Native Americans and Land Rights

In a blog post a few weeks ago, I discussed the Amazon rainforest fires in terms of how the Brazilian government was doing away with or disregarding rights for the natives of that land.

That post got me thinking about Native American rights, and particularly Native American land rights. The result of that thinking was this blog post, purposefully published on Columbus Day.[1]

That thinking also led me to a United States Supreme Court case from nearly 200 years ago, back to when John Marshall was the Chief Justice of the Supreme Court. In this case, which is known as Johnson v. M’Intosh, the court had a case before them where they had to determine whose land rights were superior: those of plaintiffs whose land claims came from Native Americans or those of defendants whose land claims came from a United States land grant.[2] The Supreme Court unanimously ruled that the defendants’ claims to the lands were superior. Furthermore, Chief Justice Marshall, who wrote about the Supreme Court’s decision, put into legal writing what is called the “Doctrine of Discovery,” a doctrine which said that European “discoverers” of land inhabited by non-Europeans have rights to the land.[3] This doctrine has existed for centuries, going back to Pope Nicholas V’s papal bull Romanus Pontifex,[4] but Chief Justice Marshall’s decision made this doctrine a part of the legal fabric of this country.

The consequences of this doctrine have been significant. Since European discoverers had rights to the land, not Native Americans who already had the land, it has allowed for the pushing of Native Americans off their former lands and for the killing of Native Americans in the process. And, when this doctrine hasn’t killed Native Americans, it has at the very least disenfranchised many of them.

To make matters worse, the Doctrine of Discovery remains a major part of the American legal system. Even Ruth Bader Ginsburg cited the very Doctrine of Discovery that has caused so much harm when she wrote a majority opinion for a Supreme Court decision in 2005.[5] And, to my knowledge, there has been nothing to undo that Doctrine of Discovery being part of America’s legal framework.

This is not to say that there is no hope in terms of acknowledging the wrongs of the doctrine, let alone doing anything about it. Many prominent entities, ranging from the United Nations in its Declaration on the Rights of Indigenous Peoples[6] to the World Council of Churches (a fellowship of churches that includes the United Methodist Church, Episcopal churches from several regions, and the Evangelical Lutheran Church of America, to name a few),[7] have repudiated this doctrine either explicitly or implicitly (as the UN did so without specifically mentioning the words “Doctrine of Discovery”). If these efforts show anything, it’s that more people are realizing the damage of this doctrine, and that maybe such a realization will eventually make its way to the American legal system. And hopefully more people and groups will come to this realization, because acknowledging the damage of the Doctrine of Discovery is one step, albeit a significant step, towards addressing the historical lack of land rights for Native Americans.


[1] For more on my feelings about Christopher Columbus and Columbus Day in general (which, as my readers can tell, are not positive feelings), I encourage you to read my post about the person and the holiday that I wrote two years ago: https://blindinjusticeblog.com/2017/10/10/why-i-blogged-today-even-though-columbus-day-was-yesterday/

[2] Lexis-Nexis probably does a much better job of describing the case than I could, so I encourage all to read the Lexis-Nexis summary of Johnson v. M’Intosh: https://www.lexisnexis.com/community/casebrief/p/casebrief-johnson-v-m-intosh

[3] Chief Justice Marshall goes into this doctrine when writing about the Supreme Court’s decision in Johnson v. M’Intosh.

[4] http://ili.nativeweb.org/sdrm_art.html

[5] I am a fan of Ruth Bader Ginsburg overall, but, as sad as it is for me to say this, she invoked the Doctrine of Discovery when she wrote the majority opinion of City of Sherrill v. Oneida Indian Nation: https://www.law.cornell.edu/supct/html/03-855.ZO.html

[6] Page 3 of this declaration affirms “further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust.” https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf

[7] https://www.oikoumene.org/en/resources/documents/executive-committee/2012-02/statement-on-the-doctrine-of-discovery-and-its-enduring-impact-on-indigenous-peoples

Earth Day 2019: Focusing on Policies that Don’t Intend to Hurt the Environment…But Hurt the Environment Anyway

Sometimes, it’s not easy being green. We are often required to drive to/from work, drive our kids to school, drive to get to other family members’ places, have a job that requires someone to drive…on and on it goes. The bottom line is that even if we don’t want to put more pollution in the air, our living habits are such that we often have no other choice.

And here’s the thing: so many of these things are the result of policies that don’t intend to hurt the environment per se, but do so nevertheless. 

But how? Here’s a list of several policies not intended to hurt the environment, but that hurt the environment anyway:

  1. Approaches to land use have often favored development of car-reliant suburbs over transit-reliant areas. For decades, the focus was (and still is) on building around the highway. One of the most famous examples in the post-World War II era was with parts of Long Island in New York being built around the Long Island Expressway, but there are many other examples of this. Policy that allows for the building of areas that are destined to be mass transit deserts leads to heavy use of the car and heavy pollution.
  2. Poor funding for mass transit means fewer mass transit options, and pushing people towards the car. If there’s no mass transit available to take because of a lack of funding for mass transit, what choice is there other than to drive a pollution-emitting car?
  3. School choice policies mean that kids have to be driven or bused to the schools of their choices. What I say here may be controversial, as school choice sounds great and is popular with many. However, one of the consequences of school choice is that, instead of having to walk to the neighborhood school (especially in urban areas), kids have to be driven to far-away places. No pun intended, but if governmental bureaucrats invested energy into making all schools good, there would be no need for kids to have to be driven for miles, while emitting pollutants into the air.
  4. Speaking of schools, many school districts have school lunches that prominently feature food that emits high levels of greenhouse gases. As things like red meats are a large part of the lunch fare at many schools, school districts are heavily using food that emits high amounts of CO2 into the atmosphere. Lean meats and vegetables are not only healthier for kids than red meats, but they are healthier for the environment.
  5. We’re not doing enough to make housing affordable. In places like New York City and Washington, DC, people often drive long distances to work because nearby areas are simply not affordable. In short, affordability crises are not just bad for people’s pocketbooks, but bad for the environment because people have to drive to work.
  6. Many municipalities recycle but don’t provide easy access for people who want to recycle certain kinds of items. That’s how you end up with copious amounts of e-waste inside a home (including my home)—sometimes a city, even one that purports to be environmental (such as New York City), doesn’t have easy access for people who want to recycle said e-waste (or other waste).

Obviously, this is a rather car-heavy list. Regardless of that, my point is that there are many governmental approaches and policies that are not malicious to the environment per se, but end up doing a great deal of harm to it. And, during this week of Earth Day, we should be aware of such policies.