[Sosfbay-discuss] The New Land Race - The "Newer World" Free for the Taking!

[Andrea Dorey]

Robert J. Miller is a law professor at Lewis & Clark Law School, the  
chief justice of the Grand Ronde Tribe, and an Eastern Shawnee. He is  
the author of Native America: Discovered and Conquered.

Recent news reports state that global warming and the shrinking  
Arctic icecaps are opening new sea lanes and making barren islands  
suddenly very valuable. In fact, the international community might  
experience a new race of exploration, conquest and acquisition for  
this “new world”—these newly available lands and sea routes.  
Conflicts could arise over shipping lanes, islands, fish stocks,  
minerals and oil that are now becoming accessible and commercially  
exploitable.

Governments are even now engaged in asserting their sovereignty over  
these areas and assets. Canada, Denmark and the United States are  
already involved in diplomatic disputes over these issues. For  
example, Canada and Denmark have sent diplomats and warships to plant  
their flags on tiny Hans Island near northwestern Greenland. In 1984,  
Denmark’s Minister for Greenland Affairs landed on the island in a  
helicopter and raised the Danish flag, buried a bottle of brandy, and  
left a note that said “Welcome to the Danish Island.” Canada was not  
amused by this assertion of Danish sovereignty. In 2005, the Canadian  
Defense Minister and troops landed on the island and hoisted the  
Canadian flag. Denmark lodged an official protest. In addition,  
Canada, Russia and Denmark are claiming waters all the way to the  
North Pole. Moreover, the United States and Canada are disputing  
Canadian claims that the emerging Northwest Passage sea route is in  
its territory. The U.S. insists the waters are neutral and open to  
all but Canadian Prime Minister Stephen Harper states that he will  
place military icebreakers in the area “to assert our sovereignty and  
take action to protect our territorial integrity.”

This kind of conduct is nothing new. It mirrors exactly the actions  
taken by European and American governments in the 15th—20th centuries  
in their race to claim the lands and the assets of the New World of  
the Americas, Africa, and other areas. That race was conducted under  
the international legal principle known today as the Doctrine of  
Discovery. Under various papal bulls, Spain and Portugal could  
establish claims to the lands of indigenous, non-Christian, non- 
European peoples by merely “discovering” the lands. Spanish,  
Portuguese, and later English and French explorers engaged in  
numerous types of Discovery rituals upon encountering new lands. The  
hoisting of their flag and the cross and leaving evidence that they  
had been there was part of the Discovery process. In 1776-78, for  
example, Captain Cook established English claims to British Columbia  
by leaving English coins in buried bottles. In 1774, he erased  
Spanish marks of ownership and possession in Tahiti and replaced them  
with English ones. Upon learning of this, Spain dispatched explorers  
to restore its marks of possession. Furthermore, in 1742-49, French  
military expeditions buried lead plates throughout the Ohio country  
to reassert the French claims of discovery dating from 1643. The  
plates stated that they were “a renewal of possession.”

Americans also engaged in discovery rituals. The Lewis & Clark  
expedition marked and branded trees and rocks in the Pacific  
Northwest to prove the American presence and claim to the region.  
They also left a memorial or memo at Fort Clatsop in March 1806 and  
gave copies to Indians to deliver to any whites that might arrive to  
prove the U.S. presence and claim to the Northwest. The memorial  
stated that its “object” was that “through the medium of some  
civilized person . . . it may be made known to the informed world”  
that Lewis & Clark had crossed the continent and lived at the mouth  
of the Columbia River on the Pacific Ocean. This was nothing less  
than a claim of discovery and possession of the region and a claim of  
ownership under the Doctrine of Discovery.

A decade later, as the U.S. and England argued over the Pacific  
Northwest and the possession of Fort Astoria at the mouth of the  
Columbia, Secretary of State John Quincy Adams and President James  
Monroe took actions based directly upon the principles of Discovery.  
In 1817, as they despaired that England would voluntarily return Fort  
Astoria, Adams and Monroe ordered an American diplomat and naval  
captain to sail to Astoria “to assert the [American] claim of  
territorial possession at the mouth of Columbia River.” Adams wrote  
that this mission was designed “to resume possession of that post,  
and in some appropriate manner to reassert the title of the United  
States.”

Accordingly, Monroe and Adams ordered the American diplomat John  
Prevost and Captain James Biddle to sail to the Columbia and to  
“assert there the claim of sovereignty in the name of ... the United  
States, by some symbolical or other appropriate mode of setting up a  
claim of national authority and dominion.” The President and  
Secretary of State were ordering them to engage in Discovery rituals.  
Prevost and Biddle did as they were ordered. In August 1818, Captain  
Biddle arrived at the north side of the mouth of the Columbia River  
and in the presence of Chinook Indians he raised the U.S. flag,  
turned the soil with a shovel, and nailed up a lead plate that read:  
“Taken possession of, in the name and on the behalf of the United  
States by Captain James Biddle.” He repeated this Discovery ritual on  
the south shore of the Columbia and hung up a wooden sign declaring  
American ownership of the region.

John Prevost arrived at Fort Astoria in September 1818 and with the  
cooperation of the English he proceeded to use Discovery rituals to  
reclaim the fort for the United States. First, the English flag was  
lowered and the U.S. flag was hoisted in its place. Then the English  
troops filed a salute, the American flag was taken down and the Union  
Jack was returned to its place, and the American diplomat sailed away  
with his Discovery mission accomplished.

In 1823, the United States Supreme Court in Johnson v. M’Intosh  
declared that the Doctrine of Discovery had been the law on the North  
American continent since the beginning of European exploration and  
controlled how Europeans and Americans could claim and acquire land  
from the Indian nations. Discovery is still the law in the United  
States today and in the international arena as is well demonstrated  
by the actions of modern day countries attempting to claim new lands  
and assets in the Arctic. We appear to be at the start of a new race  
to establish claims to this “New World” of the Arctic as the icecaps  
retreat, and it is evident that the rituals and principles of the  
Doctrine of Discovery provide the legal framework for claims to newly  
discovered lands and assets.
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