Tsosie on ‘Indigenous peoples and epistemic injustice’

Prof. Rebecca Tsosie of Arizona State has a new article in the Washington Law Review titled “Indigenous Peoples and Epistemic Injustice: Science, Ethics, and Human Rights”. From the Abstract:

This Article explores the use of science as a tool of public policy and examines how science policy impacts indigenous peoples in the areas of environmental protection, public health, and repatriation. Professor Tsosie draws on Miranda Fricker’s account of “epistemic injustice” to show how indigenous peoples have been harmed by the domestic legal system and the policies that guide the implementation of the law in those three arenas. Professor Tsosie argues that the theme of “discovery,” which is pivotal to scientific inquiry, has governed the violation of indigenous peoples’ human rights since the colonial era. Today, science policy is overtly “neutral,” but it may still be utilized to the disadvantage of indigenous peoples. Drawing on international human rights law, Professor Tsosie demonstrates how public policy could shift from treating indigenous peoples as “objects” of scientific discovery to working respectfully with indigenous governments as equal participants in the creation of public policy. By incorporating human rights standards and honoring indigenous self-determination, domestic public policy can more equitably respond to indigenous peoples’ distinctive experience. Similarly, scientists and scientific organizations can incorporate human rights standards into their disciplinary methods and professional codes of ethics as they respond to the ethical and legal implications of their work.

Questions or Comments? Email me at derek.fincham@gmail.com

Miller on the Doctrine of Discovery

The Doctrine of Discovery was an international legal principle which allowed European settlers to claim any lands they ‘discovered’ from the indigenous peoples living there.This attitude, which seems shocking today, lies behind much of the call for restitution of objects and cultural heritage today. Robert J. Miller (Lewis & Clark Law School) has posted “Christianity, American Indians, and the Doctrine of Discovery.” 

The European countries that explored and colonized North America utilized the international law Doctrine of Discovery to claim the sovereign, property, and human rights of Indigenous peoples. Discovery was developed primarily in the fifteenth century by Spain, Portugal, England, and the Church and was designed to control the acquisition of non-European lands. The assumed superiority of European religions and civilizations played a major role in justifying Discovery. Starting with the fifteenth century papal bulls and the later English Royal charters, the primary goals of colonization were alleged to be “propagating Christian Religion” and bringing “human civility” to the “pagan,” “heathen,” “Infidels and Savages” who “yet live[d] in Darkness and miserable ignorance of the true Knowledge and Worship of God.” The United States Supreme Court expressly adopted the Doctrine of Discovery in 1823 in Johnson v. M’Intosh and expressly relied on Christian religion and Euro-American civilization to justify its decision. The goals of, and the justifications for, Discovery continued to be part of United States Indian policy and Manifest Destiny until nearly the end of the twentieth century.


Questions or Comments? Email me at derek.fincham@gmail.com

The Doctrine of Discovery, the US and New Zealand

The Doctrine of Discovery is an international legal principle which justifies property rights over new-found territories. The doctrine is still very much alive today. Russia evoked it when it placed its flag on the Arctic Ocean floor in 2007 to claim the potential oil and gas reserves there.

Robert J. Miller, of Lewis & Clark, and Jacinta Ruru, of the University of Otago, have posted a new comparative law working paper on SSRN, An Indigenous Lens into Comparative Law: The Doctrine of Discovery in the United States and New Zealand.

Here’s the abstract:

North America and New Zealand were colonized by England under an international legal principle that is known today as the Doctrine of Discovery. When Europeans set out to explore and exploit new lands in the fifteenth through the twentieth centuries, they justified their sovereign and property claims over these territories and the Indigenous people with the Discovery Doctrine. This legal principle was justified by religious and ethnocentric ideas of European and Christian superiority over the other cultures, religions, and races of the world. The Doctrine provided that newly-arrived Europeans automatically acquired property rights in the lands of Native people and gained political and commercial rights over the inhabitants. England was an avid supporter of the Doctrine and used it around the world. The English colonial governments and colonists in New Zealand and America, and later the American state and federal governments and New Zealand governments, all utilized Discovery and still use it today to exercise legal rights to Native lands and to control their Indigenous people. In this article, the authors, an American Indian and a New Zealand Maori, use a comparative law methodology to trace and compare the legal and historical application of Discovery in both countries. The evidence uncovered helps to explain the current state of United States Indian law and the New Zealand law relating to Maoris. While the countries did not apply the elements of Discovery in the exact same manner, and at the same time periods, the similarities of their use of Discovery are striking and not the least bit surprising since the Doctrine was English law. Viewing American and New Zealand history in light of the international law Doctrine of Discovery helps to expand one’s knowledge of both countries and their Indigenous peoples.

It’s a great read, and the doctrine of discovery has a lot to do with the difficulty cultural policy makes had in formulating a cohesive national and international legal regime to handle, regulate, and restrict the trade in cultural objects. Much of the very restrictive cultural patrimony laws in many nations of origin can be directly attributed I think to the massive cultural and economic drain which took place when European colonists discovered new lands.

(Hat tip)

Questions or Comments? Email me at derek.fincham@gmail.com