http://www.hnn.us/articles/37316.html

4-16-07

A “New World” to Claim - The Arctic

By Robert J. Miller

Mr. Miller is a 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 in a
dispute over 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 . . . 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.