Law Commons^™

Retracing The Discovery Doctrine: Aboriginal Title, Tribal Sovereignty, And Their Significance To Treaty-Making And Modern Natural Resources Policy In Indian Country, Michael C. Blumm

Aboriginal Policy Research Consortium International (APRCi)

One of the more misunderstood concepts of Anglo-American law is the discovery doctrine, the principle by which Europeans rationalized their presence in North America. Misinterpretation of the doctrine led to unwarranted assumptions about the relationship between the federal government and indigenous tribes in the late 19th and early 20th centuries and to misinterpretations abroad, notably in Australia. These misinterpretations by judges and Congress made the discovery doctrine into what one scholar called a perfect instrument of empire. But this article maintains that this result was a perversion of the doctrine laid down in the early 19th century by the Marshall …