1. The Bull Dum Diversas (Nicholas V.), June 18, 1452
   Introduction, Latin Text
2. The Bull Romanus Pontifex (Nicholas V.), January 8, 1455
   Introduction, Latin Text , Translation
3. The Bull Inter Caetera (Calixtus III), March 13, 1456
   Introduction, Latin Text, Translation
4. The Bull Artemi Regis (Sixtus IV.), June 21, 1481
   Introduction, Latin Text, Translation
5. The Bull Inter Caetera (Alexander VI.), May 3, 1493
   Introduction, Latin Text, Translation
6. The Bull Eximiae Devotionis (Alexander VI.), May 3, 1493
   Introduction, Latin Text, Translation
7. The Bull Inter Caetera (Alexander VI.), May 4, 1493
   Introduction, Latin Text, Translation
8. The Bull Dudum Siquidem (Alexander VI.), September 26, 1493
   Introduction, Latin Text, Translation
9. Treaty between Spain and Portugal, concluded at Tordesillas, June 7, 1494
   Introduction, Latin Text, Translation

11. The Bull Ea Quae (Julius II.), January 24, 1506
    Introduction, Latin Text, Translation
12. The Bull Praecelsae Devotionis (Leo X.), November 3, 1514
    Introduction, Latin Text, Translation

• LETTERS PATENT TO JOHN CABOT 1496
  The Letters patents of King Henry the seventh granted unto John Cabot and his three sonnes, Lewis, Sebastian, and Sancius for the discoverie of new and unknown lands. (Latin original and English)
• LETTERS PATENT TO SIR HUMFREY GYLBERTE 1578
  Elizabeth by the grace of God Queene of England, &c. To all people to whom these presents shall come, greeting.
• CHARTER TO SIR WALTER RALEIGH 1584
  Elizabeth by the Grace of God of England, France and Ireland Queene, defender of the faith, &c. To all people to whome these presents shall come, greeting.

• First Edition, London: Volume 1, Volume 2 (1836)
• Fifth English Edition (revised 1916)
• Sixth Edition (1855)
• Eighth Edition (1866)

Regarding the pretense for taking the land of Original Free Nations’ Peoples as codified in Johnson v M’Intosh (1823), the following is quoted from the Sixth Edition beginning on page 219 into page 220 (emphasis added):

The Spaniards and Portuguese took the lead among the nations of Europe, in the splendid maritime discoveries in the East and the West, during the fifteenth and sixteenth centuries. According to the European ideas of that age, the heathen nations of the other quarters of the globe were the lawful spoil and prey of their civilized conquerors, and as between the Christian powers themselves, the Sovereign Pontiff was the supreme arbiter of conflicting claims. Hence the famous bull, issued by Pope Alexander VI., in 1493, by which he granted to the united crowns of Castile and Arragon all lands discovered, and to be discovered, beyond a line drawn from pole to pole, one hundred leagues west from the Azores, or Western Islands, under which Spain has since claimed to exclude all other European nations from the possession and use, not only of the lands but of the seas in the New World west of that line. Independent of this papal grant, the right of prior discovery was the foundation upon which the different European nations, by whom conquests and settlements were successively made on the American continent, rested their respective claims to appropriate its territory to the exclusive use of each nation. Even Spain did not found her pretension solely on the papal grant. Portugal asserted a title derived from discovery and conquest to a portion of South America ; taking' care to keep to the eastward of the line traced by the Pope, by which the globe seemed to be divided between these two great monarchies. On the other hand, Great Britain, France, and Holland, disregarded the pretended authority of the papal see, and pushed their discoveries, conquests, and settlements, both in the East and West Indies; until conflicting with the paramount claims of Spain and Portugal, they produced bloody and destructive wars between the different maritime powers of Europe. But there was one thing in which they all agreed, that of almost entirely disregarding the right of the native inhabitants of these regions. Thus the bull of Pope Alexander VI. reserved from the grant to Spain all lands, which had been previously occupied by any other Christian nation; and the patent granted by Henry VII. of England to John Cabot and his sons, authorized them “to seek out and discover all islands, regions, and provinces whatsoever, that may belong to heathens and infidels;” and “to subdue, occupy, and possess these territories, as his vassals and lieutenants.” In the same manner, the grant from Queen Elizabeth to Sir Humphrey Gilbert empowers him to “discover such remote heathen and barbarous lands, countries, and territories, not actually possessed by any Christian prince or people, and to hold, occupy, and enjoy the same, with all their commodities, jurisdictions, and royalties.” It thus became a maxim of policy and of law, that the right of the native Indians was subordinate to that of the first Christian discoverer, whose paramount claim excluded that of every other civilized nation, and gradually extinguished that of the natives. In the various wars, treaties, and negotiations, to which the conflicting pretensions of the different States of Christendom to territory on the American continents have given rise, the primitive title of the Indians has been entirely overlooked, or left to be disposed of by the States within whose limits they happened to fall, by the stipulations of the treaties between the different European powers. Their title has thus been almost entirely extinguished by force of arms, or by voluntary compact, as the progress of cultivation gradually compelled the savage tenant of the forest to yield to the superior power and skill of his civilized invader.

Page 21 U.S. 574

In the establishment of these relations, the rights of the original inhabitants were in no instance entirely disregarded, but were necessarily to a considerable extent impaired. [The Indians] were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own 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.

While the different nations of Europe respected the right of the natives as occupants, they asserted the ultimate dominion to be in themselves, and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil while yet in possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy.

The history of America from its discovery to the present day proves, we think, the universal recognition of these principles....

Page 21 U.S. 576

... The claim of the Dutch was always contested by the English—not because they questioned the title given by discovery, but because they insisted on being themselves the rightful claimants under that title. Their pretensions were finally decided by the sword.

No one of the powers of Europe gave its full assent to this principle more unequivocally than England. The documents upon this subject are ample and complete. So early as the year 1496, her monarch granted a commission to the Cabots to discover countries then unknown to Christian people and to take possession of them in the name of the King of England. Two years afterwards, Cabot proceeded on this voyage and discovered the continent of North America, along which he sailed as far south as Virginia. To this discovery the English trace their title.

In this first effort made by the English government to acquire territory on this continent we perceive a complete recognition of the principle which has been mentioned. The right of discovery given by this commission is confined to countries “then unknown to all Christian people,” and of these countries Cabot was empowered to take possession in the name of the King of England. Thus asserting a right to take possession

Page 21 U.S. 577

notwithstanding the occupancy of the natives, who were heathens, and at the same time admitting the prior title of any Christian people who may have made a previous discovery.

The same principle continued to be recognized. The charter granted to Sir Humphrey Gilbert in 1578 authorizes him to discover and take possession of such remote, heathen, and barbarous lands as were not actually possessed by any Christian prince or people. This charter was afterwards renewed to Sir Walter Raleigh in nearly the same terms....

Page 21 U.S. 591

... However extravagant the pretension 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.

With revealing effect, included near the top of the Justia Opinion Summary text is the following circular reasoning of present day western legal scholars reflecting the ongoing Christian Dominator worldview held by acolytes of and apologists for the pseudo sanctity of U.S. empire. All pretense of justification for the Empire Domination Model of Christianity rests in the fraudulent “right” of “discovery”, upon which European and then U.S. claims to and absolute control of the land of Original Nations and Peoples resides.

In an unanimous opinion, Marshall used historical analysis to find that only the government, rather than the Native American tribes, held title to the the land. He argued that the patterns of discovery during the European colonization of the New World meant that each European nation gained sovereignty (and also title) over the land that it discovered. This trumped the right of occupancy of the Native American tribes, at least with regard to the specific colonizing power. In the situation of the U.S., this right belonged to the British when they first acquired colonies. The federal government then inherited the right from Great Britain after the American Revolution. Native Americans cannot sell their land except to the federal government.

See also: “A Conversation with a Justice of the U.S. Supreme Court” in which Steven Newcomb recounts a conversation he had with Supreme Court Associate Justice Antonin Scalia in 2011 at a reception following a talk Scalia gave at the University of San Diego School of Law on “Constitutional Originalism.” The conversation was bizarre on a number of counts, as expressed in the following excerpt:

After saying hello and telling him my name, I asked: “I wonder if you might have ever read my law review article ‘The Evidence of Christian Nationalism in Federal Indian Law.’”

“No, what’s it about?” he responded.

I told him my article is about the U.S. Supreme Court ruling Johnson v. M’Intosh from 1823, a decision in which the Court said that the first “Christian people” to “discover” lands inhabited by “natives, who were heathens” have the right to assume the “ultimate dominion” over and title to the lands of the so-called “heathens.”

Given that Johnson v. M’Intosh was decided on the basis of the doctrine of discovery rather than the U.S. Constitution, I asked him how his guiding legal philosophy of “Constitutional Originalism” would relate to the Johnson decision. I asked him if the Court might ever consider overturning the decision.

Scalia said it was impossible to imagine an issuing ever coming up that would require the Court to address such a ruling; he also claimed in the same breath, however, that he had never heard of Johnson v. McIntosh. “I’ve never heard of it. I’ve never read it,” he said. He also said he’d never heard of the doctrine of discovery.

“Really?” I asked. “How could that be? The Court cited the doctrine of discovery just last Spring [2005] in City of Sherrill v. Oneida Indian Nation of New York, and the Court cited the doctrine of discovery in footnote number 1.”

Rather than respond to my question and comment, he shifted the focus of the conversation by saying that the United States has dealt with the issue of “natives” in a quite different way than, for example, Australia or New Zealand. He summed up by saying that U.S. courts have come up with a principle for dealing with American Indians, which he expressed as, “quote unquote, a right of conquest.”

“Oh, that’s quite interesting,” I said, “can you point me to any court rulings that have actually said that? His only response was, “No, I can’t.”

“Well,” I asked, “suppose that it is true that the Johnson v. M’Intosh ruling declared that the discovery by ‘Christian people,’ of lands inhabited by what Chief Justice Marshall referred to as ‘natives, who were heathens’—and that’s a direct quote—how can such a decision be justified as the supreme law of the land in the United States, given the presumption of a separation of church and state, and given that the Christian religion is not to be preferred in U.S. law over other religions.”

To this, Justice Scalia replied without hesitation: “Then I’d say it’s no longer the law of the land if it ever was.” At this, I figured that I had taken enough of the justice’s time, told him “thank you,” shook his hand, and walked away.

I was struck by the gravity of what I had just heard and experienced. It was absolutely impossible for me to believe that, after twenty years of being seated on the U.S. Supreme Court, and dealing with a great many federal Indian law cases, Justice Scalia could have never heard of, and never read the Johnson ruling, a foundational Supreme Court decision in federal Indian law. I wondered how it could be that he had never heard of the doctrine of discovery.

What made the conversation all the more bizarre was that Justice Scalia, with a majority of the Supreme Court, cited the doctrine of discovery just sixteen months earlier, in the first footnote of City of Sherrill v. Oneida Indian Nation of New York. I wish now that I had asked him if he had ever read the other two rulings of the Marshall Trilogy, Cherokee Nation (1831) and Worcester v. Georgia (1832).

Sadly, Justice Scalia never responded to my letter apprising him of doctrine of discovery in the first Chapter of Justice Joseph Story’s Commentaries that Scalia cited during his talk, and telling him about the connection that Story made in his book between the doctrine of discovery, Johnson v. M’Intosh, and the Vatican papal bull of 1493.

§152: pp. 135 - 136:
“...the European nations, by whom America was colonized ... claimed an absolute dominion over the whole territories afterwards occupied by them, not in virtue of any conquest of, or cession by the Indian natives; but as a right acquired by discovery.[2] Some of them, indeed, obtained a sort of confirmatory grant from the papal authority.—But as between themselves they treated the dominion and title of territory as resulting from priority of discovery;[3] and that European power, which had first discovered the country, and set up marks of possession, was deemed to have gained the right, though it had not yet formed a regular colony there.[4] We have also seen, that the title of the Indians was not treated as a right of propriety and dominion; but as a mere right of occupancy.[5] As infidels, heathen, and savages, they were not allowed to possess the prerogatives belonging to absolute, sovereign and independent nations.[6] The territory, over which they wandered, and which they used for their temporary and fugitive purposes, was, in respect to Christians, deemed, as if it were inhabited only by brute animals. [emphasis added]

In 1954 there was a case that went before the US Supreme Court called Tee-Hit-Ton Indians v United States. The United States government created a legal brief for that case and I’m going to quote a couple of lines from that because I think it’s critical and it links to what Julie Fishel and Professor Miller have presented on the doctrine of discovery. Under the heading of Argument, the United States government wrote this:

Prior to the great era of discovery beginning in the latter part of the 15th century the Christian nations of Europe acquired jurisdiction over newly discovered lands by virtue of grants from the Popes, who claimed the power to grant to Christian monarchs the right to acquire territory in the possession of heathens and infidels. [Lindley, The Acquisition and Government of Backward Territory in International Law (1926), pp. 124-125.]

Now that’s direct language from the United States government to the U.S. Supreme Court in 1954. And it continues:

For example, in 1344, Clement VI had granted the Canary Islands to Louis of Spain [upon his promise to lead the islanders to the worship of Christ,] and, following the discovery of the new world by Columbus, Alexander VI in 1493 [and 1494] issued Bulls granting to Spain all lands not under Christian rule ... [The latter papal grant, because of the breaking down of the papal authority and the vastness of the territory covered, was not accepted by the other nations or even greatly relied upon by Spain, and] it was necessary for the civilized, Christian nations of Europe to develop a new principle which all could acknowledge as the law by which they should regulate, as between themselves, the right of [*14] acquisition of territory in the New World, which they had found to be inhabited by Indians who were heathens and uncivilized according to European standards. [Lawrence, Principles of International Law (7th ed., 1923), pp. 146-147; Lindley, ibid., pp. 126-129.]

So they’re using the exact framework that we’re talking about here today in their method of argumentation and the Supreme Court actually ruled in favor of the United States position in that case.

The original Library of Congress case representation of Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955) is here (click PDF thumbnail at top).

From the contents of the 1954 Brief for the United States, explicit references are made to:

• papal bull granting Canary Islands to Spain,
  Christian nations of Europe,
  heathens and infidels
• Charters of England
• Johnson v McIntosh
• Genesis 1:28 and Psalms

• [↩] papal bull granting Canary Islands to Spain,
         Christian nations of Europe,
         heathens and infidels
  • page 7
    *13 A. The discovering nations acquired absolute title to the lands of this continent subject only to the Indian right of occupancy.-Prior to the great era of discovery beginning in the latter part of the fifteenth century, the Christian nations of Europe acquired jurisdiction over newly discovered lands by virtue of grants from the Popes, who claimed the power to grant to Christian monarchs the right to acquire territory in the possession of heathens and infidels. Lindley, The Acquisition and Government of Backward Territory in International Law (1926), pp. 124-125. For example, in 1344, Clement VI had granted the Canary Islands to Louis of Spain upon his promise to lead the islanders to the worship of Christ, and, following the discovery of the New World by Columbus, Alexander VI in 1493 and 1494 issued bulls granting to Spain all lands not under Christian rule west of a line 100 leagues west of the Azores and Cape Verde Islands. Ibid., p. 125; Cambridge Modern History (1934), Vol. 1, p. 23.
• [↩] Charters of England
  • page 10:
    FN8. Vattel goes on to say:
    “We have already said that the earth belongs to all mankind as a means of sustaining life. But if each Nation had desired from the beginning to appropriate to itself an extent of territory great enough for it to live merely by hunting, fishing, and gathering wild fruits, the earth would not suffice for a tenth part of the people who now inhabit it. Hence we are not departing from the intentions of nature when we restrict the savages within narrower bounds. However, we can not but admire the moderation of the English Puritans who were the first to settle in New England. Although they bore with them a charter from their sovereign, they bought from the savages the lands they wished to occupy. Their praise-worthy example was followed by William Penn and the colony of Quakers that he conducted into Pennsylvania.”
  • pages 10-11:
    FN9. The Chief Justice also said:
    “We will not enter into the controversy, whether agriculturists, merchants and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. The British government, which was then our government, and whose rights have passed to the United States, asserted a title to all the lands occupied by Indians, within the chartered limits of the British colonies. It asserted also a limited sovereignty over them, and the exclusive right of extinguishing the titles which occupancy gave to them. These claims have been maintained and established as far west as the river Mississippi, by the sword. The title to a vast portion of the lands we now hold, originates in them. It is not for the courts of this country to question the validity of this title, or to sustain one which is incompatible with it.”
  • pages 11-12:
    In the Spanish provinces, the Indians became the property of the grantee of the district of country which they inhabited; and this oppression was continued for a considerable period. Although the practice of the Crown of England was not marked by an equal disregard of the rights of personal liberty in the Indians, yet their pretensions to be the owners of any portion of the soil were wholly disregarded. * * * [p. 5] * * * but in all the acts, first of the colonies, and afterwards by the States, the fundamental principle, that the Indians*26 had no rights, by virtue of their ancient possession, either of soil or sovereignty, has never been abandoned, either expressly or by implication.
    The recognition of this principle by the Federal Government may be seen, at this day, in those small reservations which are made to individual Indians, or to the tribe itself, upon the relinquishment of the body of their lands. These reservations are made in deference to the principles of humanity, and because it has been found expedient to the interests of the Government making them. No respectable jurist has ever gravely contended, that the right of the Indians to hold their reserved lands, could be supported in the courts of the country, upon any other ground than the grant or permission of the sovereignty or State in which such lands lie. * * *
    [p. 6] * * * But the most decisive evidence of the light in which these reservations have always been viewed, in regard to the question of title, is to be found in the fact, that the Crown or the proprietors of Provinces, before the Revolution, and the States, after that event, succeeding as they did to the sovereignty over all the lands within the limits of their respective charters, have asserted the exclusive right in themselves, to extinguish the title to lands reserved to the Indians, until the Constitution was adopted. Since that *27 time, the Federal Government has acted upon the same principle, in regard to lands belonging to the Government. If the principle upon which this right is asserted, and the effect it has had in practice, be examined, it will be found to be a complete recognition of the original rule which the nations of Europe acted upon in the first partition and settlement of the country. * * *
  • page 12:
    And, in 1886, in The Cherokee Trust Funds, 117 U. S. 288, 294, speaking of the Cherokees, the Court said:
    * * * They claimed the principal part of the country now composing the States of *30 North and South Carolina, Georgia, Alabama, and Tennessee. Their title was treated by the governments established by England, and the governments succeeding them, as merely usufructuary, affording protection against individual encroachment, but always subject to the control and disposition of those governments, at least so far as to prevent, without their consent, its acquisition by others.
  • pages 20-21:
    The General Court of Massachusetts fell short of coming up to the principle of natural law, but went beyond the general maxims of the period, when, in 1633, it declared, “that the Indians had the best right to such lands as they had actually subdued and improved.” That Government, at the same time, asserted its right to all the rest of the lands within its charter, and actually parcelled them out by grant among the white inhabitants, leaving to them the discretionary duty of conciliating the Indians by purchasing their title. The General Assembly of Virginia asserted the unrestricted right of a conqueror, and, at the same time, conceded what the principles of natural law were supposed to require, when, in 1658, it enacted “that, for the future, no lands should be patented until fifty acres had been first set apart to each warrior, or head of a family belonging to any tribe of Indians in the neighborhood.”
    The recognition of this principle by the Federal Government may be seen, at this day, *57 in those small reservations which are made to individual Indians, or to the tribe itself, upon the relinquishment of the body of their lands. These reservations are made in deference to the principles of humanity, and because it has been found expedient to the interests of the Government making them. No respectable jurist has ever gravely contended, that the right of the Indians to hold their reserved lands, could be supported in the courts of the country, upon any other ground than the grant or permission of the sovereignty or State in which such lands lie. The province of Massachusetts Bay, besides the subdued lands already mentioned, during the early period of its history, granted other lands to various friendly tribes of Indians. Gookin, the great protector and friend of the Indians, about the time these grants were made, was asked, why he thought it necessary to procure a grant from the General Court for such lands as the Indians needed, seeing that “they were the original lords of the soil?” He replied, that “the English claim right to the land by patent from their King.” No title to lands, that has ever been examined in the courts of the States, or of the United States, it is believed, has been admitted to depend upon any Indian deed of relinquishment, except in those cases where, for some meritorious service, grants have been made to individual Indians to hold in fee-simple.
    
  • page 21:
    But the most decisive evidence of the light in which these reservations have always been viewed, in regard to the question of title, is to be found in the fact, that the Crown or the proprietors of Provinces, before the Revolution, and the States, after that event, succeeding as they did to the sovereignty over all the lands within the limits of their respective charters, have asserted the exclusive right, in themselves, to extinguish *59 the title to lands reserved to the Indians, until the Constitution was adopted. Since that time, the Federal Government has acted upon the same principle, in regard to lands belonging to the Government. If the principle upon which this right is as serted[sic], and the effect it has had in practice, be examined, it will be found to be a complete recognition of the original rule which the nations of Europe acted upon in the first partition and settlement of the country. Some of the States have incorporated this right in their constitutions, as a principle of primary importance. Laws have been passed in all the rest, in which there are Indian reservations, granted by the States, declaring the same exclusive right.
    
• [↩] Johnson & Graham’s Lessee v M’Intosh
  • page 2:
    Johnson v. McIntosh, 8 Wheat. 543 ... 6, 14, 15, 22,24, 31, 39, 45, 46, 49, 50, 52, 61, 62
  • pages 5-6:
    SUMMARY OF ARGUMENT
    I
    Petitioner’s alleged property interest in the Alaskan lands involved here is nothing more than “original Indian title.”
    A. It is a well established principle of international law that with respect to the lands of this continent “discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.” Johnson v. McIntosh, 8 Wheat. 543, 573. As is well illustrated by the proclamations of the various sovereigns, the enactments of the colonial legislatures, judicial opinions (including opinions of this Court), and other sources, the discovering nations asserted in themselves, by virtue of the principle of discovery, the complete and exclusive title to the land-subject only to a right of occupancy in the Indians, such right being retained by the Indians only by the grace of the sovereign.
    B. This Indian right of occupancy, also known as “original Indian title,” is not a right in the soil itself, but is merely a usufructuary right, i. e., the right of using and enjoying the profits of a thing belonging to another, without impairing the substance. It is comparable to the right of a mere licensee.
  • page 8:
    At first, mere discovery was considered sufficient to create a good and complete title, but because of the extravagant, conflicting claims based upon discovery alone it was soon found that a more stringent basis was necessary. Lawrence, Principles of International Law (7th ed., 1923), pp. 146-147. After a lapse of many years the principle was finally evolved “that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.” Johnson v. McIntosh, 8 Wheat. 543, 573; Martin v. Waddell, 16 Pet. 367, 409-410; Lawrence, Principles of International Law (7th ed., 1923), pp. 148-149; Moore, International Law Digest (1906), Vol. 1, pp. 258-259; Story, Commentaries on the Constitution of the United States (5th ed., 1891), pp. 106-107.
    Although the nations of Europe thus ceased to recognize the Popes as the source of their titles to newly acquired lands, the new concept of title by discovery was based upon the same idea that lands occupied by heathens and infidels were open *15 to acquisition by the Christian nations.[FN4] As stated in Johnson v. McIntosh, 8 Wheat. 543, 573:
    FN4. This is demonstrated by the fact that the English sovereign’s grant of a commission to the Cabots was for the discovery of countries then unknown to Christian people and to take possession in the name of the English king. Similar commissions issued to Gilbert and Raleigh. See Johnson v. McIntosh, 8 Wheat. 543, 576-577.
    * * * The potentates of the old world found no difficulty in convincing themselves, that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. * * *
    The Indians retained certain rights of occupancy, but the discoverers asserted exclusive title in themselves, subject only to the right of occupancy. Johnson v. McIntosh, 8 Wheat. 543, 574.
  • page 10:
    *22 And although Chief Justice Marshall found it difficult (Worcester v. Georgia, 6 Pet. 515, 543) to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied;
    nevertheless it was precisely on this basis that he was to predicate his now universally accepted doctrine in Johnson v. McIntosh, 8 Wheat. 543, 587-589, that: The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise. The power now possessed by the government of the United States to grant lands, resided, while we were colonies, in the crown or its grantees. The validity of the titles given by either has never been questioned in our courts. It has been exercised uniformly *23 over territory in possession of the Indians. The existence of this power must negative the existence of any right which may conflict with and control it. An absolute title to lands cannot exist, at the same time, in different persons, or in different governments. An absolute, must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognise the absolute title of the crown, subject only to the Indian right of occupancy, and recognise the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.
  • page 11:
    Thus, it is abundantly clear that the sovereign’s ownership of the lands on this continent came, not *24 from any grants by the native Indians, but rather from the principle of discovery. And it is likewise plain that the Indians retained only a right of occupancy through the grace of the sovereign. Johnson v. McIntosh, 8 Wheat. 543, 573-574, 587-588; Martin v. Waddell, 16 Pet. 367, 409-410; United States v. Tillamooks, 329 U.S.40, 46.
  • page 13:
    *31 The Indians may roam over the land for their hunting, fishing and berrying, and may otherwise use the land to perpetuate their existence, but they have no right in themselves to dispose of the soil. Johnson v. McIntosh, 8 Wheat. 543, 574....
    C. Petitioner’s asserted right is no more than “original Indian title.”-Our argument has been (supra, pp. 12-13) that from the time of discovery by the European sovereign the “original Indian title” could not in any sense be compared with “full proprietary ownership.” Whatever rights the natives had in the soil prior to discovery were thereafter “necessarily, to a considerable extent, impaired.” Johnson v. McIntosh, 8 Wheat. 543, 574.
  • page 15:
    Finally, petitioner contends (Pet. Br. 24-26) that by the time Russia had entered upon the scene the doctrine of title by discovery set out in Johnson v. McIntosh had been modified so that the bare fact of discovery was no longer sufficient to support a new title in the discovering nation. However, as we have shown, supra, pp. 13-15, the modification of the doctrine that discovery alone was sufficient came long before Johnson v. McIntosh and was recognized by Chief Justice Marshall’s statement in 1823 (8 Wheat. at p. 573): “This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made * * *, which title might be consummated by possession.” Indeed, the declaration in connection with the ukase of 1821 that Russia’s title was based upon first discovery, first occupation, and peaceable and uncontested occupation for more than 50 years (American State Papers, Foreign Relations, Vol. 4, pp. 861862) proves that the Russian concept of title by discovery was exactly the same as that stated in the contemporaneous opinion in Johnson v. McIntosh. Hence, it is submitted that under the law of nations Russia acquired the full title to Alaska, including the lands claimed by petitioner, by *40 virtue of discovery and possession, and that consequently during the period of Russian sovereignty and thereafter petitioner had no greater right in the soil than a right of occupancy known as “original Indian title.”
  • page 17:
    Thus, when the European nations came to North America and found it inhabited by uncivilized Indians, it was agreed by those nations, in accordance with principles of international law as understood by the then civilized powers of Europe, that each should have exclusive title by discovery to all territory reduced to possession. Johnson v. McIntosh, 8 Wheat. 543, 572-592. Since the lands were occupied by the Indians, the title thus asserted was necessarily said to be subject to the Indians' right of occupancy. Until the “Indian title” was extinguished, the sovereign granted the fee of the lands subject to the Indian right of occupancy, the colonists were forbidden to take possession of lands occupied by Indians without tribal consent, and the natives were permitted to use such lands. Fletcher v. Peck, 6 Cranch 87, 141-142; Johnson v. McIntosh, supra, at pp. 572-584; Martin v. Waddell, 16 Pet. 367, 409-410. See also supra, pp. 15 ff. The privileges accorded the Indians were merely a reflection of the practical necessities of the situation at that time. The Indians were warlike and numerically superior to the whites, *46 the sole power to extinguish the Indian occupancy resided in the sovereign, and it was important that the sovereign's hand in the execution of its power to extinguish the Indian right of occupancy should not be forced by third persons.
  • page 18:
    There never has been any question as to the methods by which the United States could and did extinguish the Indian title. Both the very early decisions of this Court and the more recent ones contain explicit recognition of the paramount right of the United States to extinguish the Indian right of occupancy at will, by treaty, purchase, conquest, or the exercise of complete dominion adverse to the right of occupancy. Fletcher v. Peck, 6 Cranch 87, 142; Johnson v. McIntosh, 8 Wheat. 543, 587-592; ...
    Since Johnson v. McIntosh, 8 Wheat. 543, decided in 1823, gave rationalization to the appropriation of Indian lands by the white man's government, the extinguishment of Indian title has proceeded, as a political matter, without any admitted legal responsibility in the sovereign to compensate the Indian for his loss.
  • page 19:
    If the exercise of that right is regarded as creating a liability to compensate for a title so extinguished, the power to extinguish the Indian title is converted from “by purchase or by the sword” into “by purchase or by the sword followed by purchase.” In other words, the alternative rights always conceded the sovereign would be reduced to a sole right to purchase. But, “Conquest gives a title which the courts of the conqueror cannot deny.” Johnson v. McIntosh, 8 Wheat. 543, 588. And to make compensation to *50 the conquered mandatory is a denial of the conqueror's title. It is a denial of the principle recognized by the Court “that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest.” Johnson v. McIntosh, 8 Wheat. 543, 587. See also 8 Wheat. at 590-591.
    This Court, at a very early date, in the case of Johnson v. McIntosh, 8 Wheat. 543, considered these cessions, and after noting that they were of lands “covered by Indians,” said of the Virginia cession (p. 586):
    * * * This grant contained reservations and stipulations, which could only be made by the owners of the soil; and concluded with a stipulation, that “all the lands in the ceded territory, not reserved, should be considered as a common fund, for the use and benefit of such of the United States as have become, or shall become, members of the confederation,” &c., “according to their usual respective proportions in the general charge and expenditure, and shall be faithfully and bona fide disposed of for that purpose, and for no other use, or purpose whatsoever.” The ceded territory was occupied by numerous and warlike tribes of Indians; but the exclusive right of the United States to extinguish their title, and to grant the soil, has never, we believe, been doubted.
  • page 22:
    While the opinion in the Worcester case contains some language which might indicate that the United States could extinguish “Indian title” only by purchase, the opinion also recognized the existence of the power, which Chief Justice Marshall had earlier defined in Johnson v. McIntosh, 8 Wheat. 543, 587, “to extinguish the Indian title of occupancy, either by purchase or by conquest”, and referred to the latter as remaining “dormant” (6 Pet. at 544). To say that a power remains dormant or unexercised confirms its existence; it does not prove its absence.
    Johnson v. McIntosh, 8 Wheat. 543, upon which reliance has also been placed, held only that an Indian tribe could not convey a good title to third parties to lands which the Indians occupied, without the consent of the sovereign. Moreover, that is the leading case proclaiming the right of the United States to extinguish “Indian title,” either by purchase or by the sword, at the election of the United States.
• [↩] Genesis 1:28 and Psalms
  • page 8:
    That the discovering nations asserted complete title in themselves, even as against the heathen natives, is well illustrated by the enactments of the colonial legislatures. In Massachusetts, as early as the period 1633-1637, the General Court had declared (Laws of the Colonial and State Governments Relating to Indians and Indian Affairs (1832), pp. 9-10):
    That what lands any of the Indians in this jurisdiction have possessed and improved, by subduing the same, they have just right unto, according to that in Gen. 1, 28, and Chap. 9, 1, and Psal. 115, 16.[FN5]
    FN5. Gen. 1:28. “And God blessed them, and God said unto them, Be fruitful, and multiply, and replenish the earth, and subdue it: * * *” Chap.9:1. “And God blessed Noah and his sons, and said unto them, Be fruitful, and multiply, and replenish the earth.” Psal. 115:16. “The heaven, even the heavens, are the Lord's; but the earth hath he given to the children of men.”

• Aziz Choudry, Studies in Social Justice, Mar 2019
• Christopher Black, Anishinabek News, 9 Jul 2019
• Carling Beninger, BC Studies, 17 Aug 2019

Under the “doctrine of discovery,” Oneida II, 470 U. S. 226, 234 (1985), "fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the discovering European nation and later the original States and the United States," Oneida I, 414 U. S. 661, 667 (1974). In the original 13 States, "fee title to Indian lands," or "the pre-emptive right to purchase from the Indians, was in the State." Id., at 670; see Oneida Indian Nation of N. Y. v. New York, 860 F. 2d 1145, 1159-1167 (CA2 1988). Both before and after the adoption of the Constitution, New York State acquired vast tracts of land from Indian tribes through treaties it independently negotiated, without National Government participation. See Gunther, Governmental Power and New York Indian Lands — A Reassessment of a Persistent Problem of Federal-State Relations, 8 Buffalo L. Rev. 1, 4-6 (1958-1959) (hereinafter Gunther).