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

Indigenous Rights and the Amazon Rainforest Fire

A few weeks ago, the fires in the Amazon rainforest were getting international attention for the environmental damage caused. And honestly, it was important that these fires got the attention they did.

But a seldom-reported aspect of this crisis is the damage that it is doing to indigenous lands.

In terms of indigenous rights in Brazil, the situation is already bad enough under their president, Jair Bolsonaro. Here’s a sampling of what Bolsonaro and his allies have already done, in his short time (a few months) in office, even before the Amazon fires:

  • There used to be offices in the Brazilian government looking after the health and education of indigenous people. Those offices were removed under Bolsonaro.
  • Bolsonaro has defended mineral exploitation on indigenous lands.
  • An indigenous tribe has received seemingly no help after their water source was destroyed earlier this year by a dam burst.[1]

Based on all these actions, and more, from the Bolsonaro government, I can see why many indigenous in Brazil and elsewhere fear that there is a genocide of indigenous people happening there. But with the fires, the situation has gotten worse. These fires, which seem to exist for the very purpose of clearing more land for industrialism, is literally invading and destroying many indigenous lands. Given the multitude of indigenous groups in the rainforest, the destruction of forests there may very well end up being the destruction of many indigenous groups as well. This fact, combined with the fact that recently, “a Brazilian congressional committee approved a proposed constitutional amendment that would allow commercial agriculture on indigenous reserves,”[2] indigenous communities are literally being pillaged and will have no recourse for being pillaged.[3]

And this is not getting talked about enough. Goodness, I’m not sure if I have heard any American television media mention how the fires impact indigenous people in Brazil. That’s a real shame, because given all the parts of the world where indigenous lands are endangered in pursuit of monetary profit (think of the Keystone XL Pipeline in the United States as an example), stories like this need to be covered. Stories like this need to be covered so that the world can come to a reckoning of what happens when short-term profit is prioritized at the expense of indigenous people.

So yes, there is an environmental crisis in Brazil as a result of these fires, but there is also a crisis for indigenous people in the Amazon as a result of the fires. Worse yet, unless we learn from what’s happening in the Amazon, similar things may continue to happen in other parts of the world.


[1] https://www.aljazeera.com/news/2019/04/brazil-native-groups-protest-anti-indigenous-bolsonaro-190424182035658.html. I should note that Al Jazeera seems to be one of the few international outlets following the anti-indigenous policies of Bolsonaro.

[2] https://www.aljazeera.com/indepth/features/afraid-indigenous-guardians-brazil-amazon-190827235511318.html

[3] I should note that the United States should not be “holier-than-thou” on indigenous rights, though.

An image of the Amazon rainforest in Brazil. Antonio Campoy [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0)%5DAn image of the Amazon rainforest in Brazil.