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.
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. 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. This doctrine has existed for centuries, going back to Pope Nicholas V’s papal bull Romanus Pontifex, 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. 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 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), 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.
 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/
 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
 Chief Justice Marshall goes into this doctrine when writing about the Supreme Court’s decision in Johnson v. M’Intosh.
 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
 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