The idea that "discovery" of this continent by Europeans gave European countries ownership of Native lands is a myth that has been very detrimental to Indian and Alaska Native nations. Countering this false idea has been part of Indian life for generations. Yet many government officials, including judges, still believe this nonsense, partly because it is repeated so often. Like all racist ideas, this one is simply not true. The Europeans did not discover this land, and they did not gain ownership of Native land by reason of discovery.
The idea that "discovering" nations gained ownership of Native lands when they arrived has never been accepted as a legal rule in United State law or in international law. It has always been the law of this country, even in colonial times, that the "discovering" country did not gain ownership of Native land but only the exclusive right to buy or acquire the land if the Native owners should be willing to part with it. Chief Justice John Marshall understood this and made it part of federal law in 1832. Indian nations held the full rights of ownership to their lands, and in many situations, these rights were recognized and guaranteed (not granted) by treaties with the United States.
In international law, discovery gave rights only to uninhabited lands and did not diminish the legal rights of Indians and Alaska Natives to lands and resources. The so-called "discovery doctrine" should not be used to justify any such diminishment today. "Discovery" of this continent, inhabited entirely by Indian and other Native nations, gave only the exclusive right to buy the land from the Native owners if they were willing to sell. This right is now called the right of pre-emption. This right governed the relationships among "discovering" nations, and had no effect on the land rights of Native nations.
The Supreme Court has accepted and reaffirmed this body of law even in modern cases.
Indian nations own millions of acres of land today, most of it lands that they have always owned and lived on. Obviously, they did not lose their lands upon discovery. As flawed and unjust as federal Indian law is, it generally protects Indian land ownership and does not regard "discovery" as taking away these lands.
It is disturbing to see statements by some Indian advocates saying that the "doctrine of discovery" actually took away or denied Indian land rights as a matter of law. If this were true as a matter of law, Indian nations would have enormous problems maintaining any form of ownership of their present lands and would seldom or never be able to make claims for the return of lands illegally taken. Fortunately, the doctrine of discovery did not, as a matter of law, actually take away any Indian land, and we should not say that it did.
The "doctrine of discovery" is undoubtedly racist and unjust. It's main point is to claim - falsely - that Native nations lost their land rights to the "discovering" countries. But this is not true as a matter of law or as a matter of history, and we should be sure not to suggest that it is true. Despite this, we can and should continue to attack the "doctrine of discovery" as a completely false and unjust idea that has no place in our law or our country.
For a more complete discussion of the law concerning the "doctrine of discovery," call or email the Indian Law Resource Center at (406) 449-2006 or mt@indianlaw.org.