Lewis & Clark Law Review issue on international law and Indigenous Peoples

On April 15, 2011, Lewis & Clark Law School in Portland Oregon put on a day long symposium entitled

The Future of International Law in Indigenous Affairs: The Doctrine of Discovery, the United Nations, and the Organization of American States

Speakers from Canada and the United States discussed various aspects of this theme.

Lewis & Clark Law Review has now published the papers that came out of that conference.  In adddition, Maori and New Zealand professor Jacinta Ruru contributed a piece to the symposium issue.

Here is a short description of the articles and links to where you can download them.

Volume 15 / Number 4 / Winter 2011

SYMPOSIUM
The Future of International Law in Indigenous Affairs: The Doctrine of Discovery, the United Nations, and the Organization of American States

THE INTERNATIONAL LAW OF COLONIALISM: A COMPARATIVE ANALYSIS

Robert J. Miller

15 Lewis & Clark L. Rev. 847 (2011)

The majority of the non-European world was colonized under an international law that is known as the Doctrine of Discovery. Under this legal principle, European countries claimed superior rights over Indigenous nations. When European explorers planted flags and religious symbols in the lands of native peoples, they were making legal claims of ownership and domination over the lands, assets, and peoples they had “discovered.” These claims were justified by racial, ethnocentric, and religious ideas of the alleged superiority of European Christians. This Article examines the application of Discovery by Spain, Portugal, and England in the settler societies of Australia, Brazil, Canada, Chile, New Zealand, and the United States. The comparative law analysis used in this Article demonstrates that these three colonizing countries applied the elements of the Doctrine in nearly identical ways against Indigenous peoples. Furthermore, the six settler societies analyzed here continue to apply this law today to restrict the human, property, and sovereign rights of Indigenous nations and peoples. This Article concludes that basic fairness and a restoration of the self-determination rights of Indigenous peoples mandates that these countries work to remove the vestiges of the Doctrine of Discovery from their modern day laws and policies.

RECONCEPTUALIZING TRIBAL RIGHTS: CAN SELF-DETERMINATION BE ACTUALIZED WITHIN THE U.S. CONSTITUTIONAL STRUCTURE?

Rebecca Tsosie

15 Lewis & Clark L. Rev. 923 (2011)

In September 2007, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples. Although the United States originally dissented, President Barack Obama reversed this position in 2010. The U.S. Department of State issued a formal statement of support in January 2011, maintaining that the Declaration is a non-binding statement of policy that comports with U.S. federal Indian law and policy. This Article evaluates the premise that the Declaration is consistent with U.S. law and policy by comparing the central principles of federal Indian law with the emerging norms of international human rights law that are reflected in the Declaration. The Article suggests that existing rights for Native peoples within the United States could be enhanced by applying human rights norms to the interpretation of Native rights, and posits that the Declaration also has broader implications for U.S. policy, particularly with reference to cultural rights and the rights of non-federally recognized indigenous groups. The Author concludes that there are areas of domestic law that could be reconfigured to better protect the core human rights of indigenous peoples within the borders of the United States.

FINDING SUPPORT FOR A CHANGED PROPERTY DISCOURSE FOR AOTEAROA NEW ZEALAND IN THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES

Jacinta Ruru

15 Lewis & Clark L. Rev. 951 (2011)

In the South Pacific Ocean lie the lands my peoples come from—Aotearoa New Zealand. These mountains, rivers, valleys, and coastlines hold our stories and laws. These lands give us our life, identity, and knowledge. For the past two centuries, we have shared these lands with other peoples. As these peoples became more dominant in our lands, we have fought to retain all that is special to us. As their laws began to overlay our laws, we have not always won. But change is in the air. Their laws are becoming more respectful of us and our connections to our lands. A significant example of this occurred in 2010 when Aotearoa New Zealand finally endorsed the United Nations Declaration on the Rights of Indigenous Peoples. But why was this country slow to commit to this Declaration? This Article posits that the Crown’s staunch position on assumed or asserted Crown ownership of lands and resources is evidence of a continuing Doctrine of Discovery mindset and explains this country’s reluctance to initially vote for this Declaration—a Declaration that seeks to recalibrate the foundations of colonial society in recognizing continuing Indigenous ownership of lands and resources.

WHY ABORIGINAL TITLE IS A FEE SIMPLE ABSOLUTE

Michael C. Blumm

15 Lewis & Clark L. Rev. 975 (2011)

The Supreme Court’s 1823 decision in Johnson v. M’Intosh is a foundation case in both Indian Law and American Property Law. But the case is one of the most misunderstood decisions in Anglo-American law. Often cited for the propositions of the plenary power of the U.S. Congress over Indian tribes and of the uncompensated takings of Indian- title lands, the Marshall Court decision actually is better interpreted to recognize that Indian tribes had fee simple absolute to their ancestral lands. This Article explains why the “discovery doctrine” should have been interpreted to be a fee simple absolute subject to the federal government’s right of preemption. Had the doctrine laid down by Johnson been properly interpreted, its national and international effects today would have been much less pernicious.

THE DOCTRINE OF DISCOVERY AND THE ELUSIVE DEFINITION OF INDIAN TITLE

Blake A. Watson

15 Lewis & Clark L. Rev. 995 (2011)

On April 15, 2011, the Lewis & Clark Law Review hosted its Spring Symposium, entitled “The Future of International Law in Indigenous Affairs: The Doctrine of Discovery, the United Nations, and the Organization of American States.” While the Symposium participants agree that the doctrine of discovery should be rejected, they disagree on the impact of the discovery doctrine on native land rights in the United States. This Article examines the differing views of Indian title. Specifically, it contrasts the “limited owner” view of Indian title, under which Indian tribes retained nearly all of their proprietary rights, subject only to the government’s exclusive right of preemption, with the “limited possessor” view of Indian title, under which Indian tribes lost ownership of their lands by virtue of European discovery. The Article concludes that, although the “limited owner” view of Indian title is preferable to Indian nations, the Supreme Court has nonetheless adopted the “limited possessor” view. The Article further concludes that there is little downside to acknowledging that the Supreme Court has adopted the harsher “limited possessor” conception of Indian title, and that by doing so, opponents of the doctrine of discovery may be better positioned to secure its repudiation.

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One Response to Lewis & Clark Law Review issue on international law and Indigenous Peoples

  1. Hello,

    Hope you are well. The laws of the invaders are meaningless, hollow and empty. The true standard that will be uphold is the will of Allmighty God. In their lust for mammon the invaders violated everything they claimed to hold sacred. They lied, stole, murdered, cheated and enforced laws with hypocrisy. Whether it be only applying the terms of a treaty that favored themselves. Or having idigenous people sign documents which they could not read and furthermore lied to about the contents. Or having some tribe member sing away what he had no authority to do.

    The pale faces came in the name of Jesus and did the work of Satan himself. It is ironic that the Lord Jesus Christ the one whom they claim to serve will be the one who bring about their own destruction. God hates unrighteousness and clearly the invaders are in the wrong practicing an abundance of evil. The most terrible aspect of this whole thing is that in Love the Native Americans were willing to share peacefully the land. But like a spoiled child the invaders pigishly devoured their feast. With such a zeal they continue to steal territory to this day as well as violate their agreements.

    There is no doubt to whom God gave stewardship to this land to and that is the Native Americans. There is no doubt who the good guys were and who the bad guys were no matter how much Hollywood and fiction attempt to lie and distort the truth. The Bible say among many things “One reaps what one sows” or as Malcolm X paraphrased, “The chickens have come home to roost.” It will be a happy day when the boats are load and the invaders are sent on their merry way. Of course that won’t be unitl they’ve cleaned up their mess.

    Love,

    John Kaniecki

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