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The "discovery doctrine" was developed by the Spanaish philospher, Vittorio, in an attempt to justify and explain the taking of land from aboriginal people. In its essence, Vittorio opined that it was the manner in which the civilized nations dealt with each other as it pertained to the land, that governed who had title. A European nation that discovered land occupied by aboriginal people, assumed certain rights over that land that were recognized by the other European nations. It was these "recognized" rights that were passed on to the United States when it won the War of Independence. I will not attempt to go on a further dissertation on the doctrine, except to say that, in it, Marshall found the rationale for asserting federal title power over the land versus state power. As a result, with adoption of the "discovery doctrine," the Court held the title to land passed to the plaintiff by the Illinois and Piankeshaw tribes was invalid because Indians held only a title of occupancy, and not full tide. http://jmccanna@nativesense.com/NATIVE SENSEINDIAN TRIBES HAVE A GOVERNMENT TO GOVERNMENT RELATIONSHIP WITH THE UNITED STATES Before the European invasion of North America, Indian tribes exercised their own form of governments as soverreign nations. That power has lessened considerably over time, yet Indian tribes have retained limited sovereignty under federal law. As separate sovereigns, tribes have unique powers with respect to how the reservations are governed. Tribal powers include, but are not limited to, tribal governments that make laws and enforce them through ordinances and law enforcement; tribal courts that exercise limited civil jurisdiction over all reservation residents, criminal jursdiction over all Indian people; and the power to determine its own membership. Note howerver, that the United States Supreme Court has been making inroads against inherent tribal power in many of the decisions. Tribes have the right to make and enforce their own environmental laws, so long as they do not conflict with federal law. Under some circumstances the tribe can have ones that may be more stringent than a neighboring state or community. As separate sovereigns, tribes have a government to government relationship with the federal government that is recognized in federal laws and court decisions. See, Marshall Trilogy. http://nativesense.com/relationship.html
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Discovery Doctrine
According to the United States Supreme Court's decision in Johnson v. M'Intosh, this theory of Christian expansion and possession of newly discovered lands, despite native presence, was one by which all colonial powers operated. Chief Justice Marshall, writing the decision, held that the United Kingdom had taken title to the lands which constituted the United States when the British discovered them. Marshall pointed to the exploration charters given to John Cabot as proof that the British had operated under the doctrine.[2] The tribes which occupied the land were, at the moment of discovery, no longer completely sovereign and had no property rights but rather merely held a right of occupancy. Further, only the discovering nation or its successor could take possession of the land from the natives by conquest or purchase. Natives could not sell the land to private citizens but only to the discovering government.
The doctrine was used in numerous other cases as well. With Cherokee Nation v. Georgia, it supported the concept that tribes were not independent states but "domestic dependent nations". The decisions in Oliphant v. Suquamish Indian Tribe and Duro v. Reina used the doctrine to prohibit tribes from criminally prosecuting first non-Indians, then Indians who weren't a member of the prosecuting tribe.
Doctrine of Discovery Today Five Hundred Years of Injustice Doctrine of Discovery manataka.org/page94.html Timeline results for discovery doctrine Marshall Trilogy: Three Supreme Court decisions between 1823 and 1832, known as the Marshall Trilogy, reasserted the tribal right of land possession and tribal sovereignty (meaning no state held legal jurisdiction within Indian reservation boundaries) and defined a moral trust responsibility of the United States toward the tribes. answers.encyclopedia.com/question/ |
