Global warming, legal history, and the race for new lands

When a recent Arctic expedition planted a Russian flag almost three miles beneath the polar ice cap, Bob Miller’s thoughts turned to English coins buried in British Columbia in the 18th century.

Whether he’s teaching how ancient statutes in Indian law affect tribal life today, or developing new scholarship around one of international law’s oldest precepts, he’s accustomed to drawing parallels between seemingly disparate events. After all, he studies the Lewis and Clark Expedition and thinks of Thomas Jefferson, naturally enough— but also of a 15th-century pope.

Many of Miller’s parallels emanate from his research into the Doctrine of Discovery, a set of practices and legal principles traceable to a 1455 papal edict. What Pope Nicholas V put in motion, European countries continually refined in their drive to establish sovereignty over indigenous peoples. Miller sees aspects of the centuries-old doctrine being applied anew as nations compete to claim lands and resources now being made accessible by global climate change.

“European explorers used the doctrine to rationalize their claims of property rights to lands they ‘discovered’—even though native peoples had lived on and tended those lands for centuries,” Miller says. “One of the ways they asserted sovereignty was by leaving tangible evidence of their presence. Captain Cook, for example, buried bottles of coins. Lewis and Clark distributed Jefferson peace medals to tribal chiefs. And now the Russians have embedded a flag at the bottom of the Arctic Ocean to lay claim to the vast riches of this latest new world.”

As it evolved, the Doctrine of Discovery was interpreted to extend ownership rights to contiguous resources as well as to the land itself. Whether that interpretation still applies is especially critical today, Miller says, as the race for oil, water, and other precious resources continues to realign geopolitical dynamics in the new global century.