2nd part 40. George Grafton Wilson (1863-1951), a professor in the United States at Brown University, Harvard University, the Fletcher School of Law and Diplomacy, and the United States Naval War College, expressed the same point. On the basis of the Johnson v. McIntosh ruling, Wilson stated that “England, France, Holland, Portugal, and Spain alike maintained that discovery of lands previously unknown to Christian people gave the Christian discoverer the right to take possession”.47 VII. The Doctrine of Discovery in contemporary times 41. In the mid-twentieth century, the United States Supreme Court reaffirmed and embraced the Doctrine of Discovery. Five hundred years after the issuance of Romanus Pontifex, the United States Supreme Court handed down its decision in Tee-Hit-Ton Indians v. The United States.48 The case had to do with the Tee-Hit-Ton people whose language is Tlingit, and whose “customs, laws, and traditions [are] similar to other Tlingit peoples” in what is now called Alaska.49 In 1947, the United States Congress authorized the United States Secretary of Agriculture to sell the timber of the Tongass National Forest, a national forest that the Congress had established in an area that partly encompassed the traditional territory of the Tee- Hit-Ton and the Tlingit. On 20 August 1951, the United States Forest Service sold Ketchikan Pulp and Paper Company “the right to all harvestable in the Tongass National Forest, estimated at 1,500,000 cubic feet”. Shortly thereafter, the Tee-Hit- Ton sued, arguing that they “were the sole owners of the land and water in dispute; that they had never sold or conveyed the land to any other party; and they asked for a judgment for the losses and damages from the Tongass taking, plus interest”.50 __________________ 45 Johnson v. McIntosh at 596. The quotation from Story in para. 37 above links to the doctrine of terra nullius. 46 Benjamin Munn Ziegler, The International Law of John Marshall. 47 George Grafton Wilson, “International Law and the Constitution”, 13 B.U. L. Rev. 234 (1933). Wilson’s statement “that discovery of lands previously unknown to Christian people gave the Christian discoverer the right to take possession” is in keeping with Thomas Hobbes’s statement, already mentioned, that “the right of possession is called Dominion”. In other words, “dominance”. 48 Tee-Hit-Ton Indians v. The United States 348 U.S. 272 (1955). 49 David Wilkins, American Indian Sovereignty and the U.S. Supreme Court: “The area claimed by the Tee-Hit-Ton entailed approximately 357,802 acres of land and 150 square miles of water. They had inhabited the region for thousands of years, and the area in question was recognized as theirs by neighboring tribes”. The traditional territory of the Tlingit exists within the temperate rainforest of the south-east Alaska coast and the Alexander Archipelago. The Inland Tlingit inhabit the far north-western part of what is now known as the province of British Columbia and the southern Yukon Territory of Canada. 50 Wilkins, American Indian Sovereignty. E/C.19/2010/13 10-23102 17 42. Eventually, United States government attorneys filed a brief with the Supreme Court that was based in part on the Doctrine of Discovery and the era of the Vatican papal bulls; in it they argued that it was a well-recognized principle in international law that “the lands of heathens and infidels” were open to acquisition (taking) by “Christian nations”.51 A few comments will place the United States legal argument about “Christian nations” in context: until 1856, there existed a collective international political identity, comprising different monarchies and States, called variously by such names as “Christendom”, “the Christian common wealth” and “the Family of Nations” (“the Christian nations of Europe and their offshoots in America”). In keeping with this history, the United States attorneys began their “summary of argument” with the Johnson decision: “It is a well established principle of international law that with respect to the lands of this continent 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 (Johnson v. McIntosh, 8 Wheat. 543, 573)”. The attorneys continued: “... the discovering nations asserted in themselves, by virtue of the principle of discovery, the complete and exclusive title to the land — subject only to a right of occupancy in the Indians, such right being retained by the Indians only by the grace of the sovereign”.51 43. Under the heading “Argument” the United States attorneys referred back to the centuries-long era of “the Christian nations of Europe.” They included a discussion of the era of the papal bull Romanus Pontifex: “Prior to the great era of discovery beginning in the latter part of the fifteenth century, the Christian nations of Europe acquired jurisdiction over newly discovered lands by virtue of grants from the Popes, who claimed the power to grant to Christian monarchs the right to acquire territory in the possession of heathens and infidels.”52 44. The attorneys continued with the following line of argument in Tee-Hit-Ton based on the Vatican papal bulls: For example, in 1344, Clement VI had granted the Canary Islands to Louis of Spain upon his promise to lead the islanders to the worship of Christ, and, following the discovery of the New World by Columbus, Alexander VI in 1493 and 1494 issued bulls granting to Spain all lands not under Christian rule west of a line 100 leagues west of the Azores and Cape Verde Islands. ... The latter papal grant, because of the breaking down of the papal authority and the vastness of the territory covered, was not accepted by the other nations or even greatly relied upon by Spain, and it was necessary for the civilized, Christian nations of Europe to develop a new principle which all could acknowledge as the law by which they should regulate, as between themselves, the right of acquisition of territory in the New World, which they had found to be inhabited by Indians who were heathens and uncivilized according to European standards.51 45. Justice Stanley Forman Reed delivered the majority decision for the United States Supreme Court in Tee-Hit-Ton Indians v. The United States. However, before explaining the Court’s ruling in Tee-Hit-Ton, it is necessary to first mention the 1946 __________________ 51 Brief for the United States in Tee-Hit-Ton Indians v. The United States. 52 Here the United States attorneys cited Lindley, The Acquisition and Government of Backward Territory in International Law (1926). E/C.19/2010/13 18 10-23102 Supreme Court case Alcea Band of Tillamooks v. The United States.53 In the Alcea Band case, the majority of the Supreme Court decided that the Alcea Band of Tillamook Indians in Oregon were entitled to monetary compensation for a taking of their ancestral lands by the United States Government. However, Justice Reed, who wrote the minority opinion, disagreed. Justice Reed relied on the Johnson v. McIntosh ruling of 1823 to make his argument that the Alcea Band of Tillamook Indians were not entitled to monetary compensation for a taking of their ancestral lands by the United States Government. 46. As the main support for his argument in the Alcea Band case, Justice Reed characterized the Johnson v. McIntosh ruling as having advanced the theory that the “discovery” of Indian lands “by Christian nations gave them sovereignty over and title to the lands discovered”. This, of course, matches Judge Catron’s claim in State v. Foreman that it was “the law of Christendom that discovery gave title to assume sovereignty over, and to govern the unconverted natives”.54 47. When Justice Reed wrote the majority opinion for the United States Supreme Court in Tee-Hit-Ton, he concurred with the argument made by the United States attorneys. He also applied the same line of reasoning regarding the Doctrine of Discovery that he had previously expressed in Alcea Band of Tillamooks. He said that it was “well settled” that American Indians held claim to lands in North America “after the coming of the white man, under what is sometimes termed Indian title or permission from the whites to occupy. That description means mere possession not specifically recognized as ownership by Congress. After conquest they were permitted to occupy portions of territory over which they had previously exercised ‘sovereignty,’ as we use that term. This is not a property right but amounts to a right of occupancy which the sovereign grants”. He further said that “this right of occupancy may be terminated and such lands fully disposed of by the sovereign itself without any legally enforceable obligation to compensate the Indians”. Mention of “conquest” references the Framework of Dominance, and Justice Reed went on to say: “This position of the Indians has long been rationalized under the theory that discovery and conquest give the conquerors sovereignty over and ownership of the lands thus obtained”.55 48. In his Elements of International Law, under “Rights of Property”, Henry Wheaton wrote the following which, based on Justice Reed’s citation, reveals the context of the United States Supreme Court’s ruling in Tee-Hit-Ton: The Spaniards and the Portuguese took the lead among the nations of Europe, in the splendid maritime discoveries in the East and the West, during the __________________ 53 329 U.S. 40 (1946). 54 See footnote 1 above. 55 Justice Reed referred to Johnson v. McIntosh and to Henry Wheaton’s Elements of International Law. Henry Wheaton (1785-1848) was an American lawyer and diplomat. He was the reporter of decisions for the United States Supreme Court when it made the Johnson v. McIntosh decision. He published the first edition of his Elements of International Law in 1836. Justice Stanley Reed, in the Tee-Hit-Ton decision, cited chapter V of Wheaton’s Elements. However, there is nothing in chapter V that would be of relevance to the issue in Tee-Hit-Ton. It is in chapter IV, section 5, of Elements that Wheaton dealt with historical information about rights of property in international law. In that discussion, Wheaton covered the Johnson v. McIntosh ruling, the papal bull of 1493, the royal charters of England, and the doctrine or right of discovery. He also italicized the word “Christian” in the same manner that Chief Justice Marshall had italicized “Christian people” in the Johnson ruling. See Newcomb, Pagans in the Promised Land. E/C.19/2010/13 10-23102 19 fifteenth and sixteenth centuries. According to the European ideas of that age, the heathen nations of the other quarters of the globe were the lawful spoil and prey of their civilized conquerors, and as between the Christian powers themselves, the Sovereign Pontiff was the supreme arbiter of conflicting claims ... Thus the bull of Pope Alexander VI reserved from the grant to Spain all lands, which had been previously occupied by any other Christian [original emphasis] nation; and the patent granted by Henry VII of England to John Cabot and his sons, authorized them “to seek out and discover all islands, regions, and provinces whatsoever, that may belong to heathens and infidels’’; and “to subdue, occupy, and possess these territories, as his vassals and lieutenants”. In the same manner, the grant from Queen Elizabeth to Sir Humphrey Gilbert empowers him to “discover such remote and barbarous lands, countries, and territories, not actually possessed by any Christian prince or people, and to hold, occupy, and enjoy the same, with all their commodities, jurisdictions, and royalties”. It thus became a maxim of policy and of law, that the right of the native Indians was subordinate to that of the first Christian discoverers, whose paramount claim excluded that of every other civilized nation, and gradually extinguished that of the natives.56 49. That the Doctrine of Discovery is still being used as an active legal principle by the United States Supreme Court in the twentieth-first century is revealed in the case City of Sherrill v. Oneida Indian Nation of New York57 decided in March 2005, exactly 50 years after the Tee-Hit-Ton ruling. The case involved a dispute over taxation of ancestral lands of the Oneida Indian Nation. During oral arguments, it became clear that the case would hinge on whether, in the opinion of the Court, the Oneida Indian Nation “has sovereignty status” with regard to the ancestral lands the Oneida Nation had reacquired. To contextualize the Court’s decision and to decide the sovereign status of the Oneida Indian Nation, the Supreme Court relied upon the Doctrine of Discovery. This is revealed in footnote number one of Justice Ruth Bader Ginsberg’s decision for the Court majority: “Under the ‘Doctrine of Discovery’”, wrote Justice Ginsberg, “... fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign — first the discovering European nation and later the original states and the United States”. As documented by this preliminary study, the Supreme Court’s reference to the Doctrine of Discovery places the context for the Court’s decision in Sherrill v. Oneida Indian Nation of New York within the Framework of Dominance, dating back to the era of the Vatican papal bulls. VIII. Conclusion 50. This preliminary study has documented that for more than 500 years the Doctrine of Discovery has been global in scope and application. At least two Governments other than the United States, Canada and Australia, have cited the Johnson v. McIntosh ruling to enforce the Doctrine of Discovery. When they have done so they have cited the Doctrine of Discovery and the Framework of Dominance. Non-indigenous legal scholars and State actors have interwoven the Doctrine of Discovery into international and domestic law. Within the context of the __________________ 56 Wheaton, Elements of International Law, 3d ed. 57 City of Sherrill v. Oneida Indian Nation of New York, 125 S. Ct. 1478, 148384 (2005). E/C.19/2010/13 20 10-23102 United States, such persons include Chief Justice John Marshall, Justice Joseph Story, Henry Wheaton, Justice John Catron, Francis Lieber, B. A. Hinsdale, Alpheus Snow, George Grafton Wilson, Justice Stanley Reed, the United States attorneys who wrote the legal brief filed for Tee-Hit-Ton Indians v. The United States, and Justice Ruth Bader Ginsberg. They all relied upon the Doctrine of Discovery that, as this preliminary study has demonstrated, is rooted in and perpetuates the Framework of Dominance passed down, from generation to generation, from the era of Christendom and the Vatican papal bulls.58 IX. Recommendation 51. The information and material presented in this preliminary study of the international construct known as the Doctrine of Discovery indicates the need for further study and review, and for a more comprehensive assessment and exploration of issues raised here on the violations of indigenous peoples’ inherent rights, particularly as recognized in the United Nations Declaration on the Rights of Indigenous Peoples. Therefore, we recommend that an international expert group meeting be convened to discuss in detail the findings and implications of this preliminary study of the Doctrine of Discovery and to present its findings to the Permanent Forum on Indigenous Issues at its annual session. __________________ 58 Justice Joseph Story, in particular, was specific in his use of concepts that invoke the Framework of Dominance. He said, for example, that “the European discoverers claimed and exercised the right to grant the soil, while yet in possession of the natives, subject however to their right of occupancy; and the title so granted was universally admitted [by the European discoverers] to convey a sufficient title in the soil to the grantees in perfect dominion, or, as it is sometimes expressed in treatises of public law, it was a transfer of plenum et utile dominium”. This, then, takes us back to the etymology of such terms as discussed in footnote 2 above. Story’s use of the secular term “European discoverers” is explained by Lindley in The Acquisition and Government of Backward Territories: “Later on the distinction was drawn between lands already occupied by Europeans and lands not so occupied, although in effect this was the same as the earlier distinction between Christian and non-Christian lands.” Annex Sources 10-23102 21 Brandon, William. New Worlds for Old: Reports from the New World and Their Effect on the Development of Social Thought in Europe, 1500-1800. Athens: Ohio University Press, 1986. Cohen, Felix. Handbook of Federal Indian Law. Washington, D.C.: Government Printing Office, 1942; reprint ed., Albuquerque: University of New Mexico, 1972. Davenport, Francis Gardiner, ed. European Treaties Bearing on the History of the United States and Its Dependencies to 1648. Washington, D.C: Carnegie Institution of Washington, 1917. Deloria, Vine. Behind the Trail of Broken Treaties: An Indian Declaration of Independence. 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