The Doctrine of Discovery and the Problem of Justice
By Dr. Timothy Bowers Vasko
Who should hold power, how should they obtain it, and to what ends should it be put? What will be the established codes of right and wrong that structure the relationships between individual members of the community? What is to be done when those codes are broken? How should the necessities of life be distributed? How should individuals and members of the community relate to different peoples and other-than-human entities? Why does, and should, this community exist in the first place?
The measure of a just society consists not only in the answers those in power offer in response to these questions. Just societies are also measured by the extent to which people perceive those answers to be credible and truthful. These are difficult questions, and the answers to them are often the focus of contentious debate. However, when it is widely understood that the claims to justice those in power offer in response to these foundational questions are full of contradictions and are therefore not credible, the pursuit of justice faces the danger of being met with cynicism, distrust, and outright rejection.
As the Sincangu Titunwan scholar Ed Valandra has noted in his discussion of the problems latent in restorative justice (RJ) movements and conversations, this is exactly the challenge that proponents of RJ have recently found themselves confronting. Advocates of RJ continue to face suspicion of their efforts and intentions by communities of color, and especially Indigenous communities. While proponents of RJ claim to be eager to “recognize” Indigenous voices and forms of justice, Valandra observes, they are often accused by Indigenous people of continuing to overlook some of the most essential facts of the history of colonization that have put many advocates for RJ in the authoritative position to define what justice means, and therefore, what a “restorative” project of justice might look like.
What’s more, they foreclose the possibility of taking seriously Indigenous-defined theories of justice and therefore Indigenous-directed moves to right the wrongs of land theft and genocide. The reason for this, as Valandra notes, runs directly through the Doctrine of Discovery. The reason that the Doctrine of Discovery may explain the problems inherent in questions of RJ today lies in the fact that, as Valandra points out, “infamous as this fiction is, the Discovery Doctrine is seldom thoroughly, much less critically, discussed in White society.”[i]
The Doctrine of Discovery is a principle of international law that emerged out of papal bulls, royal proclamations, legal and theological arguments, travel narratives, and philosophical treatises written by European-Christians from Spain, Portugal, Italy, France, England, and Holland between the 1400s and the 1800s. This principle was codified into U.S. federal law in the 1823 Supreme Court case Johnson v. M’Intosh, and was subsequently adopted by settler governments in Canada, Australia, and New Zealand/Aotearoa by the end of the 19th century.[ii]
Across these works, European-Christians often argued among themselves over who possessed the most legitimate claim to establish colonial outposts in the lands of the Western hemisphere. But as the Lumbee legal historian Robert A. Williams has shown, all these European-Christians more or less agreed on a few basic points:
First, they tended to agree that the first European empire to arrive in a particular place before any other European-Christians obtained sovereignty over that place and its Indigenous inhabitants upon planting their flag and the cross in “New World” soil. And, they agreed that this right of sovereignty over Indigenous peoples in the Americas and their lands derived from European-Christians’ religious, civilizational, and ultimately racial superiority.[iii] The Doctrine of Discovery is therefore one of the foundational theories of justice European empires and settler colonies like the United States, Canada, Aotearoa/New Zealand, and Australia developed to justify their existence in the first place, and what they would be allowed to do to the Indigenous inhabitants of the lands that they had expropriated for themselves in order to maintain their existence.
Since the Doctrine is so rarely discussed, key aspects of how it has historically functioned have gone overlooked. While the Doctrine of Discovery was designed to wrest Indigenous peoples’ lands away from them, it is not exactly the case that formulators of the doctrine did so by ignoring the existence or claims of Indigenous peoples altogether. Instead, many advocates and institutions that historically sought to implement the doctrine developed practices of “recognizing” Indigenous peoples’ human rights and land claims as a key aspect of the claims to European-Christian imperial legitimacy, anticipating contemporary forms of Indigenous “recognition” proposed and practiced by RJ advocates and policies today. Understanding the structure of the Doctrine of Discovery’s reliance on recognition can therefore help to explain and address the problems inherent in RJ today.
Practices of “recognition” helped to justify the claims to legitimate colonization through discovery. Many (though, to be sure, not all) Spanish officials in the 1500s and 1600s, for example, claimed to recognize the inherent “innocence” and incipient Christianity of Indigenous souls and religious beliefs as the basis for the ultimately missionary rationales for imperial expansion.
British and French colonists echoed these claims throughout the 1600s and 1700s, only modifying them by arguing that the Spanish had never truly recognized Indigenous peoples’ spiritual humanity, as was evident in the long record of Catholic atrocities committed against the original inhabitants of the Americas. All three empires were forced to negotiate with Indigenous sovereigns throughout the hemisphere as they struggled to establish stable colonial footholds here, a fact they would retroactively describe as benevolently and justly recognizing the natural rights of the people they sought to conquer through massacre, conversion, and land theft.
Indeed, as the Shoshone historian Ned Blackhawk has recently demonstrated, for instance, it is an established fact that Indigenous individuals and polities exercised considerable influence over the course of development of the early-modern Americas, even if those individuals and polities were operating under the unequal and uninvited conditions of epidemiological and ecological destruction, genocidal violence, forced religious conversion and cultural assimilation, and forced economic changes.[iv]
It may seem counterintuitive to think of the Doctrine of Discovery as operating according to a logic of recognition. There are many subtleties to this argument that deserve to be worked out in more focused historical research. But to appreciate how the Doctrine of Discovery relied, and continues to rely, on practices of recognition, and why this is an essential problem when we consider the question of how to achieve Indigenous-defined justice, I want to briefly point to two examples, one historical, one contemporary.
The first example involves the often-overlooked developments during the first three decades of colonization of Carolina by a company of English nobles consulting with the political philosopher John Locke. The second example is the recent decision by the Canadian Supreme Court in the case Tsilhqot’in Nation v. British Columbia (2014).
Between the late 1660s and early 1680s, the political philosopher John Locke helped to advise a company of English nobles, known as the Lords Proprietors, on colonizing the coastal lands known as Carolina. At the time of English colonization, the Catawba, Cusa, Edisto, Westo, Saponi, Savannah, Yammasee, Kyawah and other groups had inhabited these lands for centuries. While Locke and the Lords Proprietors unquestionably had designs on claiming these lands for themselves and for the settlers in their employ, they were also forced to recognize, to some degree, the sovereignty of the original inhabitants of the lands they sought to acquire.
For example, the Fundamental Constitutions of Carolina, the founding document for the colony that Locke wrote in 1669, included a provision that the “natives” of the land could not be dispossessed of their land or otherwise attacked because of their non-Christian religious beliefs. Further, when Locke and the Lords Proprietors discovered that colonists were capturing and selling Indigenous peoples into Caribbean slavery, they urged the governors of the colony to prosecute the perpetrators. Likewise, Locke and the Lords Proprietors frequently instructed the governors of the colony to construct fences around settlers’ lands — not to keep Indigenous neighbors out, but instead, as these instructions put it, to show the neighboring Indigenous nations that the English recognized and respected their original land claims.
And when, in 1680, it had become clear that the colonists had continued to capture and enslave Indigenous people in Carolina and encroach on their territory, the Lords Proprietors established a court of claims where Native people could articulate wrongdoing and seek restitution. Crucially, too, as Locke helped to advance these colonial policies, he was concurrently reading and citing the work of Garcilaso de La Vega el Inca, the only published author of Indigenous descent in the 1600s.
Locke and the Lords Proprietors staked much of the moral legitimacy and strategic success of the Carolina enterprise on the claim that they could “recognize” the humanity of Indigenous peoples in Carolina and elsewhere. But this was not because Locke and the Lords Proprietors were interested in adapting their way of life to Indigenous Carolinians’ pre-existing forms of government, moral and ethical principles, and modes of engaging with the ecosystem. Rather, their claim to recognize Indigenous humanity in Carolina and elsewhere only served to buttress the claims for the justice and justness of an English colony designed according to English common law.
John Locke is arguably the high philosopher of the Doctrine of Discovery. Famously, in his Second Treatise on Government — which he wrote at the same time that he was advising the Lords Proprietors on reforming the Carolina colony’s laws — Locke argued that Indigenous peoples in America had left their land so undeveloped and uncultivated that it was imperative for European-Christians to wrest that land away from them. Indeed, because Indigenous peoples, in Locke’s eyes, left their lands to “waste,” they had no meaningful sovereignty over that land in the first place. Only those who settled, planted, and produced monetizable commodities on the land could claim sovereignty over it.
At first glance, this may seem to fly in the face of the claim that Locke set out to recognize Indigenous humanity. But in fact, precisely because Locke claimed that he was recognizing Indigenous humanity, he was defining the terms of what was and what was not universally necessary to be recognized as appropriate human society and conduct. This then allowed Locke to argue that when and where he believed Indigenous peoples to be failing to meet his unilaterally defined conditions of humanity, they were not deserving of the natural rights that he argued all humans possessed — including, crucially, rights to property, sovereignty, and the protection and preservation of a peaceful life.
Locke’s philosophy has been the cornerstone of discovery jurisprudence since it first appeared. It was cited in Johnson v. M’Intosh (1823) and has remained the clearest articulation of the principle of terra nullius — the idea that prior to European arrival, there was no significant human development on American soil that worthy of legal consideration by settler governments.
Importantly, in the last two decades, national and international courts and organizations have taken significant strides toward ridding their legal orders of this precept as a matter of restorative justice. However, many of these efforts continue to exhibit some of the problems of recognition that Locke’s Carolina counsel and political philosophy anticipated. In responding to Indigenous claims of sovereignty and historical wrongdoing, settler governments unilaterally re-establish the terms of justice, even while they claim to be recognizing and listening to Indigenous peoples.
Perhaps nowhere has this been clearer than in Canada. In 2014, for example, the Supreme Court of Canada (SCC) set a remarkable new precedent for the role of First Nations’ oral tradition in establishing the legitimate claim of title to previously colonized lands in Tsihlqot’in Nation vs. British Columbia (2014). In that case, the SCC recognized the Tsilhqot’in First Nation’s claim to title a 2000 km2 (772 miles2) expanse of land in central British Columbia which, the Tsilhqot’in argued, had been theirs since time immemorial.
In 1983, however, the Canadian Federal Government (or Crown) had expropriated this land for clear-cut logging purposes, citing the principle of terra nullius. In weighing on the case, the court found that “a declaration of Aboriginal title over the area requested should be granted” because the Tsilhqot’in had successfully established that they had “regularly” and “exclusively” used the lands in question prior to colonization and through the time of the federal government’s seizure of the territory. What was most remarkable about the case, as many legal scholars and observers noted, was that the SCC recognized that the Tsilhqot’in had proven their case through the oral records of “the Aboriginal culture and practices.”[v]
Such efforts mark significant progress for Indigenous nations’ rights vis-à-vis settler governments. However, as the Saulteau legal scholar Val Napoleon has observed, arbitrating the matter in a settler court, and in the terms of the English common law tradition, ultimately works to “ignore the existence of Tsilhqot’in legal institutions, through which people own lands, make decisions regarding their lands and resources, and govern all aspects of their collective lives.”[vi]
The SCC’s ostensibly restorative approach to “recognizing” Indigenous peoples’ claims of wrongdoing simultaneously re-affirms the supremacy of Canadian settler law and ideas as the ultimate benchmark against which Indigenous knowledge, humanity, and claims of injustice can and will be measured going forward. Despite recognizing Indigenous title in Tsilhqot’in Nation, the court’s ruling has not been widely adopted, even though “Aboriginal culture and practices” could surely establish a long history of use, occupation, and spiritual significance for most Crown (not to mention privately owned) lands.
Part of this is because the court strictly stated that only the “regular” and “exclusive” use of a particular territory by one specific First Nation is the benchmark for determining Aboriginal title according to the Canadian legal system — a standard that, given the violent, disruptive, and intrusive history of colonization, as well as the complex differences between Indigenous conceptions of territorial claims from those embedded in Anglophone common law, is often difficult for Indigenous plaintiffs to meet.
Further, as the Anishnaabe legal scholar John Borrows notes, despite the fanfare with which Canada’s Liberal government has celebrated Tsilhqot’in as a mark of Canada’s progress, no legal or political institution in the country has moved to systematically dislodge the principle of terra nullius from its basic jurisprudence.[vii]
Like Locke, in other words, even as the Supreme Court of Canada recognized Indigenous humanity, ideas, and claims to injustice, they fortified a strong set of terms that delineated the conditions under which that recognition could take place, and therefore the conditions under which any claims might not be relevant.
There is a great deal of difference between Carolina in the 1670s and British Columbia in the 21st century. But the idea that European-Christians and their settler descendants are cardinally positioned to recognize and mediate Indigenous claims of historical wrongdoing and title to their homelands unites these two examples in a long line of legal and philosophical ideas about the fundamental legitimacy of societies founded upon a principle of “discovery.”
In Carolina, the Lords Proprietors and Locke believed that they were recognizing Indigenous peoples’ “proper” lands; that they were giving them a legal voice and “protecting” them from avaricious colonists. In British Columbia, too, the Canadian government sees itself as preserving Indigenous title to land (where the Crown deems it legitimate), taking Indigenous worldviews into account, and giving Indigenous peoples a legal voice. In both cases, however, the result was not less colonial control, only a modification of how and over what that control was exercised.
So, how are we to think beyond restorative justice, toward what Valandra calls, in the present series of essays, “Native Justice” in light of this? What would a justice look like that centers what Napoleon refers to as Indigenous legal institutions community? Embedded in the logic of both Valandra and Napoleon’s arguments is the obvious fact that every Indigenous society has already developed sophisticated answers to these questions, and we should start there.
The works of Napoleon and Borrows are particularly instructive in this regard, because they have shown in different contexts how specific legal systems have existed within Indigenous communities before, during, and after the moment of collision with colonial forces, and indeed, how those legal systems even historically worked to inspire and structure the legal systems of colonial constitutions, as well. While these works are concerned with the Canadian context, as mentioned, Blackhawk has begun to make a similar case for the United States.
Three implications follow from these findings: First, some of the most fundamental questions of justice that have developed in imperial and settler contexts were developed because Indigenous and other (especially enslaved African) peoples forced those in power to reckon with the will and humanity of those people they wanted to think about as less than human and subjugate.
This means, secondly, that there are entirely different, and mostly overlooked, philosophical, social, and legal contexts unique to Indigenous and other oppressed communities that originally informed constitutive accounts of what a just society must look like. Ironically, it has been the practice of recognition that has precluded us from seeing and engaging with these accounts of justice as fully formed philosophical, social, and legal systems, because the practice of recognition has preserved European-Christian legal, philosophical, and social traditions as the ultimate arbiters of the question of justice.
Finally, and consequently, Indigenous and other oppressed peoples’ agency and concepts of justice are not just afterthoughts to an already perfected system that was imperfectly implemented. Rather, they are part of the very condition of possibility under which more canonical European thinkers and institutions developed answers to questions about what just modern societies can and should look like. Recovering these conditions of possibility should not take the form of a “discovery” or “recognition,” but rather, of remembering, respect, and application.
Works Cited
Blackhawk, Ned. The Rediscovery of America: Native Peoples and the Unmaking of U.S. History. New Haven, CT: Yale University Press, 2023.
Borrows, John. “The Durability of Terra Nullius: Tsilhqot’in Nation v. British Columbia” UBC Law Review 48 no. 3 (2015): 701-42.
Miller, Robert J., Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg. Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies. Oxford: Oxford University Press, 2010.
Napoleon, Val. “Tsilhqot’in Law of Consent,” UBC Law Review 48 no. 3 (2015): 873-901.
Valandra, Edward C. “Undoing the First Harm: Settlers in Restorative Justice,” in Colorizing Restorative Justice: Voicing our Realities, edited by Edward C. Valandra, 325-70. St. Paul, MN: Living Justice Press, 2020.
Williams, Robert A. The American Indian in Western Legal Thought: The Discourses of Conquest. Oxford: Oxford University Press, 1991.
Notes
[i] Edward C. Valandra, “Undoing the First Harm: Settlers in Restorative Justice,” in Colorizing Restorative Justice: Voicing our Realities, edited by Edward C. Valandra, (St. Paul, MN: Living Justice Press, 2020), 329.
[ii] Robert J. Miller, Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg. Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies, (Oxford: Oxford University Press, 2010).
[iii] Robert A. Williams, The American Indian in Western Legal Thought: The Discourses of Conquest, (Oxford: Oxford University Press, 1991).
[iv] Ned Blackhawk, The Rediscovery of America: Native Peoples and the Unmaking of U.S. History, (New Haven, CT: Yale University Press, 2023).
[v] John Borrows, “The Durability of Terra Nullius: Tsilhqot’in Nation v. British Columbia” UBC Law Review 48 (2015), 703-4.
[vi] Val Napoleon, “Tsilhqot’in Law of Consent,” UBC Law Review 48 (2015), 876.
[vii] Borrows, “Durability of Terra Nullius.”
First Nations Development Institute (First Nations) is pleased to launch a new online series of essays that focuses on Native justice. With generous support from the Chan Zuckerberg Initiative (CZI), First Nations has invited multiple experts to discuss the root causes of Native injustice and highlight possible frameworks to move forward toward Native justice.