Chapter 20: Th Ruling Elite: THE FOUNDERS, ECONOMICS AND WARFARE Doctrine of Discovery

 

Chapter 20: Th Ruling Elite: THE FOUNDERS, ECONOMICS AND WARFARE Doctrine of Discovery

 

THE FOUNDERS, ECONOMICS AND WARFARE Doctrine of Discovery

In 1452, Pope Nicholas V issued the papal bull Romanus Pontifex that allowed Portugal to claim, conquer and ultimately occupy land in West Africa. On June 21, 1481, Pope Sixtus IV issued the papal bull Aeterni regis in order to confirm the Treaty of Alcáçovas (September 4, 1479) which placed the Canary Islands under the dominion of Queen Isabella I of Castile and gave control of the Madeira (discovered in 1419), the Azores (1427) and the Cape Verde islands (1456) to Portugal. In 1493, Pope Alexander VI, with his papal bull Inter caetera, extended the same privileges to Spain following Christopher Columbus’ first voyage. Because of competition between the two seafaring nations of Portugal and Spain, officials of those countries signed the Treaty of Tordesillas, drawn up on June 7, 1494 and later ratified by each nation.

European nations based their colonial claims on the idea that “the Pope was Christ’s representative in matters spiritual and temporal.” Therefore, European explorers justified their claims to land in the Western hemisphere on that premise. They also claimed to believe that every action they took was “justified and validated” within “the broad moral framework of Christian religion.” The Pope granted conditional privileges to territory to “Christian sovereigns” in the Western hemisphere if they compelled the natives to accept Christianity. Although the Protestant countries rejected the Pope’s authority, they retained the practice of seizing land based on their Discovery claims and the “pagan” status of the natives. Apparently, the claimants sporadically attempted to introduce “Christian religious teachings” to the people while in the process of subduing them.[722]

Revolutions occurring in Europe affected territorial claims in North America.

Presumably, victorious nations acquired the colonial possessions of the losing nations, along with exclusive right to establish political discourse with the natives who inhabited the territory, now under the control of another nation. The European colonial powers viewed the opportunistic Doctrine of Discovery as the right of the “discovering country” to secure “title over the lands described in the process of exploration.” An explorer could claim title, usually with a flag, to all the land through which a river flowed, if he landed on the North American coast, at the mouth of that river for his sovereign (country). That nation was then responsible to provide settlers and governing officials at that location as evidence of the nation’s presence provided the natives did not expel them. Other nations were supposed to respect the discovering nation’s claim.[723]

After the American Revolution and the Treaty of Paris (September 3, 1783) Americans assumed they had militarily taken possession of Britain’s discovery claims – the Atlantic seaboard, parts of the Ohio Valley, and a portion of the Great Lakes shorelines. The Indians, between 1783 and 1815, made treaties with the United States, Britain, and with Spain who still claimed land in the southeastern United States. The Indians had international status yet they were now living in territory that the United States claimed.[724]

Law Professor Robert J. Miller defines the ten elements of Discovery in his book Native America, Discovered and Conquered. Those elements are

(1) First discovery, without occupation but a claim of title (incomplete)

(2) Actual occupancy and current possession, which achieves complete title

(3) Preemption or European title means that the “discovering European country” gains the exclusive right to purchase (seize) land from the natives

(4) Indian title meant that the natives had lost “full property rights and ownership of their lands” but they could still occupy and use the land

(5) Tribal limited sovereignty and commercial rights restricted the indigenous population from trading with anyone except the Euro-American government that claimed first discovery

(6) Contiguity, which gave preferential right of discovery and settlement to any area in close proximity to an area already claimed; if American explorers laid claim at the mouth of a river, the claim included all land that the river flowed through

(7) Terra nullius means that the land is vacant, unoccupied or improperly used if non-Europeans or Americans were not living on the land

(8) Christianity or religion allegedly played a part in the Doctrine of Discovery and Manifest Destiny, which restricted the rights of non-Christian people to own land or enjoy sovereignty

(9) Civilization, the term the Euro-Americans used in conjunction with Discovery in that they believed God had guided them to bring civilization to the natives

(10) Conquest could mean a military victory through a “just war” or a way of subjugating the indigenous population by altering their culture and subtly seizing their resources through the legal process.[725]

Thomas Jefferson and Aaron Burr received an equal number of electoral votes in the presidential election of 1800. Therefore, the House of Representatives held a special session to determine who would be president. After thirty hours of debate, the representatives chose Jefferson as president (1801-1809) and Aaron Burr as vice president. Chief Justice John Marshall administered the oath of office to Thomas Jefferson on March 4, 1801. In his first inaugural address, Jefferson said, “A rising nation, spread over a wide and fruitful land, traversing all the seas with the rich productions of their industry, engaged in commerce with nations who feel power and forget right, advancing rapidly to destinies beyond the reach of mortal eye... possessing a chosen country, with room enough for our descendants to the thousandth and thousandth generation;...”[726]

One of the most respected and renowned of the Founding Fathers, Thomas Jefferson, portrayed by establishment historians as a peaceful, scientific man of letters, knowledgeably applied many of the Discovery guidelines during his lengthy legal and political career. He devised the Indian Removal Policies, which involved transporting all of the eastern tribes west of the Mississippi. Andrew Jackson merely implemented those removal policies in subsequent decades. People, if they even know and understand the government’s “final solution” for the Native American population, typically blame Jackson for the policy’s grievous long-term effects.[727]

Spain transferred the Louisiana Territory to France under the preliminary Third Treaty of San Ildefonso (October 1, 1800) and finalized the transfer by the Treaty of Aranjuez (March 18, 1801). Jefferson sent King’s College-educated Robert R. Livingston (1746-1813), considered one of the founders, to Paris as the U.S. Minister to France (1801-1804). Livingston, a Freemason since 1784, was the first Grand Master of the Grand Lodge of New York, a position he held until 1801 when he left for France. James Monroe

joined Livingston in Paris to negotiate the Louisiana Purchase in 1802 following Jefferson’s discovery that Spain had transferred the area to France. They concluded the sale of 828,800 square miles for $11,250,000 on July 4, 1803. Livingston remarked, “We have lived long but this is the noblest work of our whole lives...The United States take(s) rank today among the first powers of the world.”[728]

In early 1803, Thomas Jefferson made inquiries among his associates, both in and out of government, requesting suggestions about “his western enterprise.” In February, he wrote to three leading Philadelphia scientists, Caspar Wistar, Dr. Benjamin Smith Barton, and Dr. Benjamin Rush to have them prepare some opinions regarding botany, zoology, and Indian history.[729] Undoubtedly, the doctors told President Jefferson about the smallpox issues the Indians had suffered through over the decades. Amazingly, smallpox never seemed to affect the whites, even the whites who handled the smallpox-laden blankets designated for their Indian victims.

In mid-April 1803, Jefferson began drafting some instructions to share with specific members of his cabinet who shared his views about the future expansion of the country, especially Treasury Secretary Albert Gallatin. In 1836, Gallatin after collecting and organizing a large amount of Indian data published his A Synopsis of the Indian Tribes within the United States East of the Rocky Mountains, and in the British and Russian Possessions in North America, compendia of Native American language and one of the finest systematic collections of Native American ethnology and linguistics of the time. He included an Appendix dedicated to grammatical notices and vocabularies from dozens of tribes. He also included native words and terms from about two dozen tribes.[730]

Attorney General Levi Lincoln Sr. (1749-1820), in his response to Jefferson’s query, greatly influenced the president’s decisions regarding the Indians and the relationship of the U.S. government to the many tribes.[731] Lincoln, an attorney, was a state legislator in Massachusetts, a participant in Massachusetts’ state constitutional convention, a Massachusetts Governor, a U.S. Representative and then Attorney General under Jefferson (1801-1805). Allegedly, he was a distant relative of Abraham Lincoln according to a book originally published in 1909.[732]

On April 17, 1803, Lincoln wrote a letter to Jefferson implying that there was insufficient information regarding the Indians in Jefferson’s initial draft of instructions. Lincoln urged Jefferson to incorporate some questions regarding Indian religious practices, native legal tradition, concepts regarding property ownership, and native medical practices. Jefferson was already aware of smallpox inoculation. However, Lincoln first suggested that Lewis take cowpox substance along on the voyage to administer to the Indians. Apparently, he felt, because of political expediency, that the Indians needed protection against smallpox if they were going to have contact with the whites. The U.S. government could not develop a trade network with sick or dying natives who would invariably blame the explorers for disseminating smallpox.[733]

Attorney General Levi Lincoln’s remarks increased Jefferson’s attention on the Indians. In May 1803, Dr. Benjamin Rush provided Lewis an incredibly thorough list of ethnographic questions. On February 4, 1774, Rush had given a lengthy presentation in front of the American Philosophical Society entitled Natural History of Medicine among the Indians of North America.[734] Rush’s discourse in 1774 covered his ideas on every possible physical aspect of the native’s life including diet, hygiene, sexual performance and pregnancy. Rush prepared the same kind of comprehensive record for the expedition, divided into three parts. His curiosity extended well beyond any medical concerns. He recommended the explorers pose twenty separate questions to the Indians. He wanted the explorers to document the Indian’s eating, sleeping, bathing habits and the native diseases they suffered and their remedies. He also wanted to know about their marital practices, how long they breast-fed their children and their longevity. Rush even asked

Lewis to determine the pulse rates of the Indians in the morning, noon, and night and before and after they ate.[735]

Because of his belief in the Doctrine of Discovery, in late 1803, President Jefferson directed Meriwether Lewis (1774-1809), his personal aide, to lead the Corps of Discovery in a scientific and military expedition to investigate the newly purchased Louisiana Purchase. Jefferson said, “...the object of your mission is to explore the Missouri river, and such principal streams of it, as, by its course and communication with the waters of the Pacific Ocean, whether the Columbia, Oregon, Colorado or any other river, may offer the most direct and practicable water communication across this continent for the purposes of commerce...”[736]

On May 14, 1804, William Clark (1770-1838) and the Corps of Discovery left Camp River Dubois, at the confluence of the Mississippi and Missouri Rivers, north of St. Louis. Lewis joined them in St. Charles, Missouri. The expedition was comprised of more than forty-five people, including twenty-seven soldiers, a French-Indian interpreter, and York, Clark’s Black slave. Others, who would remain with the group until they arrived in Mandan country, included six soldiers and several French boatmen.[737]

Lewis and Clark left on their overland expedition (1804–1806) to the Pacific coast to “discover” and stake a claim at the mouth of the Columbia River and build Fort Clatsop, as evidence of a permanent presence, in order to claim the entire Oregon Country. Jefferson directed U.S. Army Captain Lewis and Clark to establish a commercial and political relationship with the tribes. Traditionally, historians have focused on the scientific aspects of the expedition rather than on the legal ramifications and Jefferson’s interests in an expedition of North America.[738]

In 1807, President Thomas Jefferson wrote to his Secretary of War Henry Dearborn (1801-1809) and instructed him that if the Indians opposed the U.S. expansion into their territories, the U.S. military would attack with such ferocity that the Indians would be “exterminated, or driven beyond the Mississippi.” Jefferson based this policy on the example of the Powhatans and Pequots because, “in war, they will kill some of us; we shall destroy all of them.” In 1812, Jefferson claimed that Euro Americans were “obliged” to eradicate every Indian that they encountered “with the beasts of the forests into the Stony Mountains.” In 1813, he defined the U.S. government’s objectives of pursuing all Indians currently residing east of the Mississippi “to extermination, or to drive them to new seats beyond our reach, or preferably to “extirpate them from the earth.”[739]

In December 1806, Senator William Plumer stated in his diary that President Jefferson had indicated his interest in “some enterprising mercantile Americans” beginning commercial operations in the Pacific Northwest. Jefferson, by 1806, wanted American merchants to establish permanent facilities on the Columbia River in order to assert possession and occupancy as part of the Discovery claim. John Jacob Astor received federal approval to build a fur trading post, Astoria, at the mouth of the Columbia River, which an expedition of his men completed in April 1811. The Astoria fur trading post and Astor’s activities in the Pacific Northwest facilitated Jefferson’s Doctrine of Discovery objectives. In May 1812, Jefferson wrote to John Jacob Astor and reiterated that the Pacific Northwest already belonged to the United States. Jefferson viewed Astoria as “a great public acquisition (and) the commencement of a settlement on that point of the Western coast of America.”[740]

With the new territory acquisition, which included U.S. sovereignty, Jefferson intended to establish full commercial rights over the Indian nations residing in the Louisiana Territory, an area that doubled the size of the country. Consequently, he wrote to Lewis proposing that he work towards developing trade relations between the Indians and the U.S. in addition to proclaiming authority over them. He wrote, “It will now be proper you should inform those through whose country you will pass, or whom you may meet, that their late fathers the Spaniards have agreed to withdraw...that they have surrendered to us all their subjects...that henceforth we become their fathers and friends.” Historians focus on the initial purpose of the expedition rather than on the belated objective. Jefferson had issued his original

instructions in a letter dated June 20, 1803, prior to the purchase of the territory and before the government could use the Discovery claim. Before the purchase, Jefferson requested passports for the expedition from England, France and Spain. He assured these governments that the trip was peaceful and exclusively for scientific purposes.[741]

In accordance with Jefferson’s latest instructions, Lewis prepared a 2,500-word presentation specifically for the expedition’s initial tribal encounter on August 3-4, 1804. In their expedition, Lewis and Clark met in counsel with over fifty tribes during which they explained the process of Discovery and the government’s status over the people they now called “children.” Further, Lewis and Clark informed the Indians that they were now American subjects evidenced by the flags and medals that they just happened to take with them, even before the Louisiana Purchase. They distributed these items, which now, after the land acquisition, increased in political significance and initiated the Doctrine of Discovery. These “gifts” bound the unwary Indians to the authority of the U.S. The explorers also inquired what commodities the tribes might need or want and then made arrangements for delivery of those goods. These “gifts” were conditional – upon their acceptance of whatever counsel, advice or commandment happened to come from the federal government. Lewis also told the tribes to end their warfare with each other and to allow American traders to come into the territory. Lewis issued an implied military warning to the natives that Jefferson “could destroy you and your nation as the fire destroys and consumes the grass of the plains.”[742]

Lewis and Clark accentuated the nation’s sovereign authority and military powers over the natives by having the troops associated with the expedition demonstrate some maneuvers using weapons then unknown to the natives. They used these tactics to intimidate and instill fear into the natives and to exhibit the utter senselessness of the natives ever resisting the strength of the U.S. government. Jefferson sent Lewis and Clark among the tribes to impose the Doctrine of Discovery and to establish commercial authority, a license to exploit the resources in Indian lands. Further objectives included making the natives dependent upon over-priced federal commodities and creating indebtedness so the natives would be compelled to relinquish their lands to satisfy their financial obligations.[743]

In 1823, in the U.S. Supreme Court, lawyers argued the case of Thomas Johnson and Graham’s Lessee versus William M’Intosh (pronounced McIntosh), February 15–19, 1823, during the period that people refer to as the Marshall Court (1801-1835). On February 28, 1823, John Marshall delivered the court’s opinion, based on the European and papal Doctrine of Discovery, which established the foundations of the doctrine of aboriginal title in the United States, the basis for all federal and state cases related to Indian land title for almost 200 years. Europeans and later Americans explored, exploited and colonized North and South America through the international jurisdiction of the Doctrine of Discovery.[744]

In Johnson v. M’Intosh, non-Indian plaintiffs obtained title to land due to grants from Native Americans without the consent of the federal government. Indian tribes made these grants in 1773 and 1775, before the Revolutionary War, before the initial Trade and Intercourse Act (1790) which, after the fact, made those grants illegal. The U.S. government sanctioned a competing land grant to M’Intosh, one of the defendants. In Johnson v. M’Intosh, Chief Justice John Marshall ruled, “The person who purchases lands from the Indians, within their territory, incorporates himself with them, so far as respects the property purchased; holds their title under their protection, and subject to their laws. If they annul the grant, we know of no tribunal (in the United States” which can revise or set aside the proceeding.”[745] Marshall’s ruling designated that the first “Christian people” who discovered lands inhabited by “heathens” has the ultimate control and title to those lands.[746]

Chief Justice Marshall claimed that the U.S. had preeminent sovereignty over the territory by virtue of the “Doctrine of Discovery” and its appendage, the “Rights of Conquest.” However, the Doctrine only conveyed rights to the various Crowns of Europe and not to republics that had rebelled and violated the

Laws of Nations by seceding from their Crowns. Additionally, the law recognized preeminent sovereignty as resting with indigenous nations rather than the “discovering powers.” The power that claimed ownership by virtue of “discovery” was a dominant right versus the European states. A nation or “sphere of influence” cannot acquire, through purchase or agreement, land within the discovered area from its rightful owners. Authorities could only apply “Rights of Conquest” when it was required that people fought a “Just War.” This could only occur if (1) the indigenous population participated in malicious attacks upon the discoverers, (2) if the Indians rejected the opportunity to trade with the discoverers, or (3) if the natives declined to have Christian missionaries to move among them. The discoverers never met any of these conditions.[747]

According to the historical records, the Indians nations never initiated a war against the United States. The U.S. government started every incident of “open warfare,” predicated on a “documentable invasion” of Indian lands by settlers, miners or others who came onto Indian lands. Indian participation in any war was always of a defensive nature.[748]

Though Marshall’s ruling still met the “the legalities of the situation,” the problematic issue of “discovery” versus “conquest” still confronted Marshall.[749]

He simply fictionalized discovery into conquest. Marshall admitted that it was an “unjust but expedient solution.”[750] Marshall wrote, “However extravagant the pretensions 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 questioned...However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by courts of justice.”[751]

In his esteemed opinion, Marshall did not completely disregard the property rights of the original inhabitants; he merely “impaired” them but it was out of necessity. Admittedly, the Indians were “the rightful occupants of the soil, with legal, as well as just claim to retain possession of it and to use it according to their discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will to whomsoever they pleased was denied by the original fundamental principle, that discovery gave exclusive title to those who made it.”[752]

Vine Deloria, Jr., and Clifford Lytle wrote, “While paying lip service to the European notion of discovery and continued Indian autonomy, Marshall reasoned that conquest gave the white settlers ownership and title to Indian lands... Johnson v. M’Intosh created a landlord-tenant relationship between the government and the Indian tribes. The federal government, as the ultimate landlord, not only possessed the power to terminate the ‘tenancy’ of its Indian occupants but also could materially affect the lives of Indians through its control and regulation of land use ...This notion... constituted the basis on which the court in the Cherokee Nation cases developed its theory of guardianship over Indian affairs.”[753]

The Encyclopedia of Native American Legal Tradition provides a description of this vile doctrine. “The Doctrine of Discovery held that the native peoples of the New World were childish beings in need of the ‘benefits’ of European civilization, a point of view that also formed English colonial policy in North America.” American officials did not consult the Native American peoples whose land was at issue under the Doctrine of Discovery. “Instead, the doctrine was formulated to describe Native American ownership (usually defined as ‘aboriginal title’) within the framework of European and European-American legal systems. The doctrine had nothing to do with ways in which Native Americans perceived land use.”[754]

“The Doctrine of Discovery has been used to justify the taking of land from Native Americans by degrading their rights of ownership to ‘aboriginal title,’ which may be rescinded in a ‘just’ war, that is, one that the aggressor did not provoke. This interpretation of the Doctrine of Discovery became a major basis of Spanish and English and then of U.S. Indian policy. Under this policy, the Bureau of Indian Affairs (created March 11, 1824), was said to hold the Indians’ land in ‘trust,’ with the Indians as ‘wards,’ a legal rationale used to foster policies meant to change the Indians’ social lives, legal systems, and economic practices to conform to mainstream American standards through such policies as allotment (see Allotment Act ), as well as the maintenance of boarding schools and other institutions meant, as some ‘reformers’ phrased it late in the century, to ‘Kill the Indian and save the man.’”[755]

The Pilgrim Fathers