Thursday, 6 August 2009

The Doctrine of Discovery, the Episcopal Church and a Treaty for Australia

Probably the longest internet relationship I have is with a man called Steve Hayes, in South Africa. The internet relationship began on an email list Steve ran - beginning in the last century long before blogging was ever thought of. These days Steve runs Google Groups instead of email lists and blogs on a couple of sites as well. So it is to Steve that I owe my beginning knowledge of the Doctrine of Discovery.

Taken at face value, this - to us outside the USA - obscure 'doctrine' would seem of little value anywhere else. However, in Australia at least, what happens in the USA can be of influence in this country, and not least in matters affecting indigenous people.

In Australia, we have had the Mabo decision which dealt with the idea that Australia was terra nullius at the time of white settlement. We have never dealt with sovereignty and - what would flow from recognition of this - treaty.

The Doctrine of Discovery is in the news because of a decision taken by the Episcopal Church in the it is over to what I have from Steve...

Episcopal Church repudiates Doctrine of Discovery
Urges US adoption of UN Declaration
By Gale Courey Toensing

Story Published: Jul 26, 2009

Story Updated: Jul 27, 2009

ANAHEIM, Calif. – In a first-of-its-kind action in the Christian world, the
national Episcopal Church has passed a landmark resolution repudiating the
Doctrine of Discovery and urging the U.S. government to endorse the U.N.
Declaration on the Rights of Indigenous Peoples.

Organizers of the bill hope it will lead to the overturning of a 19th century
U.S. Supreme Court ruling and Congress’ assumption of plenary power over
Indian nations they say are illegitimate and immoral, and continue to strip
American Indian nations of their inherent sovereignty.

The resolution, called “Repudiate the Doctrine of Discovery,” was passed
unanimously by the Episcopal House of Bishops and by an overwhelming majority
of the House of Delegates during the church’s 76th General Convention July 8

17 in Anaheim.

“It’s a historic event,” said Steven Newcomb, Shawnee/Lenape. Newcomb is the
indigenous law research coordinator for the Sycuan Education Department,
co-founder and co-director of the Indigenous Law Institute, and a columnist
for Indian Country Today. Newcomb’s work on the Doctrine of Discovery in his
many essays and his 2008 book “Pagans in the Promise Land” is the spark that
ignited individuals in the Episcopal Church to pursue the resolution.

Newcomb expressed his “deep appreciation” for John Dieffenbacher-Krall,
Brenda Hamilton, and John Chaffee “who powerfully advocated for passage of
the adopted resolution.

“Through the official action of an important religious institution in the
United States, the document raises the visibility of the Doctrine of
Christian Discovery, while providing a means of educating people about that
doctrine and its continuing effects on indigenous nations and peoples. The
resolution is also important because of its focus on and endorsement of the
U.N. Declaration on the Rights of Indigenous Peoples.”

The resolution is also timely: The U.N. Permanent Forum on Indigenous Issues
has called for a study of the Doctrine of Discovery and its historic and
continuing effects on indigenous people to be completed by the forum’s
convening in 2010.

“The Episcopalian Church’s resolution will no doubt factor into that study,”
Newcomb said.

The Doctrine of Discovery was a principle of international law developed in a
series of 15th century papal bulls and 16th century charters by European
monarchs. It was essentially a racist philosophy that gave white Christian
Europeans the green light to go forth and claim the lands and resources of
non-Christian peoples and kill or enslave them – if other Christian Europeans
had not already done so.

The doctrine institutionalized the competition between European countries in
their ever-expanding quest for colonies, resources and markets, and
sanctioned the genocide of indigenous people in the “New World.”

The resolution renounces the doctrine “as fundamentally opposed to the Gospel
of Jesus Christ and our understanding of the inherent rights that individuals
and peoples have received from God,” and promises to share the document with
its churches, governments within its boundaries, and the U.N.

It resolves to eliminate the doctrine within the church’s contemporary
politics, programs and structures, and urges the U.S. government to do the
same. It asks Queen Elizabeth to publicly repudiate the Doctrine of
Discovery, and encourages all Episcopal churches to support indigenous
peoples in their ongoing efforts for their inherent sovereignty and
fundamental human rights as peoples to be respected.

Johnson v. M’Intosh, an 1823 U.S. Supreme Court case, held that because of
the Doctrine of Discovery American Indians have a mere right of occupancy to
their lands. The ruling is foundational to federal Indian law.

Dieffenbacher-Krall, the executive director of the Maine Indian Tribal State
Commission and originator of the resolution movement, said the ultimate goal
is to overturn Johnson v. M’Intosh, and dismantle Congress’ claim to plenary
power over Indian nations.

“This is illegitimate, this is immoral, this is evil. U.S. law shouldn’t be
based on this. I want to see an all out effort to overturn Johnson v.
M’Intosh just as the NAACP legal defense fund and many civil rights activists
worked strategically to overturn Plessy v. Ferguson,” he said, referring to
the 1896 Supreme Court ruling that upheld a “separate but equal” decision by
a lower court that allowed Louisiana to operate separate railroad cars for
African-Americans. The high court decision provided cover for southern states
to impose racist Jim Crow laws for more than five decades until segregation
was tossed out in 1954 in Brown v. Board of Education.

A longtime social justice activist, Dieffenbacher-Krall said his growing
awareness and understanding of the doctrine’s history made action

“It’s not like I had a St. Paul on the road to Damascus moment, but sometime
in the winter, spring or summer of 2006, I really became aware of the
Doctrine of Discovery in connection to Congress’ claim of plenary power over
American Indian nations.

“So where’s the social justice behind Congress saying, ‘We’ll just do
whatever we want with the Maliseets or Navajo or Hopi because we’re the U.S.
and you’re not?’ I felt that because I have an uncommon knowledge for a white
person about some of this stuff that I might have a role to play working in
my church to make people aware of this.”

Working with the Wabanaki tribes in Maine, reading Newcomb’s articles and
later contacting him helped strengthen Dieffenbacher-Krall’s determination to
act, and in October 2007, Maine’s Episcopal Church responded by passing a
resolution calling on Queen Elizabeth and the Archbishop of Canterbury to
rescind the 1496 charter given to John Cabot and his sons to go forth and
claim possession of all the lands in the “New World” that weren’t already
claimed by Spain and Portugal.

Dieffenbacher-Krall also worked with Chaffee, a professor of Chinese history
at Binghamton University and member of the Episcopalian diocese in Central
New York, to pass its own similar resolution in November 2008, and with
Hamilton, a Maine social worker, who worked with Chaffee to shepherd the
national church’s resolution through the process in Anaheim.

Chaffee crafted the resolution that was adopted at the general convention.

The resolution has “a substantial practical value,” Chaffee said, because it
could potentially “provide important legal ammunition in terms of pending and
future legal cases that might be brought by Native Americans. I’m very happy
to be just a small part of that whole process.”

Hamilton was honored to be able to participate. In an e-mail update to her
colleagues during the convention, she wrote, “My testimony rebutted the
comment I have often heard about this issue, ‘What, are we trying to rewrite
history?’ I said that to stand in any of the colonial churches of New England
was a reminder that those churches stood on a history of the Doctrine of
Discovery and genocide, thus there needed to be recognition of that both by
the Episcopal Church and its colonial forbears in the Church of England.”

Comment by Steve Hayes:

Before reading this article I had never heard of this "Doctrine of
Discovery", and I wonder how many other people have heard of it, apart from
fundis in the history of US Law (the "doctrine" was apparently formulated by
the US Supreme Court in 1823)

I queried it in a blog post at:

which led to some interesting and enlightening comments from Steven

It appears, from his explanation, that though the US Constitution prohibits
Congress from making laws concerning an establishment of religion, there is
no such restriction on the US Supreme Court, which has effectively
"established a religion" through formulating the Doctrine of Discovery.

Steve Hayes


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