The International Law of Discovery, Indigenous Peoples, and Chile

• Publication year: 2021
• Citation: Vol. 89

89 Nebraska L. Rev.819. The International Law of Discovery, Indigenous Peoples, and Chile

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Robert J. Miller,(fn*) Lisa LeSage, (fn §) and Sebastian Lopez Escarcena(fn+)

The International Law of Discovery, Indigenous Peoples, and Chile

TABLE OF CONTENTS

I. Introduction..........................................820

II. The Doctrine of Discovery.......................................822
A. European and Church Formulation of the Doctrine .............................826
B. Spanish and Portuguese Development of the Doctrine .......................................... 830
1. Spain takes Discovery to the New World....... 835
2. The Philosophical Debates in the Spanish Empire ........................................ 838
C. Other European Countries and Discovery................................ 846
III. The Doctrine of Discovery in Chilean Law and History.................................. 850
A. First Discovery .................................... 850
B. Actual Occupancy and Current Possession ......... 853
C. Preemption/European Title........................ 857
D. Native Title ....................................... 861
E. Native Limited Sovereign and Commercial Rights . . 863
F. Contiguity ........................................ 867
G. Terra Nullius..................................... 869
H. Christianity .......................................871
I. Civilization .......................................873
J. Conquest..........................................876
K. Rapa Nui (Easter Island)..........................878

820

1. The Pre-Chilean Era........................... 878
2. Chile's Annexation of Rapa Nui................ 880

IV. Conclusion............................................ 883

I. 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.(fn1) In essence, the Doctrine provided that newly-arrived Europeans automatically acquired property rights in land and sovereign, political, and commercial powers over indigenous peoples without their knowledge or consent.(fn2) 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.(fn3) 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.(fn4)

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 Zea-

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land, Canada, Australia, and other nations.(fn5) 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.(fn6) Canada and Denmark have each planted flags on an island off the west coast of Greenland, claiming authority over the island.(fn7) 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.(fn8) 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 United Nations, and they are working to repeal the Doctrine.(fn9) 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.(fn10)

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

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law in force at the time they were asserted.(fn11) 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'Intosh(fn12) 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.(fn13) 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.(fn14) 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

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country that was subject, however, to the indigenous peoples' use and occupancy rights.(fn15) 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.(fn16) Because this transfer of rights automatically occurred upon first discovery, it was accomplished without the knowledge or the consent of the native peoples.(fn17)

In Johnson, the U.S. Supreme Court made the meaning of the Doctrine crystal clear: "[D]iscovery 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 posses-sion."(fn18) 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, im-paired."(fn19) 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."(fn20) 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.(fn21) Obviously, Discovery diminished the economic value of native lands and greatly benefited the discover-

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ing countries and settlers.(fn22) 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'...