http://www.latimes.com/news/opinion/commentary/la-oe-miller6aug06%2C1%2C409
8058.story

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."