Quick Take: Are European Empires to Blame for the Dispossession of Native Americans?

The US Supreme Court is to blame for many things, including a made-up doctrine that justified the mass ethnic cleansing of Native Americans

There’s little doubt that the colonization and settlement of the Americas by European empires was not great news for indigenous Americans, the Amerindians. But there’s a big open question regarding whether successor European republics, like the US, were only just as bad in their treatment of Amerindians, or actually a lot worse.

This is an important question because, when one reads what highly enlightened Americans write about the matter of why the US was so brutal while dealing with natives, one is immediately reminded of Jessica Rabbit:

Take Kathleen Duval, a historian specialized on Native America, writing in a recent issue of the New York Review of Books, while reviewing Ned Blackhawk’s National Book Award–winning book “The Rediscovery of America: Native Peoples and the Unmaking of US History.”

Duval pulls no punches. She makes no excuses for the way Native Americans have, to this day, been treated by the state that was supposed to protect them — other than a very big, indeed huge excuse, one that she, Blackhawk and other American historians call the “doctrine of discovery”:

Blackhawk never lets us forget that his book is not a work of “Indigenous history” but rather one of American history. He eloquently argues that “the enduring sovereignty of Native communities” must be recognized “as a defining thread of US politics.” Maintaining sovereignty, not simply achieving bare survival on shrunken territory, is the real source of Native power. As an enrolled member of the Te-Moak Tribe of Western Shoshone Indians of Nevada, Blackhawk brings experience to bear on his account.

In calling for a “rediscovery of America,” Blackhawk draws a through line from the earliest days of colonial contact to our present political moment. The phrase inverts and ultimately refutes the “Doctrine of Discovery” that first set American settler colonialism in motion. Developed within two years of the first voyage of Christopher Columbus in 1492, this doctrine was created by Pope Alexander VI of Spain when he issued a papal bull dividing the newly “discovered” lands of the Americas between the Catholic kingdoms of Portugal and Spain on the theory that there could be no true exercise of sovereignty by people ignorant of Christianity. Not to be outdone, King Henry VII of England issued a royal proclamation in 1496 granting John Cabot the authority “to find, discover and investigate whatsoever islands, countries, regions or provinces of heathens and infidels, in whatsoever part of the world placed, which before this time were unknown to all Christians,” and take them in the name of England.

Before there were armies, there were announcements: ritual proclamations that Europeans regarded as almost supernatural incantations of divine authority to claim America. We might be amused by the absurdity and arrogance of it all, if not for the fact that the US Supreme Court has relied on the Doctrine of Discovery from the early nineteenth century to the present. It was invoked as recently as 2005 to deny the land claims of Native nations bringing suits before the Court. In City of Sherrill v. Oneida Indian Nation of New York (2005), Justice Ruth Bader Ginsburg quoted a 1974 decision explaining that, according to the Doctrine of Discovery, 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.

Blackhawk’s book demands that we ask a crucial question: If Europeans and their descendants claimed the continents of America by right of “discovery,” what new rights might emerge from the “rediscovery” of America today?

Europeans sailed to lands they had never seen before, where they encountered peoples they had never known before. The year 1492 marked a transformative era in world history, one that brought a new awareness of the shape and size of the globe and catalyzed a series of novel contacts between cultures and societies on a scale never previously imagined. However, though Europeans named and claimed America, it was not an empty continent waiting to be defined but one teeming with people living in flourishing nations. The only way any European empire could assert that its people were the “first” to find the lands of the Americas was to ignore the reality—the very humanity—of those who were already there.

As we see, in Duval’s, Blackhawk’s and the Supreme Court’s telling, the biggest issue here is that bad, bad “doctrine of discovery” that those evil Europeans left behind and that we can’t get rid of because, you know, it would be impolite. This is bad history.

Territorial expansion over indigenous land was a key selling point for American pro-independence advocates in the US in the 1770s, as was later for their counterparts in the new Latin American republics. Arguably, the biggest underlying issue behind American independence was the British Crown’s reluctance to allow the unchecked expansion of white settlement ever westwards, and much the same can be said for the independence drives in Latin American territories.

In summary, any excuse that could be presented to justify native land-grabs was seen as acceptable by the settler elites north and south of the continent.

In North America, thew newly created United States in 1787 founded the Northwest Territory, made up of the land between the southern shore of the Great Lakes, the Upper Mississippi, and the Ohio River, although natives outnumbered whites there well into the 19^th century. After the end of the second American war with the British, that of 1812, people who went West, long derided by the British Crown as illegal trespassers, treaty-breakers and squatters, were now heroic “settlers” and “pioneers.”

In the four years before 1819 alone, about 400,000 settlers would enter the Northwest territories, compared with a mere 195,000 from ‪1805-1815. A similar situation would play out in the Southwestern territories, encompassing modern states from Alabama to Texas. The whole region would go from a population of 153,000 in 1810 to 457,000 in 1820. Expansion was driven by treaties signed with specific tribes, often in exchange for ridiculous amounts of cash, accelerated by a legal framework created out of thin air in 1823.

That year, the US Supreme Court started a fruitful tradition of using bogus cases to advance political objectives through the courts with Johnson Vs McIntosh. The case allegedly pitted two separate groups of white settlers with overlapping claims over formerly native land; in reality, both sides knew their claims were not actually overlapping, and brought the case to trial to gain judicial precedent: in a bizarre legal decision with massive consequences, the court unanimously sided with a district court of Illinois.

The district court ruled that the whites who bought land from natives had no rights over the land, and thus the side that got the land as a grant from the US did have those rights. Indeed, Justice John Marshall, who wrote the decision, explained that Native American land was inalienable and thus couldn’t be sold to outsiders. This, however, didn’t mean that land-grabs should stop: it simply meant that they had to be implemented by the government instead — private citizens couldn’t act by themselves.

To justify the opinion that the US had inherited a (non-existent) British right of preemption over Native American land, Marshall made up on the spot Duval’s and Blackhawk’s “discovery doctrine” (or “doctrine of discovery”), establishing that European powers gained sovereignty of the lands they discovered and thus could extinguish the “rights of occupancy” of natives.

The Supreme Court’s extreme approach to the issue of native land was much more radical than allowing the free purchase of land as a deal between free peoples. It dispossessed all Native Americans completely, as it gave them title only to whichever land the Federal government, in its merciful wisdom, felt inclined to cede. And it was based on a fictional doctrine that is inexistent in the Spanish, French or Portuguese legal traditions.

In an exquisitely Protestant touch, with the typical stinky odor of British Black Legend fabrications, the doctrine was later blamed on the Catholic Church by American scholars, often citing the Latin expression Terra Nullius. That was another made-up concept, this time invented by the British on the basis of the old Latin expression “Res Nullius” (“Nobody’s Thing”) used by 16^th century Spanish theorists.

Strikingly, these theorists — mainly Domingo de Soto and Francisco de Vitoria — had coined the expression (a “Latinajo” or “Latin out-of-jail-card” in Spanish) precisely to argue that the Americas were NOT Res Nullius since they were already inhabited when the Spaniards arrived. The entire Spanish approach to settlement was that natives had to be given the same rights as everyone else, and could not be stripped of anything except after due course or in situations of emergency. Of course, application of the law was never quite that exemplary, but that was the legal framework.

Spanish theorists of following generations never used the expression Terra Nullius and actually first came across it when it was used by the US against Spain! This was in a dispute over Contoy Island off Mexico in 1885, that the US lost¹. The next time the US had a territorial dispute with Spain, in 1898, it made sure to present unstoppable legal arguments solidified by unimpeachable scholarship to grab Cuba, the Philippines and Puerto Rico.

“We have many more arguments where this one came from.”

Let me add that the Catholic Church has several times rejected the existence of any Discovery Doctrine and officially repudiated it as not part of its teachings in 2023, pointing to the 1537 papal bull Sublimis Deus that affirmed the liberty and property rights of indigenous peoples and banned their enslavement.

To the US Supreme Court — such a powerful entity as to decide, in a landmark case late in the 19^th century, that the tomato is a vegetable and not a fruit — this of course is neither here nor there. But it’s important to have in mind that the issue with fancy Latin excuses to take stuff from natives is not a US problem exclusively.

All American republics were initially led by elites obsessed by the subjection of native peoples, who objected to the more moderate approach of imperial rulers (Spain, Portugal, Britain) to the issue. Just like the likes of George Washington — who set off the Seven Year War while wandering off the wilderness of the Ohio territory — hated European limits to their ambitions, future Latin American caudillos had a long history of chafing over the issue, and they all relied on “criollos” (descendants of European whites) to fight pro-Spanish armies largely led by peninsular officers and manned by mestizos or natives.

This a constant in countries from Mexico to Argentina. For the sake of space, I’ll just focus on South American republics since they were especially brutal in dealing with native confederations that often were both very weak and backward — a terrible combination when dealing with outsiders.

In 1824, a triumphant Simón Bolívar² decreed the breakup of Peru’s indigenous communal lands and those held by the church, often on behalf of indigenous communities, which were then auctioned so that criollos could buy them at prices one third below nominal value. Similar moves were implemented across the new republics, with the southernmost – where indigenous communities were smallest as a percentage of the population – acting most ruthlessly.

The same year of 1824, Argentina launched a veritable extermination drive against Patagonia’s native inhabitants – President Bernardino Rivadavia explicitly hired Prussian colonel Frederick Rauch in 1826 to “exterminate the Indians,” and the colonel, a true Teutonic professional, reported on the use of knives to kill Indians to save bullets and help with budgetary concerns – and create large estates across the cattle-friendly region.

Chile conducted similar, somewhat less brutal, campaigns in Araucania (roughly the southern half of the modern country) for much of the century, with Mapuche natives resisting encroachment, sometimes by citing treaties agreed with Spain in imperial times that protected their lands from occupation. Hundreds of thousands of Mapuches died in these wars or due to epidemics and deprivation, although enough of a Mapuche core survived to keep the ethnicity alive and distinct into the 21^st century. In fact, in the event it was only small Uruguay that succeeded in surpassing Argentina’s brutality.

The country had rebelled earlier against Spanish troops, as part of the wider revolt in the River Plate area, and gained independence from Argentina just in time to be invaded by Brazil in 1816, and lose much of its northern lands. Still, Uruguay contained significant indigenous so-called “Charrúa” populations in the remainder, a problem that the criollo elites fixed by murdering indigenous leaders and enslaving the indigenous rank and file.

Charrúa elders were convened by Uruguay’s government in a place hilariously called Salsipuedes (“Get-out-if-you-can”), where they were butchered. Estimates of the losses range widely, since the Charrúa population had been in decline for centuries despite (not always very effective) Spanish protection, but it’s possible that only a few dozen people were actually killed.

A strange coda for the massacre is that the word “Charrúa” eventually became, with government sponsorship, a shorthand for “Uruguayan” after the indigenous minority disappeared, mostly through intermarriage, death and emigration, in a country that by the mid-20^th century was overwhelmingly of European ancestry.

Let me repeat this point, because it’s very important: having exterminated actual existing Charrúas, Uruguayans then appropriated their name for themselves.

Expropriation laws were applied against Native Americans across the continent: Paraguay (Decreto 7 Octubre, 1848), Mexico (Ley Lerdo, 1856), Bolivia (Ley de Ex Vinculación, 1874), Guatemala (Decreto 170, 1877), El Salvador (Ley Extinción Tierras Comunales, 1882).

Domingo Sarmiento, Argentina’s second president, was perhaps the dominant intellectual figure of this criollo class much concerned about racial issues, enthusiastic about promoting European immigration – mostly from Italy, Germany, Eastern Europe and, regrettably for some, Spain – late in the 19^th century. A devoted Anglophile who considered selling off Patagonia to the British, he believed that Anglo-Saxons were a superior race to Spaniards, and wrote with great gaiety about the extermination of most Paraguayans – “led by degenerated descendants of Spaniards” – during the War of the Triple Alliance.

Everywhere, Spain’s protective arrangements for indigenous minorities were replaced by in-theory-equality, in which everyone was an equal citizen, so modernizing reforms implied the elimination of structures and what criollos conceived as privileges that had accommodated and protected the natives. Forced assimilation meant, for example, that there would be no more recognition of native languages.

In many senses, this lovely Sarmiento fellow was at the forefront of the new, “scientific” racism that appeared in Europe but prospered particularly in lands settled by Europeans in the second half of the century. “Facundo o civilización y barbarie,” a pseudo-biography of Argentine strongman Facundo Quiroga and Sarmiento’s most famous book, was published in 1845, and is a perfect manual for the Latin oligarch, a call to civilize Indians at gun-point. Read it. Jorge Luis Borges loved it.

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1. See ”Uninhabited Islands in the Bay of Bengal, Penang, Singapore and Botany Bay: What Did Terra Nullius Mean in British Colonial Thinking?” by Gareth Knapman, online here.

2. Bolívar, with a statue near the White House, was the psychopathic leader of the Latin American secessionist movement.