In the twenty-first century advancements in science and technology have enabled humanity to uncover a wealth of new knowledge about our planet, the galaxy in which it is housed, and the multitude of galaxies that make up the universe beyond the Milky Way. We have come to witness the magnificence and enormity of that vast and open space above our heads and to reduce the mystery of what lies beyond our skyward gaze. It is an age of endless possibilities and extraordinary new insights to be gleaned from adventurous explorations into the stars. Undoubtedly, the sparkle in the eyes of contemporary astronauts is little different than it would have been for pilots who hoisted anchor and set sail with merchant ships for the New World in the sixteenth and seventeenth centuries.
Landing on the shorelines of the American continents, men the likes of Christopher Columbus, Giovanni de Verrazano, Hernando de Soto, Jacques Cartier, and Martin Frobisher, would likely have had little conception of how vast a discovery of land mass they planted their feet upon. Fully eight times the size of the European continent from whence they came, this foreboding wilderness would take centuries more to cross. The 'Age of Discovery' is in actuality a misnomer and should perhaps be titled the 'Age of Arrival' since the word discovery implies an attribute of awareness and knowledge about the New World that did not exist. As Jack Weatherford has observed in his book, Indian Givers- How the Indians of the Americas Transformed The World, "Columbus arrived in the New World in 1492, but [the Americas have] yet to be discovered...The history and culture of [the Americas] remains a mystery, still terra incognita after five hundred years."
The original legal doctrine from the Law of Nations used to support European imperial claims to acquisition of territories in the Americas was the doctrine of Discovery. According to the dictates of this doctrine, title to terra nullius (unoccupied) lands could be acquired and sovereignty established by symbolic acts such as erecting a coat-of-arms on a pole or burying coins in the soil. However, title to the lands was only considered to be valid if said lands were not already in the possession of a Christian Prince. Also, at the end of the fifteenth century and throughout the sixteenth and seventeenth centuries Europe was still operating intellectually within the framework of Natural Law, which acknowledged the right of 'infidels' to dominium. Therefore, it had to be established within a claim to territories that were already occupied by non-Christian peoples that they were in fact not human at all, but rather a sub-human species. This would nullify their rights under Natural Law and make it valid for representatives of a European monarch to claim sovereignty over their lands under Canon Law. It was through incorporation of this rationale that Spanish explorers asserted sovereignty over the territories they arrived at in the Americas; claiming title on behalf of King Ferdinand and Queen Isabella through reference to the 1493 Papal Bull, Inter Catera, while also suppressing and exterminating the indigenous peoples they encountered.
Who were those beings that Hernando de Soto and Francisco Pizzaro encountered in Mexico and Peru, that Jacques Cartier met on the St. Lawrence River, and Captain James Cook traded with along the North West Coast? Were they really a sub-human species incapable of political organization, outside the protection of Natural Law and devoid of property rights? The revolutionary advances in science and technology during the course of the twentieth and twenty-first centuries have not only served to open a gateway to the heavens, but have also aided significantly in unlocking some of the hidden stories of ancient civilizations on the Earth. A window into the antiquity of the Americas has started to reveal glimpses of the land's history through the efforts of archaeologists, anthropologists, linguists, and ethnohistorians in the latter part of the nineteenth century and throughout the twentieth. Of particular utility to archaeologists was the development of Radio Carbon Dating (Carbon 14 Dating) techniques in the 1960s. Through this procedure for testing of organic matter unearthed in dig sites it became possible to calculate the age of their finds with an enhanced degree of accuracy.
The renaissance of indigenous cutural identities in the Americas over the past quarter century has also stimulated an unearthing of volumes of hitherto forgotten and ignored documentation of inter-relations and formal agreements reached between Aboriginal peoples and European imperial representatives since the time of first contact. As knowledge about the Pre-Contact and Historic eras of the Americas has accumulated it has exposed a host of erroneous assumptions that hitherto have shaped perceptions and attitudes about the peoples who inhabited these lands before immigrants from Europe settled in their midst.
The findings of these studies thus far indicate that human beings have been inhabiting the length and breadth of the American continents for at least the past 11,000 years. Archaeological sites have produced Radio-Carbon datings of 13,000-15,000 B.P.(Before Present) in Monte Verde, southern Chile; 10,500 B.P. in Charlie Lake Cave, British Columbia; 9,000 B.P. from a Longhouse unearthed in Mission, British Columbia, and from the Fletcher (Bison kill) Site in southern Alberta; 10,600 B.P. in Debert, Nova Scotia; and 3,000 B.P. on the Red Deer River in central Alberta.
It is still a matter of conjecture as to how the continents became populated but the generally accepted view is that during the last Ice Age a landbridge of snow and ice 1000 kilometers wide formed across the Bering Strait (also known as Beringia), thus connecting Siberia to the North American continent. As the theory goes, Paleo-Indians in pursuit of Mammoths simply walked across Beringia and in time migrated south and spread out across the Plains, into the Woodlands, and beyond. Knut Fladmark, a Canadian archaeologist, holds the hypothesis of a coastal migration route. Since the west coast was unglaciated anywhere from 60,000 to 25,000 years ago this is also a viable theory, though a lack of any archaeological evidence to support the argument leaves it open to challenge. Last, but not at all the least, is the suggestion made by Alan McMillan that the arrival at various times of separate populations with very different cultural adaptations would help to explain the diversity of distinct peoples and cultures that comprise the indigenous population of the Americas.
Although the true origin of Aboriginal peoples in the New World remains contentious, what is clear is that, "[f]or a thousand generations, the American continents have been home to Indian people. From forager to farmer, tribe to nation, the native American civilizations waxed and waned. They developed sophisticated forms of art, elaborate political and social structures, intricate intellectual patterns, mathematics, handicrafts, agriculture, writing, complex religious and belief systems, imaginative architecture - indeed a whole panoply of human endeavors that rivaled the cultures developing in the Middle East, Europe, and China." Several excellent books have been published in recent years which provide extensive descriptions of a host of diverse cultures and societies in the Pre-Contact era and it is well beyond the scope of this article to repeat that recording and analysis. A brief synthesis is necessary, however, to stand as evidence for both the antiquity of civilization in the Americas and to refute any assertion of a 'sub-human' characterization for these peoples.
The oldest archaeological discoveries to date identify a foraging peoples that have come to be known by the name, Clovis. Dig sites have produced Radio-Carbon dates between 9,500 and 9,000 B.P., though not much is known about these peoples beyond their identification as Homo Sapiens and the design of the spear points that they used in hunting for their survival. The other cultures and societies that have been discovered can be divided into three distinct periods: the Archaic Period (6000 B.C. - 1000 B.C.); the Initial Woodland Period (1000 B.C. - A.D. 900); and the Terminal Woodland Period (A.D. 900 to the historic era).
From the Archaic Period (6000 B.C.-1000 B.C.) we have as an example of the age the Olmec, who achieved political domination and military authority over a vast area of settled agricultural villages along the Mexican Gulf Coast from 1500 B.C. thru 600 B.C.. It has been hypothesized that the Olmec was not actually a specific culture, but rather a pan-Middle American religion that preceded the birth of the first pan-European religion (Christendom) by 1500 years. The symbolic icon of the Olmec religion was the Rain God; an ogre with human and jaguar aspects. The example of these peoples serves to demonstrate a sophisticated construct of spirituality and counters the premise later utilized to diminish the rights of Aboriginal peoples to dominium under Natural Law; namely that the indigenous population were a dumb and brutish species incapable of political community. The stone edifices that have been discovered also provide evidence of a capacity for intricate craftsmanship and a flare for expression of world views that parallels anything produced in Greece and Rome during the same era.
Also within the Archaic Period is evidence of the Laurentian culture in the region of what is now referred to as southern Ontario and Quebec. Archaeologists have also identified these peoples as belonging to the categorization of foragers. Through examination of burial sites, evidence has been uncovered that provides insight into complex ceremonialism, the practice of warfare, and the existence of extensive trade networks. In contemporary appraisals indicators of ritual in burial practices infers a 'civilized' attribute, while the ability to organize for warfare and trade stand as benchmarks for a people's right to recognition of statehood and demonstrates the capacity for political community and a sovereign will to possess the benefits of a defined territory.
The Initial Woodland Period (1000 B.C. - A.D. 900) is marked by the cultures and societies of the Zapotec (500 B.C. - A.D. 700) in the valley of Oaxaca, Mexico; the carefully planned city construction, field irrigation system, and pyramid-building of the Teotihuacan (150 B.C. - A.D. 750); the agricultural practices, Longhouse government tradition and communal organization of the Owasco (A.D. 100 - A.D. 1300) - ancestors of the Iroquois - in upper New York State; the Mayan Empire (A.D. 300 - A.D. 900), with its hieroglyphic language recorded on walls of stone that parallels the complexity of the Egyptian hieroglyphic tradition; the continuous presence of nomadic and communal Bison hunters on the Plains from early in the Archaic Period, and the system of community policing they employed to regulate the competing interests of group vs. individual rights; and the hierarchical and patriarchal political communities of the North West Coast whose ancestors are now referred to as the Haida, Tsimshian, Tlingit, Kwakiutl, Nuu-chah-nulth, Nuxalk and Gitksan.
In the Terminal Woodland Period (A.D. 900 to the historic era) the Americas were home to the Mississippian cultures (A.D. 750 - A.D. 1539) of the Eastern Woodlands region - ancestors of the Creeks, Chickasaws, Seminoles, Choctaws, and Cherokees - whose burial mounds and ceremonies demonstrated an elaborate cornucopia of religious customs and spiritual beliefs; the Anazazi (A.D. 900 - A.D. 1150) of the Colorado Plateau - ancestors of the Pueblo Indians and builders of what has come to be known as the Chaco Phenomenon; the Ontario Iroquois Tradition of the Huron, Petun and Neutral cultures as well as the St. Lawrence Iroquoian cultures of the Stadaconans and Hochelagans; The Innu (Montagnais-Naskapi) of northern Quebec and Labrador; the Algonkian of northeastern North America - ancestors of the Cree and Ojibwa; the Thule peoples (A.D. 1000 - A.D. 1600) of the Arctic - ancestors of the Inuit; the 'dog days' of nomadic life for the Blackfoot Confederacy and the Gros Ventre; and the floating city of the Aztec Empire (A.D. 1325 - A.D. 1520) in Peru.
This cursory synthesis undoubtedly captures only a fragment of the historical complexities and cultural identities of the Americas during the Pre-Contact ages but should provide sufficient evidence to undermine any pretense of a natural inferiority as a defining characteristic of Aboriginal peoples. These people were no less susceptible to the currents of social and political change that are so much a part of all societies throughout the histories of every region on the globe. Like Europeans, Africans and Asians, the record of their histories demonstrates the same capacity for adaptation and utilization of the Earth and its resources for survival, a common affinity toward political community, family and group allegiance, territorial attachments, inter-societal trade arrangements, and warfare. They have demonstrated their intelligence through a host of cultural achievements, spiritual philosophies, language formulations, agricultural developments and pharmacology discoveries.
The inherent humanity of these peoples, it is important to note, was not denied by the first European explorers to arrive on the American continent either. Before their greed for gold consumed the last vestiges of their morality and consciences, explorers acknowledged and validated the identity of Aboriginal peoples with attributes equal to or greater than their own. Jacques Cartier referred to the Indians he encountered on his first voyage by noting that, "...there can be no doubt that they are a superior race." Francisco Pizzaro and his mates were awe-struck by the spectacular Aztec engineering feat of building a floating city on top of a lake and one of them considered it as more magnificent than anything he had ever seen in Europe. Indeed, it was not until the discovery of treasures in Mexico and Peru that the 'Noble Savage' made a transformation of identity within the minds of European explorers into the 'Savage Beast.'
Support for the assertion that a customary rule validating territorial claims based on Discovery within the Law of Nations did not, in fact, achieve coalescence into a mutually recognized right acceptable to all states, even in Europe, comes from several observations. First, as noted earlier in this work, Spain was criticized throughout much of the sixteenth century "...for cruelty of human to human" and the contemporary revulsion with the immorality of their actions has been enshrined for historical reference within La Leyenda Negra. Secondly, the arguments of Spanish Dominican, Las Casas, as presented to the Spanish Crown exposed the detestable activities of the Conquistadors in the New World, defended Aboriginal rights to dominium under Natural Law, and attacked the Aristotelian notion of an inherent 'servile' character within perceptions of the indigenous population of the New World. As a result of his arguments, the Spanish Crown accepted an Aboriginal title to the land, at least in the abstract, and encouraged its representatives in the New World to complete treaties with the Aboriginal peoples for their lands.
Last, but not least, prominent scholarly opinion also denounced the claim. Francisco de Vitoria (A.D. 1480? - A.D. 1552), Dominican and Primary Professor of Sacred Theology at the University of Salamanca, has been recognized as "...one of the most important thinkers of this period," and "[h]is work had a tangible influence on the policies and attitudes of the powers of the day..." In A.D. 1532 his work, "De Indis Et De Jure Belli" was published, which"...outlined basic concepts of the rights of indigenous peoples." According to Vitoria's argument, there was "...no ground for making war and seizing the property of barbarians", "aborigines are true owners from both the public and private point of view", and "...claims based on 'discovery' are discounted." As Maureen Davies has observed, "Vitoria's concept of the Law of Nations recognized that certain rights inhere in men as men and that state equality was applicable to all states, not merely to those that were Christian or European."
During the nineteenth and twentieth centuries the Law of Nations that arose out of the political dynamics of Europe during the sixteenth century was to provide the catalyst for the evolution of international customary rules for judging the validity of territorial claims under International Law. The legal validity of claims based on the doctrine of Discovery has not changed in four hundred years. As was the view of Innocent IV, Las Casas and Vitoria in the sixteenth century under the Law of Nations, so too under International Law it has been invalidated by Judge Ammoun of The United Nations International Court of Justice. In the Western Sahara Case of 1975 Ammoun ruled that, "[i]n short, the concept of terra nullius, employed at all periods, to the brink of the twentieth century, to justify conquest and colonization, stands condemned."
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