Canada is a metaphor: On the Doctrine of Discovery, Roman law and genocide
In 1823, the Supreme Court of the United States of America decided that private citizens could not purchase lands from Native Americans. The landmark decision is known as Johnson vs M’Intosh (21 U.S. 543). At its core is a doctrine described as having been ‘laid down by civilized states’, that is European empires:
“The uniform understanding and practice of European nations, and the settled law, as laid down by the tribunals of civilized states, denied the right of the Indians to be considered as independent communities, having a permanent property in the soil, capable of alienation to private individuals. They remain in a state of nature, and have never been admitted into the general society of nations…Not only has the practice of all civilized nations been in conformity with this doctrine, but the whole theory of their titles to lands in America, rests upon the hypothesis, that the Indians had no right of soil as sovereign, independent states. Discovery is the foundation of title, in European nations, and this overlooks all proprietary rights in the natives.”
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July 28 2022, day 4 of Pope Francis’ pilgrimage of penance in Canada. The official purpose of his visit was to fulfill a promise made to the Indigenous, Metis and Inuit delegates he had met in Vatican earlier that year: To apologize to and work towards reconciliation with their communities, which faced genocide at the hand of the Church for decades, especially (but not exclusively) in residential schools, where thousands of unmarked graves of children have been found since the summer of 2021. Three days before, on July 25, the pope had apologized “for the evil committed by so many Christians against the Indigenous peoples”. The next day in Lac Sainte-Anne, Alberta, he celebrated an outdoor mass in a language that not only surprised, but also retraumatized many survivors: Latin.
As the pope was arriving at the Basilique Sainte-Anne de Beaupré, east of Québec city, to hold a mass, Anishinaabe activist, broadcaster and filmmaker Sarain Fox and her cousin, Anishinaabe activist and artist Chelsea Brunelle, unfurled a large, white banner. On it, painted in red and black letters, were three words:
“RESCIND THE DOCTRINE”
The ‘doctrine’ Fox and Brunelle were referring to is, like the doctrine referred to in Johnson vs M’Intosh, the so-called ‘Doctrine of Discovery’. Finding its origins in the Catholic Church’s legitimization of the Crusades in the 11th century, the Doctrine of Discovery corresponds to a series of principles legalizing the conquest and ownership of land occupied by ‘Saracens’ and ‘pagans’ (that is Muslims and other non Christians) by European-Christian rulers. These principles were articulated through two papal bulls (Romanus Pontifex (1455) and Inter Caetera (1493)) in the 15th c. CE, in the context of Portuguese, Spanish, and British expansion in Africa and the so-called Americas. Over time, they became increasingly tied to loose interpretations and self-serving uses of the legal principle of terra nullius by European imperial agents.
The principle of terra nullius, ‘nobody’s land’, is a derivative of the Roman legal concept of res nullius, ‘nobody’s thing’. In Book 41 of the Digest, the 2nd c. CE Roman jurist Gaius shares the following legal opinion regarding the ownership of “things”:
“Of some things we acquire ownership under the law of nations (jus gentium) which is observed, by natural reason, among all men generally, of others under the civil law (jus civile) which is peculiar to our city. And since the law of nations is the older, being the product of human nature itself, it is necessary to treat of it first. So all animals taken on land, sea or in the air, that is, wild beasts, birds, and fish, become the property of those who take them. […] What presently belongs to no one becomes by natural reason the property of the first taker.”[1]
In Gaius’ lifetime, then, the law of nations (jus gentium) stipulated that wild animals can, because they belong to noone, fall under the ownership (dominium) of whoever is the first to take possession of them (occupatio). Land, which fell under the category of res mancipi, and so was governed by civil law (jus civile), did not fall under the category of res nullius at the time. Over time though, the distinction was blurred, so much so that it was not present anymore in the Justinian Code (6th c. CE). The late antique integration of vacant land into the category of res nullius enabled the modern slip from res nullius to terra nullius to take place in the context of the British colonization of Australia [2]. In the 1750s, this slip was further rationalized through an association between occupatio, agricultural sedentarity, civilization and settler polities on the one hand, and vacancy, (semi-)nomadism and foraging, ‘savagery’, and Indigenous polities on the other [3]. This excerpt from Johnson vs M’Intosh is a potent example of the legal power this legal fiction became endowed with:
“According to the theory of the British constitution, vacant lands are vested in the crown, as representing the nation; and the exclusive power to grant them is admitted to reside in the crown, as a branch of the royal prerogative. It has been already shown that this principle was as fully recognised in America as in the island of Great Britain. All the lands we hold were originally granted by the crown ; and the establishment of a regal government has never been considered as impairing its right to grant lands within the chartered limits of such colony. […] So far as respected the authority of the crown, no distinction was taken between vacant lands and lands occupied by the Indians. The title, subject only to the right of occupancy by the Indians, was admitted to be in the king, as was his right to grant that title.” — Johnson vs M’intosh 1823, 596–597.
The Doctrine of Discovery is still used as a legal precedent in settler colonies. For instance, in the USA Supreme Court 2005 decision Sherrill v Oneida Indian Nation of New York, Ruth Bader Ginsburg used Johnson vs M’Intosh as the ground to rule against Oneida’s claims to land ownership.
In the superb essay “Salmon is the Hub of Salish Memory” published in her 2007 book Memory Serves, Sto:lo word artist Lee Maracle tells the real story of the repeated suicide of a Sockeye salmons between 1995 and 2001, the latter year being mostly remembered for the 9–11 terrorist attacks in the USA. “Most Western historians do not see suicidal fish and suicidal warriors as connected”, writes Maracle, before observing that “in the Salish worldview salmon and humans are not separate…For us, the habitat of salmon and the habitat of humans are a single habitat. Moreover, violence to earth and violence between humans are connected”.
The Roman concept of res nullius, the early modern notion terra nullius, and the Doctrine of Discovery testify to a substantially different worldview than the Salish’s; one where humans and other beings are separate, one where this separation is vertical, hierarchical, and one where animals and land are framed as things. The idea whereby one can acquire ownership (dominium) of land and non human beings by “possession” (possessio) is at the core of the climate crisis, as well as of the land theft and genocide committed against Indigenous, Métis and Inuit Peoples by Christian Churches and the White settler colonial States.
This is why, during Pope Francis’ Canadian tour, demands for the rescinding of the Doctrine of Discovery grew louder by the day, so much so that they ended up being prominently featured in social and traditional media. This focus on the Doctrine of Discovery, and the Vatican’s refusal to rescind it, must be understood as evidence of the foundational nature of this legal framework for Canadian and other settler colonies’ statehood projects. It is after all not random that the four out of 147 countries that voted against the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007 are all White settler British colonies: New Zealand, Australia, The United States of America, and Canada (Australia officially endorsed UNDRIP in 2009, followed by New Zealand and the USA the following year; Canada only did so in 2021). Indeed, the declaration notably stipulates that:
“1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure sys-tems of the indigenous peoples concerned.” — UNDRIP Article 26
The Catholic Church invalidating the Doctrine of Discovery would mean it acknowledges the fictional legal basis on which White Christian settler colonies — from Brazil to Australia to South Africa to Canada — are built. Likewise, New Zealand, Australia, the USA and Canada supporting the UNDRIP would equate to them acknowledging the invalidity of the Doctrine of Discovery. In both cases, the legal implications are the same: Stolen (including ‘Church’ and ‘Crown’) land would have to be given back to their rightful, Indigenous/Aboriginal, Métis or Inuit custodians, and a tangible process of reparation and redress would have to take place. At present, and despite superficial performances of care and atonement, neither the Vatican nor Ottawa nor any White settler State wants such a scenario to unfold. And so the genocide continues.
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In “Salmon is the Hub of Salish Memory”, Lee Maracle also recalls a conversation she had with Kanienʼkehá꞉ka lawyer, activist and author Trish Monture:
“Trish gets up and starts talking: “You know the white man is emotionally stunted and spiritually crippled and he has no idea that he got that way by thingifying everything and then giving it a high highfalutin name so that we would all try to speak just like him, which we did, and now we have these institutions full of empty, uncaring academics who speak a crazy combination of culturally disconnected jargon made of Greek, English, and Latin, and are completely not understandable; all the while they maintain that this business of thingifying is the gold standard of all speaking, thinking, and knowing — and yes, I am aware that this past thought is framed in a long-ass run-on sentence, thank you very much. Consequently, we know nothing and nothing changes.” — “Salmon is the Hub of Salish Memory”, Memory Serves 2007, 55.
Discovering and thingifying.
Discovering and thingifying things.
Discovering and thingifying beings.
Discovering and thingifying lands.
Discovering and thingifying time.
[1] “Quarundam rerum dominium nanciscimur iure gentium, quod ratione naturali inter omnes homines peraeque servatur, quarundam iure civili, id est iure proprio civitatis nostrae. Et quia antiquius ius gentium cum ipso genere humano proditum est, opus est, ut de hoc prius referendum sit. Omnia igitur animalia, quae terra mari caelo capiuntur, id est ferae bestiae et volucres pisces, capientium fiunt […] Quod enim nullius est, id ratione naturali occupanti conceditur”; The Digest of Justinian 41.1.1–3, Alan Watson 1985 transl.
[2] Stuart Banner 2005, “Why Terra Nullius? Anthropology and Property Law in Early Australia”, Law and History Review 23.1, 95–131; Lauren Benton and Benjamin Straumann (2010, “Acquiring Empire by Law: From Roman Doctrine to Early Modern European Practice”, Law and History Review 28.1, 1–38) show how for 16th c. legal scholars, land ‘discovered’ by European imperial agents did not qualify as res nullius; Robert J. Miller, Jacinta Ruru, Larissa Behrendt and Tracey Lindberg eds 2010, Discovering Indigenous Land: The Doctrine of Discovery in English Colonies.
[3] Benton and Straumann 2010: 26 referring to Emer de Vattel.
