The Dakota Access Pipeline and the Doctrine of Native Genocide

The peaceful Native Water Protectors who have been resisting the construction of the Dakota Access Pipeline (DAPL) on sacred land belonging to the Standing Rock Sioux Tribe have succeeded in winning federal accommodations to temporarily halt DAPL construction, but the energy company behind DAPL has pledged to proceed (with state support). Knowing the enduring historic and structural nature of this modern struggle — a struggle in which the Water Protectors have courageously confronted violent local, state and private militarized forces, inspiring support from thousands of US military veterans — is vital to understanding its significance.

While the origins of the legal doctrine that facilitated conquest, genocide and the structure of settler colonialism in the US is well known to Native people throughout North America (and beyond), they are less known to current generations of white settlers.

The Doctrine of Discovery, Colonialism and White (Christian) Supremacy

The Crusades were launched in 1095 by Pope Urban II and his papal bull (an official papal decree), Terra Nullius. Terra Nullius, Latin for “land that belongs to no one” permitted European Christian kings and princes to “discover” and claim land occupied by non-Christians. During the Crusades in 1240, the canon lawyer Pope Innocent IV penned a legal commentary on the rights of non-Christians that questioned if it was lawful to invade a land that “infidels” possess. Innocent went on to respond that it was, because the Crusades were “just wars” and were being fought in “defense” of Christianity and to take back lands that rightfully belonged to Christians. Innocent asserted a Christian right to legally dispossess pagans of sovereignty and property.

In 1452, Pope Nicholas V issued the papal bull Dum Diversas, which gave King Alfonso of Portugal the God-given right to conquer and enslave sub-Saharan Africans. In the bull, Nicholas V mandated Alfonso to “invade, search out, capture, vanquish, and subdue all Saracens [Muslims] and pagans whatsoever … to reduce their persons to perpetual slavery, and to apply and appropriate to himself and his successors … and to convert them to his and their use and profit.” In 1455, Pope Nicholas V issued another bull, the Romanus Pontifex, to King Alfonso — and extended to all Catholic monarchies — the right of “discovery” and seizure of all lands that were not inhabited by Catholics. It also encouraged the enslavement of the non-Christian inhabitants of all stolen lands. Thus, when Christopher Columbus landed on Guanahani island in 1492, he performed a ceremony to “take possession” of the land in the name of the king and queen of Spain, as ordained by the church. Columbus was also following church doctrine when he wrote in his personal diary about his intentions for the Indigenous people he encountered by claiming, “I could conquer the whole of them with 50 men, and govern them as I pleased.”

A year later, in 1493, Pope Alexander VI issued the papal bull Inter Caetera, which gave Spain the Americas, while Africa and India were allotted to Portugal (and later, land that would become Brazil, as well), for the purposes of colonization and to convert and enslave the Indigenous inhabitants of the Americas. Inter Caetera also justified the enslavement of Africans. Inter Caetera established the Law of Nations (also known as the Law of Christendom), a papal and thus legal decree stating that “one Christian nation did not have the right to establish dominion over lands previously dominated by another Christian nation.”

All together these papal decrees (between 1095-1493), originating from the Crusades, served as a bedrock for the ideology of white supremacy as tied to the establishment of international law under the Doctrine of Discovery (or the Doctrine of Christian Discovery). This ideological doctrine was fundamental in the creation of sovereign rights in settler colonial nation-states and the legalization of European claims to own, occupy, colonize and exploit the continent of Africa and the entire Western Hemisphere, condemning Indigenous peoples to a subhuman status in domestic and international politics. The Doctrine of Discovery advanced the structural foundations (political/legal, cultural and economic) for the transatlantic slave trade and the genocidal policies and practices of colonization across the globe.

With the “discovery” of the Americas, the imperialist nations of England and France followed the new doctrine of discovery and quickly used it to claim rights and powers of first discovery in North America. In 1496, England’s King Henry VII issued a Royal Charter, which commissioned an expedition led by John Cabot — in the name of England — “to find, discover and investigate whatsoever islands, countries, regions or provinces of heathens and infidels, in whatsoever part of the world placed, which before this time were unknown to all Christians … to conquer, occupy and possess whatsoever such towns, castles, cities and islands by them.” Based on Cabot’s explorations, England laid claim to his “discoveries” from Newfoundland to Virginia. France contested England’s claims, and declared first discovery rights of ownership and sovereignty over North America. At the time, both countries were Catholic, making them cautious to violate papal bulls. It would not be until the end of the 16th century when France, England and the Netherlands were able to compete with Spain and Portugal for supremacy over the lands and bodies of Indigenous peoples on a global scale.

By the late 16th century, England freed itself from papal rule and attached the name and principles of the 1095 papal bull Terra Nullius to Queen Elizabeth I’s definition of discovery rights, which required the occupancy and actual possession by Europeans of non-Christian lands as crucial elements of a discovery claim.

Thereafter England proclaimed that only Christian nations could discover and claim territory in the Americas (and later Australia), conditioned on the establishment of permanent settlements that cultivated the land. According to the Encyclopedia of Public International Law, this version of the doctrine of Terra Nullius was to become the “eighteenth-century convention of European international law — it being held that any land which was unoccupied or unsettled could be acquired as a new territory by a sovereign State, and that the laws of that State would apply in the new territory.”

In his article, “The Doctrine of Discovery in American Indian Law,” professor Robert Miller documents how “the Doctrine of Discovery was the international law under which America was explored and … was the legal authority the English Crown used to colonize America and to obtain Indian lands.” After the American Revolution, the “Doctrine of Discovery” was embraced by the states and the courts as both common and natural law. Thus, the doctrine became the legal and ideological basis for settler colonialism in the United States, and became further entrenched as the centerpiece of land rights and Native law in the US by the time of the 1823 US Supreme Court decision, Johnson v. M’Intosh. This decision affirmed that the “Doctrine of Discovery” was indeed a well-established legal principle of English and American colonial law and had carried over to become the law of the land in US states and the federal government. According to journalist Julian Brave NoiseCat, “Justice John Marshall used the doctrine to support the majority opinion of the court, which found that Indians … could not own, the ancestral homelands where their people had lived, loved, worshipped, married, mourned and died for millennia.” The Johnson v. M’Intosh decision stands to this day. NoiseCat went on to report:

The doctrine has had a significant influence on Indian law and set a precedent that resonates even in modern decisions. Justice Ruth Bader Ginsburg — widely considered the most liberal justice on the Supreme Court — even cited cases based upon the doctrine as recently as 2005 to deny a land claim brought before the court by the Oneida Nation.

To this day, the doctrine continues to be a structural barrier to Indigenous rights to lands, resources and self-determination (liberation).

US Settler Colonialism: “Destroy to Replace”

The nationalistic narrative attached to the Doctrine of Discovery inspired the notion of Manifest Destiny and conjured up a social imaginary where intrepid white immigrant pioneers courageously settled a vast continent that was there for the taking. The counter-narrative to this tale is best described by settler colonialism, which frames this undertaking not as a set of distinct historical events, but as a persistent and ongoing cultural, political and economic structure. In their article, “Decolonizing Feminism: Challenging Connections between Settler Colonialism and Heteropatriarchy,” Maile Arvin, Eve Tuck and Angie Morrill explain:

Newcomers/colonizers/settlers come to a place, claim it as their own, and do whatever it takes to disappear the Indigenous peoples that are there. Within settler colonialism, it is exploitation of land that yields supreme value. In order for settlers to usurp the land and extract its value, Indigenous peoples must be destroyed, removed, and made into ghosts.

As a nation-state, the United States is defined by the genocide of Native people and the enslavement of Black people and would not exist without the brutal structure of settler colonialism (and chattel slavery). In fact, genocide is not an aberration of US democracy, but is instead foundational to it.

The colonization of North America by Christian whites — especially after the formation of the US — differed significantly from “franchise colonialism” (or extraction-oriented colonialism) that was practiced in other parts of the world, such as in India under British rule.

As professor Lorenzo Veracini describes it in Settler Colonial Studies journal, franchise colonialism differs from settler colonialism in that its “message to Native populations is ‘You, work for me,'” while “the settler-colonial message is ‘You, go away.'” Settler colonialism, as Wolfe puts it in the Journal of Genocide Research, “destroys to replace” by erecting “a new colonial society on the expropriated land base … settler colonizers come to stay [and] invasion is a structure not an event … to get in the way of settler colonization, all the native has to do is stay at home.” While in some instances, white settlers in US settlements enslaved Indigenous peoples for their labor, the primary goal of the US settler state was to eliminate Native people altogether.

Soon after the American Revolution, Congress passed the Naturalization Act of 1790, which claimed, “any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen.” As a result, scholar Malathi Michelle Iyengar points out, “even the lowest-status whites (Jews, Irish peasants, indentured servants) were legally white — i.e. Human — by virtue of not being Black (i.e. Slave) or Indian (i.e. Savage-to-be-vanquished).” This dehumanizing racial paradigm allowed Congress to establish that only “free white” people are eligible to be citizens in the growing settler nation and deserving of the “unalienable Rights” of “Life, Liberty and the pursuit of Happiness.”

Despite nationalist ideologies, the social structure of settler colonialism cannot be reduced to distant and unfortunate “birth pangs” of a young nation as it strived to live up to its enlightened values and institutions. The violence of settler colonialism is reasserted each and every day of the occupation for as long as it lasts. Its violence is inherently entwined in other persisting forms of brutality.

In addition to frontier homicide, other genocidal strategies of elimination and social control characterized by the US settler colonial nation-state include systematic and state-facilitated assimilation techniques via boarding schools, child abduction, Christian conversion, forced sterilization and the breaking down of Native title into alienable individual freeholds (see Dawes Act of 1887). Elimination strategies continue to this day through criminalization, impoverishment and perpetual treaty violations as suicide rates among Native youth skyrocket. Additional strategies include blood quantum laws (Indian blood laws) designed to decrease recognition of Indigenous land claims over generations, as well as laws that enable white settlers to make claims of indigeneity (claim membership in an Indigenous group).

Native poet and novelist Sherman Alexie claimed, “In the Great American Indian novel, when it is finally written, all of the white people will be Indians and all of the Indians will be ghosts.” The racial construction of Native people continues to be embedded within the ideology of eugenics, whereby the destiny of their Indigenous identity will be diluted and disappear over generations and white settlers can more legitimately claim native status. Arvin, Tuck and Morrill emphasize that “settler colonialism must be understood as a multi-fronted project of making the First Peoples of a place extinct; it is a relentless structure, not contained in a period of time.”

Only through continued resistance have Native people survived the ongoing genocidal project of the Doctrine of Discovery and US settler colonialism. Recognizing this reality reveals what is at stake for the Water Protectors who will continue to resist big oil at Standing Rock, for it is a struggle for Indigenous survival and for the preservation of Earth itself.