At its recent Church convention, the Episcopal Church of the United States, traditionally America’s branch of the Anglican Communion, denounced the late-medieval “Discovery Doctrine” which encouraged / justified (Western) Christian nations’ annexation and exploitation of newly-discovered non-Christian lands, nations, peoples, and persons. This appears to be at this time an unofficial or ‘semifinal’ version of the adopted resolution, minus the strikeouts. They also call on the Successor of one royal perpetrator of this legal doctrine, in her capacity as “Supreme Governor” of their Sister Church, the Church of England, Queen Elizabeth II, to also repudiate it … for their government lobbyists to press overturning this legal basis for a kind of suzerainty over Native American Tribes with the U.S. Government … and for their member dioceses and adherents to support Tribes’ struggles for their God-given rights as Indigenous Nations.
As Wikipedia relates, this “doctrine” backed-up Western European overlordship of Indigenous Peoples not previously Christianized. Commonly it was considered for the “heathens’ ” own good, as well as providing cover for all the depredations Indigenous have suffered at their hands and those of their “legal successors,” including the United States, down to the present. More to the point, also for the seizure of their lands and resources, especially all the gold that was rumored to be here. I don’t know enough about the claimed legalities beyond this, for Spanish- and Portuguese-claimed territories … but for English, “the rule of law,” i.e., the English Common Law, eventually developed at least a legal fiction of respect for existing inhabitants of lands they were interested in acquiring, as having actual legal rights to or in those lands, as long as they lived in them — rights to which ambitious English rulers and explorers needed to at least pay lip-service. (Remember, this is the system wherein the lawyer asks his client, “What do you WANT the law to say?”!) This was an evolving thing, as I’ve said previously here.
American relevance was nailed down (supposedly) by Chief Justice John Marshall in an 1823 case. He stated that on the plot of land at issue, in Illinois, England/Great Britain had “discovered” and taken precedence over the Natives, whether directly or by treaty(!) from France, and the United States succeeded to British “rights” therein. Therefore, Native Nations had limited rights to their own lands and resources, Britain/America having ultimate determining legal authority, at least vis a vis other European powers. The idea included reducing the Europeans’ habit of going to war with each other; Indigenous didn’t matter! (Though England came preferring to acquire their rights by “treating with them,” i.e., treaties — even if these, too, often became “legal fictions”!)
Here’s Marshall’s language I want to focus on (emphasis added by me):
The states of Holland also made acquisitions in America and sustained their right on the common principle adopted by all Europe. They allege, as we are told by Smith in his History of New York, that Henry Hudson, who sailed, as they say, under the orders of their East India Company, discovered the country from the Delaware to the Hudson, up which he sailed to the 43d degree of north latitude, and this country they claimed under the title acquired by this voyage.
Their first object was commercial, as appears by a grant made to a company of merchants in 1614, but in 1621 the States General made, as we are told by Mr. Smith, a grant of the country to the West India Company by the name of New Netherlands.
The claim of the Dutch was always contested by the English — not because they questioned the title given by discovery, but because they insisted on being themselves the rightful claimants under that title. Their pretensions were finally decided by the sword.
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 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.
In this first effort made by the English government to acquire territory on this continent we perceive a complete recognition of the principle 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.
Here’s the problem: Since around the Millennium, North America* had been “known to the Christian people” of Norway, as mentioned here. The Norse main settlements were in Greenland. But knowledge of the lands to Greenland’s west is undeniable from approximately then, which was about the same time those colonists became Christians. Even if you give no credence whatsoever to my foster-kinsman St. Brendan, Carthaginian Early Christian monks in Connecticut, the alleged succession of Catholic Titular (absentee) Bishops of the village of Gardar, Greenland and Vinland, and as-yet-undiscovered Icelandic Sagas, etc etc etc, living knowledge came down to the first Lutheran bishop of Greenland before he attained to that title by venturing there in 1721 in hopes of rescuing the many-centuries-old and long-isolated colony from Catholicism(!–or Orthodoxy!!) or apostasy … not finding them (as far as he knew!) … and setting out to evangelize the Native Inuit (Eskimos) instead(!).
But Britain did not treat with Norway or Norway’s sometime sovereign Denmark for any of its North American rights (under European law), nor did it acquire them “by the sword.” Now, it is not currently known that any Norse (or their Mixed-Blood descendants) survived here until 1492 or ’96. However, the Cabots’ charter did not say, as later English ones, “not actually possessed by any Christian prince,” merely “unknown to all Christian people.” Christian Norway’s “knowledge” of this northern landmass may have been obscure at that time, but it was knowledge: Norway “discovered” North America before England did!
So what? As one commentator to the story at the website of the newspaper Indian Country Today reminds us all,
Just better be careful that you don’t also overturn our sovereignty while overturning Johnson v. M’Intosh. Too many times, an unideal but working scenario gets scrapped when ‘reformers’ come in and start changing things. I present as evidence term limits, ‘independent’ legislative redistricting and other such ‘reform’ scenarios that have contributed mightily to the current state of ideological gridlock that grips both federal and state governing bodies.
I know enough about law and history, and more about courts, judges, lawyers, and politicians, to take this counsel seriously! Also, although today Norway is a rather politically correct place, who knows about the future? Is it a case of The Devil You Know over The Devil You Don’t Know?! Though it might be interesting to see Washington and Ottawa have to re-negotiate their independence with PC Oslo!
One might say that Norway has never pressed its claim, challenging Britain, France, Sweden, the Netherlands, or anybody else. But with the discovery of the Sagas and their settlement at L’Anse aux Meadows, Newfoundland, in a possibly-improving climate of International Law and politics, especially Norway being a NATO ally of both the U.S. and Canada (and let’s remember the last bits of New France), Norway itself may have a “Native Claim” needing respect and recompense! Even the US Supreme Court awarded huge money to the Lakota for the Black Hills!
No one ever said the ‘Piskies don’t know how to make life interesting sometimes!!! 😉
(*–Presuming Marshall is associating Spanish and Portuguese “discoveries” with OFF North America.)