Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies
Robert J. Miller, Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg
Abstract
England explored and colonized the United States, Australia, New Zealand, and Canada under the authority of an international law called the Doctrine of Discovery. When Europeans set out to exploit and expropriate the lands, commercial, governmental, and human rights of the indigenous peoples of Australia, Canada, New Zealand, and the United States in the 15th through to the 20th centuries, they justified their sovereignty and claims over these territories and over indigenous peoples with the Discovery Doctrine. This legal principle was justified by religious and ethnocentric ideas of European ... More
England explored and colonized the United States, Australia, New Zealand, and Canada under the authority of an international law called the Doctrine of Discovery. When Europeans set out to exploit and expropriate the lands, commercial, governmental, and human rights of the indigenous peoples of Australia, Canada, New Zealand, and the United States in the 15th through to the 20th centuries, they justified their sovereignty and claims over these territories and over indigenous peoples with the Discovery Doctrine. This legal principle was justified by religious and ethnocentric ideas of European and Christian superiority over the other cultures, religions, and races of the world. The Doctrine provided that newly-arrived Europeans automatically acquired property rights in the lands of indigenous peoples and gained political and commercial rights over the indigenous inhabitants. The United States Supreme Court expressly adopted Discovery in 1823 in Johnson v. M'Intosh. This case and the Doctrine of Discovery has been cited and relied on by Australian, Canadian, New Zealand, and United States governments, courts, and colonists. The English colonial governments and colonists in all four countries utilized Discovery principles and arguments, and these governments continue to use Discovery today to exercise legal powers over indigenous peoples. The elements of Discovery were not applied in the exact same manner and at the exact same time periods in all four countries, but the similarities of the use of Discovery are striking and not the least bit surprising since the Doctrine was English colonial law. Viewing Australian, Canadian, New Zealand, and American history and law in light of the international law Doctrine of Discovery creates a more complete understanding of all four countries and of what colonial law has done to indigenous lands.
Keywords:
indigenous peoples,
Doctrine of Discovery,
indigenous rights,
colonization,
legal history,
comparative law,
indigenous lands
Bibliographic Information
Print publication date: 2010 |
Print ISBN-13: 9780199579815 |
Published to Oxford Scholarship Online: September 2010 |
DOI:10.1093/acprof:oso/9780199579815.001.0001 |
Authors
Affiliations are at time of print publication.
Robert J. Miller, author
Professor of Law, Lewis & Clark Law School, Portland, Oregon
Jacinta Ruru, author
Senior Lecturer, University of Otago
Larissa Behrendt, author
Professor of Law and Director of Research, Jumbunna Indigenous House of Learning, University of Technology, Sydney
Tracey Lindberg, author
Professor of Law, University of Ottawa
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