The Law of Conquest, Intemporal Law and Reversal of the Doctrine of Discovery


7:04 AM Saturday.

Here is the thread of a Google Gemini deep dive I took into the Law of Conquest and the Doctrine of Discovery back on 5 November 2025. It's been hanging out in my Blogger drafts folder for ten days now because I couldn't quite figure out what to do with it. Now I see that it cuts across my UN Charter Navigation, Native American Studies, and American Exceptionalism projects:


Here is the list of questions I posed during this deep dive:

  • What was the law of conquest and when was it officially abrogated in international law?
  • Was offensive conquest prohibited under international law prior to 1945?
  • Did the UN Charter make prior military conquests illegal, or did it recognize the borders established by such conquests?
  • Say more about the principle of intemporal law, and how it applies to issues like reparations for conquest prior to 1945.
  • If the doctrine of intertemporal law were rejected by the ICJ, what would prevent reparations claims from overtaking every state on the planet?
  • Was the European conquest of North America, and the subsequent American Revolution and expansion of the US by conquest, against international law at the time?
  • Did Russia have an eastward doctrine of expansion similar to Manifest Destiny?
  • If the Doctrine of Discovery been superseded under US and international law by the UN Charter, what implications does that have for Native American sovereignty today?
  • Does the doctrine of intemporal law mean that US claims to ultimate title over Native American land conquered prior to 1945 are valid?
  • Are some Native Americans arguing that Native American land is illegally occupied by the US under international law?
  • Does UNDRIP say that all indigenous peoples have the right to self-determine their own post-1945 borders?
  • Could the US arguably end the reservation system entirely without breaking international law?
  • How can the US maintain any valid treaties with Native American tribes if they are not independent foreign governments with recognized borders?
  • Does the FBI have jurisdiction on reservations?
  • Why did the US government stop making treaties with Native Americans in 1871?
  • When did the US policy of assimilation officially come to an end?
  • Is President Nixon's landmark 8 July 1970 address available online?
  • Is the Indian Self-Determination and Education Assistance Act of 1975 still the pillar of current US Indian policy?
  • Does the US government essentially treat federally recognized tribes as local governments?
  • Can it be argued that the US government goes a long way to protect Native American sovereignty, relative to a policy of termination, without surrendering ultimate title over the land?
  • Would full tribal ownership and control over ancestral lands require secession from the US and formal international border controls?
  • All of these treaties prior to 1871 sound like an administrative nightmare. Why haven't they all been upgraded or abrogated in favor of the post-1970 system?
  • Why aren't the treaties in contradiction with the Doctrine of Discovery?
  • Would it take an act of Congress or an amendment to the Constitution to rescind US recognition of the Doctrine of Discovery, and if that happened, would the treaty system and post-1970 order fall apart?
  • Did the Doctrine of Discovery apply in the case of Canada, as well, and was it rescinded as part of Canada's Truth and Reconciliation process?
  • Would a reversal of the Doctrine of Discovery by Congress or the US Supreme Court lead to real improvements in Native American lives, or could it make things worse?
  • It sounds like a hasty reversal by SCOTUS would do more harm than good - is it fair to say that the status quo is better than a hasty reversal, but that carefully crafted federal legislation would be better than the status quo?
  • Could such a change facilitate intergenerational healing and improved outcomes for non-Native Americans, too?
  • How would the UN likely react to such a reform, and could it improve US standing and soft power in the General Assembly?
  • Would it take a team of Native and non-Native experts within and outside the Bureau of Indian Affairs to craft the appropriate federal legislation, and has any work on this already begun?
  • What about a pilot bill to fund and organize some of the groundwork for a future, comprehensive bill?
  • Does Representative Tom Cole (R-OK) support the formation of a federal commission to explore reversal of the Doctrine of Discovery?
  • Who are some of the leading US and international legal experts in this area?

Google Gemini agreed with me that a hasty reversal of the Doctrine of Discovery by SCOTUS would likely collapse the system to the detriment of all, but that carefully crafted legislation to end the Doctrine would be better than the status quo. It seems to me like it could take some years of serious Congressional labor to prepare sound legislation that repudiates the Doctrine of Discovery.

Here are three follow-up questions I asked this morning.

1. Is it accurate to say that the entire US land title system is based on the Doctrine of Discovery?


2. To be clear, the Doctrine of Discovery is highly contested, but the law of conquest prior to 1945 is not widely contested, is that correct?


3. Could SCOTUS reverse on the Doctrine of Discovery and give Congress a reasonable time period to enact new legislation, say ten years, or would a SCOTUS reversal necessarily take immediate effect?


Justice Gorsuch is the most expert on the bench regarding Native American issues. I wonder if he would incline toward the use of prospective overruling to reverse on the Doctrine of Discovery...and maybe apply prospective overruling in the case of Learning Resources v. Trump, too. 

End 7:52 AM.

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