Historical Prelude I::

European Legacy to Federal Indian Policy

Despite the prevailing view in colonial Europe that indigenous sovereignty could be ignored, the noted legal scholars of the time stated that indigenous national sovereignty was to be acknowledged and respected. From the time of initial contact, Europeans recognised the national and autonomous character of Indian society. And notable legal theorists of the time, such as de Victoria, de Las Casas, and de Vattel, fully recognised the rights of indigenous peoples of the Americas to control their own territories, and recognised the moral and legal prohibitions against unlawful, non-consensual dispossession of peoples from their land - that is, by force or by coercion. If the latter means of obtaining land should happen, claimed de Las Casas, then "it shall be null and of no effect" (Papal Bull Sublimis Deus).

However, despite the noted opinions of such legal scholars, Europeans subverted two ancient doctrines to justify their occupation of the Americas: the doctrines of discovery and conquest.

The common assumption became one that 'discovery' of a country automatically conferred rights and sovereignty over the indigenous inhabitants. This view completely subverted the doctrine of discovery which held that the only rights a 'discovering' nation had over an indigenous one was the right to negotiate with them, and the right the keep other European nations from 'competing' for the same land. No title to land was to be handed over without an indigenous nation's informed and knowledgeable consent.

The doctrine of conquest held that non-consensual title to land could only be claimed by a colonising nation after the execution of a "just war", ensued only in necessity of self-defence, when an injury had been inflicted. The burden of proof lay with the invading states to prove that an injury had taken place; if no proof could be given, then an unjust war had taken place in the effort to conquer another nation, and such a war was unjustified.

Moreover, if land had been procured through the waging of a 'just war', then any lands not expressly ceded by treaty belonged to the indigenous nation with their full national character intact.