In Johnson v. McIntosh, John Marshall proclaimed that European discovery of America “gave exclusive title to those who made it . . . .” 21 U.S. 543, 574 (1823). Marshall presented a revised version of the discovery doctrine in Worcester v. Georgia, 31 U.S. 515 (1832), yet it is Johnson that remains the leading decision on native property rights in the United States. The Johnson discovery rule has not only diminished native rights in the United States, but has also influenced the definition of indigenous land rights in Australia, Canada, and New Zealand.
This Article sheds light on how the American doctrine of discovery has influenced the rights of the Australian Aborigines, the Mâori of New Zealand, and the First Nations of Canada. The Article also discusses the significance of the United Nation’s Declaration on the Rights of Indigenous Peoples, which affirms indigenous peoples’ rights to land and resources. Although Australia, Canada, New Zealand, and the United States voted against the 2007 Declaration, each country has reconsidered its position.
Blake A. Watson, The Impact of the American Doctrine of Discovery on Native Land Rights in Australia, Canada, and New Zealand, 34 SEATTLE U. L. REV. 507 (2011).