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Retracing the Discovery Doctrine: Aboriginal Title, Tribal Sovereignty, and Their Significance to Treaty-Making and Modern Natural Resources Policy in Indian Country


Michael C. Blumm


Lewis & Clark Law School


Vermont Law Review, Vol. 28, p. 713, 2004

Abstract:     
One of the more misunderstood concepts of Anglo-American law is the discovery doctrine, the principle by which Europeans rationalized their presence in North America. Misinterpretation of the doctrine led to unwarranted assumptions about the relationship between the federal government and indigenous tribes in the late 19th and early 20th centuries and to misinterpretations abroad, notably in Australia. These misinterpretations by judges and Congress made the discovery doctrine into what one scholar called a perfect instrument of empire. But this article maintains that this result was a perversion of the doctrine laid down in the early 19th century by the Marshall Court.

The article explains that the discovery doctrine, as articulated by the Marshall Court, actually produced very little immediate effects on native proprietary rights. However, Chief Justice Marshall laid the seeds for later misunderstandings by characterizing aboriginal title as sui generis, outside the conventional system of Anglo-America property law. In fact, had Marshall been better versed in property law, it would have been quite easy to conceptualize aboriginal title in conventional terms. Had he done so in the cases in which he used the discovery doctrine to shape native property, the federal government's interest in native lands would have been understood to be merely a right of preemption and the native interest to be a fee simple subject to a partial restraint on alienation. This interpretation would have been consistent with the Supreme Court's oft-quoted phrase that Indian title is as sacred as the fee.

The discovery doctrine's effect on tribal sovereignty turned out to be much more pernicious than its effect on native property rights. The doctrine not only foreclosed relations between the Indian tribes and foreign nations and led to exclusive federal control over native affairs, it also assumed that questions about federal-tribal relations were properly left to federal courts, the courts of the conqueror in Chief Justice Marshall's words. This decision on venue equipped Marshall's successors to erect a doctrine of plenary federal power on questionable authority and to use it to give sanction to unilateral federal breaching of treaties and the breaking up of the Indian land base.

This article aims to clarify the discovery doctrine by examining its origins, its adoption by the Marshall Court, and its ensuing effects on native property rights and sovereignty. Among the legacies of the doctrine was an impetus to treaty-making, which enabled some tribes to reserve important natural resources for their use, so the results of the discovery doctrine were not all adverse to the tribes. The article explores the relationship between discovery and treaty-making and also a modern alternative to the erosion of inherent tribal sovereignty initiated by the discovery doctrine: delegated sovereignty under federal pollution control statutes. The article concludes that while Chief Justice Marshall would never have countenanced his successors' interpretation of the discovery doctrine he articulated, understanding the origins, scope, and legacies of the doctrine remains foundational to native proprietary and sovereign rights in the modern world.

Number of Pages in PDF File: 65

Keywords: Indian law, Legal History, Property, Natural Resources Law, Environmental Law

JEL Classification: K11, K32, N51

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Date posted: September 21, 2004  

Suggested Citation

Blumm, Michael C., Retracing the Discovery Doctrine: Aboriginal Title, Tribal Sovereignty, and Their Significance to Treaty-Making and Modern Natural Resources Policy in Indian Country. Vermont Law Review, Vol. 28, p. 713, 2004. Available at SSRN: http://ssrn.com/abstract=593621

Contact Information

Michael C. Blumm (Contact Author)
Lewis & Clark Law School ( email )
10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
503-768-6824 (Phone)
503-768-6701 (Fax)
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