International Law and Indigenous People
Half a millennium ago the peoples indigenous to the continents now called North and South America began to experience change, a kind of change they had not experienced before. Europeans arrived and began to lay claim to their lands, frequently slaughtering the Native children, women, and men who stood in the way. For many of those who survived, the Europeans brought disease and slavery.
Not long after the genocidal patterns began, concerned European theologians and jurists questioned the legality and morality of the onslaught. What emerged from their lectures and writings were prescriptions designed to shape encounters with the peoples of the "New World." The dominant sixteenth century juridical view was expressed by the Spanish Dominican cleric Francisco de Vitoria who, applying natural law precepts, challenged the Spanish claims to Native lands. Vitoria argued that the Indians of the Americas were the true owners of their lands, with "dominion in both public and private matters," and upon this premise he set forth the rules by which the Europeans could validly acquire Indian lands or assert authority over them. Vitoria's work, grounded in the European theocratic world view of the sixteenth century, was filled with cultural biases, and he provided conceptual support for colonial patterns by his theory of just war. Nonetheless, within the limitations of that world view, Vitoria essentially treated the Indians as having the same rights and duties as all of humanity. Like all others, Indians could have war waged against them for "just" cause; but unless conquest followed a just war, Indians could not unilaterally be dispossessed of their lands or their autonomous existence.
Vitoria's lectures on the Indians established him among the oft-cited founders of modern international law. His prescriptions for the European encounters with the aboriginal peoples of the Western Hemisphere were building blocks for a system of principles and rules governing encounters among all peoples of the world. Subsequent theorists continued through the nineteenth century to include non-European aboriginal peoples as among the subjects of what came to be known as the "law of nations," and later, "international law." Accordingly, the law of nations was the grounding for the first pronouncements of the United States Supreme Court on the status and rights of Native Americans. In Johnson v. M'lntosh (1823), Cherokee Nation v. Georgia (1831), and Worcestar v. Georgia (1832), cases authored by Chief Justice John Marshall, the Supreme Court invoked international law to uphold the "original rights" of Native peoples as well as to signal the means by which those rights could be limited or abrogated.
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