"The Discovery Doctrine, Aboriginal Title, Tribal Sovereignty, and Their

Significance to Treaty-Making in the United States"

One of the more misunderstood concepts of Anglo-American law is the discovery

doctrine.  That is unfortunate, since the discovery doctrine is the bedrock principle by which Europeans rationalized their presence in North America.  Its misinterpretation led to unwarranted assumptions about the relationship between the federal government and the indigenous Indians tribes in the late 19th century and to misinterpretations abroad, including in Australia.

This paper explains the discovery doctrine and its significance in terms of aboriginal title and native sovereignty.  Although in hindsight the doctrine looks to be the perfect instrument of European colonialism, its interpretation by Chief Justice John Marshall in the early 19th century left Native Americans with substantial property and governance rights.  The judicial articulation of these rights, which did not depend on government recognition, required the U.S. government to engage in a  long period of treaty making to replace aboriginal rights with treaty-derived rights. These treaties in turn recognized significant tribal rights to land, natural resources, and governance, and the paper mentions several recent court decisions demonstrating the continued viability of treaty rights.  Finally, the paper considers recent decisions of the U.S. Congress to grant environmental regulatory authority to Indian tribes and contrasts these authorities to those retained under treaties.