TORONTO (CNS)—A date for a latest papal statement on the Doctrine of Discovery, promised by Pope Francis on his way home from Canada to Rome, has not been announced. But at any time when it happens, it’s more likely to address core concerns of Indigenous people in Canada and in lots of other parts of the world.
The Canadian Conference of Catholic Bishops is working with Vatican officials in Rome on the wording for a latest statement rejecting a complete tradition of legal reasoning, said Jonathan Lesarge, CCCB spokesman.
“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 latest statement from the church,” he said in mid-September. “We should not have a confirmed timeline for when the Holy See intends to release this statement; nonetheless, the work is ongoing, and we hope to have an update in the approaching weeks.”
American legal scholar Robert Miller estimates the important thing 1823 U.S. Supreme Court decision that entrenched the Doctrine of Discovery into common law around the globe has been cited by courts in Canada 70 times and is the very foundation of property law in the US.
“How will we acquire title (to property) in the US?” asked the law professor. “Either you bought it from the king of England, otherwise you got it from the king of Spain, otherwise you got it from the king or queen of France. And also you got it from the colonies and then you definitely got it from the Continental Congress and our Articles of Confederation, or you acquire it from the US government we now have now. The U.S. got it by treaties or by conquest. That’s all based on the Doctrine of Discovery.”
“You bought it from the colonies and then you definitely got it from the Continental Congress, or you acquire it from the U.S. government we now have now. The U.S. got it by treaties or by conquest. That’s 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 Tecumseh, who went to war against the US allied with the British in 1812, fighting against U.S. expansion into Indigenous lands. Miller is a number one expert on the Doctrine of Discovery and the essential U.S. Supreme Court decision of Johnson v. McIntosh, during which European justifications for colonizing the Recent World were first codified right into a legal doctrine.
Amongst those justifications cited by Justice John Marshall in his 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 US to provide you with some alternative, morally justifiable, basis for property law.
In his 2010 book The Doctrine of Discovery: The International Law of Colonialism, American legal scholar Robert Miller argues it’s past time for the US to provide you with some alternative, morally justifiable, basis for property law.
The result is sort of 70 million acres of Indigenous land in the US that Indigenous people cannot fully own. As an alternative, Indigenous people and nations are “helpful owners,” while the U.S. government retains trust ownership in much the identical way because the Crown in Canada holds Indigenous lands in trust.
Miller entertains no illusion that any statement or gesture by Pope Francis will put a legal dent in Johnson v. McIntosh.
“The pope’s statements today don’t make law. If the pope were to do such a thing, it will be a monumental educational moment.”
Countries are starting to sever their legal ties to Johnson v. McIntosh by signing on to the nonbinding U.N. Declaration on the Rights of Indigenous Peoples. After rejecting the declaration in 2007, in 2021 Canada passed the U.N. Declaration on the Rights of Indigenous Peoples Act. The preamble to the brand new federal law declares, “all doctrines, policies and practices based on or advocating the prevalence of peoples or individuals on the premise of national origin or racial, religious, ethnic or cultural differences, including the Doctrines of Discovery and terra nullius, are racist, scientifically false, legally invalid, morally condemnable and socially unjust.”
“The pope’s statements today don’t make law,” said American legal scholar Robert Miller. “If the pope were to do such a thing, it will be a monumental educational moment.”
Despite assumptions of terra nullius—territory with no master—and the Doctrine of Discovery within the 1763 Royal Proclamation, during which King George III established guidelines for European settlement of Indigenous territories in what’s now North America, Canada not wants anything to do with Johnson v. McIntosh or the Doctrine of Discovery, said Ian McLeod, Canadian Department of Justice spokesman.
“The Government of Canada’s position is that these ancient doctrines haven’t any place in modern Canadian law and don’t inform our ongoing relationship with First Nations, Inuit and Metis,” McLeod said in an email to The Catholic Register, Toronto.
He said Canada’s Supreme Court declared within the 2014 Tsilhqot’in decision that terra nullius never applied in Canada.
Next up for the federal government of Canada is developing a “Covenant of Reconciliation” that may specifically reject the Doctrine of Discovery and reply to Call to Motion #46 of the 2015 Truth and Reconciliation Commission’s final report back to work “collaboratively to advance reconciliation in Canadian society.”
If the church’s response features a papal statement that pulls the threadbare moral justifications out from under Johnson v. McIntosh, that might be a shot heard around the world, said Miller.
“It is not meaningless. It has a symbolic, educative, name-and-shame importance,” he said. “But will it change one legal title in the US or in your country? No.”
