Lewis & Clark Law Review Indian Law Symposium


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


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.


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.


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.


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.


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.

This entry was posted in Author: Matthew L.M. Fletcher, legal history, Symposia and tagged , . Bookmark the permalink.

One Response to Lewis & Clark Law Review Indian Law Symposium

  1. Michael Mack says:

    The core issue that Euro-American colonists used to justify conquest, namely, their use of the Old Testament of the Bible as their “moral authority” for conquest. This usage reveals their failure – their disobedience (in New Testament terms) – to adhere to the teachings of Christ, which NEVER justified the aggressive actions of conquest or colonialism. Indeed, the New Testament tells Christians to “preach the gospel” ONLY. In other words, their Christian assignment was, like Christian missionaries today, to visit non-Christians, teach them about Jesus, and then GO HOME! Nowhere does the New Testament allow Christians to move in, take over, and remake or take control over the people they mission to.

    But this is not what the Pilgrims and the other colonists did – rather, they had their sights on the land and resources – which is a DIRECT VIOLATION of what Jesus Christ tells Christians to do. In other words, the permanent settling of Euro-Americans who claimed to be Christians, was in direct disobedience to the teachings of Jesus Christ, and therefore, as practicing Christians, their disobedience removed from them any Christian moral authority. Unfortunately, this core and foundational moral issue has been left out of subsequent religious and legal discussions since the founding of the U.S. until today.

    In the 1823 Johnston v. McIntosh decision, in which the U.S. decided that it had power over American Indians, Chief Justice Marshall wrote … “[h]owever extravagant the PRETENSION of converting the discovery of an inhabited country into conquest may appear, if the principle has been asserted in the first instance … if a country has been acquired and held under it; … it becomes the law of the land, and cannot be questioned.”

    …cannot be questioned??? WHY NOT!

    His admission of the PRETENSE of legal justification for conquest, should be taken as a invitation to challenge it – unfortunately, Indian Country has never truly taken up the challenge to address this FOUNDATIONAL issue. Legal precedent only lasts until it is shown to be in error, and Marshall’s foundational admission of the PRETENSE for conquest remains unquestioned – WHY? Unfortunately, Indian Country still acts as if Johnson v. McIntosh is above reproach – it ISN’T. If Indian Country is serious about challenging conquest, it needs to start by dismantling its foundation.

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