DOCTRINE OF DISCOVERY

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At our 2012 General Assembly, delegates of the Unitarian Universalist Association passed this resolution:

"BE IT RESOLVED that we, the delegates of the 2012 General Assembly of the Unitarian Universalist Association, repudiate the Doctrine of Discovery as a relic of colonialism, feudalism, and religious, cultural, and racial biases having no place in the modern day treatment of indigenous peoples."

I had probably previously heard of the "doctrine of discovery" and I could somewhat guess what it must be, but my knowledge was rather nebulous. As a result, being the sort of person I am, I did some research to find out more precisely what this was all about. Coincidentally, after my most recent Davis family reunion at my brother's home in Georgia, we had travelled through northern Georgia and learned a great deal about circumstances and events that were intimately linked to the effects of this so-called doctrine. This brief message is a quick summary of what I've learned. Later in this service Allysson McDonald will talk about Taking Action.

So, what is the "doctrine of discovery"? I thought I knew what a "doctrine" is and what "discovery" is, but this is far from sufficient to understand what is actually meant by this misleading phrase.

My previous experience of the word "doctrine" was that it meant a standard belief of a religious organization which was routinely taught to the adherents of the religion. However, the relevant meaning for our topic is given as definition 2-c in my copy of Webster's Ninth New Collegiate Dictionary, "a principle of law established through past decisions". A very key point here is that it was never enacted into law. It is not justified by our Constitution, but has been established through past court decisions. I will describe the most important of these shortly.

Next, however, we should consider the word "discovery". My dictionary says "discovery" is "the act or process of discovering", and it defines "discover" as "1 - to make known or visible; 2 - to obtain sight or knowledge of for the first time". Just what most of us would have thought, but the "doctrine of discovery" is not true to this definition. We shall see that it accomplishes its goal by severely distorting the phrase "for the first time".

Now, as you may have guessed from looking at the cover picture of our Order of Service, the specific discovery most relevant is the discovery of America, and we chose this topic for today's service because October 11th, the anniversary of Christopher Columbus's landing in the islands off North America, is this coming Friday, except that for some reason unknown to me, in the United States, this year the holiday will be celebrated the following Monday.

At home I have a rather thick but very interesting book I bought a few years ago about the discovery of America. It doesn't begin with Columbus, rather it ends with him. It's clear to anyone familiar with the account of Christopher Columbus's landing that he could not have been the discoverer of America in the dictionary sense of the word, because he saw people already there. The most recent research, in fact, indicates that people from northeast Asia discovered and migrated to this continent at least twice, since there are at least two major unrelated native language groups here. Note that I said "at least". Actually, there were probably many such discoveries and migrations. The first of them arrived at least ten thousand years ago, probably twenty thousand or more.

Next, there is some evidence that, in ancient times, people from West Africa sailed to South America. Also in ancient times, the Phoenicians probably had the ability to reach the Americas, though some of the evidence cited for actual contact is highly dubious. Similarly, over a thousand years ago, the Polynesians clearly had the ability to reach South America. Whether they actually did is still the subject of debate. Last on this list of possible but uncertain discoveries, we may mention the Irishman, Brendan the Navigator, the account of whose voyages may have inspired the Vikings.

With the Vikings we reach people of whom reliable evidence has survived. We have the written accounts in the Norse sagas, now definitely confirmed by archeological work in Newfoundland. The first Europeans to discover America were two sailors whose names are not known, who were shipwrecked somewhere west of Greenland, and rescued by Bjarni Herjolfsson. The account of this rescue then inspired Leif Ericson, who headed a permanent settlement in Vinland, now believed to be on the northern tip of the Canadian island of Newfoundland.

Columbus, in fact, did not come as close as Leif to discovering America. Newfoundland is adjacent to the continental coast of Labrador, and Leif certainly saw the continent of North America, which Columbus never did. We may, however, give Columbus some credit for later being the European discoverer of South America, on which he landed, and which he realized was a continent not previously known to Europeans. This while he still continued to believe the northern islands where he landed were off the coast of Asia.

Now we must quickly move forward a few centuries. Columbus unknowingly introduced diseases deadly to native Americans. The best estimates are that 90 percent of the population of North America was wiped out in the next few decades after his landing. This was not without some retaliation. The disease syphilis apparently came back with Columbus's men. Diseases are in general more deadly to populations with no previous contact to develop immunity. In North America it was primarily the villages and towns which were decimated, leaving mostly those natives who were nomadic hunters. The Plymouth Pilgrims, in fact, settled at a former village whose only survivor was Squanto.

The seventeenth and eighteenth centuries of our era saw considerable immigration to the east coast of North America from the British Isles, Germany and France. Whether these were legal or illegal immigrants depends on the "doctrine of discovery" which is our topic. They certainly did not obtain advance permission from the governments of the remaining American Indians, only from the European monarchs who claimed the land based on the doctrine.

The colonization of North America by people from the British Isles, such as the Jamestown and Plymouth colonies, was justified by the "discovery" of North America by John Cabot, an Italian sea captain commissioned by King Henry VII. We may see the development of the doctrine of discovery in his letters patent, in which King Henry authorized him "to find, discover and investigate whatsoever islands, countries, regions or provinces of heathens and infidels, in whatsoever part of the world placed, which before this time were unknown to all Christians".

So now I should perhaps attempt an actual statement of the doctrine. Since this sort of doctrine is, as I said, based on past court cases, rather than vote of a legislature, there is no definitive statement of it. It originated with a decree of Pope Nicholas V in 1455 granting West Africa to Portugal, where Portuguese sailors had been exploring. Columbus's voyage prompted Pope Alexander VI, in 1493, to grant Spain the rights to those lands it found. These decrees led eventually to the need for a treaty between Spain and Portugal, which drew a line putting Brazil and Africa under Portuguese rights of conquest, and the rest of the Americas under Spanish rights of conquest. The doctrine, as it developed, gave rights of conquest to the first Christian monarch whose citizen's landed on a land mass. This restriction of the right of discovery to Christian monarchs is what made the European discovery legally superior to the previous native discovery, and is why our General Assembly, in its resolution, included religious bias in the reasons for repudiating this doctrine. I also find it interesting that, when land and profits are at stake, Protestants had no problem relying on a Papal decree, which in other matters they would have rejected.

In 1776 the United States declared its independence from Great Britain, and a final concept was incorporated into the doctrine of discovery, namely that the United States was the "successor state" to Great Britain, and inherited, so to speak, all of its claims of discovery.

Meanwhile, many American Indian groups were advancing in their level of civilization - returning to settled village life with organized social and governmental structures, and learning new skills from the European immigrants. Among many other developments, they produced a person I regard as one of the highest intellectuals of all time, Sequoyah. Knowing that writing was possible, but without actually knowing any specific writing system, he developed a writing system for the Cherokee language. Then, realizing how difficult it was to teach, he developed a new system. In a few years he passed from the ancient ideographic system to the more advanced syllabic system. In a few more years virtually every Cherokee had learned to read and write. There was now a thriving settled Cherokee civilization in northwest Georgia and adjacent parts of neighboring states. European Americans classed them as one of the "Five Civilized Tribes" of Native Americans.

Unfortunately for the Cherokee, gold was discovered in their land, and a veteran anti-Indian warrior and slave owner named Andrew Jackson was elected President. An 1802 agreement by Thomas Jefferson concerning the border of Georgia was used as one excuse for adopting in 1830 the "Indian Removal Act" which required all Native Americans to move west of the Mississippi River and made their lands available for exploitation by White Americans. This law was adopted nearly unanimously by Congress. Among the few dissenters was a man who has since then become a folk hero, Davy Crockett, who was at that time a member of the House of Representatives. His pleas concerning the unjustness of the law were overridden.

The administration found some Cherokees, not the tribe's actual leaders, to sign a removal treaty. The actual leadership filed a lawsuit with the U.S. Supreme Court. This led to the most important use of the doctrine of discovery in U.S. court cases. Chief Justice John Marshall, who had previously used the doctrine in a case involving title to lands, again ruled against the Indians, dismissing the case because the Cherokee were neither a foreign nation nor a component of the United States. Under the doctrine of discovery, native lands were at the disposal of the federal government. Indians could not even voluntarily sell their land, but had to submit to the decisions of the United States. Because this suit was dismissed, rather than being decided, there is, to my knowledge, no actual decision by any U.S. court on the constitutionality of the Indian Removal Act.

It may be interesting to compare the treatment of this case with the recent Supreme Court decision on California Proposition 8. In both cases the court dismissed the case without making an actual decision on the merits. In the Prop 8 case, however, a lower court had already made a decision, and the Supreme Court was only dismissing an appeal as having been brought by someone other than the losing party in the original case. In the Cherokee case, however, there was no lower court decision. The Supreme Court ruled that the Cherokee were a ward nation of the United States and had no right to file the case at all.

For the Cherokee, the result was that 15,000 of them embarked on the "trail of tears", with over a quarter of them dying on the way.

Since then there has been improvement in the legal standing of Native Americans, but at a slow pace, and with much still to be accomplished.

One hero of justice was U.S. District Court judge Elmer Scipio Dundy of the District of Nebraska. In 1879 he ruled that an Indian was a person, and could indeed file a writ of habeas corpus. A year later he was part of a panel that ruled that an Indian who left tribal jurisdiction was an American citizen, however this decision was overturned by the Supreme Court. It was not until 1924 that the Indian Citizenship Act gave U.S. citizenship to Indians born within the U.S.

However, as recently as 1978, in a Supreme Court decision written by William Rehnquist, the doctrine of discovery was used to deny the right of Indian tribes to prosecute non-Indians for crimes in Indian territory; and in 1990 the Court also ruled that an Indian tribe cannot prosecute an Indian of another tribe for a crime committed in their territory. These two cases apparently leave Indians on reservations with no recourse if a crime is committed against them by someone not of their tribe.

Clearly, much more needs to be accomplished. I am glad the UUA has adopted the resolution against this doctrine, and I look forward to its eventual removal from our nation's legal precedents.