Posted on by Brendan Birth

Native Americans and Land Rights

In a blog post a few weeks ago, I discussed the Amazon rainforest fires in terms of how the Brazilian government was doing away with or disregarding rights for the natives of that land.

That post got me thinking about Native American rights, and particularly Native American land rights. The result of that thinking was this blog post, purposefully published on Columbus Day.[1]

That thinking also led me to a United States Supreme Court case from nearly 200 years ago, back to when John Marshall was the Chief Justice of the Supreme Court. In this case, which is known as Johnson v. M’Intosh, the court had a case before them where they had to determine whose land rights were superior: those of plaintiffs whose land claims came from Native Americans or those of defendants whose land claims came from a United States land grant.[2] The Supreme Court unanimously ruled that the defendants’ claims to the lands were superior. Furthermore, Chief Justice Marshall, who wrote about the Supreme Court’s decision, put into legal writing what is called the “Doctrine of Discovery,” a doctrine which said that European “discoverers” of land inhabited by non-Europeans have rights to the land.[3] This doctrine has existed for centuries, going back to Pope Nicholas V’s papal bull Romanus Pontifex,[4] but Chief Justice Marshall’s decision made this doctrine a part of the legal fabric of this country.

The consequences of this doctrine have been significant. Since European discoverers had rights to the land, not Native Americans who already had the land, it has allowed for the pushing of Native Americans off their former lands and for the killing of Native Americans in the process. And, when this doctrine hasn’t killed Native Americans, it has at the very least disenfranchised many of them.

To make matters worse, the Doctrine of Discovery remains a major part of the American legal system. Even Ruth Bader Ginsburg cited the very Doctrine of Discovery that has caused so much harm when she wrote a majority opinion for a Supreme Court decision in 2005.[5] And, to my knowledge, there has been nothing to undo that Doctrine of Discovery being part of America’s legal framework.

This is not to say that there is no hope in terms of acknowledging the wrongs of the doctrine, let alone doing anything about it. Many prominent entities, ranging from the United Nations in its Declaration on the Rights of Indigenous Peoples[6] to the World Council of Churches (a fellowship of churches that includes the United Methodist Church, Episcopal churches from several regions, and the Evangelical Lutheran Church of America, to name a few),[7] have repudiated this doctrine either explicitly or implicitly (as the UN did so without specifically mentioning the words “Doctrine of Discovery”). If these efforts show anything, it’s that more people are realizing the damage of this doctrine, and that maybe such a realization will eventually make its way to the American legal system. And hopefully more people and groups will come to this realization, because acknowledging the damage of the Doctrine of Discovery is one step, albeit a significant step, towards addressing the historical lack of land rights for Native Americans.

[1] For more on my feelings about Christopher Columbus and Columbus Day in general (which, as my readers can tell, are not positive feelings), I encourage you to read my post about the person and the holiday that I wrote two years ago: https://blindinjusticeblog.com/2017/10/10/why-i-blogged-today-even-though-columbus-day-was-yesterday/

[2] Lexis-Nexis probably does a much better job of describing the case than I could, so I encourage all to read the Lexis-Nexis summary of Johnson v. M’Intosh: https://www.lexisnexis.com/community/casebrief/p/casebrief-johnson-v-m-intosh

[3] Chief Justice Marshall goes into this doctrine when writing about the Supreme Court’s decision in Johnson v. M’Intosh.

[4] http://ili.nativeweb.org/sdrm_art.html

[5] I am a fan of Ruth Bader Ginsburg overall, but, as sad as it is for me to say this, she invoked the Doctrine of Discovery when she wrote the majority opinion of City of Sherrill v. Oneida Indian Nation: https://www.law.cornell.edu/supct/html/03-855.ZO.html

[6] Page 3 of this declaration affirms “further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust.” https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf

[7] https://www.oikoumene.org/en/resources/documents/executive-committee/2012-02/statement-on-the-doctrine-of-discovery-and-its-enduring-impact-on-indigenous-peoples

37 Replies to “Native Americans and Land Rights”

  2. Who owns the land? Who has the right to sell or buy the land? How far back does land ownership go? These are sticky issues. For example, I live on land that, before the Revolutionary war, was part of the Iroquois Confederacy. When the Iroquois sided with the British and lost the war, they also lost their lands. So, should descendants of the Seneca or Cayuga be able to claim my land today? But wait. The Seneca and Cayuga did not live here forever. They displaced other people who had lived there before them. Should descendants of THOSE people be able to claim my land? I mean, all people have been replaced and all people have migrated throughout history.The history f humans on Earth has been the history of mass migrations and small migrations. That is what makes land claims going back centuries so difficult to judge.
    Of course a whole other issue is the very idea of “owning the land”. Many groups do not recognize individual land ownership. They don’t recognize that land can even be bought or sold individually.
    An interesting area of study. But the bottom line seems to be…If a group is strong enough to take the land, it becomes theirs! Like it or not, the doctrine seems to be: “Might makes right”.

    Liked by 2 people

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    1. I agree that questions with regards to land ownership have been sticky issues. And you’re right that the way that this stickiness has been “resolved” is the idea of “might makes right” (which is certainly one way of describing the Doctrine of Discovery). However, we need to challenge ourselves to move beyond a doctrine that has helped to disenfranchise whole groups of people.

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    2. I should also note that not all tribes had the same attitudes about land. Which adds further complications. But responding to those differing attitudes with the idea of “might equals right” (as another commenter put it) has had consequences.

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      1. I see your point.

        One can own (staking claim to it) the land they reside on (or the land far from where they are) only as long as they can protect it by preventing someone else from taking it from them.
        Like my granddaughter’s pink flip flops, they’re hers, nobody wants it but her, BUT if someone were to come along and desire that footwear, she will protect it. It’s hers, she has staked a claim on it.
        My mom always told me that if (her father told her) you ever had the chance to acquire land do so because they ain’t making any more of it. I can’t ask either one of them to clarify because they’re both gone now, but it’s all about greed, acquiring something that somebody else already has.

        Here in the U S of A, neglect pay the gummint for its protection (and services) can and will result in minions coming to force you off that land.

        Okay, but now I’m getting off-track. Sorry

        Liked by 1 person

  4. Good article. I prefer today to be Indigenous People’s Day in America. I wouldn’t be able to sleep if I celebrated some genocidal maniac like Columbus. Land ownership is certainly important and the Indigenous deserve better whether here, Brazil, or anywhere.

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    1. Thanks for the compliment! I would prefer it to be Indigenous People’s Day, and then have a different day be a day for people to celebrate Italian heritage (since today is de facto a day to celebrate Italian heritage, at least in New York). But, even if it’s not Indigenous People’s Day, I’ll at least still try to use the day as an opportunity to educate on a really important issue (Native Americans and land rights).

      Liked by 3 people

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      1. You’re welcome. I certainly feel the same way. That makes sense about Italian Heritage Day given how New York has a huge percentage of those of Italian descent. I have nothing against people’s ethnicity or nationality, but I have strong issues against Columbus for multiple reasons, so I’m obviously not painting a broad brush against those of Italian descent. I do my best to educate people about Native Americans when I can and I’ve done so with my teaching job.

        Liked by 4 people

    2. Sadly (back in my school daze) I celebrated columbus day like everyone else – I didn’t know any better. Over the years since, I have grown to resent that “holiday”. It makes me sad to know what I celebrated was at the expense and treatment of native people. But I was ignorant. Still…

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      1. I was in the same boat when I was a child, too. It’s a travesty how most of us remember that rhyme “in 1492, Columbus sailed the ocean blue”, but we aren’t taught about the reality’s about America’s history with the native population. It’s not just limited to just history books, but entertainment. Disney’s take on Pocahontas? I rest my case.

        I’ve certainly resented that holiday and instead I research things about Native American history or culture. One author I would recommend is Winona LaDuke.

        Liked by 2 people

  7. I see some folks say they never learned about Native American treatment in school. It makes me wonder where they went to school. I know NY state has had a curriculum, for a long time, that has included the real history of the US. Warts and all. In fact , some politicians HATE that because they want to scrub history clean.

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    1. The curriculum can vary from state to state, for one thing. For another thing, there’s a lot of lore about Columbus that I think exists and seeps into what we learn in social studies class, whether it’s explicitly part of the curriculum or not.

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  8. I am familiar with the Doctrine of Discovery, but each time I read or hear about it, it appalls me as if I never heard of it before.

    I am recording a mini biography of Alice C. Fletcher, and will post it at my blog, probably next week. Have you heard of the woman, and what she did to help protect Indians’ rights to live on land in this country?

    Thank you for keeping this perspective alive, and getting the word out to more people.

    Liked by 2 people

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  11. Interesting ideas, but very naive.

    Marshall was faced with the facts of American settlement of the lands of the first peoples and a lawsuit from the tribe whose land was so occupied and was required to set a judicial precedent.

    Any expectation that Marshall would find in favor or the tribe is utterly unrealistic and is in the realm of denominational papers to consider.

    But marshall had to conceive and promulgate a legal doctrine to cover the American occupation of tribal lands by brute force or by simple numbers and occupation.

    Hence his doctrine of discovery, which even by the standards of contemporary jurisprudence was seriously flawed and untenable.

    But the fact of America still exists, the government of the USA is still the sovereign here and there is no way that any of the First People’s petitions for recovery of lost land will recover the acreage for them.

    The US government and some of the states have offered the various tribes $ milions in acreage, in financial compensation and in tax rebates and permission to engage in lucrative and otherwise illegal activities like casino gambling.

    In each instance, it is one state compensation another and even indigenous people’s day is less about the presence of people and their well being than it is about one state gaining ascendancy over another.

    Liked by 2 people

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    1. Hi Robert!

      I understand the fact that, back when Marshall was Chief Justice, there was not much in the way of legal precedent to speak of that he could lean on, unlike the justices of today (some of whom lean quite heavily on precedent in their decisions). Given that the Marshall Court was the first court to really have an active Supreme Court (from my recollection), he was, in a way, in the position of creating precedent. (Hence the comment about having to conceive of a legal doctrine with this decision, which you are 100% correct about.)

      That being said, it’s been nearly 200 years since this doctrine (which from the sound of things you’re not crazy about; correct me if I’m wrong) and we’re still actively using this doctrine. While I understand the myriad of challenges at play here, it’s still not right that we’re still leaning on this Doctrine of Discovery as much as we do. The U.S. government and some states might be offering tribes money, but from my understanding it’s all sort of like putting a band aid on a huge wound–the wound representing issues such as extreme poverty, poor infrastructure on reservations, poor education at reservation schools, and alcohol problems.

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