Since our country exists, we don’t ask ourselves how or why. The legal foundation of the federal claim to dominion over territory is something called the Doctrine of Discovery, a notion that goes back five centuries. As European explorers sought new maritime passages and found new lands, popes granted European powers the authority to “invade, search out, capture, vanquish and subdue” the people they found.
Indigenous peoples had no rights to land or to legal recognition of any kind. Only immigrants did
Portugal, Spain, France and England claimed territory by planting a flag, a symbolic action known as “discovery”. It made no difference whether the land in question was inhabited or not, since only Christians had conferred upon themselves the right to “discover” in this sense. By the logic of the papal bulls, and that of later charters to English explorers made by the English king or queen, indigenous peoples had no rights to land or to legal recognition of any kind. Only immigrants did.
The young American republic preserved this European doctrine. The US supreme court formalized the Doctrine of Discovery in three famous cases of 1823, 1831 and 1832. Chief Justice John Marshall took for granted the obvious fact that America was the homeland of the Native Americans, “the rightful occupants of the soil”. By the logic of “discovery”, Native Americans had no rights because America was their homeland: “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.”