Talk:Discovery doctrine/Archive 1

Archive 1

Criticism Section Needs Expansion Suggestion

Has no one challenged this doctrine on the basis of a First Amendment objection to the specification that the monarch be, "Christian"?

Further, how did the Supreme Court reconcile the doctrine with the First Amendment in 1823? I daresay that if the First Amendment wasn't even considered, who ever represented the interests of the indigenous people was either incompetent to do so, or grossly negligent.

What is the progress of the United Nations Economic and Social Council Permanent Forum on Indigenous Issues' investigation?

For that matter, what's to protect any nation that has no monarch, considering that most nations no longer have one? According to this doctrine, all the Native Americans need do is select a monarch who is a Christian, and "Discover" all the lands that were taken from them, and suddenly the rest of us will reside here only on their sufferance. (Yes, I know that the Supreme Court held that successors to Christian monarchs are also entitled, but its decisions are hardly binding upon other national governments!)

Yes, the paragraph above is original synthesis. That's why it's here, rather than in the article. Once again, in the process of urging that the Criticism section be expanded, I'm asking whether it's really possible that no one in authority has raised these issues. Downstrike (talk) 20:11, 28 April 2014 (UTC)

Inter caetera

I see no mention here of the Inter caetera, the Papal bull that was used as precedent for US law. Yet the Doctrine of Discovery, the title often given to the entire European religious and legal justification for colonization of the Americas from 1492 to the present redirects here.FriendlyFred (talk) 13:09, 7 October 2015 (UTC)

Doctrine Predates USA

The doctrine of discovery massively predates that United States Supreme court and has its roots in papal statements from the Middle Ages. I think this entire article is wrong.--WickerGuy (talk) 16:40, 26 November 2020 (UTC)

Doctrine has NOTHING to do with Johnson v. M'Intosh in 1823.

What the Firetruck???

This article says the doctrine originates with Johnson v. M'Intosh. That court decision has nothing, nothing, nothing to do with the doctrine of discovery!!!

I am nominating this article for deletion ASAP. It's opening statement is just plain FALSE!!!--WickerGuy (talk) 16:44, 26 November 2020 (UTC)

I'm surprised no mention is made of

the various concerns in Tribal sovereignty in the United States: that because of treaties signed, the Nations have already been acknowledged to be independent - and (see the article). It seems strange for the Supreme Court to claim otherwise and not explain why these reasons have suddenly disappeared. (Well, the reasons are obvious, but let's pretend that arguments and discussion mean something for a moment...) ELSchissel (talk) 22:11, 7 February 2021 (UTC)

Fixing this Article

Is there anyone with expertise in this subject who can fix up this article? It boggles my mind how wrong this is with its strong focus on the United States. I've noticed that others have pointed out over the past few years that the origin of the Doctrine of Discovery has absolutely nothing to do with the US – it originates from a Papal Bull for goodness sake! Where's the discussion of that in detail!? Or how about how it was applied by the Spanish in South America? Or the Doctrine's relation to other old concepts like terra nullius? I'd fix this myself if I had more than basic general knowledge. Really all I can do myself is copyedit and raise these other issues when I see them on the appropriate talk page. Goddale120 (talk) 16:04, 4 March 2022 (UTC)

Opening paragraph

The opening paragraph of this article leads to a significant misunderstanding of the history & concept of the 'doctrine of discovery' with it's focus on US law decisions (Johnson v. M'Intosh). The article should really be re-written with more historical context to refer to papal bulls from as early as 1452, with Bull Dum Diversas and the followup in 1455, Romanus Pontifex, that Christian European monarchs (especially Portugal) were encouraged / allowed to seize non-Christian lands and enslavement the native, non-Christian peoples in Africa and the New World. — Preceding unsigned comment added by Cbye (talk • contribs) 06:24, 7 June 2021 (UTC)

I agree completely. At the very least, the article needs a warning that the opening paragraph ignores the long history of the doctrine. Alternatively, the article should be re-titled as "History of the Discovery Doctrine in the USA". 67.71.38.45 (talk) 14:12, 24 July 2022 (UTC)

I believe I've dealt with this. It's pretty much exactly the same article, just properly organised chronologically, with an emphasis on the preceding history (by over three hundred years) first, rather than later American history. Craig (t|c) 08:44, 27 July 2022 (UTC)

anyone else think that the doctrine itself is missing from the article?

what is this doctrine? as in: can we read it?

or is it just a kind of vague idea that we have a name for, and a "use" for, but there's nothing else to it?

relatedly, what kind of thing it is? a philosophy? a law? a theory? what? — Preceding unsigned comment added by BrianPansky (talk • contribs) 16:31, 31 July 2022 (UTC)

Yes, you can. It's in the references. It's a Papal Bull. The terms "discovery doctrine" and "doctrine of discovery" seemed to have been coined later. --Craig (t|c) 21:59, 31 July 2022 (UTC)

More specifically, it's in the "external links". --Craig (t|c) 22:01, 31 July 2022 (UTC)

Discovery in international law

Hello all,

I have added this section to more fully explain the position of discovery in international law, and that the doctrine of discovery is contested. Happy to discuss. Aemilius Adolphin (talk) 03:44, 8 November 2022 (UTC)

History

Hello all

I have expanded this section to give a fuller background of the relevant history and some of the areas of dispute. I have removed some unsourced editorial comments and replaced then with sourced information. I have added information on the historical critiques of the doctrine of discovery. Happy to discuss. Aemilius Adolphin (talk) 03:47, 8 November 2022 (UTC)

North American jurisprudence

Hello all

I have changed the heading to North American jurisprudence which is more accurate because Canadian cases are discussed. I have added a concise summary of Justice Marshall’s conception of the doctrine up front in order to make the subsequent discussions easier to follow.

I have changed the wording in some of the discussions of case law so that they better reflect the issues at stake and are more concise.

Happy to discuss. Aemilius Adolphin (talk) 03:56, 8 November 2022 (UTC)

Change to lead

Hello all

I have rewritten the lead to better reflect the new content of the article. In summary, the doctrine of discovery is no longer a principle of international law, and many scholars state that it never was. The idea that mere discovery gave the discovering nation both soverieignty over indigenous peoples and beneficial title to their land was always contested. The doctrine of discovery is probably best thought of as an interpretation of international law formulated by Justice Marshall and incorporated into US municipal law in Johnson. Other common law countries such as Canada, Australia and New Zealand have been influenced by Johnson, but have developed their own distinctive approaches to indigenous sovereignty and land rights. Happy to discuss. Aemilius Adolphin (talk) 04:20, 8 November 2022 (UTC)

US English

Hello all

The established language of this article is US English. I have added a banner and a note to editors to that effect. Happy to discuss. Aemilius Adolphin (talk) 00:14, 1 December 2022 (UTC)

Reference

The reference to Kent McNeil (4) is incomplete. 73.100.33.40 (talk) 15:10, 3 March 2023 (UTC)

Thanks for that. I've added the full citation. Aemilius Adolphin (talk) 22:56, 3 March 2023 (UTC)

Vatican repudiation of doctrine

Hello all

I have summarised a few recent contributions about this because the amount of space devoted to the Vatican statement smacks of recentism: Wikipedia:Recentism. It also more logically belongs in the advocacy section because the Doctrine of Discovery is a (disputed) legal doctrine and the Vatican isn't a court of US or International law. It is one of many advocates for change in the residual legal and political effects of the doctrine. Happy to discuss Aemilius Adolphin (talk) 05:25, 31 March 2023 (UTC)

Wrong claims

Aemilius Adolphin, the onus should be on you, not on me. You changed this some time ago to the current version, claiming that France and England did not use the Discovery Doctrine. The three sources I provided (and you deleted) explicetely claim in a straightforward way the contrary of your theory: France and England used the discovery doctrine for their rights in North America. Instead, the sources you are referring to only claim they did not recognize the Papal authority, (that is to say, they refused to recognize that everything belonged to Portugal and Spain). They had their own version of Discovery Doctrine, disputing the papal version: it does NOT mean that they rejected the doctrine as a whole. You keep confusing the two things and making the article confusing for everyone else. When Spain objects to France colonising New France it's not doing so on the ground that New France wasn't discovered by France, since it obviously was discovered by France, it's doing it on the ground that it was to the west of the Papal line of demarcation. (Also, France and the Papacy came to an agreement on the issue, but that's another story).

Barjimoa (talk) 10:10, 8 April 2023 (UTC)

The current version of the article isn't my theory, it's an accurate summary of the cited sources. You only need to read the quotes in the article and the cited sources themselves to see this. For example,

"France and England also disputed the notion that discovery by itself could provide title over lands inhabited by non-Christians. In 1541, French plans to establish colonies in Canada drew protests from Spain. In response, France effectively repudiated the papal bulls and claims based on discovery without possession, the French king stating that "Popes hold spiritual jurisdiction, and it does not lie with them to distribute land amongst kings" and that "passing by and discovering with the eye was not taking possession." "

"Similarly, when in 1580 Spain protested to Elizabeth I about Francis Drake's violation of the Spanish sphere, the English queen replied that popes had no right to grant the world to princes, that she owed no allegiance to the Pope, and that mere symbolic gestures (such as erecting monuments or naming rivers) did not give property rights."

"Summarizing the practices European states used to justify their acquisition of territory inhabited by indigenous peoples, McNeil states, "While Spain and Portugal favoured discovery and papal grants because it was generally in their interests to do so, France and Britain relied more on symbolic acts, colonial charters, and occupation.""

“There is also scant support for the version of discovery theory espoused by Chief Justice Marshall, which holds that European powers agreed amongst themselves that the first state to discover an American territory held exclusive rights of access there. Both France and Britain took the view that they were free to trade, travel, and pursue colonial ventures in any American territories not actually settled or controlled by other European states. Mere acts of discovery, exploration and token occupation did not confer exclusive rights, even among European powers.” (Slattery, op cit. p. 72).

There are dozens of other sources from eminent legal acholars and historians which make the same point. The 'doctrine of discovery' is a disputed interpretation of international law as it developed from the fifteenth century to the early nineteenth century. International law at the time was established by state practice and treaties. No one is denying that Britain, France and Holland sometimes used discovery to claim territory when it suited them, but the consensus of scholarly opinion now is that the discovery doctrine as articulated by Marshall was not a norm of internation law in 1823. As the article says, "Benton and Strauman argue that European powers often adopted multiple, sometimes contradictory, legal rationales for their acquisition of territory as a deliberate strategy in defending their claims against European rivals."

If you have other sources which tell a different story please provide a full citation so they can be checked and evaluated. If they appear to be reliable sources then perhaps we can find agreed wording to modify the current text. Random links to google books along with your own commentary on these links won't do. Aemilius Adolphin (talk) 11:54, 8 April 2023 (UTC)

It's fine to me to write that they also used it when it suited them. However the article doesnt say it and actually gives the readers the idea they never did. At the very least is should be said for North America.

-"England and France also participated in the development of Discovery. Both countries utilized the international Doctrine of Discovery and claimed the rights and powers of first discovery in North America".(https://books.google.it/books?id=bGVMAwAAQBAJ&pg=PA57&dq=England+and+France+also+participated+in+the+development+of+Discovery.+Both+countries+utilized+the+international+Doctrine+of+Discovery+and+claimed+the+rights+and+powers+of+first+discovery+in+North+America&hl=it&newbks=1&newbks_redir=0&source=gb_mobile_search&sa=X&ved=2ahUKEwj-gPa7tZr-AhU6QvEDHeXyC3EQ6AF6BAgEEAM)

Barjimoa (talk) 13:42, 8 April 2023 (UTC)

Yes, I would be happy if the article made it more explicit that France and England sometimes used the discovery principle to claim that they had a superior rght to colonisation. I have made the change. Aemilius Adolphin (talk) 21:55, 8 April 2023 (UTC)

References