Challenging The Legacy Of The Doctrine Of Discovery

In the fight for land sovereignty, Native nations have struggled against extractive projects since the founding of the United States. Today, tribes in Nevada have banded together to fight lithium mining in the McDermitt Caldera, that spans the Nevada-Oregon border. However, a federal mining law blocks tribes from legally consenting to or blocking extractive projects on their lands, which they do not actually own and are legally classified as public land held in trust by the US Bureau of Land Management (BLM). 

BLM states that the Mining Law of 1872 declares “all valuable mineral deposits in land belonging to the United States to be free and open to exploration and purchase.” US citizens are free to explore, discover, and purchase mineral deposits on federal lands. 

How did Indigenous people go from being the original inhabitants and stewards of the land to not even having ownership of their territories in 2023? Here’s how colonial governments have consistently written laws to their advantage that have kept Natives from true self-determination. 

The 1493 Doctrine Of Discovery 

In 1493, after Christopher Columbus reported his first voyage to the Caribbean to the Spanish King, Pope Alexander VI issued the Papal Bull “Inter Caetera”, also known as the Doctrine of Discovery. The doctrine ensured Spain’s exclusive right to the islands where Columbus traveled. The Bull also stated any land that was not inhabited by Christians was open to be discovered, claimed, and exploited by Christian rulers. 

The Doctrine states, “the Catholic faith and the Christian religion be exalted and be everywhere increased and spread, that the health of souls be cared for and that barbarous nations be overthrown and brought to the faith itself." 

As Britain, France, Spain, and the Netherlands began colonies in the modern United States, they all referenced the Doctrine of Discovery as the legitimacy to their land grabs. However, each colony operated differently with Native groups; some bought and sold land between citizens and Native individuals, but once the United States became an independent nation in 1776, land disputes questioned the validity of treaties and transactions made under former rulers.  

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1823 Supreme Court Case: Johnson v. McIntosh

In 1773 and 1775 Supreme Court Justice Thomas Johnson purchased land from Piankeshaw Natives when the US was still under British rule. His descendants then inherited this land and leased it out to other individuals. However, the federal government had given a man named William McIntosh a patent to the same alleged land. The 1823 case determined who actually owned the property. 

Supreme Court Justice John Marshall claimed the patterns of discovery during European colonization meant those nations gained sovereignty and title over their new lands according to the Doctrine of Discovery. When Britain acquired the colonies, the rights belonged to them, and the federal US government inherited the rights after the American Revolution.

Thus, Marshall concluded that Native Americans could not sell their land to anyone except the federal government. Any land titles to private individuals made by Native tribes or nations would not be recognized in US Court; the tract of land went to McIntosh. The federal government has full jurisdiction of Native territory; on their historically conquered lands, Natives only have a right of occupancy, which can be abolished at any time. 

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The 1872 Mining Law

When individual miners seized the opportunity to cash out in the California Gold Rush of the late 1840’s, they operated under Mexico’s law, which adhered to the Doctrine of Discovery to give explorers the rights to mine gold and silver on public lands. But once California became a US state in 1850, the federal government and Western miners disputed land mining rights under the context of ‘Manifest Destiny’. In 1864, the federal government passed a law deferring land rights to the miners.

In 1866 and 1870s, new acts expanded rights to hardrock and placer mining. The 1872 Mining Law combined these laws, expanded the minerals to “valuable deposits,” and granted individuals to “lode claims of 1500 feet long and 600 feet wide.” It set the price of the land claim to range $2.50 to $5.00 per acre, which has remained the same since 1872.

Several amendments in the 19th and 20th centuries have expanded rights to private enterprises, and deepened the scope to sand, gravel, oil, gas, coal, and geothermal development. Mining watchdog group Earthworks estimates that mining companies have made more than $300 billion since 1872. American taxpayers receive no money from these projects, and Native nations are legally blocked from having any say in approving or blocking operations.

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The Modern Struggle Against Mining

Today, Indigenous people are unable to claim true land sovereignty when the 1872 Mining Law keeps the legacy of the Doctrine of Discovery alive. The Reno-Sparks Indian Colony is moving to take down the 1872 Mining Law through the formation of a Native-led coalition and civilian acts of civil disobedience.

“The 1872 mining law has to be changed by Congress. People have to go to Washington DC and rub up to politicians to change this law,” RSIC lawyer William Faulk said. “If we are going to change 1872 mining law, it will take serious confrontational movements to do so, like massive acts of civil disobedience. We're going to have to make it impossible for Congress to keep the law.”

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Take Action

• The first step to granting Native Nations true sovereignty of their land is to revoke this law and its following Acts. Educate others on the history of the 1872 Mining Law and write your representatives to urge them to repeal it. 
• Learn more by visiting Protect Thacker Pass or the People of Red Mountain, who are fighting to stop and prevent mining projects in the McDermitt Caldera.