In his book, Native America, Discovered and Conquered (2006), Professor Robert Miller (Arizona State University) defines what he describes as the “10 elements” of the Doctrine of Discovery. These elements are the result of research into not only the Papal Bulls and royal grants, but also the various agreements, treaties, letters of understanding, negotiations, meeting notes or minutes and court cases that occurred during the colonizing years of discovery. They haven’t always been so neatly packaged as what Professor Miller has provided. But the essence of each of the elements have always been recognized by scholars and historians and are referenced in some publications as an International Norm, or Understanding, or Agreement. These elements of the Doctrine became accepted legal principles – the rules, though loosely defined perhaps, that influenced and controlled the actions of colonizing countries well into the 20th century.
The following 10 rules serve as an encapsulation of how the pronouncements of the Popes and Kings were actually implemented. They summarize the authority assumed by and the actions practiced by the colonizers which is helpful for understanding the history of colonization.
Rule #1 – Christianity
Colonization was a Christian endeavor. If there was a main rule, or paramount requirement in the Doctrine, it would be the colonizing nation had to be Christian. The other rules could be questioned, discussed and negotiated, but Christianity – first the Catholic Church and later the various Protestant churches – was the only spiritual faith accepted by all the colonizing nations. This made sense, since it was the non-Christians who were being colonized, losing their rights to land, property, sovereignty, self-determination and freedom. And what rights they may have been granted could be modified and/or completely extinguished by a Christian colonizing nation.
Rule #2 – Civilization
The way that Europeans lived was the benchmark by which they measured all other civilizations. Rather than seeing the cultural standards of the Indigenous Peoples as simply different, those cultures were judged to be inferior. And further, the inferiority indicated a lack of intelligence. This led to believing the conquered Indigenous Peoples were incapable of understanding, expecting or benefiting from human endeavors as defined by the invading country. This sense of superiority held by the European Christian invaders, and later by the occupiers, resulted in practices of paternalism and guardianship at best, and domination and slavery at worse.
Rule #3 – First Discovery
We’ve all seen at one time or another a picture similar to the one on the Home Page of this website – a depiction of a European invader landing someplace with flags and crosses. With the proper recitation the invader could assert his rights to the land on which he was standing and describe the boundaries of his claim. There were a number of ways for him to have marked that claim. He could have implanted the flag; or marked several trees; or left a specially designed marker or plaque of some sort. It’s not apparent how long those items would have lasted at the claim site. Would they have been found by later invaders? Did each invader look for markers from earlier invaders? The spot was probably recorded in a journal or log, but how that information was relayed to others isn’t clear. However these claims were noted, they seemed to have been honored by other nations. First Discovery meant just that. It was considered a temporary ownership until the establishment of a permanent settlement.
Rule #4 – Occupancy and Possession
To confirm a First Discovery and make it a permanent claim, the invading country had to actually occupy a portion of the land with some manner of an operating and self-sustaining settlement. It could be a village, a port or a military base. There wasn’t a “hard and fast” rule as to when this permanent possession was required, it just had to occur within a reasonable timeframe. For instance, Walter Raleigh claimed Roanoke Island in 1585, but it wasn’t until 1587 when about 120 men, women and children arrived to occupy and build a settlement there. Even with that delay, the claim was honored by other colonizing nations. Lewis and Clark, on the other hand, immediately constructed a fort at the end of their march to the Pacific, and spent the winter living at the mouth of what became called the Columbia River. Though they left in the spring, their occupancy for that short time, was sufficient evidence of occupancy to reject later challenges to their claim.
Rule #5 – Contiguity
Contiguity is defined as “bordering on”, or “being connected to”. A country making a First Discovery recorded the location of the claim in the invader’s journal using the currently accepted map coordinates, along with the landmarks visible from the point of the claim, usually mountain ridges. Distinguishing features were described with as much detail as necessary to identify the boundaries of the claim. If the claim was at the mouth of a river, it would include all the land drained by that river and its tributaries, which could include thousands of acres. This Rule also was used to eliminate arguments between two invading countries that had established claims in close proximity to each other. The Rule of Contiguity held that the common border of the two claims would be a point halfway between each claim.
Rule #6 – Terra Nullius
When Pope Urban II used this term in 1095, it was a part of his authorization for the Crusades, and established the Christian claim that land was uninhabited if it was held by non-Christians. Rule #6 expands on that by stating if one or more of the following three conditions are met the land can be considered vacant or empty:
One, if to an observer (aka the invader) it appears to be vacant, then it is vacant;
Two, if the land is clearly occupied, but not being used in a legal manner, as defined by the invading country, or;
Three, if the land is legally occupied but not being used in a manner acceptable to the invading country.
There’s a story, which sounds true, that a colonizer governor told his aides to develop a way to teach the Indians how to farm. When he was informed they were already farming, he replied that might be true, but they didn’t “seem to plant the crops in proper rows.” Very little, if any, of the land of the Western Hemisphere was empty or unused, but the invaders used this rule to address almost every situation and easily made their land claims legitimate.
NOTE: The following three rules – Numbers 7, 8 and 9 – are companions in that they all address property possession and use. Together, the three totally eliminate Indigenous Peoples’ ability to freely function both as individuals and as communities.
Rule #7 – Preemption
Preemption can be thought of as an early version of the current real estate practice called ‘right of first refusal’. In the context of colonization this rule prevents subsequent invading countries from trying to entice inhabitants living on a piece of land to disregard the country that had first claimed that land. For example, If ‘Invading Country B’ wanted a piece of land that gave it access to a body of water, but the Indigenous Peoples living there had a mutually cooperative agreement with ‘Conquering Country A’ for the past number of years, Country B would have to cease its efforts to acquire the land.
Rule #8 – Native/Indian Title
The invading countries who held the land claims granted the inhabitants who were present on the land at the time of the original claim permission to stay on the land as long as they wanted – like renters without paying rent. But, if they did decide to leave, they had to deal exclusively with the claiming nation, as explained in the previous Rule #7 – Preemption. So how did the colonizers expand their portion of an original claim? When the invading nation reached a point when it felt necessary to take more land, there were a number of methods used to ‘encourage’ the Indigenous inhabitants to leave. Warfare or the threat of warfare being one. (Discussed in Rule #10) The natural seasonal movement of some Indian Nations vacated lands which the colonizers filled up and refused to relinquish when the Indians return as part of their normal seasonal migration. One of the more devious ways was to encourage the Indians to run-up an insurmountable debt at a colonizer’s trading post and then demand payment, using the sought after land to pay the amount owed. Indigenous Peoples never considered that land belonged exclusively to individuals, or groups of individuals. This Doctrine rule caused anguish and considerable conflict throughout the colonizing period.
Rule #9 – Limited Indigenous Sovereign Rights
It wasn’t only that the Indians were limited to who they could negotiate with in matters of the land they lived on, but all engagements for trade and commercial relations, treaties, political alliances, and cultural exchanges was limited exclusively to the first invading country. The Indian Nations’ sovereign rights to create relationships, associations, and beneficial connections with other nations, including Indigenous Peoples from other continents and in other regions in the Western Hemisphere, were forbidden.
Rule #10 – Conquest
Military actions were always quickly employed by the invaders to accomplish their land acquisition goals. Winning a military battle was many times the most viable way, from the invaders viewpoint, to acquire the lands of Indigenous Peoples. The terms of a treaty, if there was a treaty, could be more easily dictated and enforced after a decisive battle. And of course, a treaty could be revised and adjusted, or completely ignored, if circumstances changed and it became a burden for the invaders to abide by its terms. Frequently, the conflict was characterized as a ‘just war’, because it made the military action sound as if it was reluctantly undertaken as an inevitable and noble resolution to a situation without any other available options. When in fact, the concept of a ‘just war’ as it was developed over the centuries contained elements that were the exact opposite of what this Rule proposed and encouraged. (Click HERE to read a brief review of the ‘just war’ concept.)
Primary Source: Native America, Discovered and Conquered: Thomas Jefferson, Lewis and Clark, and Manifest Destiny; Robert J. Miller; Praeger/Greenwood Publishing Group, Inc.; 2006