Tuesday, 8 May 2012

The Harmful Legacy of the Doctrine of Discovery

The doctrine of discovery and its ongoing harmful effects are featured in two high-profile happenings this month in indigenous rights. Both the statement released by UN Special Rapporteur James Anaya at the conclusion of his visit to the United States, and the UN Permanent Forum on Indigenous Issues eleventh session have considered the consequences of the doctrine of discovery. This is a religious and legal doctrine that stems from the late Middle Ages used as part of the legitimisation of European land claims to the “New World.” It is, however, disturbingly used in the present day to justify the taking of indigenous lands without compensation. The harmful consequences also stem from the way in which it categorised indigenous peoples as “lesser than” Europeans in the eyes of the religious dogma and the law.

The United Nations Permanent Forum on Indigenous Issues (UNPFII) has opened its eleventh session on Monday, May 7, 2012. In the opening session, the Deputy Secretary Asha-Rose Migiro noted that there is still much to be done to successfully and effectively implement the rights in the UN Declaration on the Rights of Indigenous Peoples, according to this story from the UN News Centre. It remarks:

Five years after the United Nations Declaration on the Rights of Indigenous Peoples was adopted, a great deal remains to be done to realize the objectives contained in that landmark document, Deputy Secretary-General Asha-Rose Migiro said today.”

This point is underscored by the preliminary statement made by UN Special Rapporteur James Anaya, regarding his just-concluded visit to the United States to assess the situation of indigenous peoples there. He sees the the repudiation of the doctrine as important to achieving the aims of the UNDRIP:

Continued and concerted measures are needed to develop new initiatives and reform existing ones, in consultation and in real partnership with indigenous peoples, to conform to the Declaration, with a goal towards strengthening indigenous peoples' own self-determination and decision-making over their affairs at all levels. The Declaration provides a new grounding for understanding the status and rights of indigenous peoples, upon which the legal doctrines of conquest and discovery must be discarded as a basis for decision-making by judicial and other authorities.”

The doctrine of discovery is the focus of part of the UNPFII session, where it is the special theme of the year: "the Doctrineof Discovery: its enduring impact on indigenous peoplesand the right to redress for past conquests (articles 28 and
37 of the United Nations Declaration on the Rights ofIndigenous Peoples)”.

A conference room paper prepared for the UNPFII Special Session by the Haudenosaunee the American Indian Law Alliance and the Indigenous Law Institute North Americacomments on both the historical legacy and harmful consequences in the present-day of the doctrine of discovery. It makes specific comment on the reliance upon this doctrine by the United States Supreme Court in 2005:

Our research reveals that domination and dehumanization were written into numerous documents issued by the Holy See, and into treaties between Christian monarchs and between states. The resulting devastation is still evident today in the oppression experienced by Indigenous nations and peoples across the planet. In the United States, we see contemporary evidence of this thinking in recent U.S. Supreme Court rulings such as the 2005 decision City of Sherrill v. Oneida Indian Nation of New York, in which the Court cited the “doctrine of discovery” as central to its decision.19 This means that the doctrine of Christian discovery found in Johnson v. M’Intosh was also part of the basis for the 2005 City of Sherrill ruling by the U.S. Supreme Court.”(paragraph 13)

It is clear then that the doctrine's harmful effects are not only as a result of its use in the past, but in the continued reliance upon this doctrine in the present day. It is indeed well past time to repudiate this doctrine.

This blog will have further comment on the UNPFII session and the doctrine of discovery.

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