Last month, Chief Justice Marshall's opinion in Johnson v. McIntosh turned 200 years old. Most 1Ls read this case in property. In this canonical decision, Marshall explained that European explorers "acquired" land in the Americas pursuant to the discovery doctrine. Of course, indigenous people already resided on this territory, but those "fierce savages," as Marshall called them, did not have any property rights. Thus, European explorers could "discover" these new lands, as if they were uninhabited.
Here is how Marshall described the discovery doctrine:
Discovery is the foundation of title, in European nations, and this overlooks all proprietary rights in the natives… All the proprietary rights of civilized nations on this continent are founded on this principle. The right derived from discovery and conquest, can rest on no other basis; and all existing titles depend on the fundamental title of the crown by discovery….
On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery 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 possession. The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented.
