If an explorer proclaims to have discovered the land in the name of a Christian European monarch, plants a flag in its soil, and reports his “discovery” to the European rulers and returns to occupy it, the land is now his, even if someone else was there first. Should the original occupants insist on claiming that the land is theirs, the “discoverer” can label the occupants’ way of being on the land inadequate according to European standards. This ideology supported the dehumanization of those living on the land and their dispossession, murder, and forced assimilation. The Doctrine fueled white supremacy insofar as white European settlers claimed they were instruments of divine design and possessed cultural superiority.
The treaty was negotiated by Secretary of War Henery Knox, representing the U.S. government, and Alexander McGilvray, representing a select group of Creek chiefs who had accompanied him to New York. The treating parties pledged lasting peace and friendship. Creeks within the boundaries of the United States would be subject to federal laws, rather than Georgia state laws.
It confirmed the federal government’s exclusive authority under the U.S. Constitution for all foreign relations, including treating with Native American sovereignties and thus made the disposition of Creek and other Native American lands inside the state of Georgia a federal issue.
Under the terms of the treaty, the Creek Nation ceded nearly 22 million acres to the United States. Jackson justified the seizure of so much land as payment for the expense of an “unprovoked, inhuman, and sanguinary “war. When the U.S. allied “friendly” Creeks pointed out that they were not responsible for the war and that some of the ceded land was specifically claimed by towns that had remained “friendly” to the United States, Jackson replied that they were still responsible for their failure to prevent the Red Sticks attacks.
The treaty required the Creeks to break off all communication with Spanish Florida and Great Britain, severing Creek claims to lands they had traditionally claimed in the Florida peninsula. The treaty also gave the United States the right to establish military posts, trading houses and roads across Creek territory, guaranteeing free navigation of all rivers for American citizens. All Creeks who fought against the United States were to surrender, and the Creek leadership was to assist in restoring all property, including slaves and horses, Red Stick Creeks captured from American citizens during the war. In return, the United States promised to provide food rations to the displaced and starving population of the Upper Creek towns.
The 1821 First Treaty of Indian Springs also known as Treaty with the Creeks, entailed Creeks ceding their remaining land east of the Flint River in Georgia. The treaty was signed January 8, 1821, at Indian Springs, Georgia.
The negotiations involved the U.S. government, Georgian and 20 Creeks led by William McIntosh and Tustunnugee Hopoie (Little Prince). One purpose of the negotiations was Georgia wished to obtain land in the northern part of the state as a buffer between the Creeks and Cherokees to decrease the likelihood of them becoming allies. Another purpose was to recoup $350,000 of unpaid debt claims by Georgia citizens for trade transactions going back several decades.
Creek headman William McIntosh challenged the Doctrine of Discovery before the Supreme Court. In an 1823 Supreme Court case, Johnson & Graham’s Lessee v. McIntosh, 21 U.S. 543, the Doctrine of Discovery became part of U.S. federal law and was used to dispossess Native peoples of their land. In a unanimous decision, Chief Justice John Marshall writes, “the principle of discovery gave European nations an absolute right to New World lands” and Native peoples certain rights of occupancy.
Supreme Court Justice John Marshall used historical analysis to find that only the government, rather than the Native American tribes, held title to the land. He argued that the patterns of discovery during the European colonization of the New World meant that each European nation gained sovereignty and title over the land that it discovered. This trumped the right of occupancy of the Native American tribes, at least regarding the specific colonizing power. In the situation of the U.S. government, this right belonged to the British when they first acquired colonies. The federal government then inherited the right from Great Britain after the American Revolution. Native Americans cannot sell their land except to the federal government.
Marshall’s incorporation of the discovery doctrine into the opinion led to political catastrophe for Native Americans. The United States has inherited a legal regime dependent on their subsequent politically driven resurrection of a wrongly decided, collusive case.