By Michael Swan
TORONTO, Canada, (The Catholic Register) – A date for a new papal statement on the Doctrine of Discovery, promised by Pope Francis on his way home from Canada to Rome, has not been announced. But whenever it happens it will address core concerns of Indigenous people in Canada and in many other parts of the world.
The Canadian Conference of Catholic Bishops is working with Vatican officials in Rome on the wording for a new statement rejecting an entire tradition of legal reasoning, said CCCB spokesperson Jonathan Lesarge.
“Galvanized by the calls of our Indigenous partners and by the Holy Father’s remarks, Canada’s bishops have engaged and are actively working with the Vatican with the goal of issuing a new statement from the Church,” he said. “We do not have a confirmed timeline for when the Holy See intends to release this statement, however, the work is ongoing and we hope to have an update in the coming weeks.”
American legal scholar Robert Miller estimates the key 1823 United States Supreme Court decision that entrenched the Doctrine of Discovery into common law around the world has been cited by courts in Canada 70 times and is the very foundation of property law in the United States.
“How do we acquire title (to property) in the United States?” asked the law professor. “Either you got it from the King of England, or you got it from the King of Spain, or you got it from the King or Queen of France. And you got it from the colonies and then you got it from the Continental Congress and our articles of confederation, or you bought it from the United States government we have now. The US got it by treaties or by conquest. That is all based on the Doctrine of Discovery.”
Miller teaches at Arizona State University’s Sandra Day O’Connor Law School and is a member of the Eastern Shawnee. His lineage traces back to General Tecumseh, who went to war against the United States allied with the British in 1812, fighting against U.S. expansion into Indigenous lands. Miller is a leading expert on the Doctrine of Discovery and the essential US Supreme Court decision of Johnson v. McIntosh, in which European justifications for colonizing the New World were first codified into a legal doctrine.
Among those justifications cited by Justice John Marshall in his 1823 decision were the 1493 papal bull Inter Caetera issued by Pope Alexander VI.
In his extensive writing, including the 2010 book The Doctrine of Discovery: The International Law of Colonialism, Miller argues it’s past time for the United States to come up with some alternative, morally justifiable, basis for property law.
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