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Repudiation without reparations

ASU Law professor talks about the history of ‘Doctrine of Discovery’ and what the Vatican's repudiation of it really means

The top of a teepee is seen in the foreground with a Spanish mission in the background
April 14, 2023

A 15th-century doctrine that allowed European countries to claim lands belonging to Indigenous peoples was recently renounced by the Vatican.

At the end of March, the Roman Catholic Church formally repudiated the “Doctrine of Discovery,” which was used as legal justification for the colonization of Indigenous lands around the world. A statement released by the Vatican’s development and education offices claimed the doctrine was “not part of the teaching of the Catholic Church” nor expressions of their faith.

The decision was rendered after Pope Francis’ visit to Canada last summer. He was there to apologize to Indigenous communities for the church’s role in that country's boarding school system, where thousands of Indigenous children were subjected to wholesale abuse, including death. A Truth and Reconciliation Commission set up by the Canadian government estimated that more than 4,100 Indigenous children were killed over the period of a century and concluded the system was a form of “cultural genocide.”

The Vatican's repudiation was the right thing to do and could be considered a step in the healing process, according to Robert J. Miller, a professor at Arizona State University’s Sandra Day O’Connor College of Law.

Miller, an enrolled citizen of the Eastern Shawnee Tribe, was recently quoted in a New York Times article, calling the doctrine, “one of the earliest forms of international law.” He added the doctrine also influenced a U.S. Supreme Court decision in 1823 as creating a “legal claim” for the acquisition of Indigenous lands.

ASU News spoke with Miller about the Vatican’s repudiation and what it means to Indigenous peoples today and going forward.

Editor's note: The following answers have been lightly edited for clarity and brevity.

Man in grey suit smiling

Robert J. Miller

Question: What is the “Doctrine of Discovery,” and how does it relate to Indigenous people and their lands?

Answer: The Doctrine of Discovery is the name we use today for the international law of colonization. The European colonization of nearly the entire world stripped Indigenous nations and peoples of their lands, assets, sovereignty, human rights, and often of their very lives. It is still “international law” and defines national borders and the rights of Indigenous peoples today. 

In the early 1400s, Spain and Portugal used technology to sail outside the sight of land, and they began to discover new island groups off the Iberian Peninsula and northwest Africa. They immediately wanted to develop colonies in these new lands to acquire empires and to confiscate the assets and lands of the Indigenous nations and peoples. As these countries disputed their claims to discovery rights in the Canary Islands, Portugal acquired a papal bull, a decree of the pope, in 1436, in which the Vatican granted Portugal the right to colonize, convert and “civilize” the Canary Islanders. Later papal bulls granted Portugal the right to colonize the Indigenous nations and peoples in other islands and in northwestern Africa and to acquire their lands and assets and sovereignty, jurisdiction and title. Papal bulls from 1452 and 1455 authorized Portugal to “invade,” “vanquish” and “subdue” all pagans and to take all their lands and properties and to impose “perpetual slavery” upon them. Arguably, this was the beginning of the African slave trade.

In 1492, after Columbus sailed into the New World, Pope Alexander VI issued three papal bulls in 1493 that divided the world from the North Pole to the South Pole for Spain and Portugal to colonize and exploit, and to convert Indigenous peoples. Spain, Portugal, England, France, Russia, Holland and the church turned these bulls and their colonizing efforts into international law that is known today as the Doctrine of Discovery. 

In 1823, in Johnson v. M’Intosh, the United States Supreme Court adopted this international law as American law and defined the elements or factors that comprise discovery. The United States' domination of Indian nations and the political interactions, treaties, federal Indian policies and laws that followed were all based on these elements of the doctrine. 

Johnson is still the law in the United States today and has greatly influenced the jurisprudence and histories of other settler colonial countries around the world. Johnson has been cited scores of times by courts in New Zealand, Australia, Canada and by the British Privy Council. The elements that make up this international law are still plainly visible in the histories, policies and even in the modern-day laws of the settler colonial countries named above and also ex-colonies in ChileBrazil and Africa

Q: Legally, what does it mean that the Vatican has repudiated the Doctrine of Discovery?

A: Nothing. I have stated for the past two decades that it would be a great worldwide educational moment if a pope were to withdraw these colonizing papal bulls from the 1400s. I bet that 99.9% of the world has never even heard of the Doctrine of Discovery, or these bulls, and has no idea that Euro-American colonization, domination and the near destruction of Indigenous nations and peoples proceeded under legal and church justifications. But withdrawing these bulls would have no legal impact in any country, and “repudiating” the doctrine does not change the law or land ownership in any country. While many centuries ago popes had great power over secular monarchs, today what a pope thinks or the official statements of the Catholic Church do not have legal impacts in the secular world. 

In addition, I must emphasize what the Vatican did not do on March 30, 2023. The Vatican specifically did not withdraw any bulls from the 1400s. The church has long maintained that a papal bull from 1537 had essentially nullified the bulls of the 1400s so there is no longer any reason to withdraw those bulls. Especially concerning, however, are statements by the Vatican and in particular the Canadian Bishops’ Conference about this “repudiation” of the doctrine. It does not look like the Vatican has really rejected the Doctrine of Discovery. On the very day the doctrine was apparently repudiated, the Vatican News posted an article with a title that the “'Doctrine of Discovery’ was never Catholic.” Plus, the Canadian Bishops Conference on March 30 rejected the idea that the papal bulls were ever the basis of the international law of colonialism.   

Q: You recently stated in a New York Times article that the Doctrine of Discovery was one of the “earliest forms of international law.” How is this part of international law? 

A: In general, international law comprises the rules countries observe and practice in dealing with other countries. They are often set out in treaties between countries. But part of international law, and the recognized rules, are also called, in Latin, opinio juris. This principle means that generally countries — or states as they are called in the international law arena — will also voluntarily observe rules, or principles, that they believe are legally established by general usage among states. That is, countries/states act in certain ways because they believe they must do so because it is the accepted standard for states.

The doctrine is very much a form of opinio juris. Spain, Portugal, England, France, Russia and Holland, in particular, began to observe the Doctrine of Discovery as the international law of colonialism and the accepted method for establishing their recognized colonies and the boundaries of their empires. These countries were content to accept general international rules on how to divide up the non-European world in an attempt to create colonial empires and also to avoid costly military conflicts. To this very day, the principles of the doctrine define recognized international boundaries. 

Q: Now that there has been an admission of fault by the Vatican, what’s the next logical step in the progression of where this should go? 

A: As I already mentioned, the Vatican did not admit any fault for the Doctrine of Discovery or worldwide colonization. And, as I stated, the Vatican announcement does not change the law or land titles in any country. Consequently, the next logical step is for national governments to also repudiate that doctrine and their colonial policies. These governments must seriously study in depth, in cooperation and partnership with Indigenous nations and peoples, their colonial histories, the impacts on Indigenous peoples, currently existing national laws and policies that derive from colonization, and to undertake reasonable efforts to ameliorate these issues.

Any such efforts must also address the deplorable economic, living and health conditions most Indigenous peoples suffer around the world due to colonization and domination. In a few countries, these efforts have already led to Truth and Reconciliation Commissions similar to what occurred in South Africa after apartheid.

Furthermore, Australia is right now providing an interesting template for the rest of the world to consider. Australia has been in the process since 1993 of recognizing land rights and titles for Aboriginal groups over a vast portion of that country. Australia also appears to be on the cusp of approving a national referendum to begin negotiating and signing treaties with Aboriginal groups for the first time. This would be a major and very significant point that the rest of the world should consider emulating.

Top photo: Mission San Juan Capistrano, originally called San Jose de los Nazonis, was moved from East Texas to its present location in 1731. It is one of five existing missions along the San Antonio River. Built by Spaniards to support their quest for exploration from New Spain (present-day Mexico), they eventually became centers for spreading the Catholic faith to Indigenous peoples. Here a full-size teepee is being erected in front of the old mission. Photo by iStock/Getty Images

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