Doctrine of Discovery continued: Hiding Behind Our Rationalizations

by Tim Bancroft
Genesee Valley Meeting


Even if American citizens had been paying close attention to the court cases following Johnson vs McIntosh(1823), they would not have found the words ‘dominion’ or ‘discovery’ used very often.  Rather, the cases were focused on resolving disputes over rights and jurisdictions via a series of secondary legal doctrines that were used to rationalize the application of the Doctrine of Discovery throughout the westward expansion of the American government to the Pacific Ocean, with later applications to the native peoples of Hawaii and Alaska. 


The Six Legal Rationalizations


            The Trust Doctrine: If the United States asserts its claims to Indian lands, it must assume the moral responsibility as the protector of Indian nations. This doctrine rationalized the moral right to set the specific terms of treaties and agreements.


            Plenary Power: How do you find the balance between the exclusive, preemptive, absolute and unlimited power of the United States government, and the moral recognition that tribal nations held inherent sovereignty over their lives prior to the claims of the American Constitution and laws?


            Doctrine of Reserved Rights: Even though tribal nations are deemed to have secondary status, American Indian law grants the tribes “special rights” over or against non-Indian citizens.  Example: You will live on reservations but will be granted “special rights” with casinos or sales tax exemptions.


            Doctrine of Implied Repeals:  When later congressional laws contradict the wording of earlier treaties and congress does not specifically state how to reconcile the contradiction, the U.S. Supreme Court looked for either the implied intention of legislation, or the deduced needs of changed circumstances, For example, in the need for the expansion of Euro-American economic interests, to make their judgments’ use of ‘implied’ intentions or needs to justify the repeal of treaties includes both legitimate attempts at legal interpretation, as well as, corrupted needs to advance U.S political and economic interests.


            Disclaimer Clauses: Since there is a perpetual tension between state governments and tribal negotiated rights, disclaimer agreements that preclude state governments from extending authority over Indian property and land are placed in treaties and state constitutions, particularly from Wisconsin in 1836 to Alaska in 1959. This is an attempt to honor American Indian treaties, but the desire by individual states to extend their authority over Indian sovereignty has been and is ever present.


            Doctrine of Sovereign Immunity: As dependent tribal nations, tribal nations are protected from civil lawsuits over tort and contract disputes in order to protect the integrity of tribal government from outside interference. As tribal enterprise extends beyond the reservation,  non-tribal business interests are currently challenging the right of tribes to sovereign immunity because the contemporary role of tribal commercial activity in national and international markets seems to some to eclipse the need to protect the sovereign tribal governments from outside regulation. This is a very contemporary issue.