This week marks the 200th anniversary of the US Supreme Court’s 1823 decision Johnson v. M’Intosh. In the decision, Chief Justice Marshall relied on the racist doctrine of discovery as the basis for European nations’ asserted sovereignty over Indigenous Peoples’ lands upon ‘discovering’ them.
The doctrine was imported into Canadian law through the St. Catherine’s Milling decision and the Supreme Court of Canada continues to rely on it as the basis for the Crown’s asserted sovereignty over Indigenous Peoples’ lands across the country.
Indigenous Peoples around the world continue to call on governments and courts to repudiate the doctrine.
We thought it would be useful to provide a list of resources for anyone wanting to learn more about the doctrine of discovery and support Indigenous Peoples’ calls to reject it.
It is not a comprehensive list. We would welcome any feedback or recommendations.
Robert J. Miller, “The Ten Legal Dimensions of the Doctrine of Discovery: The International Law of Colonialism” (26 September 2022), online (blog): Doctrine of Discovery <https://doctrineofdiscovery.org/the-doctrine-of-discovery-the-international-law-of-colonialism/>.
North American Indigenous Peoples Caucus, “North American Indigenous Peoples Caucus Statement” (8 May 2012), online (blog): UNPFIP Network <http://unpfip.blogspot.com/2012/05/north-american-caucus-statement-on.html>.
John Borrows, “The Durability of Terra Nullius: Tsilhqot’in Nation v British Columbia” (2015) 48:3 UBC L Rev 701
Kent McNeil, “The Doctrine of Discovery Reconsidered: Reflecting on Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies, by Robert J Miller, Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg, and Reconciling Sovereignties: Aboriginal Nations and Canada, by Felix Hoehn” (2016) 53:2 Osgoode Hall Law Journal 699.
Robert J. Miller, “The International Law of Colonialism: A Comparative Analysis” in Symposium: The Future of International Law in Indigenous Affairs: The Doctrine of Discovery, the United Nations, and the Organization of American States (Symposium: Lewis & Clark Law Review, 2011) 847.
Peter P. D’Errico, Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples (Westport: Praeger, 2022).
Kent McNeil, Flawed Precedent: The St. Catherine’s Case and Aboriginal Title (Vancouver: UBC Press, 2019).
Robert J. Miller, Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg, Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (Oxford: Oxford University Press, 2010).
Lindsay G. Robertson, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of their Lands (Oxford: Oxford University Press, 2007)
Bruce McIvor, lawyer and historian, is partner at First Peoples Law LLP. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada. Bruce's ancestors took Métis scrip at Red River in Manitoba. He holds a law degree, a Ph.D. in Aboriginal and environmental history, is a Fulbright Scholar and author of Standoff: Why Reconciliation Fails Indigenous People and How to Fix It. He is a member of the Manitoba Métis Federation.
First Peoples Law LLP is a law firm dedicated to defending and advancing the rights of Indigenous Peoples. We work exclusively with Indigenous Peoples to defend their inherent and constitutionally protected title, rights and Treaty rights, uphold their Indigenous laws and governance and ensure economic prosperity for their current and future generations.
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