The discovery doctrine is one of the baseline legal concepts that has worked to seriously disadvantage the land rights of indigenous nations in the United States because it asserts, as one of its definitions, that the "discovering" European nations and their successor states, gained legal title to Indian lands in North America. The author argues, using comparative colonial and early American treaty, legislative, and other historical data, that this definition is a legal fiction. In historical reality, discovery was merely an exclusive and preemptive right that vested in the discovering state the right of first purchase.

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Copyright © 1998, Oklahoma City University. This article first appeared in Oklahoma City University Law Review: 23:1-2 (1998), 277-315.

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