By giving force to the Doctrine of Discovery in Canada, we misrepresent our own history

Douglas Sanderson (Amo Binashii) is the Prichard Wilson Chair in Law and Public Policy at the University of Toronto’s Faculty of Law. He is Beaver Clan, from the Opaskwayak Cree Nation, and the author of the forthcoming book, Valley of the Birdtail: An Indian Reserve, a White Town, and the Road to Reconciliation, co-authored with Andrew Sniderman.

During Pope Francis’s visit to Canada, there were calls for him to renounce the Doctrine of Discovery. Indeed, at his mass near Quebec City, activists unfurled a banner calling for him to “rescind the doctrine.”

The problem is that this discourse only breathes life into a legal doctrine that has actually had little influence on relationships with Indigenous people in this specific part of the world.

It is true that in 1493, Pope Alexander VI issued a papal bull declaring that the globe was divided in two parts, one being given to the Spanish, the other to the Portuguese. The bull established the Doctrine of Discovery, announcing that any lands discovered that were not held by a “Christian king or prince” should be claimed, the Indigenous owners overthrown and enslaved, and Christianity forced upon the population. And in much of South America, that is what the Portuguese and Spanish did.

But things played out differently in this part of the world – Turtle Island – and in Indigenous peoples’ encounters with the British and the French.

While it is true that Jacques Cartier planted a cross and claimed land for the King of France, this had no legal effect, and only led to increased animosity with the local Indigenous population. In truth, settlers and colonists largely purchased land here from the local populations. Some land was purchased via treaty, and some by cash sale. The British instituted comprehensive policies about how to buy land: There had to be witnesses to the transaction, sometimes a wampum belt would need to be given, and it all had to be done publicly.

Over the centuries, philosophers such as John Locke and Emer de Vattel would devise positions to undermine Indigenous claims to their land. But none of these were rooted in the concept of “discovery.”

The Doctrine of Discovery, as an idea in law, first appears in the U.S. Supreme Court’s 19th-century decision of Johnson v. M’Intosh. In it, chief justice John Marshall held that “discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments. … The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives.”

But there was actually no agreement between the European nations: There was no treaty, no law and no commonly held Doctrine of Discovery. Marshall was inventing the doctrine as he wrote the words in 1823. Indeed, the idea that empty lands can be claimed by the first discoverer – a concept known as terra or res nullius – does not appear in common-law textbooks until around this same time.

And the true shame of holding tight to the papal Doctrine of Discovery is that it belies a historical past in which Indigenous nations here were in fact largely treated as co-equals of the French and British. Our Indigenous ancestors entered into treaty with European nations, and the British sought to reignite these alliances as recently as the War of 1812. We were each other’s military allies, and we adopted each other into one another’s families to cement military and trade relations, especially in times of war. Europeans learned our ways, including our diplomatic protocols; many learned our languages, and they were our friends, our partners and our adopted brothers (there were not a lot of sisters around on the British and French side).

That history is lost in the alltoo-sweeping explanation that is the Doctrine of Discovery. Today in Canada, many think that the doctrine enabled our Indigenous lands to be stolen, but that didn’t really happen until after Confederation, when the treaty regime became about rigid contracts written on paper.

The British did dispossess Indigenous people through the arrival of tens of thousands of British Loyalists in the 1780s, and again in land surrenders to the U.S. after the American Revolution, even though the lands had been reserved for Indigenous peoples in 1763. But for the most part, the British and French played by fair rules and no one thought they could take land just because it had been “discovered.”

By giving force to the Doctrine of Discovery in Canada, we misrepresent our history, and make it seem that our Indigenous ancestors got rolled by powerful settlers imbued with papal powers. The story we should want to hear is the truth: It was a long and complicated relationship, but it only came truly undone once the British went home, and the young dominion government of Canada turned its back on centuries-old allies and partners.

Sometimes I am asked: What happened? Why did things turn from partnership to oppression? In the early 19th century some American judge effectively invented the Doctrine of Discovery, and after that, no one cared about the past. That doctrine neatly explained Indigenous dispossession in a sentence or two, but it’s not really what happened – even though it became the story that we all learned in school, while the story of relationships based in diplomacy and alliance slipped almost from memory.