Lewis & Clark Law Review - Law School - Lewis & Clark

SYMPOSIUM
The Future of International Law in Indigenous Affairs:The Doctrine of Discovery, the United Nations, and the Organization of American States

THE INTERNATIONAL LAW OF COLONIALISM: A COMPARATIVE ANALYSIS

Robert J. Miller

15 Lewis & Clark L. Rev. 847 (2011)

The majority of the non-European world was colonized under an international law that is known as the Doctrine of Discovery. Under this legal principle, European countries claimed superior rights over Indigenous nations. When European explorers planted flags and religious symbols in the lands of native peoples, they were making legal claims of ownership and domination over the lands, assets, and peoples they had “discovered.” These claims were justified by racial, ethnocentric, and religious ideas of the alleged superiority of European Christians. This Article examines the application of Discovery by Spain, Portugal, and England in the settler societies of Australia, Brazil, Canada, Chile, New Zealand, and the United States. The comparative law analysis used in this Article demonstrates that these three colonizing countries applied the elements of the Doctrine in nearly identical ways against Indigenous peoples. Furthermore, the six settler societies analyzed here continue to apply this law today to restrict the human, property, and sovereign rights of Indigenous nations and peoples. This Article concludes that basic fairness and a restoration of the self-determination rights of Indigenous peoples mandates that these countries work to remove the vestiges of the Doctrine of Discovery from their modern day laws and policies.

RECONCEPTUALIZING TRIBAL RIGHTS: CAN SELF-DETERMINATION BE ACTUALIZED WITHIN THE U.S. CONSTITUTIONAL STRUCTURE?

Rebecca Tsosie

15 Lewis & Clark L. Rev. 923 (2011)

In September 2007, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples. Although the United States originally dissented, President Barack Obama reversed this position in 2010. The U.S. Department of State issued a formal statement of support in January 2011, maintaining that the Declaration is a non-binding statement of policy that comports with U.S. federal Indian law and policy. This Article evaluates the premise that the Declaration is consistent with U.S. law and policy by comparing the central principles of federal Indian law with the emerging norms of international human rights law that are reflected in the Declaration. The Article suggests that existing rights for Native peoples within the United States could be enhanced by applying human rights norms to the interpretation of Native rights, and posits that the Declaration also has broader implications for U.S. policy, particularly with reference to cultural rights and the rights of non-federally recognized indigenous groups. The Author concludes that there are areas of domestic law that could be reconfigured to better protect the core human rights of indigenous peoples within the borders of the United States.

FINDING SUPPORT FOR A CHANGED PROPERTY DISCOURSE FOR AOTEAROA NEW ZEALAND IN THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES

Jacinta Ruru

15 Lewis & Clark L. Rev. 951 (2011)

In the South Pacific Ocean lie the lands my peoples come from—Aotearoa New Zealand. These mountains, rivers, valleys, and coastlines hold our stories and laws. These lands give us our life, identity, and knowledge. For the past two centuries, we have shared these lands with other peoples. As these peoples became more dominant in our lands, we have fought to retain all that is special to us. As their laws began to overlay our laws, we have not always won. But change is in the air. Their laws are becoming more respectful of us and our connections to our lands. A significant example of this occurred in 2010 when Aotearoa New Zealand finally endorsed the United Nations Declaration on the Rights of Indigenous Peoples. But why was this country slow to commit to this Declaration? This Article posits that the Crown’s staunch position on assumed or asserted Crown ownership of lands and resources is evidence of a continuing Doctrine of Discovery mindset and explains this country’s reluctance to initially vote for this Declaration—a Declaration that seeks to recalibrate the foundations of colonial society in recognizing continuing Indigenous ownership of lands and resources.

WHY ABORIGINAL TITLE IS A FEE SIMPLE ABSOLUTE

Michael C. Blumm

15 Lewis & Clark L. Rev. 975 (2011)

The Supreme Court’s 1823 decision in Johnson v. M’Intosh is a foundation case in both Indian Law and American Property Law. But the case is one of the most misunderstood decisions in Anglo-American law. Often cited for the propositions of the plenary power of the U.S. Congress over Indian tribes and of the uncompensated takings of Indian- title lands, the Marshall Court decision actually is better interpreted to recognize that Indian tribes had fee simple absolute to their ancestral lands. This Article explains why the “discovery doctrine” should have been interpreted to be a fee simple absolute subject to the federal government’s right of preemption. Had the doctrine laid down by Johnson been properly interpreted, its national and international effects today would have been much less pernicious.

THE DOCTRINE OF DISCOVERY AND THE ELUSIVE DEFINITION OF INDIAN TITLE

Blake A. Watson

15 Lewis & Clark L. Rev. 995 (2011)

On April 15, 2011, the Lewis & Clark Law Review hosted its Spring Symposium, entitled “The Future of International Law in Indigenous Affairs: The Doctrine of Discovery, the United Nations, and the Organization of American States.” While the Symposium participants agree that the doctrine of discovery should be rejected, they disagree on the impact of the discovery doctrine on native land rights in the United States. This Article examines the differing views of Indian title. Specifically, it contrasts the “limited owner” view of Indian title, under which Indian tribes retained nearly all of their proprietary rights, subject only to the government’s exclusive right of preemption, with the “limited possessor” view of Indian title, under which Indian tribes lost ownership of their lands by virtue of European discovery. The Article concludes that, although the “limited owner” view of Indian title is preferable to Indian nations, the Supreme Court has nonetheless adopted the “limited possessor” view. The Article further concludes that there is little downside to acknowledging that the Supreme Court has adopted the harsher “limited possessor” conception of Indian title, and that by doing so, opponents of the doctrine of discovery may be better positioned to secure its repudiation.

 

SECOND ANNUAL KENNEDY LECTURE

ON JUDGMENT

Charles Fried

15 Lewis & Clark L. Rev. 1025 (2011)

The Supreme Court’s constitutional decisions have been a mixed blessing. Some of the Court’s most celebrated decisions have, in the long run, done more harm than good. Mapp v. Ohio, while it might have done a certain amount of good at the time, brought with it an automatic rule of exclusion that has grossly diverted attention from the guilt or innocence of the accused. Others, like Brown v. Board of Education andLawrence v. Texas, were watershed moments in the development of American civil rights. But what made these decisions good or bad? My most important argument will be a negative one: it had nothing to do with the original intent of those who framed or ratified the constitutional provisions in question.

 The rise of originalism has brought with it an almost obsessive concern with history. Originalism seeks to substitute keenness of intellect for prudent judgment because the first is thought to be objective. The second is thought to be subjective, thereby subjecting us to the rule, not of laws, but of men. Yet the wise judge recognizes that the search for security and objectivity in history is a will-o’-the wisp. Wisdom, not historical rigor, is the touchstone of good judgment.

 

NOTES & COMMENTS

 

BENEFIT CORPORATION LEGISLATION, VERSION 1.0—A BREAKTHROUGH IN STAKEHOLDER RIGHTS?

Michael R. Deskins

15 Lewis & Clark L. Rev. 1047 (2011)

U.S. corporations face increasing pressure from society to behave in more responsible ways. However, to date, the “maximize shareholder-profit” axiom has firmly held its ground. As a result, a reasoned business decision may benefit shareholders, but have an adverse impact on various outside stakeholders, including employees, the local community, and the environment. And while such negative effect is often anticipated, the legal mechanisms necessary to derail this outcome have arguably been nonexistent. To counteract this trend, Maryland enacted the United States’ first benefit corporation legislation in April 2010.

 The Maryland Benefit Corporation Act attempts to bridge the gap between the contemporary legal framework of U.S. corporations and the growing industry of hybrid social ventures. As a result, social entrepreneurs may choose to incorporate their entities under a new statutory scheme that mandates an enhanced focus on stakeholders. This Comment evaluates the Maryland statute in light of historical trends and contemporary expectations in order to determine its effectiveness. This Comment argues that while Maryland’s legislation is indicative of an evolving social and cultural landscape that places higher expectations on “good” corporate behavior, the statute falls short of its goals for three reasons. First, the statute does not establish a fiduciary relationship between a board of directors and outside stakeholders. Second, too much ambiguity surrounds the application of the business judgment rule to a decision made by the board of directors of a benefit corporation. And third, the statute only prescribes an independent measurement structure; it does not install one. This Comment seeks to expose these shortcomings in order to assist future state legislators in drafting more effective benefit corporation legislation.

A STEP IN THE RIGHT DIRECTION: REGULATION OF DEBIT CARD INTERCHANGE FEES IN THE DURBIN AMENDMENT

Lisa Farrell

15 Lewis & Clark L. Rev. 1077 (2011)

The Durbin Amendment, a last-minute addition to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, has sparked intense controversy. The Amendment gives the Federal Reserve Board the power to set interchange fees related to debit card transaction processing. Interchange fees, largely unknown to most consumers, are fees that are charged by banks that issue debit cards to consumers and are paid by merchants each time a debit card is swiped in connection with a purchase. The regulations, as well as the Durbin Amendment in general, are hotly contested by networks and banks that claim that they will not be able to recoup their costs, much less make a profit, under the rules. Merchants, however, praise the new regulations and tout the transparency and accountability that the Amendment and the new regulations will bring to the debit card industry. This Comment provides an overview of the Durbin Amendment and the Federal Reserve Board’s implementing regulations, and argues that the Amendment and regulations are constitutional and are an appropriate legislative response to a system of debit interchange fees that has spiraled out of control over the past twenty years. 

SECURITIES WHISTLEBLOWING UNDER DODD-FRANK: NEGLECTING THE POWER OF “ENTERPRISING PRIVATEERS” IN FAVOR OF THE “SLOW-GOING PUBLIC VESSEL”

Michael Neal

15 Lewis & Clark L. Rev. 1107 (2011) 

This Note analyzes the SEC whistleblower program, as modified by the Dodd-Frank Act of 2010. It reviews the history of whistleblowing-like statutes in the United States and analyzes the successes and failures of prior whistleblowers after dividing them into two mutually exclusive groups: Insiders, those who are employed by the company against whom they report; and Outsiders, non-employees. The Note concludes that the new SEC whistleblower program is deficient in two ways. First, it does not create an affirmative duty for Insiders to internally report when their employer has a functioning compliance department; and second, Outsiders lack an offensive private cause of action granting them standing to sue on behalf of the SEC. The Note recommends changes to the program that resolve these deficiencies and better align the SEC’s required functions with its resources. The Note concludes that, as enacted, the SEC whistleblower program encourages the avoidance of internal corporate compliance systems, externalizes corporate compliance to a regulatory body already struggling to provide adequate oversight, weakens the partnership between the regulator and the regulated, and has the potential of reversing the positive progression in corporate cultures developed over the past decade.