiming land and extracting the resources that those people had access to. And I think it’s important to recognize, too, that to some people, the people who had lived here, this wasn’t a new world. It wasn’t a wilderness, it wasn’t an empty desert waiting to be given to the new people. Robert Frost had a poem he wrote in which he said, "The land was ours before we were the lands." Well, there were people here whose lands they were, who had intimate relationships with this place, and to say they loved their homeland any less than somebody else is, I think, is just not acceptable.