Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies

Review By Daniel Clayton

November 4, 2013

BC Studies no. 180 Winter 2013-2014  | p. 167-169

This brilliant volume of comparative law is written by four distinguished Indigenous legal academic specialists, from the United States (Eastern Shawnee Tribe), New Zealand (Maori — Ngati Rawkawa and Ngati Ranginui), Australia (Eualayai/Gammilaroi), and Canada (Cree — Neheyiwak). It is concerned with the historical and ongoing significance of the Doctrine of Discovery in European, and principally English, colonialism, and each of the authors has two chapters on their respective countries. Historians have written much about how the legal armature of European conquest and colonization in the New World and elsewhere shaped and served processes of “othering,” with indigenous peoples deemed to lack what Europeans possessed — Christianity, law, government, civilization, ideas of private property, and a commercial (profit) ethic. In the Introduction, Robert Miller shows that the Doctrine of Discovery was (and remains) at once a legal tenet and an ideological (ethnocentric and racial) façade at the heart of these processes. The volume examines the evolution of the Doctrine from the fifteenth century onwards, and how it provided Europeans with commercial and property rights in the lands of indigenous peoples, even while recognizing their continuing right to occupy and use land. Miller sees the definition of the Doctrine in the 1823 United States Supreme Court case Johnson v. M’Intosh as a legal milestone in this regard (3-6, 52-58). Yet title and ownership rights construed on the basis of the Doctrine were not developed in identical ways in different parts of the English colonial world, and the authors argue that differences between the indigenous contexts in which Discovery arguments were deployed played a key role in fostering variations in the Doctrine’s application.

The two core and compelling contributions of the volume are (for me), first its fastidious historical recovery of similarities and differences in the application of the Doctrine in English settler colonies, and second its comparative attempt to find patterns in the development of this body of law over time. The authors identify ten “constituent elements” of the Doctrine — first discovery, actual occupancy, pre-emption, Native title, Indigenous limited rights, contiguity, terra nullius, Christianity, civilization, and conquest — and argue that “the comparative framework illustrates graphically just how deeply rooted the legal fictions of Discovery are in our legal systems” (265). They see more similarities than differences in the legal systems of the four countries studied. Indeed, they seem unsurprised that the Doctrine is “still today part of the property and constitutional regimes of all four of our countries” (23, 265). I found Miller’s analysis of the ties (despite appearances) between American and English law particularly eye-opening. In the Canadian context, Tracey Lindberg’s two chapters are richly documented and politically salient reminders of “the degree to which presumptions of infidel/Indigenous inhumanity were captured and perpetuated in Canadian law,” running roughshod over both indigenous legal sensibilities and contemporary Canadian multicultural rhetoric (124).

I was hoping for a fuller evaluation of the relations between the legal cultures and commercial and geopolitical orders of empire (the type of analysis pioneered by historians such as Anthony Pagden and Lauren Benton). Much more could also have been said, following the work of historians such as John Darwin and James Belich, about the specificity of legal regimes in English settler colonies qua those in British India, the West Indies, and Africa. The chapters on New Zealand come closest to this kind of discussion. But these limitations do not detract from the volume’s many and considerable scholarly and analytical achievements. Discovering Indigenous Lands brings the duplicitous legality of English settler colonialism into full view, and is a very significant contribution to comparative legal understanding of how indigenous peoples were dispossessed.

Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies
By Robert J. Miller, Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg
Oxford: Oxford University Press, 2012. 320 pp, $40US paper