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Miller: A 'new world' to claim - the Arctic

Recent news reports state that global warming and the shrinking Arctic ice caps are opening sea lanes, making islands accessible and causing the international community to engage in a new race to acquire this ''new world.'' Conflicts have already arisen over shipping, islands, fish, minerals and oil that are now becoming exploitable.

Governments are even now engaged in asserting sovereignty over these assets. Canada, Denmark and the United States are already involved in disputes over these issues. For example, Canada and Denmark have sent diplomats and warships to plant flags on Hans Island near Greenland. In 1984, Denmark's Minister for Greenland Affairs raised the Danish flag on the island, 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 raised the Canadian flag on the island. Denmark lodged an official protest. In addition, Canada, Russia and Denmark are claiming waters all the way to the North Pole. And the United States and Canada are disputing Canadian claims that the emerging Northwest Passage sea route is in its territory. The United States insists the waters are open, but Canadian Prime Minister Stephen Harper states that he will place military ships there ''to assert our sovereignty and take action to protect our territorial integrity.''

This conduct is nothing new. It mirrors the actions taken by Europeans and Americans in the 15th - 20th centuries in their race to claim lands and assets in the New World of the Americas, Africa and elsewhere. That race was conducted under the international legal principle called the ''doctrine of discovery.'' Under the doctrine, European countries could establish claims to the lands of indigenous, non-Christian peoples by merely seeing the lands first. Spanish, Portuguese, English and French explorers engaged in numerous types of discovery rituals upon encountering these ''new lands.'' The hoisting of flags and crosses and leaving evidence that they had been there was part of the discovery process. From 1776 - '78, for example, Captain Cook established English claims to British Columbia by leaving English coins in buried bottles. In 1774, he even erased Spanish marks of ownership in Tahiti and replaced them with English ones. Upon learning of this, Spain dispatched explorers to restore its marks of possession. Furthermore, from 1742 - '49, French 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 and Clark expedition marked and branded trees and rocks in the Pacific Northwest to prove the American claim to the region. They also left a written memorial at Fort Clatsop in March 1806 to prove the U.S. claim. The memorial stated that its ''object'' was that ''it may be made known to the informed world'' that Lewis and Clark had crossed the continent and lived at the mouth of the Columbia River. This was nothing less than a claim of discovery and possession of the region and a claim of ownership under the doctrine of discovery.

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A decade later, as the United States and England argued over the 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 discovery. In 1817, as they despaired that England would 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 said 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 John Prevost and Captain James Biddle to the Columbia 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 were ordering them to engage in discovery rituals. Prevost and Biddle did exactly that. In August 1818, Biddle arrived at the north side of the mouth of the Columbia and in the presence of Chinook Indians he raised the U.S. flag, turned some 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 sign declaring American ownership of the region.

Prevost arrived at Astoria in September 1818 and with the cooperation of the English used discovery rituals to reclaim the fort. First, the English flag was lowered and the U.S. flag was hoisted in its place and the English troops filed a salute. The American flag was then taken down and Prevost sailed away with his discovery mission accomplished.

In 1823, the U.S. 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 Euro-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 acts of modern-day countries in claiming 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'' 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 Miller is a professor at Lewis and 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.''