Arctic Ice Melts Create New Land Rush
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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.
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.