so, i guess i got something done this weekend, after all. i wish i had made it out on monday for a ride, but i didn't.
https://dsdfghghfsdflgkfgkja.blogspot.com/p/why-idea-of-doctrine-of-discovery.html
don't edit this. fuck off.
if the language is offensive, it's intentional.
as previously, this should be read as a platonic dialogue or socratic discourse with myself. i'm asking myself a question and coming to an answer. so, i present questions, produce assumptions, make mistakes and correct myself. this is not a bad thing, it's how humans learn. i want to learn together, not present myself as a guru and tell you what to think. i have no interest in telling you what to do or think, or teaching you what's right or what isn't - i want you to teach yourself. but, we can do that together, too. do not look to me for guidance, as i do not want to provide it.
if you want a textbook, buy a textbook, don't read a blog. but, i hope i'm also presenting an example of why textbooks are often not the best way to learn things - when it comes to anything besides mathematics and the hardest of sciences, the textbooks are often wrong.
why the idea of the doctrine of discovery should not be taught in law schools or history departments. like, at all.
july 28, 2022
the doctrine of discovery is a revisionist concept invented by a nineteenth century american judge that has no historical application, whatsoever. it is a fanciful term that should be dropped from all usage entirely, not a policy to be rescinded or revoked.
the 1452 dum diversas that defined all further papal decrees on the matter was issued primarily in the context of the ending stages of the reconquista and the subsequent final liberation of the iberian peninsula from a long and brutally oppressive muslim occupation, and with an eye to the pending inevitable shift of the reconquista into northern africa and was consequently mostly targeted at north african muslims. this papal dictate was an explicit reaction to existing practices in the muslim realm that enslaved non-muslims. the pope dictated a rule that non-christians are to be enslaved in the christian realm in the same way that non-muslims were enslaved in the muslim realm. it had nothing to do with race. the language specifies "saracens and heathens". it was later used to justify the enslavement of non-christians in africa and the americas, and the specificity of the decree defines some of the odd counter-examples that occurred, like the fact that ethiopia was never colonized, because it was already christian. during the period of american slavery, slaves were frequently christianized to undo the legal justification for enslaving them, which is that they weren't christian.
in britain, after henry viii, which is essentially the entire british colonial period, the law governing how land was administered in the empire was actually derived from roman imperial law, and had nothing to do with any papal dictates. the legal discourse had to do with whether a land was conquered or settled. following the roman precedent, conquered peoples were to keep their own laws and customs, whereas settlers were to self-govern themselves by erecting a parliament, and enact their own laws. the fact that the indigenous peoples in canada would not admit to being conquered is what led to such a confusing mess of law, until the courts in canada de facto declared them conquered and began treating them as though they were.
the focus on this doctrine of discovery by the indigenous peoples themselves as something meaningful is reflective of the level of discourse around colonialism in canada, where the colonized group is too clueless to even define their own condition.
the doctrine of discovery never existed, was never referenced by any parliament or court in the british empire, had nothing to do with the colonization of canada and is of no consequence today, whatsoever.
14:21
the catalyst for the dum diversas was the fall of constantinople.
14:40
the puritan british colonists to the americas were of course very protestant and very anti-catholic.
for much of america's history, catholics have been a severely persecuted minority who have lacked basic democratic rights, like the ability to vote.
the idea that the pope had anything to do with the british colonization of the americas is utterly ridiculous, absurdly ignorant and historically nonsensical.
14:48
the reason that the catholic church was given control over the indigenous school system in canada had to do with it's power in quebec, which was a global backwater until the silent revolution. after the british conquest of new france (which the british considered to have also been a conquest of the indigenous peoples, although the indigenous peoples rejected this), the british allowed the quebecois to keep their laws and customs under the roman imperial law of conquest, which was what was actually in use. so, the conquered quebecois were allowed to retain their catholicism, their civil law and their language because they were conquered. nobody was ever able to get the idea of conquest being a tool to use to maintain indigenous cultures across to them, and they never understood the ramifications of it.
the americans did not follow roman imperial law in their conquest of louisiana (after the nominal purchase of it). they just forced everybody to adopt english laws and customs.
the catholic church was utilized as a tool of control by the protestant british aristocracy in canada, which allowed quebeckers to rise up the ranks within it due to the imperial precedent of self-rule. the people that created the indigenous school systems were a mix of catholic quebeckers and british tories that realized the utility of the catholic church as a tool of control over the subjugated quebeckers and then applied that control structure to the indigenous peoples in an attempt to assimilate them. the end goal of the british aristocracy was always to convert the indigenous peoples into taxable farmers. if not for this quirk of history, the catholic church would have certainly had no role to play in british colonialism in canada.
14:56
the british didn't give a fuck about what the pope thought.
like, c'mon.
this is grade seven history class, here.
14:59
it is, in fact, even likely that the actual reasoning underlying the 19th century court decision that invented the doctrine of discovery out of thin air was an anti-catholic bias in the court, and an attempt to blame the problem on catholics, rather than take responsibility for it.
15:06
past popes have already addressed the dum diversas.
but, the pope cannot retract or rescind the doctrine of discovery because it never existed in the first place.
15:08
did columbus or cabot or the rest of them ever make any suggestion that they'd found a "new land" or that it was "empty"?
the answer to these questions is that the claims are demonstrably false.
before 1492, most of the european ruling class (with the exception of an educated elite that did not include clergy) actually thought the world was flat. the term "terra nullius" does not appear anywhere until it was invented in the 19th century, but the premise that the pope wanted to split a world he thought was flat up is incoherent. there was an agreement in 1494 to split africa between spain and portugal that was later applied to south america.
columbus and cabot were both looking for asia, and not for empty land. columbus thought he landed in indonesia; cabot thought he landed in japan. neither thought the country was empty. columbus took back a lot of slaves, and it wasn't long before they found cities in mexico and peru. there is no coherence in the claim that they thought the land was empty.
the spread of western diseases that happened shortly after contact had a devastating effect on the indigenous people, and language of that sort started appearing after an estimated 70-95% of them died from various viruses, mostly smallpox. so, there was a time when the emptiness of the land would have been an empirical truth, but nobody cited this and it had nothing to do with the colonization.
what they were trying to do was find a way around the muslims, who had blocked the trade routes after the fall of constantinople, in order to get to india and china - which is why they called the indigenous peoples indians. they really thought they were in india!
it's really a question of just understanding the history, and realizing that the doctrine of discovery was invented wholecloth in the 19th century by an american judge.
16:21
why did the pope split africa between portugal and spain?
well, it's an oversimplification, but that's fine.
the reason is that two historical processes were coming to a conclusion at about the same time - the reconquista, which liberated spain from muslim occupation, and the fall of constantinople, which ended the empire in the east. the next stage of the reconquista was logically to reconquer north africa for the empire, but columbus upended that. standing in 1495, it would have been expected that it was a matter of time before the invading arabs were chased out of carthage, and the western mediterranean was placed back under roman rule. and, that did sort of happen, eventually, with the french conquest of northern africa. morocco also ended up as a client state of spain.
it was the fall of constantinople that forced europeans to try to find a way to sail to asia to get access to commodities. it was a matter of time, but that was the thing that sent europeans sailing west.
so, you have to place these papal dictates, notwithstanding fabrications of them by dishonest american jurists, in the context of the things they actually cared about, and america was not something they actually cared about.
16:55
july 30, 2022
this article attempts to define the "doctrine of discovery" (the historically revisionist term invented by an american judge in the 19th century to blame the catholic church for british imperialism, which was directed by precedents set by roman imperial law, and rejected any authority of the pope, whatsoever) as a 1493 papal bull and claims "scholars" support the idea, without referencing any. the only scholar cited in the article disputes the claim.
generally, when you read something like "scholars say" or "experts agree", it's because the opposite is true - they couldn't find a scholarly source to uphold the common sense or colloquial interpretation, so they just say "scholars agree!" rather than actually look into it, and debunk themselves. no article with such weasel words should ever be published, let alone taken seriously. this article published by the cbc is just the definition of bad journalism, truly.
in this case, as mentioned, it's worse than that - we're dealing with an understood fabrication of history, literal revisionism, that stems from a court ruling, and not from any history department. this idea is not scholarly in origin, it's juridical. judicial independence does not imply that the court can rewrite history, but that is exactly what has been attempted to be done, here.
what is this papal decree that is being referenced?
as mentioned, there was a papal bull in 1452 called the dum diversas that ordered the enslavement of "saracens and heathens". this was issued in the context of the fall of constantinople and the expected shift of the reconquista into northern africa, after the final expulsion of the muslims from occupied spain. i did not mention the romanus pontifex, which ordered the redistribution of property owned by saracens and heathens to christians, in the same dual context of the reconquista and the final fall of the eastern empire. you can read a little about the context of that here:
it is of the utmost historical value to point out that this policy of enslaving non-christians was identical to the policy in the muslim world (which had a caliph, which was similar to the pope) of enslaving non-muslims. the christian monarchs asked for this and received it, although they were already applying it before they asked, because they inherited the existing muslim slave networks. ask and ye shall receive.
to be clear: when the latins re-established control over spain, there were already slave trading networks coming from africa, as it was the northern terminus point of the gigantic muslim slave trade, which sent slaves from africa to the various points in the muslim (mostly arab) world and was nominally primarily about religion. the latins inherited these networks, as they retook control of the iberian peninsula. so, the latins went to the pope and said "we want to maintain the existing slave networks and for you to tell us this is ok". the pope complied, and the slave networks expanded, along with the re-establishment of latin control in the western mediterranean.
neither the portugese nor the spanish thought they discovered africa. that is ridiculous. the reason they wanted to go to africa is because they knew it was the source of gold and slaves that the arabs brought north into europe. they were following the trade networks that the muslims had set up hundreds of years earlier, and that they knew of because they lived at the northern terminus of them. they inherited the routes; they inherited the maps.
the reason the spaniards (primarily) ended up in central and south america is that they were looking for gold, and they found a large amount of it for relatively easy taking. this temporarily spared north africa from the consequences of reconquest, as there was more gold in the americas, which was simply easier to get.
this area was new to the romans, who launched several expeditions south, as explorers. it is reasonable to talk of nero's expedition to the source of the nile as being that of an explorer, or some of the expeditions through the sahara in the first centuries ce being expeditions of exploration. while the romans considered this region outside of their sphere, there was actually a roman settlement around lake chad (look at a map) for quite some time, as well as roman naval bases in western morocco, on the open atlantic. there were wars fought against the nubians, but they were largely defensive, as the romans considered the area too hot and humid for advanced civilization. the name used by 16th century european map-makers for the area around lake chad was the name given to it by the romans 1500 years earlier. so, there was nothing to discover - not after the roman explorations and certainly not after the well-established arab trade routes. you have to get south of nigeria before you get into unexplored (by greeks or romans) regions, at such a late date in history.
the closest thing you'll find to any sort of doctrine of discovery in real history is the following treaty between the kings of spain and portugal:
that was a secular treaty.
as explained in the article, the treaty was an amendment to the existing 1479 agreement, the treaty of alcacovas:
there was no understanding of the existence of the americas in 1479. the treaty was strictly about africa, in the context of the ending stages of the reconquista in spain, and it's inevitable shift into the liberation of north africa from muslim occupation.
in 1492, columbus sailed through the bahamas, past cuba and landed in haiti, and then brought back knowledge of the existence of a set of islands that he thought was the easternmost extent of indonesia, although even that wasn't exactly clear. the island chain columbus thought he had landed in is something similar to where the actual philippines is. columbus died in 1506, still insisting that he had landed in asia, which just demonstrates the lack of understanding of the geography. based on what was actually understood in 1493, it really cannot be said that columbus had discovered anything besides a few distant islands in the atlantic. it was another 20+ years before anybody really realized that there was a continent in the middle of the ocean separating europe and africa on one side from asia on the other, and that these weren't just islands.
so, while columbus had found some islands, that is all he had found, and when the portugese king demanded that sovereignty be handed over to portugal (by requesting review of the situation by the pope, who was expected to act as a mediator), it was in the context of having found another island chain to the west of the canaries and of cape verde.
what the pope actually says in his 1493 bull which is being cited as the doctrine of discovery is the following, and i paraphrase:
while it may be true that there is a 1479 treaty, and that treaty would give portugal control over land south of the canary islands, of which the new island chains lie, that treaty was constructed without knowledge of the new island chains. further, the treaty was intended to apply to africa, which these new islands are not a part of. i am concerned that you two christian nations may fight a war over this, which may give the muslims an opportunity to re-invade the iberian peninsula. i therefore forbid conflicts between christian nations, as it weakens us against the muslims. as spain already occupies this region, it will remain with spain, and portugal must not try to take that land by force. portugal will retain control over land south of the canaries, relative to a dividing line that runs west of the canaries, of which spain will have control, given that they have landed in these new islands first. spain and portugal are to draw up a new treaty that reflects this new declaration.
the portugese obeyed the ruling and sailed south to land in brazil. the history is blurry, but the southern tip of florida may not have been sighted until 1517. there was no attempt by spain to colonize eastern north america further north than florida, and there is consequently no relevance of this treaty north of florida, where the british and french established the colonies that founded the legal basis for canada and the united states (the united states purchased florida from spain in 1819 and conquered northern mexico in the mexican-american war of 1846-1848).
the first explorer relevant to french, british, american and canadian history (and therefore of the indigenous peoples in contact with them, in conflict with them and eventually under the jurisdiction of them) is not christopher coumbus but john cabot, an italian (like columbus) sent west by the british crown, who landed either in newfoundland or cape breton in the late 15th century, while columbus was still alive. cabot was looking for a passage to japan, and subsequent voyages tried to move northward from newfoundland around hudson's bay, before getting stuck in the ice. around 1508, the son of john cabot, sebastien, was the first european explorer to sail south from canada, and is thought to have made it as far south as chesapeake bay, although everybody knows that the first english settlement in the region was in jamestown, 100 years later.
henry VIII became king of england in 1509 and broke all allegiance to the papacy after he was ordered not to divorce one of his wives. so, while the very earliest voyages of the cabots were under papal supremacy, no english settlements were established in the united states or canada under the system of papal supremacy, and no papal dictates or declarations were ever accepted as law in any english colonial administration. as mentioned previously, the british empire - as an empire - governed itself using common law, by appealing to roman imperial precedents. while no imperial british jurist ever cited any papal bull, references to roman imperial laws, as best as they were understood, are frequently cited as precedent under stare decisis. judges under british imperialism, seeking to hold to common law, quite reasonably sought existing precedent in decisions made by roman administrators under their own imperial system.
the imperial precedent was actually quite clear, and repeatedly utilized by the british empire all over the world. some jurisdictions (like india and quebec) were allowed to keep their languages, laws and customs, if they were considered conquered. however, british setttlers in places like myanmar and eastern north america were allowed to govern themselves, if they built their own settlements and erected their own parliaments. this is 100% imperial precedent, with absolutely zero deference to the pope, and no interest in the utilization of christian morality as any sort of justification. frankly, the rulers of the british empire would not have cared much for what the christians thought.
the french landed in north america in the 1530s (under jacques cartier) and while they were under the system of papal supremacy, they did not consider the 1493 papal bull to be relevant. modern sources claim the papal bull was "ignored"; i don't think anybody in france would have considered it relevant as it was obviously intended to apply to africa and the islands off of it, so it's unlikely that it was ever even brought up to them. they likely never even had the chance to even ignore it. in 1493, the pope did not know north america existed, at all. while i have not done any sort of survey on the matter, i think it obvious that nobody in france ever cited this bull, and not because it would have undermined their claim but because it was obviously irrelevant. in fact, new france suffered under a level of disinterest by french monarchs, who saw it as an expensive annoyance, and slowly sold it off to other european actors. the french did, nonetheless, build monasteries and attempt to convert the locals to catholicism, partly because many of the earliest french settlements were burnt down by the indigenous peoples (so, the catholic church generally came first to christianize the savages, like they did in northern europe; the settlers then came after, once it was safe), but the earliest settlements were not established until the early 17th century. the french started in quebec city (1608) and explored the watersheds west, founding cities like green bay (1634), trois rivieres (1634), montreal (1642) and detroit (1701). they then moved south down the mississippi and founded new orleans (1718), before paddling back and founding cities like st louis. there was active francophone catholic missionary work done throughout this period in ways that simply did not occur in the british settlements.
the long franco-british conflict started in europe with the norman conquest of england (1066), which was the second roman conquest of britain, and which left england as a possession of a french landholder of partial viking descent which also had possessions in france. the franco-british wars in north america were a part of this thousand year struggle which ended with the entente cordiale of 1904. standing on the other side of world war one, world war two, nato and the cold war, it's easy to forget just how long and how vicious this war between england and france really was, through it's various phases of wars over competing interests by landholders and conflicts over ideology during the revolutionary period. the struggle for hegemony in north america between england and france was a small part of this massive, generations-long conflict and ended in 1763 with the british empire in sole control over the eastern part of the north american continent, for however short an amount of time.
the french backed the colonies in the american revolution of 1776, in a hope that they'd regain some control over the regions they had lost, which led to a partition of the british empire in north america in 1783 into separatist and loyalist factions, with the loyalists in the north (called british north america, and later canada) and the separatists in the south (called the united colonies, or united states of america). not long after, there was a revolution in france itself, which severely restricted the power of the catholic church in france, 250 years after henry VIII. today, france has some of the world's strongest rules restricting church power and influence within the state.
in quebec, the catholic church became the source of quebecois identity, after british hegemony became undisputed. as mentioned, the existing imperial precedent was to allow conquered peoples to retain their customs, so the quebecois clung to catholicism in the face of their poverty and general social exclusion from polite society, although the british aristocracy did allow for self-rule, as that was the existing imperial precedent. as a result of this catholic dominance under british hegemony, quebec became an impoverished backwater, full of backwards peoples with primitive social views - not unlike today's arkansas or mississippi, or mexico, for that matter. the british understood the role of the catholic church in pacifying quebeckers, and attempted to utilize these catholic schools (which the quebecois themselves insisted upon.) as a model in pacifying the indigenous populations, who were notoriously restless. in a conscious act of assimilation, the british took the existing catholic school system in quebec, which was even then rife with abuses and human rights violations, and expanded it to the indigenous populations, in an attempt to emulate the results. it is worth noting that the british ran similar schools for the catholic irish in ireland and later in canada, as well. the result was the same kind of sexual abuses in indigenous school systems that are seen in catholic school systems everywhere, including ireland and quebec and latin america, as well as africa and australia. this is the reason the catholic church ran the indigenous schools in canada, which is very isolated from columbus and very isolated from british imperial law.
quebec underwent a silent revolution in the 1950s and 1960s where it successfully liberated itself from catholic oppression, largely by looking towards the french revolution for inspiration and guidance. the indigenous peoples in canada are still struggling to define how they will emerge from catholic oppression, or what a post-catholic canadian indigenous identity actually looks like.
as canadians and americans, our legal traditions do not come from the bible, from the papacy or from spain. while many of the earliest british and french settlers to north america were religious fundamentalists, and they enacted horrible laws in their settlements, these settlements and laws did not survive the establishment of british imperial hegemony. our laws are not christian in origin, but derived from the english common law (except in quebec, where the civil law is napoleonic). our judicial system is not driven and never was driven by christian dogma, but was based on the stare decisis of the common law, which saw decisions made in imperial rome as the proper precedent to follow and paid no deference, whatsoever, to the pope and his specious decrees.
so, it is interesting that this revisionist idea of a doctrine of discovery requires deference to the most colonial christian myths to make sense of. in truth, only the samuel alitos and clarence thomases of the world could take such a thing seriously.
we live in a secular state and our laws are secular in origin. insisting otherwise is really simple base ignorance of basic history.
if you meet a "scholar" that wants to argue otherwise, ask them to send me an email about it.
reference:
"why pope francis may be hesitant to rescind the doctrine of discovery", cbc news, july 30, 2022
19:35
there was a proclamation by the british monarch in 1763, at the conclusion of the seven years war (or french and indian war) that declared all land west of a dividing line to be "indian territory". this decree has been much misunderstood since. what was the king's intent?
yeah, i think i get it, now.
the king wanted a monopoly on the purchase of land, to prevent any settlers from holding what is called allodial title. to this day, the federal government of the united states considers itself the sole owner of almost all land in the united states, and the crown of britain owns almost all land in canada, which is to be administered by the federal government. yes, legally speaking, the queen owns your house, if you live in canada. the almost sole exception in canada is the nisg'aa agreement; in the united states, there's a handful of allodial title indigenous areas in the plains states, and in new mexico. indigenous title is not considered allodial in canada - it's a special category of fee simple. fee simple is the modern evolution of a fiefdom, a plot of land granted to a title holder by the king (or state) in exchange for a property tax. allodial title holders pay no property tax, because they actually own the land.
the function of the proclamation was to decree that all land west of the appalachians will eventually be purchased by the king, which is a weird kind of land grab. the actual content of the proclamation is a ban on settler purchases of land from the indigenous sellers; only the king was allowed to buy land from the indigenous peoples. so, while it doesn't transfer ownership directly to the king, it's an algorithm for the eventual total transfer of all land in north america to the crown, and that is a process that is actually still ongoing in canada (most of bc is still not under treaty).
while the proclamation was intended to prevent settlers from buying land from the indigenous peoples - and pissed the settlers off enough that it was a major cause of the revolution, even if it didn't result in a reversal of the policy - it also follows the spirit of the existing imperial precedent. it certainly doesn't derive from the doctrine of discovery, even if it looks a little similar on paper. i've pointed out a few times that the existing imperial precedent has a difficult application in canada, because the indigenous peoples never utilized land ownership in the same way that europeans did. tribes may have had agreements about common hunting lands, but they considered the idea of owning land to be ridiculous. like, they would mock the europeans for it - they thought it was crazy, bonkers, looney tunes. so, they couldn't define whether they were conquered or not in their own cultural language, and they didn't put up any resistance to settlements on their land, until the europeans started putting up fences, which they found to be baffling. that made it easy for the settlers to build houses, which created property that they sought to self-govern, which meant the precedent was that the parliament becomes supreme, even as the indigenous peoples are still living and hunting on the land being settled. the existing british imperial law had no precedent as to how to deal with these people that didn't accept land ownership, that allowed for foreign settlers to settle their land, that refused to acknowledge they were conquered and just assumed co-existence was obvious. we made no sense to them, and they made no sense to us.
so, eventually, after grappling with it for centuries, the court had to de facto declare they were conquered, but they could never phrase it like that, and you won't see that language utilized.
the issues that have been historically put before the court in relation to indigenous peoples in the british empire and canada have had to do with what rights that they have within the imperial law framework and the much newer canadian constitutional law framework, and the 1763 proclamation is fundamental to that - not any papal decree. if you want a legal framework to substitute for the 1493 papal bull in canada, it is the 1763 proclamation, which was clearly derived from the roman imperial law and not from any papal dictate. our courts have already modified this, and rather dramatically.
20:46
(note: i hadn't read the case, yet. i was faced with a contradiction between what i knew about the british imperial law of the time, which was substantive, and what the secondary sources were telling me about american colonial law, which i knew and still know less about. i was trying to resolve that contradiction. this is deductive, based on the secondary sources, which are very bad and do not accurately convey the content of the 1823 ruling. i correct myself in subsequent posts.)
so, the 1823 case reintroduces the 1763 proclamation into the american jurisprudence via case law. that case - which uses this stupid term, doctrine of discovery - goes through this specious historical revisionism, and in the end just restates the 1763 proclamation, almost verbatim - only the state can buy land from the indigenous peoples.
so, why didn't the court just cite the proclamation, then? because it's 1823, and the court is ruling on a land transfer in post-revolutionary america. had the court cited the decree of king george III, they might have been hung - if not tarred and feathered. there'd be pitchforks running through town, in no time.
so, instead, the court ran off a pile of nonsense and blamed it all on the pope - when the ruling is in actual fact an application of the proclamation, nearly verbatim.
needless to say, england did not "retain" the 1493 bull, which was never intended to apply to it, and which it wouldn't give a fuck about, even if it did. but, for the court to entirely extinguish any concept of allodial title, it needed a scapegoat, and that scapegoat was the catholic church.
a neat trick is that the 1823 ruling doesn't even have anything to do with indigenous rights. the real significance of the ruling is the denial of the right to buy property, for the colonists. i mean, the language of the ruling is that you can't sell, but the value of the ruling is that you can't buy, and the outcome is that you can't own. that's just as george III wanted it.
when later theorists cite this specious doctrine of discovery, they're really citing the proclamation, as there never was a doctrine and there certainly was a proclamation.
i'm going to put call out for this to be corrected.
22:41
those who want the pope to rescind the doctrine of discovery (which never actually existed) should really be calling for the queen to retract the 1763 proclamation (which is what the 1823 case is actually based on).
22:45
what we've done in canada is not retract the proclamation, but run it through an orwellian filter, so that it now means the opposite of what it did, previously.
23:20
in fact, the ruling does mention the proclamation, but only in passing:
can we get some rational analysis of this, please?
i mean, c'mon.
papal bulls in post-revolutionary america, designed to explain colonial british policy? what a steaming heap of bullshit.
23:31
i mean, the ruling is legally correct: the 1763 proclamation ought to have been in force, it's just sovereignty passed from the crown to the state.
it's the historical discussion around it, the justification for it, that is utter revisionist hogwash.
23:33
i should make something clear, though.
whatever one thinks of the 1823 ruling, the implication by activists is that they can reverse the precedent by having the pope retract the doctrine. that is, the indigenous activists seem to think that the dictatorial papal decrees are some kind of higher law, and that the secular courts are bound to obey the papal fiat. that would upset a lot of americans, if it were true. again: samuel alito may be the only person on the planet willing to take that idea seriously.
this point needs to be as clear as day: even if it were true that the american precedent is in some way derived from the papal dictate (a clam that is simply wrong), it would not follow that reversing the papal dictate would alter the case law.
overturning this precedent - insofar as it exists in the united states. it is not legally meaningful in canada. - is not dependent on decisions made by the pope, and words by the pope (thankfully) have no legal relevance in the secular courts of either country on this continent.
i actually get the impression that a large number of indigenous people think that these european actors - the pope, the queen - have some greater level of influence than being empty spokespeople that perform formalistic duties as relics of the past. it's baffling.
23:49
actually, let me backtrack slightly, as i've now read the actual ruling, directly.
the ruling (https://tile.loc.gov/storage-services/service/ll/usrep/usrep021/usrep021543/usrep021543.pdf) actually doesn't say what the supposed analysis of the ruling claims it says. i'm a canadian, remember - this isn't of any relevance to the laws in this country, so i've had no reason to read it, i've just relied on the secondary sources to provide a cursory analysis. we have the 1763 proclamation as the fundamental basis of our law, here, which it should be clear is what my analysis is based on. american rulings from 1823 are of no force here, so why would i read them?
what the ruling actually says is this:
Virginia, particularly, within whose chartered
limits the land in controversy lay, passed an act,
in the year 1779, declaring her " exclusive right
of pre-emption from the Indians, of all the lands
within the limits of her own chartered territory,
and that no person or persons whatsoever, have,
or ever had, a right to purchase any lands within the
same,'from any Indian nation, except only persons
duly authorized to make such purchase; formerly
for the use and benefit of the colony, and lately
for the Commonwealth." The act then proceeds
to annul all deeds made by Indians to individuals,
for the private use of the purchasers.
Without ascribing to this act the power of annulling
vested rights, or admitting it to countervail the
testimony furnished by the marginal note
opposite to the title of the law, forbidding purchases
from the Indians, in the revisals of the Virginia
statutes, stating that law to be repealed, it may
safely be considered as an unequivocal affirmance,
on the part of Virginia, of the broad principle
which had always been maintained, that the exclusive
right to purchase from the Indians resided
in the government.
so, the ruling is based on a 1779 law that is derived from the 1763 proclamation.
he then correctly applies the law of conquest, from it's existing precedent in british imperial law:
Conquest gives a title which the Courts
of the conqueror cannot deny, whatever the private
and speculative opinions of individuals may
be, respecting the original justice of the claim
which has been successfully asserted. The British government,
which was then our government,
and whose rights have passed to the United States,
asserted a title to all the lands occupied by Indians,
within the chartered limits of the British colonies.
It asserted also a limited sovereignty over them,
and the exclusive right of extinguishing the title
which occupancy gave to them. These claims
have been maintained and established as far west
as the river Mississippi, by the sword. The title
to a vast portion of the lands we now hold, originates
in them. It is not for the Courts of this
country to question the validity of this title, or to
sustain one which is incompatible with it.
this "doctrine of discovery" is therefore actually a "doctrine of conquest", described further in vaguely hobbesian language (he does go on after that). it is not discovering the tribe that confers sovereignty over them, but conquering them that does. that is roman imperial law.
he continues discussing the imperial precedent:
Frequent and bloody wars, in which the whites
were not always the aggressors, unavoidably
ensued. European policy, numbers, and skill,
prevailed. As the white population advanced,
that of the Indians necessarily receded. The
country in the immediate neighbourhood of
agriculturists became unfit for them. The game fled
into thicker and more unbroken forests, and the
Indians followed. The soil, to which the crown
originally claimed title, being no longer occupied
by its ancient inhabitants, was parcelled out according
to the will of the sovereign power, and
taken possession of by persons who claimed immediately
from the crown, or mediately, through
its grantees or deputies.
That law which regulates, and ought to regulate
in general, the relations between the conqueror
and conquered, was incapable of application to a
people Under such circumstances. The resort to
some new and different rule, better adapted to the
actual state of things, was unavoidable. Every
rule which can be suggested will be found to be
attended with great difficulty.
However extravagant the pretension of converting
the discovery of an inhabited country into
conquest may appear; if the principle has been
asserted in the first instance, and afterwards sustained;
if a country has been. acquired and held
under it; if the property of the great mass of the
community originates in it, it becomes the law of
the laud, and cannot be questioned, So, too, with
respect to the concomitant principle, that the Indian
inhabitants are to be considered merely as
occupants, to be protected, indeed, while in peace,
in the possession of their lands, but to be deemed
incapable of transferring the absolute title to
others. However this restriction may be opposed
to natural right, and to the usages of civilized nations,
yet, if it be indispensable to that system
under which the country has been settled, and be
adapted to the actual condition of the two people,
it may, perhaps, be supported by reason, and certainly
cannot be rejected by Courts of justice
so, the legislature is dominant because the land was settled after it was conquered. total imperial law. absolutely correct.
-----
inserted:
in re-reading this a few days later, i'm having difficulty remembering what the point i was trying to make in quoting the last three paragraphs was, other than that marshall is sticking to the imperial precedent in discussing conquering v settling land and not introducing the question of discovery (as i understood it when typing this, initially). reading the quote, now, i'm left feeling unsettled, in that it introduces questions i don't address and that, in hindsight, should be. i'm concluding that i think i was too brief, and that i think i intentionally avoided the subtlety of the ruling, at the time of writing. i just wanted to show that the imperial precedent was the issue in marshall's ruling without getting bogged down by the language. doubling back, i don't want to be accused of misquoting marshall, given how this discourse unravels. i want to elaborate on this point to ensure i properly address as many of marshall's points as are contextual. i can only partially address marshall's ruling, in total; marshall's ruling is quite complex.
for right now, i want to acknowledge that marshall does introduce the need to look past the imperial precedent by questioning the existing dichotomy, and that i don't want to gloss over that. i pointed out in my previous comments that the roman imperial precedent was hard to apply to the indigenous peoples in north america, and it turns out marshall realized that even in 1823, and states as much verbatim. if the indigenous peoples of eastern north america were conquered, they were not conquered in the same way that the french were, or even in the same way that the aztecs were. yet, it is clearly difficult to talk about settling a land when it is understood that there are people living there, which nobody disputes, now or then.
what marshall does, and it might be disingenuous, is suggest that the indigenous peoples abandoned the land, which introduces the law of settlement as the correct precedent. we know that disease ravaged the indigenous peoples, but, even so, that seems less than honest. the indigenous peoples were at the least chased away.
it's useful to recall that the imperial precedent at one point applied to germanic peoples, who would have been spoken of by roman administrators in ways that are similar to the way that the indigenous peoples are being spoken of, here. the celts had settlements that were conquered, even if caesar's treatment of them was unlawful, even relevant to the rather swashbuckling imperial precedent - what caesar did was genocide, even relative to roman law. but, the germans did not have settlements; all of the ancient german cities were built by the romans, who looked down upon the germans as barbarians and frequently enslaved them, even when the germans were slaughtering roman legions in retaliation (as per the varian disaster in the battle of teutoberg forest). what i'm getting at is that the roman imperial precedent is actually a good precedent, and not merely a tradition - the british were quite like the romans, and the indigenous peoples were quite like the germans. stare decisis makes good sense, here.
so, the romans could not have conquered the germans like they did the carthaginians or the greeks or the celts, and they instead applied the law of settlement to germany, even as the germans sat outside the limes, collecting coins - and plotting revenge. remember that the germans eventually win this struggle.
but, the romans did not discover the germans, and their settlement on german land did not come from discovery; the romans fought hard to conquer bits of swamp and forest, and erected their camps in hostile territory. that comparison may have evaded marshall at the time, but he nonetheless comes to the right solution - that the law of settlement applies, when the people being conquered cannot be absorbed, and the laws of the conquering people become paramount, in the settlements enacted on the conquered land.
the point is that this is not a discussion of discovery, it is a grappling with how to work through the imperial precedent in a situation where the application is not crystal clear - and that it is in fact quite clear that he's weighing the two sides of the precedent, in discussing whether the indigenous peoples were conquered or the land was settled.
----
and, then he does defer to the proclamation, after all:
The authority of this proclamation, so far as it
respected this continent, has never been denied,
and the titles it gave to lands have always been
sustained in our Courts.
he then spills a few pages of ink on upholding the proclamation, much to my surprise; based on the analysis in the secondary sources, i surely thought he was trying to get around it. nope.
so, my analysis is (oddly) actually completely correct, as it would be expected to be, as i actually know what i'm talking about, and i feel like i just tore down a straw man erected by the secondary sources.
there is, in fact, no substantive reference to the 1493 papal bull in this ruling, at all. so, i don't know where that idea came from, but it's not in the ruling. i should consequently direct my ire at the secondary sources, and not at the ruling, itself. the ruling is actually entirely consistent with my informed analysis, and not at all consistent with the colloquial reading, which bafflingly seems to be taught in american law schools.
i apologize for not checking the source before debunking it, but my degree is in canadian constitutional law, and my knowledge of american jurisprudence (post-1776) is total dabbling. that should actually be obvious.
there is a one line reference to the kings of portugal and spain, but it is strictly cursory and is not presented as any sort of legal precedent in the ruling, and for good reason - that would be utter nonsense.
so, that opens the question - who is the actual author of the revisionist doctrine of discovery? it is not justice marshall, whose ruling is perfectly cromulant, relative to the existing british imperial law of the time.
0:41
justice marshall does not bring up the concept of discovery to justify the settlement of an already populated land (he correctly utilizes the law of conquest for that purpose), but rather brings up the idea of discovery as a "right" that excludes other european powers from negotiating with the indigenous people that exist on the land that is discovered. only the discoverer of a land may negotiate with the indigenous people that inhabit it. this is an articulation of a "sphere of influence", or an "exclusive economic zone". historically, it refers primarily to france's broad claims over the centre of the continent, and the idea that the indigenous peoples were allies, rather than subjects, of the french king. the indigenous peoples did not realize that being labelled "not conquered" gave them less rights than being labelled "conquered" under the existing imperial legal precedent.
this claim is clearly delusional:
It was a right which all asserted for themselves, and to assertion of which, by others, all assented.
i mean, that's bonkers. totally wrong.
but, he's nowhere presenting discovery as a right of settlement - he explicitly presents conquest for that reason. discovery gives the european power rights over other european powers (or so he claims...), it doesn't give the european power ownership over the land, or at least not until it's conquered.
so, what he's articulating is a kind of "shotgun" system. if britain calls shotgun on the eastern seaboard, the dutch and swedes cannot claim it for themselves. but, there is no inherent right of settlement, or not until the land is conquered, first.
the ruling was clearly misinterpreted on purpose. who is responsible for that?
1:04
now, an indigenous person might reasonably challenge the idea of the right of conquest being a law. that sounds more like an absence of law than an application of it. that might be a reasonable critique of imperial law, but it would have no basis in law, or at least no basis in the law of the time. international law, as we understand it, is almost entirely post-nuremberg. the contemporary international order is radically different from british and roman imperial law, or at least it is on paper; today, planning and executing an offensive war is considered illegal, whereas that formed the basis of the law of conquest in the era of empire. we can be critical of imperial law, but we shouldn't be revisionist about it. understanding old legal principles means avoiding anachronisms.
if indigenous activists are looking to the pope to try to find some higher source of law than imperial law, that is an error in the context of anything resembling modern european law, and especially in the context of british imperial law. the pope has no special place in this legal system, post-reformation (which is the entirety of the colonial context). in fact, the higher law is that religious axioms are to be excluded from consideration - it is the separation of church and state.
so, i mean, you can sympathize with this, if you'd like. you can argue it seems wrong, and some people might feel your pain. none of that changes the legalities of the issue.
i want to know who made this up. it's post-1823.
1:24
in fact, in 1832, justice marshall over-ruled a lower court decision and declared the cherokee were sovereign.
i'm going to sort through this, but, as justice marshall seems to have understood imperial law, i promise you he argues they weren't conquered.
1:32
right.
so,
1) the doctrine of discovery means that only the english can negotiate with the cherokee. that's what he said in johnson v mcintosh, and he's properly applying it, here.
2) the doctrine of discovery does not allow for an inherent right of conquest.
3) the charters of the colonies allow for defense, but not for conquest. the colonies therefore have no legal basis in which to invoke a conquest.
4) the 1763 proclamation declares cherokee territory outside of colonial administration, so it would need to be conquered to be brought under the force of colonial law.
5) the treaty between the united states and the cherokees implicitly recognizes cherokee sovereignty. so, there can be no naivete, here.
6) the boundaries of cherokee territory are well understood and there is no pretending otherwise.
so, the marshall court has clearly indicated that the doctrine of discovery does not allow for the right to extinguish rights, without an intervening conquest - and that there is no legality to conquest, in the context of the charter granted to the colonies. but, if conquest happens by the declaration of the congress, it must be upheld, regardless.
this is entirely consistent with imperial law, and bears no resemblance to the discourse in the secondary sources, which actually cite the lower court ruling, which was overturned.
1:52
i bet this "doctrine of discovery" actually dates to the roll back of civil rights after the reconstruction, doesn't it?
1:54
just briefly.
in canadian law, the general rule is that the proclamation gives the crown the exclusive right to purchase land from the indigenous peoples, which is similar to this doctrine of discovery, as it is properly understood, but is not derived from it. while you might see the odd reference in canadian law by way of analogy, the canadian case law tends to avoid referencing the american case law, and instead derives itself strictly from the proclamation. this is partly why i was able to derive the earlier american law by citing much later canadian precedents. so, it is not correct to argue that canadian case law is any way derived from the doctrine, even if there is that surface analogy, once you correctly understand the doctrine as a sphere of economic influence that is separate from the law of conquest.
so, in canada, the proclamation gives the crown the exclusive right to purchase land, but allodial title exists until it is extinguished via purchase. once the allodial title is extinguished (in the form of a treaty), indigenous title can be claimed if the indigenous community can establish continual use. what that means is that if indigenous peoples are using the land, and they have remained in use of the land through the years (as they have in parts of atlantic canada), then they have special and inherent rights granted to them under the constitution, despite the crown having ownership of the land. title is extinguished by treaty, but it is replaced by constitutional rights, if there is continual land use.
allodial title is retained in canada only by the tribes or nations that have not signed treaties, which are mostly in bc (including the tribe dealing with a pipeline through their territory). the nisga'a agreement was supposed to act as a model, but movement has largely stalled. canada is really in contravention of any sort of law, imperial or domestic or international, in it's continued occupation of british columbia - and that is what it is, an illegal occupation.
these marshall court decisions use anachronistic language, but are really largely consistent with canadian law.
2:36
this is an up to date map. most aren't.
the official position is that quebec was conquered, which is entirely legal from a european context, but doesn't give the mohawks and other groups there any answers. that is an issue that needs to be dealt with. the southern labrador region may be being worked on, i think. newfoundland's indigenous population - the beothuk - was exterminated via disease. bc is simply under illegal occupation.
3:01
i seem to have little problem accepting the law of conquest.
it's the law of the old world. when the normans showed up in france, nobody asked if it was morally right if they seized a section of land - they just took it. according to legend, alexander was a pupil of aristotle, the greatest moral zealot of all time, and he was out there conquering the whole fucking world.
what's sort of weird is that we do feel some need to justify this. i'm not entirely sure why.
it's certainly enlightened for the conquering power to attempt to treat the conquered peoples with equality, but that's actually relatively rare throughout history. we can hold ourselves to higher standards, but we have to be real, too.
so, it may seem like an absence of law, granted, but if we're standing in european courts, we ought to be using european laws, and the harsh reality is that conquest is historically lawful in europe, in asia and in the middle east, as well.
3:15
we can try to be more civilized moving forwards, sure. but, trying to apply a post-nuremberg reality to 16th century europe is beyond anachronistic, it's kind of crazy.
i mean, if you think the colonization was bad, try living through france in world war one. right?
3:18
europeans didn't apply just laws to each other, nor did any other group of people on earth. it's not reasonable to expect them to treat others better than they treated each other, or than anybody else treated anybody else.
the court system is based on precedent, and the court rulings of the past were consequently rooted in ideas that are even older. it's useful to put the law in context - i support stare decisis, don't misunderstand me.
but, if you are morally aghast at the rulings of the past, you just need to look forwards and argue for better rulings. there's some progress there, surely. but, i don't think it's helpful to condemn people in less advanced times for being less advanced. it was a universal condition, truly.
3:22
i still want to figure this out, but i need to stop to eat.
3:26
this opinion by a justice taney is the earliest opinion i can find that reverses the precedent set by justice marshall, although it erroneously cites it:
https://scholar.google.ca/scholar_case?case=18306627545409107013&hl=en&as_sdt=6&as_vis=1&oi=scholarr
The English possessions in America were not claimed by right of conquest but by right of discovery.
that is Martin v. Lessee of Waddell, 41 US 367 - Supreme Court 1842 and is a direct reversal of the precedent in johnson v mcintosh.
let me try to follow that backwards. if i cannot find an earlier source, there's the answer.
it still doesn't answer the question as to who built the mythology up, but i suppose it must have been a 19th century textbook.
4:17
justice taney was nominated by andrew jackson, who famously ignored justice marshall when he expelled the cherokees to oklahoma in the event known as the "trail of tears".
4:22
justice taney was also responsible for dred scott.
it's starting to make sense.
4:22
and, taney was also catholic.
ok.
let me put these pieces together.
4:24
yeah.
taney cites the following:
"If the discovery be made and possession taken under the authority of an existing government which is acknowledged by the emigrants, it is supposed to be equally well settled that the discovery is made for the benefit of the whole nation; and the vacant soil is to be disposed of by that organ of the government which has the constitutional power to dispose of the national dominions; by that organ, in which all territory is vested by law. According to the theory of the British constitution all vacant lands are vested in the crown as representing the nation, and the exclusive power to grant them is admitted to reside in the crown, as a branch of the royal prerogative. It has been already shown that this principle was as fully recognised in America as in the island of Great Britain."
that is absolutely valid law and, if read literally, is not very controversial. if you were to apply that to an uninhabited island in the arctic ocean or the south pacific, nobody would think much of it.
but, was north america uninhabited?
marshall, in fact, takes exception to that claim, and taney is quoting him way out of context. the section quoted is the precursor to a much longer discussion, where marshall repeatedly acknowledges that the indigenous people own the land and have all kinds of rights associated with that ownership, although he also defers to the authority of the monarch or the parliament. the question of what power falls to the monarch and what power falls to the legislature is a very old one in british law, and still exists in the united states (with the president as elected king), where it no longer exists in britain or canada. for taney to cite this small bit of marshall in this manner is a strong tip-off - taney does not intend to interface with the subtleties and rights balancing in marshall's ruling, but wishes to declare a clear ideological decree that eliminates the rights of the indigenous people, which the crown did not intend to do and which the earlier court decisions attempted to prevent.
so, i am confident that i have my author, here - it is justice taney who is the disingenuous jurist and not justice marshall, and it is all the worse, in truth, because he's actually overturning what was a relatively forward thinking precedent and establishing a much less well thought out one.
given that i understand the general outline of american history from 1840 to 1890, i can guess how this turns out and i'm going to step back and leave it there.
the doctrine of discovery, as it is cited today, is a dishonest misquote of justice marshall, nefariously constructed by his successor, justice taney, to eliminate the rights that the previous court had tried to balance.
4:54
this is so perplexing to people.
but the right answer is provided by weber: the state is the entity with a monopoly on violence. might makes right.
we consider this uncontroversial in every other historical context, but find it baffling in relation to european colonialism, like the mongols and arabs and persians and romans never existed.
this is what i'm perplexed about.
5:33
july 31, 2022
i want to clarify what the proclamation - and johnson v mcintosh, which is just an interpretation of the proclamation - does and does not say.
so, a common analysis is to criticize the ruling by arguing that the doctrine of discovery says that the indigenous people can't sell their land because they never owned it because it was discovered. that's not even close to being correct.
what the proclamation is about is buying land, rather than selling it. it may be valid to criticize the king of england for thinking he can tell the indigenous peoples who to sell to, but the question of whether the king of england has the right to order his subjects not to buy a commodity from a seller or not is a question for english law to work out, through the mechanisms of english law, and one the indigenous people should have little say over. if looked at carefully, the proclamation is really a set of sanctions against the indians, in that it forbids english subjects from buying their land, much as current sanctions exist against buying commodities from russia or iran. the reality is that those sanctions were then adopted, in tact, by the various state parliaments, who certainly have always had jurisdictions over such matters.
the case at hand had to do with an overlapping parcel - supposedly. there's some question about that, apparently. - but it's worthwhile to conduct a thought experiment - what would have been the correct ruling if the lands didn't overlap? would the court have accepted the purchase of indigenous land by the settlers?
the answer is that it would not have, because the application of the proclamation (via it's adoption by the state legislatures) means that the settlers weren't allowed to buy it. the sale would be nullified and the land would be returned to the indigenous owner, until such a time would come as they would opt to sell it to the state, instead.
it does follow that the law here doesn't have anything to do with telling the indigenous people what they can sell, nor does it deny indigenous ownership of the land - it's about forbidding settlers from buying, because the king (and then the state) expects a monopoly on allodial title under it's jurisdiction.
what the doctrine of discovery then asserts, in functional terms, is that the king of france can't buy indian land in areas claimed by the king of england, because the english have exclusive economic rights. again: this is about buying, it's not about selling.
the court is actually pretty clear that the indians own the land - before it is sold - and have the right to put terms on the sale. but, only the king can buy it!
so, i hope that clarifies the actual precedent set by the marshall court, as it derives from the proclamation, and which is actually still law in canada, as canada did not adopt the disingenuous reading by that evil bastard, justice taney.
i would agree with activists arguing that taney's precedent should be reversed and marshall's should be re-established, but i think that has already been done, and i think the issue is largely dealt with. there is no more indian land in the united states that might be sold to france (or britain), so the doctrine of discovery, as it was articulated by marshall (rather than misinterpreted by taney), no longer has any functional relevance in the united states. in canada, there is land that is not under treaty that the indigenous peoples might in theory sell to the chinese (or the americans), but i don't think that's a serious concern.
14:42
the doctrine of discovery as articulated by marshall, and misinterpreted by taney, is not law in canada, as the united states was not a part of the british empire at the time, even if it has been referenced by means of analogy.
but, what would happen if the indigenous peoples in bc decided to sell a parcel of land to china? they're not under treaty. there's nothing stopping them, except the use of force.
that is the doctrine of discovery, as articulated by marshall - that canada has an exclusive economic right over the area, and the chinese need to respect that claim and not attempt to buy land directly from the indigenous peoples. he claims that that doctrine was always respected, which is demonstrably false, but it's what he's trying to establish.
in canada, the proclamation is still law and we would consequently not recognize the validity of chinese attempts to buy land from the indigenous peoples that exist in the area we've claimed as under our economic sphere of influence. that's our law. that's relevant to us.
the chinese might decide to ignore it, as the spanish might have decided to ignore it, but that never happened.
i hope what marshall actually meant is now clear.
14:54
aug 2, 2022
i just want to dwell on this line from the cited taney case a little.
The English possessions in America were not claimed by right of conquest but by right of discovery.
the focus is on the discovery part. but, as i've been trying to point out, the more substantive legal part of this is the conquest part. somebody can correct me if i'm wrong, but, given that taney is disingenuously misquoting marshall, i believe this is the first time that discovery is substituted for settlement or conquest, which was the american precedent up until this time (and which actually remains the precedent in canada, where there is no legal basis for the concept of discovery, which does not appear in our case law.).
you will note that this makes it very clear that nobody thought the land was empty, that such arguments are still to come in the future. i'm not going to look into this, but that's an interesting research question - what 19th or 20th century american legal theorist invented the idea that america was empty upon being discovered?
no, what taney is doing is substituting discovery for settlement, and then using the invented idea of discovery to argue against the precedent of conquest. this allows him to essentially make up a new precedent out of nothing. worse, he seems to have gotten away with it with minimal historical scrutiny, which is instead being misdirected at justice marshall (who was actually standing up for them, repeatedly).
but, it is the idea of conquest that taney wishes to denounce most forcefully, and he does so:
The grant to the Duke of York, therefore, was not of lands won by the sword; nor were the government or laws he was authorized to establish intended for a conquered people.
taney is acknowledging the existing precedent here, and explicitly denying the conquest, as he fully understands the ramifications of such a thing - that the indians would need to be allowed to govern themselves, if they were conquered. that could never be allowed. but, the land was clearly not empty when it was settled, and such an argument could not be taken seriously, so therefore it was discovered, instead. taney's nefarious redefinition is given a gift by marshall's abstract language, which is subtle enough to be easily co-opted.
as mentioned previously, the indigenous peoples could never admit to being conquered, due to a fatal arrogance that left them unable to reason properly. they just couldn't lower themselves to it, and they've suffered greatly for it. they would have been far better off had they admitted it.
by the 1840s, though, the american right had realized that it was in their benefit to deny them the rights of conquered peoples, and that option has not been truly available, since. even as at late a date as 1840, a federal policy of recognizing the indigenous peoples as conquered - if they would adhere to it - could have done a great deal to save indigenous culture.
so, it would be helpful to shift the discourse. discovery is an idea with no historical basis; european law is about conquest. refocusing on the correct legal questions could help resolve a lot of problems. as it is, debates over discovery are not going to help anybody, as they don't have any legal meaning and don't lead to any policy outcome.
0:12
the term terra nullius has been better deconstructed than the court ruling.
first use was when, do you think? 1510? 1530? 1200?
it appears to be a neologism first used in 1819.
again: i'm not looking into it, but i wouldn't be surprised if the first application of "terra nullius" to north america didn't occur until the 20th century. so, everything about this doctrine is complete bullshit.
i did look into this a little the other day, and it was amerigo vespucci - whose given name gives us america - that first realized columbus didn't land in india. it is for that reason that the earliest maps of the area actually say america on them, although there was an overlapping period where the latin term used translated to "unknown land", rather than "empty land".
3:01
terra nullius was actually first used in australia in 1835.
so, how did it get from there to a badly pieced together understanding of american judicial history? you figure that out - but dates are probably late 19th and early 20th century.
so, this is actually a relatively recent mythology.
3:07
i would actually hope that most "experts" that have narrow, focused expertise realize what i'm posting here, and that i'm not breaking down real barriers. i would hope that that one resident scholar at any particular institution understands everything i've typed here, and i'm not reinventing any wheels.
but, people going through programs and taking more general courses are going to be taught this stuff, still, and it's very concerning that it's not being addressed - that the activism is insisting the doctrine be rescinded, rather than exploring the actual historical validity of it, and realizing that it's actually a myth.
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