If you asked a hundred high school seniors to describe and explain the importance the Doctrine of Discovery in American history, I’d bet a hundred bucks no more than two of them could provide an answer that would pass muster on a history test.  Same bet with a hundred college seniors.  For that matter, put the same question to a hundred high school history professors and you’d fare no better.  My money’s safe.  That’s because the history profession, teachers, books, curriculum, in this country have raced to the bottom and stayed there.  It’s not just depressing.  It’s downright frightening.

To refresh everyone’s memory,  the legal seeds that would one day grow into the Doctrine of Discovery were first planted in the field of natural law by Crusading popes in the Middle Ages. The Papal See asserted its divine prerogative to send crusading armies to the Holy Lands in order to confiscate land from Muslim heathens and infidels.  These prerogatives were formally incorporated into canon law by Popes Innocent II and IV and would continue to evolve through the discovery-era courts in Spain, through the Elizabethan and Jacobean courts in England, and finally filter down through the founders of the republic of the United States and the U.S. Supreme Court.

These laws, which Congress used midway through the 20th century to remove the Mandan, Hidatsa, and Arikara people from their homelands of prehistory to make way for gigantic dams on the upper Missouri River, come down to us in a more familiar name: eminent domain. While the tribes claimed an absolute right to protect their ancestral lands from being inundated by these dams, the republic asserted a countervailing prerogative to trump the tribe’s aboriginal title by claiming a superior right, under eminent domain, i.e., the Doctrine of Discovery, to take those lands away.

As the great legal historian Robert Williams explains in monumental work, American Indians In Western Legal Thought, Discourses on Conquest, the founders of the United States republic made colossal errors in their formulation for government. For one thing, they utterly failed to take into account the 500 plus Indian nations that pre-existed the republic in the framework of federalism. Thus, says Williams, the U.S. Constitution succeeded in preserving a “legacy of 1,000 years of European racism and colonialism directed against non-Western peoples. The Doctrine of Discovery’s underlying medievally derived ideology – that normatively divergent savage peoples  could be denied rights and status equal to those accorded to the civilized nations of Europe – had become an integral part of the fabric of the United States federal Indian law.”

Or, to put that another way, and to paraphrase James Fennimore Cooper, freedom was a paradox not easily resolved.  Was it not paradoxical that life, liberty and the pursuit of happiness – the prizes of democracy –  were cherished by a society that was determined to deny these very prizes to black men and Indians?

To its credit, though not a moment too soon, word comes from 2009 General Convention of the Episcopal Church, in Anaheim, California, that the church has seen fit to repudiate the Doctrine of Discovery as a corrupt tool of the federal government that “history continues to be relevant in terms of justice issues today.”

It does indeed, but where do we begin when the vast majority of our citizens are so blissfully oblivious to the weight of their own history?

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