Sunday, April 8, 2012

Christian Discovery and Dominance

The Rights of Indigeneous Peoples
Internationally and in Canada

Assumptions, Historical Underpinnings and Implications

1. Introduction

Above:  Discovery of America.  Jacob, P. L. Moeurs, usages et costumes au Moyen Âge et a l'époque de la Renaissance.  New York : Frederick Ungar, 1874.
"In 1492, Columbus sailed the ocean blue."
A refrain learned and chanted by school children throughout the "western" world; a simple ditty, yet, on the one hand it evokes visions of horror, greed and injustice, while on the other, visions of heroism, opportunity, and wealth.

Also, on the one hand, as a result of "Columbus sailing the ocean blue;" we have one class of people dependent upon the largess of governments and, on the other hand, another class of people who have become wealthy and famous because of that system. Yet both are "welfare recipients" ie receive payments directly from their respective federal governments. Indigenous peoples and lawyers; one poverty stricken and discriminated against, the other rich and occupying a special "niche" within the discriminate society.

However, it is not the purpose of this paper to discuss nor to make judgements on the morality of the situation. But, since the beginning of the sixteenth century, these are issues which have been the focus of attention from jurists, social behavioral scientists, clergy, and others. Yet one of the major difficulties encountered when dealing with the rights of indigenous peoples lies within the phrase itself. These "rights," are they ones which the colonizers are morally obligated to extend to indigenous peoples, or are they legal rights which the various states within the classification of indigenous peoples, may assert for themselves as part of their "self-determination?" Posed another way, "Are the rights of indigenous peoples to be the subject or the object of international law?" It is the intent of this writer that the reader answer the question. So, the focus will be on the various views and opinions concerning the rights of indigenous peoples, will present an analysis and, when applicable, discuss their implications.

But before proceeding there needs to be a clarification of some terms. First, "dominant society." What are the underlying assumptions giving rise to such a term, and what are its implications? In short, it implies an assumption that this other society somehow evolved from within an existing society and, over time, came to dominate that original society. Quite the contrary, the so-called "dominant society," in relation to indigenous societies, is an external one. To carry this a step further. If we eliminate the first assumption, i.e., that of a society from within a society gaining dominance, we must find a replacement concept which will provide some factual, or even some theoretical, basis which will lend substance to the concept. In this situation there is none. Thus we must examine the relationship between the "dominant society" and its subordinate in a context removed from social theory. We begin by asking, "if this other society did not evolve, or ’spring,’ from within the society which it came to dominate, but instead is an external society which has imposed itself upon the society it dominates. Where do we look to find a conceptual term describing the resultant relationship?"

To better highlight the problem, we resort to analogy. In this case, say, for example, if Canada’s Asian immigrants were to gain a numerical superiority and the Asian cultural values, practices, and imperatives were to gain dominance, while those of western European origin were to become subordinant. This would be a situation wherein the societal norms or mores of the original society were overwhelmed from within a political system. However, if those same immigrants from Asia were not "citizens" of Canada but, instead maintained their national identities as being something other than Canadian, the situation will then have moved from the realm of social theory to that of politics and law. At this point the benign term "dominant society" begins to take on a more ominous aura; however, this situation is not peculiar to Canada but is one repeated throughout the "colonized" world.

For example, in the United States of America, Johnson V McIntosh, 21 U.S. (18 Wheat) 543, 5 L.Ed. 681 (1823), a case wherein one person named Johnson acquired land from an Indian tribe, another, McIntosh, acquired title to the same land from the U.S. Government. There was a disagreement over the title and the case went to the U.S. Supreme Court. Chief Justice Marshall, deciding in favor of McIntosh’s title from the U.S. Government said,

"Conquest gives a title which the Courts of the conqueror cannot deny."

How does this square with the concept of "dominant society?" Apparently it does not square, but why? Since the above term, "dominant society," is one found in the area of the Social Behavioral sciences, maybe that field might offer some clues to resolving the inconsistency.

Behavioral scientists generally agree that an "abused child" will grow up (absent treatment) to become an abuser. If this principle is true for individuals, it might just possibly be true for entire societies as well. Dr. Pamela Colorado-Morrison, Phd., Brandeis University, tells us that trauma victims (Adult Children of Alcoholics, rape victims, etc.) tend to either blank out the experience altogether or attempt to "deny" the experience by referring to it in non-threatening terms. Could such terms as "dominant society," "indigenous or aboriginal peoples," or, in the face of overwhelming evidence to the contrary, the continuation of the label "indians," be examples of holdovers from traumatic experiences suffered by Europeans/Britains? For example, in the ordinary course of events how do we explain the behaviour of Columbus when first meeting the peoples of the Carribean? On October 12, 1492, he made the following entry in his ship’s log;

"It appears to me that the people (of these islands) are ingenious and would be good servants."

The above entry came after passages referring to the kindness and hospitality with which they, the Spaniards, had been greeted. For, two days later, on October 14th, he wrote;

"These people are very unskilled in arms, with fifty men they could be subjected and made to do all that one wishes. . . (He) ordered seven to be taken and carried to Spain in order to learn our (Spanish) language and return unless your Highness should choose to have them transported to Castille or held captive on the Island."

(Footnote # "Native American Alsoholism: An Issue of Survival," A Doctoral Dissertation presented to  The Faculty of the Florence Heller Graduate School for Advanced Studies in Social Welfare/Brandeis University, by Pamela Colorado; December 1985).

Were Columbus’ actions standard practice in Europe when encountering peoples in their own homelands or merely a pecularity specific to Columbus? In any event, the stage was thus set for a controversy which has continued for nearly five centuries.

Another area requiring clarification is the purpose of Columbus’ original voyage leading to the "discovery of America," and the assumptions underlying that purpose. As is generally known, Christopher Columbus was attempting to find a new trade route to India. Thus, since the purpose was trade, we can logically conclude that the crowned heads of Europe, or, more specifically, Columbus, was operating under the assumption that "India" was under the dominion of a "ruler" or rulers and, that the lands of India and its resources were owned and controlled by such ruler(s). However, this was not the case, instead, Columbus found a land populated by a people without a visible "ruler." So, were the reactions of the Europeans to this state of affairs the result of their perceptions of "sovereignty?" For . . . (pages 5 & 6 missing)

(Footnote # Pages 1007 - 1008 of "Report of the Secretary of the Interior, Being Part of the Message and Documents Communicated to the Two Houses of the Congress at the Beginning of the First Session of the Fifty-fourth Congress. Volume II. : Washington: Government Printing Office. 1896).

Why was Dr. Jackson so adamant about not wanting the indigenous peoples of Alaska to be called Indians? And, who were the "friends of Indians?" During the period of history when Dr. Jackson was working so hard to "re-label" Alaska’s indigenous peoples, the term "Indian" had become somewhat synonomous with "self-governing units." Also, during this time was the era of the great numbers of immigrants arriving in the United States. In order to speed up the process of naturalization, there were many organizations formed for the sole purpose of assisting immigrants in that process. Thus, the "friends of Indians" was just such an organization, devoted to "civilizing" and assimilating Indians into the American system. So, it was a two-pronged effort. The underlying assumptions were that if the Indians could be denied an opportunity for self-government while at the same time "assisted" in becoming assimiliated "Americans," settlement of Alaska and access to its resources would be much easier than in the other states of the U.S.

II. Historical Underpinnings

In many ways the experiences of the indigenous peoples of North and South America, and other parts of the globe which were colonized by western Europeans, provide a parrallel to the experiences of those western Europeans under the Roman empire. Thus if we are to gain a fuller appreciation for the problems and the difficulties in finding solutions to the problems of today’s "indigenous peoples," and insights into assumptions employed by "white" scholars and jurists, it is important that we examine the history of the Roman conquest of their countries. For the Roman empire, which dominated all of Europe for over 500 years, left indelible imprints upon the peoples and institutions of Europe. For example, N.B. Doucet, in his compilation of the Fundamental Principles of the Laws of Canada (1841-43, 1847), p-?, states;

"Until the constitution of the French code civil, the Roman law prevailed in numerous provinces of France as the acknowledged law. . ."

Great Britain and Canada (Doucet, supra.) have also adopted Roman law. However, the adoption of legal principles is but one side of the coin, the other involves the "world perceptions" of the adoptees. Thus is is important to examine not only the character of the "inheritors" to the Roman empire, namely, the Saxons, but also the perceptions the Romans held in regard to the peoples they subjugated in Europe and Britain.

N.B. Doucet, supra., provides a history of Julius Caesar’s first invasion of Britain. From Doucet we learn that Julius Caesar, in the short span of only three years over-ran all of western Europe to where he could see the white cliffs of the neighbouring island : and the conqueror of Gaul aspired to the glory of adding Britain to the dominions of Rome. So, on the twenty-sixth of August, in the fifty-fifth year before the Christian era, Caesar sailed from Calais, with the infantry of two legions. To cross the strait was only the work of a few hours; . . . the beach, after a short struggle was gained; and the untaught valour of the natives yielded to the arms and discipline of their enemies." Doucet continued, "We are told that the Britons were quarrelsome, rapacious, and revengeful; that every nation was torn by intestine factions; and that pretexts were never wanting to justify oppression, when it could be committed with impunity. It was this rancourous hostility among themselves which accelerated their subjugation to the power of Rome. "There is not," says Tacitus, "a more fortunate circumstance than that these powerful nations make not one common cause. They fight single and unsupported, and each in its turn is compelled to receive the Roman yoke.

Such were the Britons, who by their bravery and perserverance baffled the attempts of the first, and the most warlike of the Caesars. From that period to the reign of Claudius, during the lapse of the ninety-seven years, they retained their original independence.

Doucet further states, "By the Roman writers all the natives of Britian are indiscriminately denominated barbarians, a term of indefinite import, which must vary its signification with the subject to which it is applied. Though far removed from the elegance and refinement of their invaders, the Belgic tribes of the south might almost claim the praise of civilization in comparison with their northern brethren. . . beyond the borders of the southern tribes, (the) faint traces of civilization gradually disappeared. The midland and western nations were unacquainted with either agriculture or manufacture. . . they went almost naked: and sheltered themselves from the weather under cover of the woods, or in the caverns of the mountains. Their situation had hardened both their minds and bodies. . . (W)hen Severus invaded their country, the Roman legions were appalled at the strength, the activity, the hardihood, and ferocity of these northern Britons. . .

About the years A.M. 400, the great fabric of the Roman power was shaken to its foundation. Hordes of barbarians, under different denominations, issuing from the unknown regions of the east and the north, Vandals, and Alans. . . had poured from the summit of the Julian Alps, into the flourishing plains of Italy. It became necessary to recall the troops from the extremities to defend the heart of the empire; and the cohorts which had seen stationed along the walls of Britain, fought and triumphed under the command of Stilicho in the bloody battle of Pollentia."

History may be used for many purposes; the preceeding was but a thumbnail sketch of western European history, but it does offer some insights into the basis of the European views of the aboriginal peoples of the "New World." The following (as with the preceeding) will be presented primarily for the purpose of gaining a better understanding of todays application of such terms as "aboriginal title," "tribal sovereignty," "rule or doctrine of discovery" and the opportunity to be able to distinquish between indigenous "civil" and "political" rights and an idea as to why the use of the label "Indian" in the face of overwhelming evidence to the contrary.

III. Historical Sources of Laws and Policy

We begin first with the inheritors to the European and British portions of the Roman empire, namely the Saxons. N.B. Doucet, supra., at pp. 90, 91, 92, provides us with the following description;

"About the middle of the second century the Saxons, an obscure tribe of barbarians, occupied the district between the Elbe and the Eyder on the neck of the Cimbrican Chersonesus; in the course of two hundred years the same appellation had become common to all the nations from the extremity of the peninsula to the Weser, the Ems, and the Rhine. They formed a kind of voluntary association, which was loosely held together by similar interests, and congenial pursuits. Pillage by land, piracy by sea, was their only profession; and though the imperial (Roman) fleet had often been employed to check, it could never subdue their dauntless and enterprising spirit. But as the power of Rome declined, the audacity of the Saxons increased: from plunder they proceeded to colonization; and the men who had depopulated, afterwards repeopled the better portion of Britain. Adventurers from each of the associated tribes were among the colonists; but the majority consisted Jutes, Angles, and Saxons.

(T)heir whole time was alternately devoted to indolence and rapine. To earn by labour what might be acquired by force, they deemed unworthy the spirit of a freemen, and consigned the culture of their land with the care of their flocks to the meaner labour of women and slaves. . . (T)he warlike exertions of these tribes were at first checked by their want of arms; but during three centuries of intercourse or hostility with the Romans, they had learned to supply the deficiency. . .

Upon the establishment of the Saxons and Angles in South Britain, after the year 450, the whole of that part of the island was divided into seven kingdoms and, the laws of England divided into four distinct branches or heads: the common law, civil law, canon law, and statute law. . . (T)he common law is of such antiquity, that it was coeval with the first peopling of Great Britain. From the earliest records of Saxon times may be traced many of the rules and principles of law which are acknowledged in the present day; as the jurisdiction and proceedings of courts, the distribution of powers and offices among the ministers of justice, and the like . . . By the civil law is to be understood the civil and municipal law of the Roman empire, which owing to peculiar circumstances, was first partially admitted into England, and finally established so as to form a branch of the jurisprudence. . . (T)he canon law is a body of ecclesiastical laws, originally compiled from the decrees of councils, bulls, and decretal epistles of the Holy See, and the opinions of the ancient fathers. . . (S)ome parts of this law were adopted at an early period by the Saxons, but far the greater part was introduced at the same time with the civil law.

Although the preceeding is pecular to Britain, the rest of Europe, including Spain, was under the domination of the Roman empire for a longer period than was Britain. Also, in north America, the civil law does not play such a crucial role in the determination of the rights of its aboriginal peoples as does the common law. However, as we will discuss later, many of the concepts of law applied to aboriginal peoples in the determination of their rights have their roots in Roman private law, and feudal law of the Middle Ages, are still found in international and Canadian legal principles.


Upon Columbus’ return to Spain, despite the fact that he "thought" he had reached India, the situation was not as anticipated. The lands, as assumed, were populated, but unlike the stories of India, there were no "rulers" present. This altered situation required a new set of assumptions and, since the law "abhors a vacuum" appropriate legal theories were devised.

Because, as earlier stated, there was no army nor evidence of the existence of a "ruler," it was assumed that the land was terra nullius; territory belonging to no state. This was the one factor which was to "color" the perceptions of western jurists and government leaders for the next half-millenia.

During the Middle Ages, up until the sixteenth century, the ideas of state and kingship prevalent in Europe tended to place the ruler in the position of a private owner. Since feudal law, as the applicable "public law," conferred ultimate title on the ruler, and the legal doctrine of the day employed analogies of Roman private law, in the sphere of property, to describe the sovereign power. (Footnote # Principles of Public International Law, by Ian Brownlie, Q.C., D.C.L., F.B.A., F.R.G.S./3rd. Ed., Clarendon Press/Oxford, 1972, p-131). However, Hugo Grotius, writing a century after Franciscus De Vitorio had published his "relictos" (infra. p-?), relied heavily upon the principle enunciated by Vitorio that the "princes possess no authority save that derived from the state." : reiterated by stating;

"Now both by natural and by divine law (according to the thoroughly sound conclusion which we borrow from the aforemention Vitorio) all civil power resides in the state, which is by its very nature competent to govern itself, administer its own affairs and order all its faculties for the common good. Princes on the other hand, are invested with no just power that has not been derived from the power of the state through election of individual rulers or of dynasties."

The doctrine of discovery, which we will see later, advanced with such vigor by the western European powers, including the Americans, was unequivocally rejected by Vitorio in his treatise De Indis. To invoke the doctrine, Vitorio points out, it is necessary to demonstrate that the territory is uninhabited - terra nullius. Since, clearly, the lands were already occupied the doctrine could not be applied.

Vitorio’s views on the matter represent the position in international law at that time, that "discovery" of an inhabited area was not a claim which could be seriously maintained. If anyone had "discovered" the lands in question it would have been the people already there.

In spite of subsequent attempts to put forward such claims there is serious doubt, contrary to what Justice Marshall said in the U.S. Supreme Court case Johnson v McIntosh (1823), infra. p-?, as to whether the doctrine was ever accepted by the competing states themselves. Discovery, by itself, was for the most part not considered sufficient to establish a valid claim.

Early (and present day) commentators have tied the political and civil rights of "indigenous" peoples to "title to land," whereas, western European, Canadian, and American governments tie their right to determine those political and civil rights to "discovery." David Case in his, "Alaska Natives and American Laws, University of Alaska Press (1984), p-48, stated:

"The ’rule of discovery’ held that the nation first landing on or discovering a land in the new world acquired title to the land and dominion over the original inhabitants exclusive of any other discovering nation."

Compare the above statement with the following;

"The fact that the native people were here first is at the core of the notion of aboriginal rights or aboriginal title. Building on this idea of original use and occupancy, Peter A. Cumming has defined aboriginal rights inNative Rights and Law in an Age of Protest,’ (1973) 11 Alta. Law Rev. 238, 239 as the result of their original use and occupancy of lands."

(Footnote #?, Draft chapter on aboriginal title for the proposed Indian, Metis, Inuit Law Casebook; by David W. Elliott, Assoc. Professor, Department of Law, Carleton University, February 1982).

Somehow, the two just do not seem to square. It appears that the assumptions here is that somehow the "discoverers" acquired greater rights than the people "discovered."

However, to get back to the rule of discovery. Case states the rule but fails to mention that the "rule" was rejected as early as 1532 (40 years after Columbus "discovered" America). Yet Case states the "rule" but does not question its validity?

The original concept, which, as earlier stated, is of Roman origin; Terra Nullius, land owned by no state, i.e., "vacant," "empty" lands. Not necessarily vacant and empty of human habitation, but more in terms of an absence of a sovereign.

The principle was first applied by the Romans, when they conquered Europe and Britain; Quite simply the Romans claimed any lands which were "vacant" and "empty" of human occupancy. Later the principle evolved to one which applied to "lands owned by no state," hence they were "vacant" and "empty" of any "true laws" or "true government."

Fr. Vitorio is considered by many to be the "father" of modern international law and, with justification, can also be labelled the "father" of aboriginal rights. In his most famous work, his treatises, De INIS and De JURE BELLI ("De Indis et de Jure Belli Relictiones," 1532), Fr. Vitorio, commenting on title by "right of discovery," stated;

". . . this seems to be an adequate title because those regions which are deserted become, by the law of nations and the natural law, the property of the first occupant. . . (N)ot much, however, need be said about this third title of ours, because, as proved above (infra. p-16), the barbarians were true owners, both from the public and from the private standpoint. Now the rule of the law of nations is that what belongs to nobody is granted to the first occupant, as is expressly laid down in the aforementioned passage of the institutes. And so, as the object in question was not without an owner, it does not fall under the title we were discussing. Although then, this title when conjoined with another can produce some effect here, yet in and by itself it gives no support to a seizure of the aborigines any more than if it had been they who discovered us."

The principles thus laid down by Vitorio and reflected in the official cedulas and bulls later appeared in the texts of subsequent eminent international jurists. Writing fully a century after Vitorio, Hugo Grotius drew heavily on Vitorio’s works and on numerous occasions referred to Vitorio by name. In one of his early classics, "De Jure Praedae Commentarius," concerning the question of Portuguese influence in the East Indies, Grotius expounded;

"Therefore since the Portuguese lack both possession and title to possession, since the property and sovereign powers of the East Indies are not to be regarded as things that had no owner prior to the advent of the Portuguese, and since that property and those powers - belonging as they did to the peoples of the Indies - could not rightly be acquired by other persons, it follows that the said peoples are not Portuguese chattels but free men possessed of full social and civil rights (sui iuris)."

Grotius was not alone among subsequent international scholars in following Vitorio’s lead. (See also the works of E. De Vattel, Soto, Gentili). The important principles relating to aboriginal rights thus articulated by Vitorio and adopted by Grotius and other international scholars created an international legal framework which continues to be relevant. Felix Cohen, "The Spanish origins of Indian Rights in the law of the United States" (1941); stated;

"In the first place, we must recognize that (our) Indian law originated and can still be most clearly grasped, as a branch of international law, and that in the field of international law the basic concepts of Modern doctrine were all hammered out by the Spanish theological jurists of the sixteenth and seventeenth centuries."

The doctrine of discovery was first articulated in American law, by Chief Justice Marshall in the case of Johnson v. McIntosh, supra., which, in 1928, was considered and rejected by the Permanent Court of Arbitration in the Island of Palmas case, supra. The International concept of "conquest" was central to Marshall’s reasoning in Johnson, supra., wherein he reasoned;

"On this discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary in order to avoid conflicting settlements, and consequent war with each other to establish a principle which all should acknowledge as the law by which the right of between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.

The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans would interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented.

In the establishment of these relations, the rights of the original inhabitants were in no instance, entirely disregarded; but were necessarily, to a considerable extent impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their discretion; but their right to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it." (This statement certainly does not reflect the international reality either theoretically or in terms of the State practice of the time.) "While the different nations of Europe respected the right of the natives, as occupants, they asserted this ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy. . . (N)o one of the powers of Europe gave its full assent to the principle, more unequivocally than England . . . confined to countries "then unknown to all Christian people" . . . (T)hus has our whole country been granted by the Crown while in the occupation of Indians. These grants purport to convey the soil as well as the right of dominion to the grantees.

We will not enter into the controversy whether agriculturists, merchants, and manufacturers have a right on abstract principles, to expel hunters from the territory they possess, or to contract their limits. The United States . . . maintain, as all others have maintained, that discovery gave an exclusive right to extinquish the Indian title of occupancy, either by purchase or conquest. . . conquest gives a title which the courts of the conqueror cannot deny. . .

In the above statement, Justice Marshall, in effect, equates "discovery" and "conquest." In "The Concept of Aboriginal Rights in the Early Legal History of the United States," 27 B.L.R. 637 (1978), Berman states:

"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 land, and cannot be questiones."

Clearly, as Berman states, supra. at 638, "the equation of discovery to conquest amounts to a nimble transmutation of definition that itself stands as a conquest by judicial fiat."

It is apparent that "discovery" alone was never a tenable claim in international law with reference either to inhabited or to uninhabited lands. Contrary to Marshall’s reasoning, the doctrine of conquest, from an international perspective, is clearly quite distinct from that of discovery. However, this did not deter the "discoverers."

C.L. Andrews, in his book, The Story of Alaska, The Caxton Printers, Ltd., Caldwell, Idaho (1944), p-29, commenting on the "discovery" of the Alaskan coast by Vitus Bering in 1736, avers;

"The basis for Russian claims to their possessions in America had been laid."

So me might ask, "what was the legal basis for Russia to make such a claim?" Well, since, in the judgement of the Europeans of the fifteenth and sixteenth centuries, there were no states "visible" in this "new world," then, quite obviously, the lands were "vacant" and "empty" to be taken by their discoverer. The first European nation to formally employ this Roman law relating to acquisition by finding (which, thereafter, became the norm) was Great Britain.

In 1496, England’s monarch granted a commission to Jean Cabot to discover countries unknown to "Christian people," and to take possession of them in the name of the King of England. Two years later Cabot "discovered" the north American continent . . . to this discovery the English trace their title. (Johnson v. McIntosh, supra..)

As the numbers of European nations joined the "race of discovery" and the numbers of "voyages of discovery" swelled, reports of atrocities, i.e. dispossession of lands and resources, and outright slaughter of indigenous peoples, began filtering back to Europe. Finally they reached a magnitude which could no longer be ignored. Also, during this period there were growing debates questioning the legality of Spain’s, as well as the actions of other "discovering nations." It was during this early period of discovery when the Catholic church issued a number of Papal Grants or Bulls. These grants, or bulls, were the result of an assumed power by the Pope to regulate the discovery and acquisition of lands which, in European terms, were "unexplored" and "unknown." Best known are the Bulls of Pope Alexander VI of 1493 which assigned to Spain exclusive rights in land discovered or to be discovered west of the meridian one hundred leagues (300 miles) west of the Azores and Cape Verde, apart from lands already possessed by any Christian king or prince by Christmas, 1492. This assumption of power by the Church was not without basis. Walter Ullman, in "The Growth of Papal Government in the Middle Ages" / London: Methuen (1955) states that basis:

The religious authority of the Pope was considered naturally superior to the secular power of the various princes; the Pope was deemed to be the source and standard of all ministerial and judicial jurisdiction and final court of appeal in disputes between Europe’s princes."

In the exercise of this power, the Pope, decided a complex appeal involving jurisdictional limits in the New World, holding that Spain rather than Portugal should have jurisdiction because of Spain’s efforts in initiating the discovery of the New World.

(Anguns Documentos, edited by J. Ramos-Coelho/Lisbon: Academia Real des Scientias de Lisboa 1892/7-8). This decision came to be known as the Papal donation or Papal entitlement theory.

Francis I of France initiated the discussion of legitimate jurisdiction in tribal America when he demanded that the Pope show him the clause in the Bible which entitled only Spain and Portugal to divide the new World between themselves. Juan Lopez de Palacious Rubios, one of the foremost jurists of that era, stated that the Crown’s jurisdiction did not rest either on the discovery of the new land or the conquest of the natives, but solely on a contractual notion, the Papal grant of jurisdiction to Spain by Pope Alexander VI and the principle of restitution . . . (restore the Indians their freedom and properties based on the extent to which the [Spanish] subjects had been enriched.) The sole right of the crown was to bring the Christian faith to the Indians, not exploit them. This opinion of Palacious Rubios explained the source and extent of Spanish jurisdiction in the New World, however, it failed to address the nature of the interest of the aboriginal peoples in the New World under the concept of Papal Donation (Quest for Justice-Aboriginal Peoples and Aboriginal Rights, Edited by Menno Boldt and J. Anthony Long [James Youngblood Henderson-The Doctrine of Aboriginal Rights in Western Legal Tradition/pp-185, 220]) (Papal Bulls are sometimes cited in modern day arbitration proceedings, however, their effect is minimized by the requirement for effective occupation.)

Finally, the King of Spain asked a Spanish priest, Franciscus de Vitorio, for an opinion concerning the rights of the "Indians." De Indis and De Jure Belli were written by Vitorio in response to the King’s request. In that treatise he stated;

"I ask whether the aborigines in question were the true owners in both private and public law before the arrival of the Spaniards . . .

The people in question were in peacable possession of their goods, both publicly and privately. Therefore unless the contrary is shown, they must be treated as owners and not be disturbed in their possession unless cause be shown . . ."

Fr. Vitorio’s use of the term "true owner" is significant in that it is consistent with the applicable public law of the day which, as earlier stated, "placed the ruler in the position of a private owner," i.e., conferred ultimate title on the ruler. Stated another way, it suggests the presence sovereign. However, such notions might have interfered with commerce so other reasons were sought as justification for the taking of the lands and resources of indigenous peoples. (The lack of Christian faith was put forth by some as a cause; see Cabot’s Commission of 1496.) Fr. Vitorio responded accordingly;

"The upshot of all the proceeding is, then, that the aborigines undoubtedly had true dominion in both public and private matters, just like Christians, and that neither their princes nor private persons could be despoiled of their property on the ground of their not being true owners. It would be harsh to deny to those who have never done any wrong, what we grant to Saracens and Jews, who are the persistent enemies of Christianity. We do not deny that these latter peoples are true owners of their property, if they have not seized lands elsewhere belonging to Christians . . . the conclusion stands sure, the aborigines in question were true owners before the Spaniards came among them, both from the public and private point of view."

Grotius, supra., mirrored the conclusions of Vitorio a century later;

"This is the conclusion expounded by the Spaniard Vitorio with irrefutable logic and in agreement with other authorities of the greatest renoun . . . Vitoria declares that Christians whether laymen or clerics may not deprive infidels of their civil power and sovereignty merely on the ground that the latter are infidels unless they have been guilty of some other wrong."

Later in the same chapter he supports Vitorio’s belief that "it is heretical to hold that infidels are not the owners of the property that belongs to them." . . . and that "the act of snatching from them, on the sole ground of their lack of faith, those goods which have been taken into their possession is an act of thievery and rapine no less than it would be if perpetrated against Christians." "Thus," he says, "Vitorio correctly maintains that the Spaniards acquired no greater right over the American Indians in consequence of that defect of faith, than the Indians would have possessed over the Spaniards if any of the former had been the first foreigners to come to Spain."

Fr. Vitorio also addressed the issue of "title by right of discovery" (See David Case, infra, p-8);

"Not much, however, need be said about this third title of ours, because as proved above, the barbarians were true owners, both from the public and from the private standpoint."

Thus, according to Fr. Vitorio, neither "discover" nor "divine right" was legally sufficient to establish title in Spain so long as the "Indians" respected the natural rights of the Spanish to engage in commerce; only a "just" war would be sufficient to establish title by conquest.

The alternative was title obtained by "free and voluntary choice," namely treaties. These theories seem to have been accepted by most of the European nations, however, not without reservation.

For, the idea that land should be acquired from Indians by treaty involved four assumptions; (1) that a state exists; (2) that both parties to the treaty are sovereign; (3) that acquisition of aboriginal lands by outright purchase would subject the purchaser to the jurisdiction of the seller; and, (4) only through political processes could the acquiring party acquire dominion, provided it was ceded by the original sovereign. However, assumption number (3) might be viewed somewhat inappropriate, for during the Middle ages, continuing on through the period of absolutism in the sixteenth and seventeenth centuries, a treaty ceding territory had the appearance of a sale of land by a private owner, and sales of territory did in fact occur. (Principles of Public International Law, supra.,)

James Youngblood Henderson (supra.), a contemporary writer, tends to agree with Palacious Rubios and ignore the notion of the existence of a "state" as asserted by Fr. Vitorio. He wrote that public laws were the outgrowth of a need for order or to avoid turning society into a "free-for-all," which he calls the Principle of Order. Further, that this "principle of order" had to be balanced off against a Principle of Freedom. He then went on to state;

"The legal system of the democratic state thus created, in my view, four fundamental principles of law . . . tort, restitution, contract, and property. These principles define the universal structure of human relations, and they also provide a standard for evaluating the performance of any legal system in dealing with aboriginal rights in North America. These four principles should have assured the integrity of tribal property from unconsented-to intrusions by the Europeans in Canadian law."

The reasons for the failure of the Europeans to recognize the existence of "states" in the "new world" were purely ethnocentric. They were seeing the world entirely from their own frames of reference, which was a world slowly emerging from the Middle Ages and feudalism into the age of absolutism. Therefore, any social or political ordering which did not comport to their definitions of the world simply did not exist. Tribes, in near diametric opposition to the European conceptions of the fifteenth, sixteenth, seventeenth, and eighteenth centuries were and are, by their very nature, "divided sovereignties." (This notion of "sovereignty did not emerge in Europe until the nineteenth century). (Footnote # Principles of Public International Law). The modern doctrine of sovereignty derived essentially from two lines of development which heralded the end of the medival period. On the one hand there was the rise of the new national states anxious to assert their total independence in a new age of economic expansion and to reject all Feudal notions of overlordship or papal interference; on the other, a departure from the medival idea of law as being fundamentally custom, and legislation as merely a form of declaring the existence of new customs. On the contrary each natural territory was now recognized as constituting both a self-sufficient unit and an independent legal entity. So that the notion naturally followed that, within each nation-state, there must be located some supreme power, the decisive feature of which was its virtually unlimited capacity to make new law. (Footnote # Introduction to Jurisprudence, Fourth Edition, Lord Lloyd of Hampstead, Q.C.  . . ., London, Stevens and Sons, 1979). Thus it is entirely understandable that the "discoverers," who were primarily interested in commerce, then later, in acquiring territory for their respective sovereigns, would be more interested in furthering the interests of their respective sovereigns than learning about the social and political orderings of the peoples they encountered.

As earlier stated, Fr. Vitorio is generally considered the "father of International law" and that his perceptions of the fundamentally equality of the rights of all human beings is now universally entrenched in the international covenants on human rights. (Footnote # James Youngblood Henderson - The Doctrine of Aboriginal Rights . . . etc, p-187, 8).

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Other Related Information:

Handbook of Federal Indian Law by Felix S. Cohen, 1941
Table of Contents:

Chapter 3--INDIAN TREATIES, pages 33-42

"The point then, once conceded, that the Indians are independent to the purpose of treating, their independence is, to that purpose, as absolute as that of any other nation." -- 1828 Attorney General William Wirt., pg 34

See also:

"Currently your governments are funding INAC (Indian and Northern Affairs Canada) Band Councils and Treaty Societies but ignore the Traditional Hereditary Government, which we admitted with the apology, our Canadian system systematically destroyed. At the close of the Supreme Court of Canada Appeal Court ruling on the BC Supreme Court trial; Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010, it was clearly demonstrated the Hereditary system of governance still exists and is superior to the INAC Band Councils. . ." "INAC and our Courts, with funding by both levels of government, have allowed the Band Councils, Treaty Societies and the Hereditary System of Governance to engage in legal conflicts." -- Merv Ritchie, 2012