From the Los Angeles Times
Finders keepers in the Arctic?
The Doctrine of Discovery is still alive in the modern world.
By Robert J. Miller
August 6, 2007
Arussian expedition reached the North Pole on Wednesday and sent two men in submarines 2.65 miles below the Arctic Ocean to explore the seabed -- and, not incidentally, to plant a titanium capsule containing the red, white and blue Russian flag. The explorers want bragging rights for a journey they compare to "taking the first step on the moon," but they are also pressing Russia's claim to a vast swath of the Arctic Ocean.
The flag-planting ritual and the thinking behind the Russians' audacious territorial claims have their roots in the development and use of the Doctrine of Discovery by European and American explorers from the 15th through the 20th centuries. Starting with Pope Nicholas V in 1455, the Europeans conveniently declared their divine right to empty land or to land occupied by "pagans and enemies of Christ." The main requirement was just first-come, first-served discovery.
When it comes to applying the discovery doctrine in the 21st century, Russia is hardly alone. Climate change is shrinking the Arctic icecap and opening new sea lanes, fisheries, oil fields and mineral caches for exploitation. Barren islands are suddenly valuable. A new race to explore, conquer and acquire another "new world" is on.
For example, the United States and Canada are in a dispute about Canadian claims that an emerging Northwest Passage sea route is in its territory. The U.S. insists that 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."
Canada is also facing off against Denmark over 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. In 2005, the Canadian defense minister and troops landed on the island and hoisted the Canadian flag. Denmark lodged an official protest.
Planting a flag or burying brandy isn't enough these days to guarantee possession -- international treaties such as the United Nations Convention on the Law of the Sea are invoked. But historically, staking a physical claim is the first rule of the discovery doctrine. Spanish, Portuguese and, later, English and French explorers engaged in all sorts of rituals on encountering new lands: hoisting the flag, displaying the Christian cross and leaving evidence to prove who was there first.
In 1776-78, for example, Capt. James Cook established English claims to British Columbia by burying bottles of English coins in several locations. In 1774, he erased Spanish marks of possession in Tahiti and replaced them with English ones. On learning of this, Spain dispatched explorers to restore its claim. Nearly 40 years earlier, in 1742-49, French military expeditions buried lead plates along the Ohio River. The plates stated that they were "a renewal of possession" that dated from 1643.
Americans also staked their claims. The Lewis and Clark expedition marked and branded trees and rocks in the Pacific Northwest to prove the American presence and claim to the region. It also left a document at Ft. Clatsop, at the mouth of the Columbia River, in March 1806, and gave copies to Indians to deliver to whites who might arrive later to prove the U.S. claim to the Northwest. As the document stated, it was posted and circulated so that "through the medium of some civilized person . . . it may be made known to the informed world" that Lewis and Clark had secured land rights all the way to the Pacific Ocean on behalf of the U.S. government.
A decade later, as the U.S. and England argued about dueling discovery claims to the Pacific Northwest, Secretary of State John Quincy Adams and President James Monroe ordered American officials back to the Columbia "to reassert the title of the United States." In August 1818, Capt. James Biddle performed a textbook discovery ritual: In the presence of Chinook Indians on the north side of the Columbia River, he raised the U.S. flag, turned the soil with a shovel and nailed up a lead plate inscribed: "Taken possession of, in the name and on the behalf of the United States by Captain James Biddle." He repeated the performance on the south shore of the Columbia, with a wooden sign declaring American ownership of the region.
As early as 1790, federal law reflected the discovery doctrine, but it wasn't until 1823 that the doctrine was formally recognized by the U.S. Supreme Court -- and its full meaning spelled out. In the Supreme Court case Johnson vs. McIntosh, about whether private citizens could purchase Indian lands, Chief Justice John Marshall, in a long, detailed opinion for a unanimous court, established that discovery had been the law on the North American continent since the beginning of European exploration. Indian rights "to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it."
In short, Indians couldn't sell their tribal lands to private citizens because their conquerors -- the U.S. government by then -- essentially owned them. Today, that aspect of the 600-year-old Doctrine of Discovery still prevails in U.S. and international law. It remains the principle by which the United States, Canada, New Zealand and Australia continue to control the lands of their indigenous peoples.
As to the larger principle of "finders (or claimers) keepers," it also lives -- notwithstanding international treaties. The proof is in that symbolic Russian flag planted 2.65 miles below the North Pole, at the potentially lucrative, already contested bottom of the deep blue Arctic sea.
Robert J. Miller is a professor at Lewis & Clark Law School in Portland, Ore., and a citizen of the Eastern Shawnee Tribe of Oklahoma. He is the author of "Native America, Discovered and Conquered: Thomas Jefferson, Lewis & Clark, and Manifest Destiny."