Excerpted From: Robert J. Miller and Harry Hobbs, Unraveling the International Law of Colonialism: Lessons from Australia and the United States, 28 Michigan Journal of Race and Law 271 (Fall, 2023) (460 Footnotes) (Full Document)

MilleHobbsrThe international law of colonialism dates from at least the early fifteenth century. Today, it is known as the Doctrine of Discovery (“DoD” or “the Doctrine”) because of the very influential two-hundred-year-old United States Supreme Court case, Johnson v. M'Intosh. The Doctrine is one of the earliest examples of international law; that is, the rules that nations agree to abide by in their interactions with other nations. As European powers began their voyages of “discovery” and established colonies and empires, they saw the need to agree on rules of conduct that would control their own competition. Initially developed by the Christian Church, Spain, and Portugal, the DoD was identified as a mechanism to minimize potential clashes between European states when colonizing the non-European, non-Christian world.

Johnson and the Doctrine are still good law in the United States and have heavily influenced the development of the law and history of colonization around the world. Indigenous nations and peoples have long agitated against and fought the pernicious physical, health, sovereign, and territorial impacts of colonization and its legal effects and impacts. But these efforts have produced minimal results to date. Of all the countries in the world, the United States still appears to be the only one that has recognized in the past, and still recognizes today, Indigenous sovereignty. The U.S. Constitution from 1787 clearly recognizes Indian nations as governments that interact with the United States through Congress and treatymaking and explicitly recognizes Indian individuals as citizens of their own governments who were not federal or state citizens.

In recent decades Indigenous nations have used international bodies such as the United Nations and the Organization of American States to fight colonization and to establish their sovereign rights. In addition, many individuals have worked with numerous Christian churches to convince these organizations to take official stands repudiating the DoD. This effort is succeeding. In 2009, the Episcopal Church in the United States adopted such a resolution and in 2010 the Anglican Church in Canada did the same. In 2012, the World Council of Churches executive committee, which represents more than 352 churches, also repudiated the Doctrine. Complementing these approaches, individuals have lobbied the Vatican for decades to withdraw the papal bulls from the fifteenth century that played significant roles in the legal development of this international law.

In this Article, we compare, contrast, and critique official governmental efforts in the United States and Australia that were and are ostensibly directed at rolling back the Doctrine, both legislatively and judicially. We analyze the effectiveness of these efforts and assess whether either country has provided a model that other countries around the world could or should consider adopting to treat Indigenous peoples and nations with the full respect and governmental and human dignities that they deserve. Section II briefly sets forth the legal and historical origins of the Doctrine, the ten elements or factors that comprise this legal principle, and a survey of how England and other countries applied the DoD to colonize the non-European world. Section III analyzes the attempts to overturn or mitigate the Doctrine in the United States including the U.S. Indian Claims Commission of 1946, other legislation, tribal litigations, and the revocation of the papal bulls. In Section IV, we examine how Aboriginal and Torres Strait Islander peoples began to chisel cracks into Australia's unique approach to colonization in the second half of the twentieth century. We then dissect the crucial Australian High Court decision of Mabo v Queensland (No 2), which offered the first significant attempt to engage with the country's colonial past. Section V examines whether the Australian government has honored the promise of Mabo. It focuses on the 1993 Native Title Act and more recent governmental efforts, including modern-day treaty making with Aboriginal and Torres Strait Islander nations. We also examine the 2017 Uluru Statement from the Heart, and its powerful call for a First Nations Voice to be enshrined in Australia's Constitution. In our Conclusion, we argue that our own countries can still vastly improve how they deal with Indigenous nations and peoples, but that other countries should consider adapting and adopting some of the initial steps the United States and Australia have taken to address the inhumane, pernicious, and continuing impacts of colonization.

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Conquest and colonization have long-term and extremely detrimental impacts on any people or nation. The Euro-American colonization of Indigenous peoples all over the world has produced those same impacts. The international law Doctrine of Discovery has played a large role in colonialism and empire building. In this Article, we have analyzed and contrasted the application of this Doctrine in our respective countries and the inchoate steps taken by the United States and Australia that can be interpreted as attempts to mitigate those negative impacts.

In our opinion, the 1992 Australian High Court case that recognized and enforced the truth about England's colonization of Australia was an admirable step towards dealing with colonialism and the Doctrine. Australia was not terra nullius, not empty of peoples and Indigenous governing structures when Lieutenant James Cook claimed the landmass for England in 1770. After Mabo rejected terra nullius as a legal basis for claiming the continent of Australia in 1992, the Australian Parliament followed the Court's lead and enacted the Native Title Act. As Glen Kelly and Stuart Bradfield explain, “Mabo set a new agenda. It broke barriers and created a raft of opportunities that would not have been possible without it.” The Native Title Act regularized land claims processes in Australia and has resulted in a significant Indigenous land estate. This is impressive. Nevertheless, the Native Title Act has fallen short of its proponents' high hopes. Since then, the High Court has adopted a restrictive interpretation that penalizes Aboriginal and Torres Strait Islander communities most affected by colonization, while the process is slow and limited for those able to avail themselves of the Act. The continuing failure to enact a social justice package that would deal comprehensively with these matters is a source of tension. The Native Title Act has done much but it could do more.

The Uluru Statement from the Heart and the modern-day treatymaking processes underway in Australia offer the potential for a course correction. The prospect of a constitutional First Nations Voice advising the parliament and government on laws and policies that affect Indigenous Australians, and treaties that recognize Indigenous self-government may be some way off, but they would constitute a dramatic step in mitigating the Doctrine and colonization, and a remarkable shift from the pre-Mabo era. Together, these three actions by Australia--led by Aboriginal and Torres Strait Islander peoples and communities--are guiding lights for other nations, the United States included, to study and perhaps adopt to counteract the ramifications of colonialism.

In the United States, Johnson v. M'Intosh was also based on falsehoods similar to the English claims of terra nullius in Australia. Will the United States Supreme Court ever reverse Johnson and render a decision such as Mabo? Or might the U.S. Congress ever enact a law such as Australia's Native Title Act? Some of the provisions Congress has adopted in the past, as we discuss above, have similar effects; yet the Indigenous land estate in the United States is magnitudes smaller. And regarding the movement in Australia towards treaty-making with Aboriginal peoples and nations, perhaps the U.S. Congress should consider restoring that constitutional process in the United States by reversing the 1871 Act that ended treaty making with Indian nations. A few scholars have stated that its 1871 Act is surely unconstitutional. Perhaps the United States should resume engaging in diplomatic relations with Indian nations and peoples via the constitutionally approved process of treaties. If the United States repealed that 1871 Act and reversed its policy, modern treaties should be negotiated under very different circumstances than in the past. Rather than attempting to take Indian lands and rights through outright fraud, modern treaties should aim to “rectify injustices” and “help build a culture of respect that takes seriously the interests and aspirations” of Indigenous peoples.

Australia started a long way behind the United States in its legal relationship with Indigenous nations. But ever so slowly, it appears to be moving towards a government-to-government treaty-based relationship with Aboriginal and Torres Strait Islander peoples and nations. Soon it might even have a constitutionally entrenched First Nations Voice empowering Indigenous peoples to speak directly to the parliament and government.

Our aim in this Article is to promote understanding of the Doctrine of Discovery and colonialism in our two countries. We hope that this analysis helps Australia and the United States increase their efforts to create more just societies for all their citizens. We also hope that any and all colonizing and colonized countries around the world can find better paths forward out of the international law Doctrine of Discovery and towards a restoration of Indigenous human, sovereign, and commercial rights.

Professor, Sandra Day O'Connor College of Law, Arizona State University; Willard H. Pedrick Distinguished Research Scholar; Director, Rosette LLP American Indian Economic Development Program; Chief Justice, Pascua Yaqui Tribe Court of Appeals; American Philosophical Society (elected 2014); Citizen, Eastern Shawnee Tribe. Miller

Associate Professor, Faculty of Law, University of Technology Sydney.