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United Nations




E/C.19/2010/13




Economic and Social Council




Distr.: General

Date: 3 February 2010


Original: English

ADVANCE UNEDITED TEXT



Permanent Forum on Indigenous Issues

Ninth session

New York, 19 - 30 April 2010

Item 4 and 7 of the provisional agenda
Impact on Indigenous Peoples of the International Legal construct known as the Doctrine of Discovery, which has served as the Foundation of the Violation of their Human Rights1
A Preliminary Study submitted by Tonya Gonnella Frichner, Special Rapporteur
Summary

At its eighth session in May 2009, the Permanent Forum on Indigenous Issues (“Permanent Forum”) decided to appoint as Special Rapporteur Ms. Tonya Gonnella Frichner, a member of the Permanent Forum, to conduct a preliminary study on the impact on indigenous peoples of the international legal construct known as the Doctrine of Discovery, which has served as the foundation of the violation of their human rights, and to report thereon to the Forum at its ninth session, in 2010.

This preliminary study establishes that the Doctrine of Discovery has been institutionalized in law and policy, on national and international levels, and lies at the root of the violations of indigenous peoples’ human rights, both individual and collective. This has resulted in state claims to and the mass appropriation of the lands, territories, and resources of indigenous peoples. Both the Doctrine of Discovery and a holistic structure that we term the Framework of Dominance have resulted in centuries of virtually unlimited resource extraction from the traditional territories of indigenous peoples. This, in turn, has resulted in the dispossession and impoverishment of indigenous peoples, and the host of problems that they face today on a daily basis.2

Given that United States of America (USA) federal Indian law is most accessible to the Special Rapporteur, and because it serves as an ideal example of the application of the Doctrine of Discovery to indigenous peoples, this preliminary study provides a detailed examination of the premise of that system as found in the USA Supreme Court ruling Johnson & Graham’s Lessee v. M’Intosh 8 Wheat. 543 (1823). Evidence is then provided demonstrating that the Doctrine of Discovery continues to be treated as valid by the USA Government.

The Special Rapporteur concludes by recommending 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 present its findings to the annual session of the UN Permanent Forum on Indigenous Issues. Further study and review will be needed to ascertain to what extent and how the Doctrine of Discovery and the Framework of Dominance is applied to indigenous peoples throughout the world.
Table of Contents

I. Introduction…………………………………………………………………………3


II. Future Work on the Global Scope of the Doctrine of Discovery.............................. 4
III. Global Scope and History of the Doctrine of Discovery............................................
IV. The Framework of Dominance...................................................................................
V. The Doctrine of Discovery and the USA....................................................................
VI. Terra Nullius, Terra Nullius, and Johnson v. M’Intosh...............................................
VII. The Doctrine of Discovery in Contemporary Times..................................................
VIII. Conclusion..................................................................................................................
IX. Recommendation........................................................................................................
Annex……………………………………………………………………………………….

“We maintain, that the principle declared in the fifteenth century as the law of Christendom, that discovery gave title to assume sovereignty over, and to govern the unconverted natives of Africa, Asia, and North and South America, has been recognized as a part of the national law [Law of Nations], for nearly four centuries, and that it is now so recognized by every Christian power, in its political department and its judicial.” Judge John Catron for the Supreme Court of Tennessee in the case State v. Foreman3 (USA)


I. Introduction:
1. The UN Permanent Forum on Indigenous Issues has a mandate to discuss issues related to indigenous “economic and social development, culture, the environment, education, health and human rights.” This preliminary study will examine the impact on indigenous peoples of the international legal construct known as the Doctrine of Discovery, which has served as the foundation of the violation of their human rights.

2. Part of the objective of this preliminary study is to draw attention to differences in world view between indigenous peoples and state actors, with the understanding that focusing on those differences will be conducive to further dialogue and clearer communication between them.

3. The UN Declaration on the Rights of Indigenous Peoples (Declaration) is the product of efforts spanning three decades.4 The Declaration addresses human rights grievances and other concerns that indigenous peoples’ representatives have brought to the international arena since the early 1900’s, during the days of the League of Nations in Geneva, Switzerland. The adoption of the Declaration presents the opportunity to clearly identify what lies at the root of those grievances and concerns, namely, the historic tendency of state actors to assert a sovereign dominant authority over indigenous peoples, based on claims to and assertions of ultimate or superior title to indigenous peoples' lands, territories, and resources. This paper demonstrates that the Doctrine of Discovery lies at the root of such claims and assertions of dominance by states.
II. Future Work on the Global Scope of the Doctrine of Discovery
4. The extent to which the Doctrine of Discovery and the Framework of Dominance5 have been applied in case law and policy in regions Africa, Asia, Central and South America will need to be thoroughly investigated and addressed as a follow up to this preliminary study. As countries that emerged from the imperial and colonial history of the British crown, Canada, New Zealand, and Australia will also need to be made part of any future study. We fully recognize and appreciate that our indigenous brothers and sisters are dealing with the impacts of the Doctrine of Discovery and the Framework of Dominance in their geographical regions. However, given the limited constraints of a preliminary study, our focus has been primarily on USA federal Indian law. This preliminary study is intended to serve as a model that sets forth a direction for future research in other regions of the world. Future study will be required to address the seven official regions as set forth by the Permanent Forum. USA federal Indian law, which has been referenced in case law in other countries of the world,6 is treated in this preliminary study as a prototypical example of the application of the Doctrine of Discovery and the dominance framework.
III. Global Scope and History of the Discovery of Discovery

5. What is now called “international law” was previously known as the Law of Nations.7 In the late nineteenth century, for example, international law scholar Thomas Erskine Holland referred to the law of nations as “the law of Christendom; as little applicable to infidels as was the ‘common law’ of the Greek cities...to societies of barbarians.”8 In 1835, Judge John Catron (1786-1865), while seated on the Supreme Court of the State of Tennessee (USA),9 officially identified “a principle” as part of “the law of Christendom,” specifically, “that discovery gave title to assume sovereignty over, and to govern the unconverted [non-Christian] peoples of Africa, Asia, and North and South America.”10 Catron declared that this principle had been recognized as a part of the Law of Nations “for nearly four centuries, and that it is now so recognized by every Christian power, in its political department and its judicial.”11

6. This preliminary study establishes that the terminology of early international law, such as “Christendom” and “every Christian power,”12 is in keeping with terminology found in key documents from the fifteenth and later centuries. The Doctrine of Discovery is more accurately termed the Doctrine of Christian Discovery.

7. Judge Catron’s mention of “four centuries” prior to his era, points back to the mid-fifteenth century, the time of numerous documents issued from the Vatican by the Holy See, notably the papal bulls Dum diversas and Romanus Pontifex.13 Those decrees are part of the record of the genesis of competing claims by Christian monarchies and states in Europe to a right of conquest, sovereignty, and dominance over non-Christian peoples, along with their lands, territories, and resources during the so-called Age of Discovery.14

8. In 1917, the Carnegie Institution published Frances Gardiner Davenport's, “European Treaties bearing on the History of the United States and its Dependencies” to 1648,”15 “European Treaties,” provides insight into the semantics of so-called discovery, and an international Framework of Dominance to which indigenous peoples have been and are still being subjected, in violation of their individual and collective human rights. 16 As we shall demonstrate, the category “newly discovered lands” includes the lands of indigenous peoples categorized at that time by various Christian powers of Europe17 as non-Christians, for example, “heathens,” “pagans,” “gentiles,” and “infidels”18

9. The papal bull19 Romanus pontifex, issued in 1455, serves as a starting point to understand the Doctrine of Discovery, specifically, the historic efforts by Christian monarchies and states of Europe in the fifteenth and later centuries to assume and exert conquest rights and dominance over non-Christian indigenous peoples in order to take over and profit from their lands and territories. The overall purpose of these efforts was to accumulate wealth by engaging in unlimited resource extraction, particularly mining, within the traditional territories of indigenous nations and peoples. The text of Roman Pontifex is illustrative of the doctrine or right of discovery. Centuries of destruction and ethnocide, and resulted from the application of the Doctrine of Discovery and framework of dominance to indigenous peoples, and to their lands, territories, and resources.20

10. Written by Pietro da Noceto, private secretary and confidant of Pope Nicolas V, the decree Romanus Pontifex begins by saying that the document was issued for “a perpetual remembrance.” It was to be remembered, in other words, in perpetuity.21 The Roman pontiff was said to be empowered to ordain and dispose of “those things which he sees will be agreeable to the Divine Majesty and by which he may bring the sheep entrusted to him by God into the single divine fold, and may acquire for them the reward of eternal felicity, and obtain pardon for their souls.”22 This language is suggestive of religious conversion, and the document goes on to reveal the Framework of Dominance to be applied to non-Christian lands previously unknown to Western Christendom.

11. That Romanus Pontifex constituted and projected into the world a Framework of Dominance, conversion, and violence is revealed by terms such as “vanquish.” The objectives of the Holy See and the Portuguese monarch were more likely to come to pass, said Pope Nicholas, “if we bestow suitable favors and special graces on those Catholic kings and princes, who...restrain the excesses of the Saracens and of other infidel enemies of the Christian name [and] ...vanquish…their kingdoms and habitations, though situated in the remotest parts unknown to us.”23 The document praises vanquishing actions that “subject” non-Christians to the Catholic kings’ and princes’ “own temporal dominion, sparing no labor or expense.” Thus, the Holy See decreed a vanquishing violence to achieve dominance and control, as lords, over non-Christian peoples, and possession of their lands, territories, and resources.

12. Romanus Pontifex further demonstrates the Framework of Dominance with Pope Nicholas’ mention of Prince Henry of Portugal as a “true solder of Christ” who "would best perform his duty to God” if he “might...be able...to subdue certain gentile or pagan peoples... and to preach and cause to be preached to them the unknown but most sacred name of Christ.”24 To endeavor to use violence and religious conversion to “subject” non-Christian peoples is to work toward their dominance and subjugation.

13. Portuguese ships, said the papal bull, had explored and taken possession of very many harbors, islands, and seas, eventually arriving at “the province of Guinuea [sic] [in western Africa]. As a result, the Portuguese had, “taken possession of some islands and harbors and the sea adjacent to that province.” Eventually, the Portuguese voyagers “came to the mouth of a certain great river commonly supposed to be the Nile.” They then waged war “for some years against the [gentile or pagan] peoples of those parts in the name of the said King Alfonso and of the infante.”25

14. Romanus Pontifex further explains that as a result of years of war, other islands in western Africa “were subdued and peacefully possessed” along “with the adjacent sea.” King Alfonso and Prince Henry had explored, “acquired and possessed such harbors, islands, and seas...as the true lords of them...” And, King Alfonso and Prince Henry had “ordained that none...should presume to sail to the said provinces or to trade in their ports or to fish in the sea” without their license, permission, and payment of tribute.26 With the Holy See’s blessing and sanction, King Alfonso assumed a right of complete control as against “gentile or pagan” peoples, and over their lands, territories, and resources. Such presumptions or claims by potentates, states, and their successors, of a right to “grant,” “discover,” “subdue,” “acquire” and “possess,” and permanently control non-Christian indigenous peoples, along with their lands, territories, and resources, is what this preliminary study refers to as the Framework of Dominance.

15. Pope Nicholas authorized King Alfonso to assume and take control over non-Christian lands because the Holy See “had formerly by other letters of ours [e.g., in the bull Dum diversas of 1452]27 granted among other things free and ample faculty28 to the aforesaid King Alfonso—to invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever, and other enemies of Christ wheresoever placed, and the kingdoms, dukedoms, principalities, dominions, possessions, and all movable and immovable goods whatsoever held and possessed by them and to reduce their persons to perpetual slavery, and to apply and appropriate to himself and his successors the kingdoms, dukedoms, counties, principalities, dominions, possessions, and goods, and [the right] to convert them [those things] to his and their use and profit...”29 This “faculty” granted by the Holy See to King Alfonso to “apply and appropriate to himself “the kingdoms, dukedoms, principalities, dominions, possessions, and [all movable and immovable] goods, is a papal license for the forced taking of all indigenous lands and territories in the regions located, and to engage in unlimited resource extraction for the monarch’s “use and profit.”

In this context, the secular meaning of “convert” is “to appropriate dishonestly or illegally” that which belongs to another.”30 To make the forced appropriation seem “lawful” and “right” Pope Nicholas declared that because the Apostolic See had previously issued the “faculty” to engage in such work, and because the king had thereby “secured the said faculty,” “the said King Alfonso...justly and lawfully has acquired and possessed, and doth possess, these islands, lands, harbors, and seas, and they do of right belong to...the said King Alfonso and his successors....”31 (emphasis added).

16. Thus, Romanus Pontifex clearly illustrates the pattern of contemporary claims by states to rights of conquest and dominance with regard to indigenous peoples, their lands, territories, and natural resources. It is for this reason that the papal bull Romanus Pontifex serves as a powerful template illustrative of the Framework of Dominance that lies at the root of the violations of indigenous peoples’ human rights, both individual and collective.

17. As noted, the “right of conquest” granted by Pope Nicholas in Romanus Pontifex is made forever: “And by force of those and the present letters [papal bulls] of faculty the acquisitions already made, and what hereafter shall happen to be acquired...forever of right do belong and pertain, to the aforesaid king and his successors and to the infante, and that the right of conquest....has belonged and pertained, and forever of right belongs and pertains, to the said King Alfonso, his successors, and the infante [prince], and not to any others.”32 (emphasis added). Mention of King Alfonso’s “successors” refers to rights of conquest and dominance being transferable by treaty between the states of Europe, otherwise known as the “family of nations.” Many modern states of the world are the political successors of such claimed rights of conquest and dominance based on the Doctrine of Discovery.
IV. The Framework of Dominance
18. The bull Romanus Pontifex—along with all other such Vatican documents and royal charters—provides evidence of the Doctrine of Discovery used by the Christian states of Europe (and their successors in the Americas and elsewhere)33 to promote on a global scale a framework of dominance and the theft of indigenous peoples’ lands, territories, and resources, under the disguise of activities that are deemed “just” and “lawful.” The dominance framework was acknowledged in a working definition of “indigenous peoples” put forth in the early 1970s. The highlighted words below invoke the Framework of Dominance:
Indigenous populations are composed of the existing descendents of the peoples

who inhabited the present territory of a country wholly or partially at the time

when persons or a different culture or ethnic origin arrived there from other parts

of the world, overcame them and, by conquest, settlement or other means,



reduced them to a non-dominant or colonial condition; who today live more in

conformity with their particular social, economic and cultural customs and

traditions than with the institutions of the country of which now form part, under

a State structure which incorporates mainly the national, social and cultural

characteristics of other segments of the population which are predominant.

(emphasis added).34

19. Another example will further illustrate this point. In 1995, the United Nations Office of the High Commissioner for Human Rights issued a document entitled, “Fact Sheet No. 9 (Rev. 1), The Rights of Indigenous Peoples.”35 In the Introduction to Fact Sheet No. 9, we find: “Indigenous or aboriginal peoples are so-called because they were living on their lands before settlers came from elsewhere.” (emphasis added). The phrase “before settlers came” is an acknowledgment that Indigenous peoples were originally living on their own lands when other people arrived and claimed to be “dominant through conquest, occupation, settlement, or other means.” (emphasis added). Fact Sheet No. 9 also refers to the “settlers” as “the new arrivals” who became “dominant” through “conquest, occupation, settlement, or other means.” This mention of “dominant” and “conquest” acknowledges a history of invasion and forced imposition.

20. Elsewhere, Fact Sheet No. 9 again recognizes claims of dominance and the taking of indigenous lands by force: “Throughout human history, whenever dominant neighbouring peoples have expanded their territories or settlers from far away have acquired new lands by force, the cultures and livelihoods – even the existence – of indigenous peoples have been endangered.” (emphasis added). Referring to non-indigenous peoples being “dominant” over indigenous peoples, and to “settlers” acquiring indigenous lands “by force,” pinpoints what it is that has resulted in “the cultures and livelihoods—even the existence of indigenous peoples” being endangered. Issues of ethnocide36 and linguicide37 are included in the reference to the existence of indigenous peoples being endangered by those monarchies and states claiming “effective dominance” over them, their lands, and territories, in violation of indigenous peoples’ individual and collective human rights.

21. On 30 July 1981, UN Special Rapporteur Mr. José Martínez Cobo issued his Final Report “Study of the Problem of Discrimination Against Indigenous Populations.” In 1982, Mr. Martínez Cobo employed key concepts that identify and acknowledge dominance as the context of indigenous peoples’ issues:


Indigenous communities, peoples, and nations are those which, having a

historical continuity with pre-invasion and pre-colonial societies that

developed on their territories, consider themselves distinct from other

sectors of the societies now prevailing on those territories, or parts of

them. They form at present non-dominant sectors of society and are

determined to preserve, develop and transmit to future generations their

ancestral territories, and their ethnic identity, as the basis of their

continued existence as peoples, in accordance with their own cultural

patterns, social institutions and legal systems.38
22. In the above working definition we find the same conceptual pattern mentioned previously. The term “pre-invasion,” acknowledges the invasion of indigenous peoples’ territories. “Pre-colonial” acknowledges the patterns of colonialism and colonization that have had a negative impact on indigenous peoples, their lands, territories, and resources. The statement, “societies now prevailing on those [indigenous] territories,” views non-Indigenous societies as presuming to have a “superior force or influence,” over indigenous peoples and their territories. And, finally, referring to indigenous peoples as “non-dominant” acknowledges the fact that invading societies claim dominance over indigenous peoples in violation of their individual and collective human rights.
V. The Doctrine of Discovery and the USA
23. Below we shall focus in detail on USA federal Indian law as a prototypical example of the application of the Doctrine of Discovery and the Framework of Dominance to indigenous nations and peoples. This information will illustrate the extent to which national laws, particularly property laws, regarding indigenous peoples, have rested and continue to rest on the Doctrine of Discovery and the Framework of Dominance.39

24. The USA federal Indian law system is comprised of thousands of statutes, a voluminous body of case law, hundreds of treaties, both ratified and unratified, and more than two hundred years of federal Indian policy development.40This preliminary study of the Doctrine of Discovery, however, will remain narrowly focused on the conceptual starting point or premise of that overall system as embodied in the USA Supreme Court ruling Johnson v. M’Intosh 8 Wheat. 543 (1823).41

25. The premise of the USA federal Indian law system has become even more problematic in recent years because of recently disclosed evidence of fraud in the Johnson case.42 The case was feigned; it was the result of act of collusion between the two parties, “for effect.”43 In 1774 and 1775 respectively, the Illinois and Wabash Land Companies purchased lands directly from the Illinois and Piankeshaw Indian nations in violation of a bar the British crown had placed on such land purchases by the Royal Proclamation of 1763.44 The two land purchases were made from the two free and independent Indian nations45 just prior to the Declaration of Independence and the Revolutionary War between the newly declared United States and Great Britain. Nearly fifty years after those land purchases, two relatives and heirs of Thomas Johnson, one of the original investors in the land purchases, filed suit in U.S. District Court for the District of Illinois. The attorneys for the plaintiffs had gone in search of a defendant, whom they found in the person of Mr. William M’Intosh46. The attorneys for the plaintiffs hired the attorneys for the defendant, Mr. M’Intosh.47

26. Additionally, Chief Justice John Marshall (1755-1835) had large real estate holdings (as did his family and friends) that would have been affected if the case were decided contrary to those interests.48 Rather than remove himself from the case, however, the chief justice wrote the decision for a unanimous USA Supreme Court.49

27. The newly formed United States needed to manufacture an American Indian political identity and concept of Indian land title that would open the way for the United States in its westward colonial expansion. The principle that the United States Supreme Court devised for this purpose in the Johnson ruling was “that, 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.”50 Based on the concept of “discovery,” the USA Supreme Court constructed an Indian title of “mere occupancy.” In keeping with this concept, it has often been argued that the Indian title of “occupancy” is merely a temporary right, inferior and subject to the absolute title and ultimate dominion of early Christian European powers, 51 and later state actors such as the USA.52

28. To illustrate the origin of the “principle” of “discovery,” Marshall examined the language of the John Cabot charter and a number of other royal charters issued by the British crown:


“No one of the powers of Europe gave its full assent to this principle, more unequivocally than England. The documents upon this subject are ample and complete. So early as the year 1496, her monarch granted a commission to the Cabots, to discover countries then unknown to Christian people [original emphasis], and to take possession of them in the name of the king of England. Two years afterwards, Cabot proceeded on this voyage, and discovered the continent of North America, along which he sailed as far south as Virginia. To this discovery the English trace their title.”53

29. The above quoted language from King Henry VII’s charter to John Cabot and his sons traces directly back to the long tradition of the Vatican papal bulls mentioned above. With that language, the British crown was acting on the view that previous papal grants to Portugal and Spain could not rightfully bar the British crown from voyaging and appropriating lands of “the heathen and infidel,” which before this time “have been unknown to all Christian people.” The Johnson ruling continues by saying that the Cabot charter constitutes “a complete recognition” of the “principle” or doctrine of discovery:


“In this first effort made by the English government to acquire territory on this continent, we perceive a complete recognition of the principle [of discovery] which has been mentioned. The right of discovery given by this commission, is confined to countries 'then unknown to all Christian people;' and of these countries Cabot was empowered to take possession in the name of the king of England. Thus asserting a right to take possession, notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery.”54
30. The Supreme Court’s language once again invokes the Framework of Dominance. Earlier in the Johnson decision Marshall also identified that same framework through his use of the concept “dominion”: “While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.”55 (emphasis added)

31. As the U.S. Supreme Court viewed the matter in Johnson, the English royal charters expressed the doctrine that “Christian people,” on the basis of a claim of “discovery,” had asserted a right to take possession of any lands inhabited by “natives, who were heathens,” meaning, non-Christians. (emphasis added) Political philosopher Thomas Hobbes, in his work Leviathan, stated that “the right of possession is called Dominion.”56 Thus, asserting “a right to take possession” is simply another way of saying “asserting a right of dominion,” or dominance.57

32. In the Johnson v. M’Intosh ruling, the USA Supreme Court claimed that the original rights of American Indians, “to complete sovereignty, as independent nations,” had been “necessarily diminished” by the right of discovery. This “right” of “discovery,” said the Court, was confined to countries “unknown to Christian people.” The Supreme Court claimed, in other words, that Christian people locating lands in the Americas that until then had been “unknown to Christian people” had ended the right of American Indian nations to be free and independent. On the basis of the above language, the United States Supreme Court used the Doctrine of Discovery to prevent the application of the first principle of international law to American Indian nations and their traditional territories: “The authority of a nation within its own territory is absolute and exclusive.”58 To give themselves unfettered access to the lands, territories, and resources of indigenous peoples, the Christian States of Europe,59 and later state actors considered this principle only applicable to themselves.60

33. No one could sensibly argue against the idea that the existence of American Indian nations and peoples was originally free of the Doctrine of Discovery and Christian European claims and assertions of dominance.61 Justice Joseph Story (1779-1845) revealed the argument against that original free existence when he wrote “As [because they were] “infidels, heathens, and savages,” the Indians “were not allowed to possess the prerogatives belonging to completely sovereign independent nations.”62 Once the concepts of “discovery” and “ultimate dominion” (traced back to Vatican papal bulls such as Romanus Pontifex) were institutionalized in USA law and policy, this resulted in the imposition of a Framework of Dominance over indigenous nations and peoples. This enabled the USA government to appropriate and grant away Indian lands, territories, and resources, with impunity, in violation of indigenous peoples’ individual and collective human rights.


VI. Terra Nullius, Terra Nullus and the Johnson v. M’Intosh Ruling

34. There are two terms that have been used against indigenous peoples historically, both of which mean, “devoid of human beings.” The two terms have resulted in the dehumanization of indigenous peoples. The first of these terms is terra nullius, a category applied by Roman lawyers to enemy lands, and places such as desert islands.63 The second term is terra nullus, which, according to Mr. Francis Lieber, the first American political scientist noted jurist and political philosopher of the nineteenth century, was based on the fact that the original indigenous inhabitants of a geographical area during the so-called Age of Discovery were not baptized as Christians.64

35. Francis Lieber (1800-1872) was a German-American who emigrated to the USA in 1827 and became one of the foremost political scholars of the nineteenth century.65 Lieber identified the doctrine of “terra nullus,” which referenced a land inhabited by heathens, pagans, infidels, or unbaptized persons, whom Christians treated in a fundamental sense as not existing.66 The concept of Terra nullus led to the view that lands inhabited by non-Christians were vacant or “unoccupied lands,”67 and “therefore open to a right of possession by Christians.”68 “Paganism,” wrote Lieber, which meant being unbaptized, deprived the individual [non-Christian] of those rights which a true...morality considers inherent in each human being.”69
36. In an 1888 essay, Burke Aaron Hinsdale (1837-1900) documented that the Right of Discovery was founded “on the principle that what belongs to no one [may] be appropriated by the finder.”70 Following Lieber’s thinking, Hinsdale noted that the argument only became effective when supplemented by the Church definition of nullius. The Church definition, said Hinsdale, “supplied the necessary premise.”71 “Grant that res nullius is the property of the finder; that an infidel is nullius [non-existing]; that the American [Indian] savage is an infidel [nullius, or non-existing] and the argument is complete.”72 Hinsdale said that this argument, premised on the unbaptized status of the original inhabitants of “discovered” lands was “the origin of the Right of Discovery, the criterion to which the nations that divided the New World appealed in territorial controversies, and the ultimate ground of title throughout the United States.”73 Here Hinsdale referenced the Johnson & Graham’s Lessee v. M’Intosh. ruling. Hinsdale said that the Right of Discovery formed “the ultimate ground of title throughout the United States”74

37. USA Supreme Court Justice Joseph Story was a contemporary of Francis Lieber. For a time, the two men moved in the same intellectual circles, and Story contributed more than 120 pages to Lieber’s Encyclopaedia Americana.75 Justice Joseph Story also helped to decide the 1823 Johnson v. M’Intosh case. One decade after the Johnson decision, in 1833, Story published his “Commentaries on the Constitution of the United States,” in which he examined the “Origin and Title to the Territory of the Colonies.” In sections 5 and 6 of Chapter One of his Commentaries, Story wrote the following regarding the origin of European title in the Americas and the Inter Caetera papal bull of the fifteenth century:


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