Discuss this week's readings. Make sure you discuss a point on each reading. Discuss what you learned and give some insi

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Discuss this week's readings. Make sure you discuss a
point on each reading. Discuss what you learned and give some
insight on your perspective.
The International Law of Discovery, Indigenous Peoples, and
Chile by Robert J. Miller,* Lisa LeSage, and Sebastiln L6pez
Escarcena'
. INTRODUCTION The Doctrine of Discovery ("Discovery" or "the
Doctrine") is an international law principle under which European
countries, colonists, and settlers made legal claims against the
lands, assets, and human rights of indigenous peoples all over the
world in the fifteenth through twentieth centuries.' In essence,
the Doctrine provided that newlyarrived Europeans automatically
acquired property rights in land and sovereign, political, and
commercial powers over indigenous peoples without their knowledge
or consent. When Europeans planted their flags and religious
symbols in "newly discovered" lands, they were using the
well-recognized legal procedures and rituals of the Doctrine of
Discovery to demonstrate their country's legal claim to indigenous
lands and peoples. This doctrine was created and justified by
feudal, religious, racial, and ethnocentric ideas, all premised on
the belief of European and Christian superiority over other
cultures, religions, and races of the world. The Spanish and
Chilean governments-in their colonial dealings with the indigenous
inhabitants of the areas comprising present-day Chile-also used
elements of the Doctrine. The modern-day government of Chile
continues to enforce various aspects of this legal principle
against indigenous peoples today. However, Chile is not the only
country to still utilize this legal doctrine. Discovery remains a
part of international law and is still applied by the United
States, New Zealand, Canada, Australia, and other nations. For
example, China, in 2010, and Russia, in 2007, invoked the Doctrine
when they planted their flags on the floors of the South China Sea
and the Arctic Ocean to claim sovereignty over these areas and the
assets under the sea beds.6 Canada and Denmark have each planted
flags on an island off the west coast of Greenland, claiming
authority over the island. Discovery is, allegedly, a part of
contemporary international law, and it creates an inchoate title to
a territory that must be perfected by its effective occupation.The
Doctrine has been featured prominently in the international news
since at least 2008, as various activists and religious
denominations are challenging the validity of Discovery. They are
bringing the debate to the forefront, and to the Ufiited Nations,
and they are working to repeal the Doctrine. Already, one of
the Doctrine's elements has been drastically limited since 1975.
Specifically, the territories inhabited by indigenous peoples who
possess a measure of social and political organization cannot be
considered terra nullius-void or empty-even if the people who lived
there were nomadic. This Article represents our initial examination
of Chilean law and history for evidence of the use of Discovery in
the colonization of the lands now called Chile. We are certain that
we have so far found only a tiny portion of all the evidence that
details the application of the Doctrine in Chile from Spanish times
to the present day. Our analysis also takes into account the
principle of intertemporal law-that territorial titles must be
judged from the perspective of the international. NEBRASKA LAW
REVIEW law in force at the time they were asserted." We hope that
our effort will add to the work that has already been completed,
and to that which is currently under way, to erase the Doctrine
from international and national laws and to help reverse some of
its pernicious effects on indigenous peoples.
In Part II, we describe what the Doctrine of Discovery is, how
it was developed in Europe, and how it was applied by Spain in the
New World. Part III examines Chilean history and law to investigate
whether Spanish and Chilean governments applied the Doctrine to the
indigenous peoples that inhabited that region. We conclude in Part
IV that Chile, just as all colonizing settler countries, must first
recognize their use of the feudal, ethnocentric, racial, and
religiously inspired international law of Discovery against
indigenous peoples. Any attempt to redress past wrongs, and to
create a more positive and equal future for all Chileans, must
begin with recognition of this truth. From there, serious efforts
should be made to eradicate the vestiges of Discovery from Chilean
law and culture. II. THE DOCTRINE OF DISCOVERY In 1823, the United
States Supreme Court held in Johnson v. M'Intoshl that the
Doctrine of Discovery was an established legal principle of English
and American colonial law and had also become the law of the United
States. In this influential case, the Court defined Discovery
to mean that when European nations first discovered new lands, the
discovering country automatically gained sovereign and property
rights in the lands, even though indigenous peoples were already
occupying and using them. The property right thus acquired was
defined as being a future right, as a type of limited fee simple
right-an exclusive title held by the discovering
European country that was subject, however, to the
indigenous peoples' use and occupancy rights. In addition, the
discovering country also gained a limited form of sovereign power
over the native peoples and their governments, which restricted the
indigenous peoples' international political, commercial, and
diplomatic rights. Because this transfer of rights
automatically occurred upon first discovery, it was accomplished
without the knowledge or the consent of the native peoples. In
Johnson, the U.S. Supreme Court made the meaning of the Doctrine
crystal clear: "[Dliscovery gave title to the government by whose
subjects, or by whose authority, it was made, against all other
European governments, which title might be consummated by
possession." Hence, a discovering European country gained
exclusive property rights that were supposed to be respected by
other European countries. Accordingly, the European discoverer
gained real property rights to indigenous lands merely by walking
ashore and planting a flag in the soil. Indigenous rights, however,
"were, in no instance, entirely disregarded; but were necessarily,
to a considerable extent, impaired."' This happened because
while the Doctrine recognized that natives still held some
sovereign powers and a legal right to possess their lands and to
occupy and use them for as long as they wished, their rights to
sell their lands to whomever they wished and for whatever price
they could negotiate was destroyed: "[T]heir rights to complete
sovereignty, as independent nations, were necessarily diminished,
and their power to dispose of the soil at their own will, to
whomsoever they pleased, was denied by the original fundamental
principle, that discovery gave exclusive title to those who made
it." As defined then by Europeans and the Doctrine, the
discovering European nation gained a right of "preemption;" that
is, it gained the right to preclude other nations from buying the
indigenous lands "found" by the first European discoverer. The
first discoverer could even grant future interests in the lands of
native peoples to others while the lands were still in the
possession and use of the indigenous peoples. Obviously, Discovery
diminished the economic value of native lands and greatly benefited
the discovering countries and settlers. Consequently, indigenous
real property rights and values were adversely affected immediately
and automatically upon the discovery of their lands by outsiders.
Moreover, native sovereign powers were greatly affected by the
Doctrine, because their national sovereignty and independence were
limited by Discovery: native nations' diplomatic, commercial, and
political dealings were supposed to be restricted solely to their
discovering European country. The political and economic aspects of
this international law were developed to serve the interests of
Europeans. The Doctrine was motivated by greed and the economic and
political interests of European countries who agreed, to some
extent, to share the spoils to be gained in non-European lands.
While Europeans often disagreed over the exact definitions of the
Doctrine, and sometimes even fought over discoveries, one thing
they did not disagree about was that indigenous peoples lost
significant property and governmental rights immediately upon
European discovery. As one American professor has phrased it: "The
Doctrine of Discovery was nothing more than the reflection of a set
of Eurocentric racist beliefs elevated to the status of a universal
principle-one culture's argument to support its conquest and
colonization of a newly discovered, alien world." Adding to the
above discussion describing the basic parameters of Discovery, we
see the Doctrine as being comprised of ten distinct elements. We
set forth these integral elements here so the reader can more
clearly follow their development as parts of the Doctrine and can
observe their application in European and Chilean law and
history. First discovery. The first European country to
discover lands unknown to other Europeans gained property and
sovereign rights over the lands and native peoples. First discovery
alone, however, without permanent physical possession, was most
often Actual occupancy and current possession. To turn a first
discovery into a complete title, a European country had to actually
occupy and possess the newly found lands. This was usually done by
building forts or settlements. This physical possession had to be
accomplished within a reasonable amount of time after the first
discovery to create a complete title. Preemption/European
title. Discovering European countries gained the power of
preemption, that is, the sole right to buy the land from the
indigenous peoples. This is a valuable property right similar to an
exclusive option to purchase land. The government that owned the
preemption right could prevent or preempt any other European
government or individual from buying the land from the native
owners. Native title. After a first discovery, indigenous
peoples and nations were considered by European legal systems to
have lost their full property rights and the full ownership of
their lands. They only retained the rights to occupy and use their
lands. Nevertheless, these rights could last forever if they never
consented to sell to the European country that held the preemption
power. If they did choose to sell, they could only sell to the
government that held the preemption right. Limited sovereign and
commercial rights. After first discovery, indigenous nations and
peoples were also considered to have lost some aspects of their
inherent sovereign powers and their rights to international trade
and diplomatic relations. Thereafter, they were only supposed to
deal with the European government that had first discovered them.
Contiguity. This element provided that Europeans had a claim to a
significant amount of land contiguous to and surrounding their
actual discoveries and settlements in the New World. Contiguity
became very important when different European countries had
settlements somewhat close together. In that situation, each
country was deemed to hold rights over the unoccupied lands between
their settlements to a point half way between the settlements.
Moreover, contiguity held that the discovery of the mouth of a
river gave the discovering country a claim over all the lands
drained by that river, even if that was thousands of miles of
territory. Terra nullius. This phrase literally means a land
or earth that is void or empty. This element stated that if lands
were not possessed or occupied by any person or nation, or even if
they were occupied but were not being used in a fashion that
European legal systems approved, then the lands were considered to
be "empty" and available for Discovery claims. Europeans liberally
applied this element and often considered lands that were actually
owned, occupied, and being used by indigenous peoples to be vacant
and available for Discovery claims if they were not being used
according to European laws and cultural mores. Christianity.
Religion was a significant aspect of the Doctrine of Discovery.
Under Discovery, non-Christian peoples were not deemed to have the
same rights to land, sovereignty, and self-determination as
Christians. Civilization. The European ideals of civilization were
important parts of Discovery and of creating ideas of superiority
over indigenous peoples. Europeans thought that God had directed
them to bring civilized ways, education, and religion to natives,
and to exercise paternalistic and guardian-type powers over them.
Conquest. This element means that Europeans could acquire native
titles by military victories in just wars. However, conquest was
also used as a term of art under Discovery to describe the property
rights Europeans claimed to have gained automatically over
indigenous nations just by showing up and making a first discovery.
A. European and Church Formulation of the Doctrine The Doctrine of
Discovery is one of the earliest examples of classical
international law-that is, the accepted legal norms and principles
that control conduct between different states. The Doctrine was
developed to regulate European countries' actions and conflicts
over exploration, trade, and colonization of non-European countries
and was used to justify the domination of non-Christian,
non-European peoples.The Doctrine was developed in Europe over
several centuries primarily by the Catholic Church, Spain,
Portugal, England, and the other colonial powers. There were
two bases for the Doctrine: (1) the alleged authority of the
Christian God and (2) the ethnocentric idea that Europeans had the
power and the justification to claim the lands. and rights of
indigenous peoples around the world and to exercise dominion over
them. Scholars have traced the expansion of European rule and
culture, and especially the Doctrine, to early medieval times, and
in particular to the Crusades to recover the Holy Lands during the
years 1096-1271. In addition to other justifications for the
Crusades, the Church and various popes established the idea of a
universal papal jurisdiction, which "vested a legal responsibility
in the Pope to realize the vision of the universal Christian
commonwealth. "This papal responsibility, along with the idea of a
"just war," offered support for Christian-led "holy wars" against
infidels and was especially apparent in the Crusades. In 1240,
Pope Innocent IV, a canon lawyer, wrote a legal commentary on the
rights of non-Christian peoples. His work influenced both the
development of the Discovery Doctrine and the writings of Francisco
de Vitoria and Hugo Grotius, famous sixteenth and seventeenth
century legal theorists. In his commentary on a papal decree from
1209, Pope Innocent IV asked whether it was "licit to invade a land
that infidels possess or which belongs to them?" Innocent
ultimately answered "yes," because such invasions were "just" wars,
fought for the "defense" of Christians and for the re-conquest of
Christian lands. In answering this question, Innocent focused on
the authority of Christians to legitimately dispossess pagans of
their dominium-their sovereignty, lordship, and property
rights. He conceded that pagans had some natural law rights
and that Christians had to recognize the right of infidels to own
property and govern themselves.