From Popes and Pirates to Politicians and Pioneers: Papal Bulls, Political Bull, Legal Fictions & other Con Games By Richard Sanders n 1496, John Cabot (Giovanni Caboto) received a license from IHenry VII to “conquer, occupy and possess.” This piracy contract came with an important religious ca- veat. The king only gave Cabot “full and free authority, faculty and power to … find, discover and investigate whatsoever islands, countries, regions or provinces of heathens and infidels,…which before this time were unknown to all Christians.”1 (Emphasis added.) Three years earlier, Pope Al- exander VI issued a bull,* Inter Ca- etera, that gave Spanish and Portu- guese kings “full and free power, au- thority, and jurisdiction of every kind” over all lands “discovered” by their envoys, as long as no Christian collage: richard sanders king had claimed them before Christ- Papal Bull Inter Caetera mas of 1492.2 Floating on a sea of papal bull and blown by the winds of imperial hubris, Cloaking war and worldly Canada’s founding, corporate pirates were armed to the teeth with greed with a zeal for religious con- the vainglorious social narcissism of both church and state. version and the training of Indians in “good morals,” the pope’s 1493 edict de- ..., and the kingdoms, dukedoms, prin- of the Church and of their Highnesses; clared that God’s greatest pleasure was for cipalities, dominions, possessions, and we shall take you, and your wives, and Catholicism to be “increased and spread, all movable and immovable goods ... children, and shall make slaves of them, and to reduce their persons to perpetual … and we shall take away your goods, that the health of souls be cared for and slavery, and ... appropriate to himself … and … the deaths and losses which that barbarous nations be overthrown.” and his successors the kingdoms, duke- shall accrue from this are your fault, Recognizing that in the “countries already doms, … possessions, and goods, and and not that of their highnesses, or ours, discovered are found gold, spices, and to convert them to his… use and profit.4 nor of these cavaliers [horse-mounted very many other precious things,” the pope (Emphasis added.) soldiers] who come with us.6 gave the “kings of Castile and Leon,” and In 1455, his whole passage was repeated, While agents of the English and their “heirs and successors, … forever … almost verbatim, in yet another papal bull French crowns who were contracted to all rights” to “all islands and mainlands called Romanus Pontifex.5 seize control of “Canada” were not re- … discovered and to be discovered.” In- After 1513, when Spanish conquis- quired to read out such ridiculous procla- ter Caetera also awarded a trade monop- tadores “discovered” Indigenous people, mations of their genocidal intentions, they oly to the conquerors by saying the Church they were legally bound to read out an of- did share the crazed fanaticism of their “strictly forbid[s] all persons … to dare ficial proclamation, in Spanish, called “El Spanish and Portuguese counterparts. All … to go for the purpose of trade or any Requerimiento.” It began with a lesson in these Catholic kings believed they had the other reason to the islands or mainlands history: God “created the heaven and the moral, religious and legal authority to arm … discovered.” The pope concluded his earth;” all humans are descended from thugs to cross oceans to seek out Indige- bull with a dire threat. Anyone daring to Adam and Eve; popes are ordained by God nous peoples, seize them as slaves, plun- “infringe, or with rash boldness contra- to lead “the whole human race;” and the der their possessions and claim dominion vene” the Church’s divine edict, would “in- pontiff “made donation of these isles and over the vast tracts of land they inhabited. cur the wrath of Almighty God.”3 Terra-firma” to the Spanish crown. The With its self-righteous bulls, the A precedent for this decree was native people who heard but could not Catholic Church gave European kings the Pope Nicholas V’s Dum Diversis bull of understand this gibberish were then or- religious cover stories needed to conse- 1452 which gave Portugal’s king dered to “acknowledge the Church as the crate their holy wars against the so-called free and ample faculty … to invade, ruler and superior of the whole world.” “enemies of Christ.”7 In so doing, Christi- search out, capture, vanquish, and sub- Then came the not-so-fine print of this sur- anity sanctified a brutal renaissance in the due all Saracens [Muslims] and pagans render-or-die threat: spread of imperial culture. Long euphe- whatsoever, and other enemies of Christ But if you do not do this, … we shall mized as the “Age of Discovery,” this glo- * Papal bulls are decrees, charters or letters powerfully enter into your country, and rification of invasion, mass captivity and patent issued by Popes. “Bull” comes from shall make war against you …, and shall armed robbery marked the beginning of subject you to the yoke and obedience the seal (bulla) used to authenticate them. our modern era. With papal charters in Fall 2017 (Issue # 69) Press for Conversion! 19 P hand as pretexts to expand their sovereign- A ty, European kings issued lucrative con- P tracts to glorified pirates who sailed off to BULL A pillage foreign lands and “discover” peo- vs. ples to be conquered and enslaved. L While it is tempting to believe that we have morally and legally evolved be- B yond such reprehensible doctrines, such a U leap of faith would be mistaken. The Dis- L covery Doctrine is not just a bygone relic of long-lost antiquity. As Manitoba’s Ab- L SITTING original Justice Inquiry stated: Since the beginning of the Age of Dis- covery, European states have engaged Alexander VI relentlessly in the process of divesting national and international levels, and binding on Indians today,” he said, because indigenous peoples of their lands, and lies at the root of the violations of in- have sought to justify and legitimate “certain white men in the past, duly au- digenous peoples’ human rights, both thorized by the monarchs of Christendom, this practice through the use of the doc- individual and collective. This has re- trines of discovery, occupation, adverse are said to have ‘discovered’ the ances- sulted in State claims to and the mass 11 possession, conquest and cession. On appropriation of the lands, territories tors of present day Indians.” the whole, domestic courts have either and resources of indigenous peoples …. Newcomb suggested a new spin on ignored or generally misapplied and This ... has resulted in the disposses- an old definition posited by British legal misinterpreted these doctrines in their sion and impoverishment of indigenous discussions of ‘Aboriginal title,’ philosopher John Austin in 1831. While peoples, and the host of problems that Austin said laws were “commands, backed thereby upholding the status quo of they face today on a daily basis.9 Aboriginal dispossession …. by threat of sanctions, from a sovereign, The doctrine of discovery has been — As Steven Newcomb, Shawnee/ to whom people have a habit of obedi- and still is—rigorously advanced by Lenape co-founder of the Indigenous Law ence,” Newcomb said law is the “habit of various authors, jurists, legal scholars, Institute, said in 2016, “the doctrine of obedience to a person or group of people nation states and domestic courts as the discovery is an ongoing language system who pretend to a higher authority over oth- foundation upon which English, Cana- of domination that is still being used ers.” He also said that “to kick the habit of dian or American sovereignty in North against our Original Nations and Peo- 8 obedience to a system based on religious America is based. ples.”10 In 2003, Newcomb described U.S. The United Nations Permanent racism,” people “must call into question” federal Indian law as a language system the “‘pretension’ of conquest” and chal- Forum on Indigenous Issues reported in “comprised only of words and ideas” that 2010 that the “legal construct known as lenge the state’s “pretension of a higher is based on the “pretension” of the Doc- authority over Indian nations on the basis the Doctrine of Discovery” has been trine of Discovery. The “legal pronounce- institutionalized in law and policy, on of religious racism.”12 ments ... regarding Indians are considered The Canadian Legal Fiction of Original Crown Occupancy By Patrick Macklem, professor of law, covery and settlement. One expression and and by and large it did not confer actual University of Toronto, and former consti- consequence of the sovereign power of the grants to landholders. These fictions were tutional advisor to the Royal Commission Canadian state is that Aboriginal territo- developed to rationalize the existing pat- on Aboriginal Peoples. rial interests are governed by Canadian tern of landholdings in England, and they law. served this purpose well .... uring the period of initial Euro- Based on the legal fiction that the Although the Crown was imagined pean contact and colonial expan- Crown was the original occupant of all the as the original occupant of all of Canada, Dsion in North America, it was ac- lands of the realm, Canadian property law actual Aboriginal occupants were not rec- cepted practice among European nations holds that the Crown enjoys underlying ognized as owning their land as a result of that the first to discover vacant land ac- title to all of Canada.... a series of fictional Crown grants. The quired sovereignty over that land to the The fiction of original Crown oc- Crown was thus relatively free to grant exclusion of other potential discoverers.