Indigenous Consent: A Right Rooted in the Doctrine of Discovery
“Indians being the prior occupants, possess the right to the soil. It cannot be taken from them unless by their free consent…. To dispossess them in any other principle, would be a gross violation of the fundamental laws of nature” (Henry Knox, Secretary of War, 1789).1
Consent is a fundamental Indigenous right that exists in a reciprocal relationship with all other Indigenous rights. However, the role of consent is especially critical in promoting and protecting Indigenous sovereign and territorial rights. While the above statement appears to recognize and honor that power of Indigenous consent, history soon exposed it as theatrics and mere deceit. By putting a stop to unrestrained settler incursions on Indigenous lands, the federal government used its consolidated power to induce Indigenous consent to massive land cessions, masquerading as treaty agreements. This formal ‘Indian’ policy, guided by the rationale of the Doctrine of Discovery combined with the façade of consensual relations, has laid the legal basis for the construction of the United States.
Over the past three decades, there has been a consistent effort to reclaim the power of consent by Indigenous peoples, especially their capacity to say “no” to measures and projects that are inconsistent with their priorities and values, and, hence, jeopardize the exercise of their territorial, cultural, economic, and political rights. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the most authoritative statement on Indigenous rights in international law, was adopted to fortify these efforts. Having linked Indigenous consent with the exercise of Indigenous self-determination (i.e., the right to freely determine their political status and pursue their economic, social and cultural development), UNDRIP expanded its scope as ‘free, prior and informed consent’ (FPIC) to add significant guardrails for protecting all other Indigenous rights, to help rebalance power relations, and to demand greater accountability from settler states.
As a powerful tool in Indigenous hands, FPIC has predictably faced numerous challenges in its conceptualization and application. This article seeks to shed light on some of the entrenched settler colonial practices that left deep-rooted legacies of misuse of Indigenous consent, or outright denial of their option to withdraw consent, to legitimize settler nation building on Indigenous territories. I will start this article by laying out the contemporary formulations of FPIC, followed by the discussion of the ongoing impact of the Doctrine of Discovery, which once implemented through preemption rights, continues to pose challenges to FPIC.
FPIC in the Era of UNDRIP
FPIC, as a consent-based framework, was specifically developed in relation to Indigenous peoples in the mid-1980s2, as the UN Working Group on Indigenous Populations (UNWGIP) began to assert Indigenous inherent rights in the process of drafting UNDRIP. Adopted by the UN General Assembly in 2007, UNDRIP, though a non-binding international instrument, established a minimum standard for the protection of Indigenous rights, accompanied by corresponding duties for the States engaging with Indigenous nations based on cooperation and mutual respect.
At the heart of UNDRIP is the assertion of Indigenous collective, inherent rights, and especially, the right to self-determination, which, in turn, is anchored in Indigenous consent rights, FPIC. Therefore, out of all the international mechanisms, UNDRIP, in six out of forty-six articles, most explicitly and comprehensively addresses the States’ duty to consult in order to obtain FPIC from Indigenous nations impacted by:
forced relocations (Art. 10);
theft of cultural, intellectual, religious and spiritual property (Art. 11.1);
proposed legislative and administrative measures (Art. 19);
confiscation, occupation or damage of lands, territories and natural resources (Art 28);
disposal of hazardous materials (Art. 29);
or proposed natural resource development projects (Art. 32).
Collectively, these articles not only make the States’ duty to consult a requirement, but also frame ‘good faith’ consultations as a necessary step to obtaining FPIC, whether a State or a non-State is involved as a negotiating party.
However, where UNDRIP falls short is on qualifying what constitutes ‘consent’ and how it should be achieved. First, UNWGIP (2004), followed by the UN Special Rapporteur on the Rights of Indigenous Peoples, James Anaya (2009), and, most recently, the Expert Mechanism on the Rights of Indigenous Peoples (2018) sought to bring clarity to the definition of consent and its three qualifying principles of ‘free,’ ‘prior’ and ‘informed.’ They explain that ‘free consent’ is achieved without coercion, manipulation or intimidation; while ‘prior’ refers to an early commencement of negotiations in advance of issuing authorizations or permits, preferably at the project conceptualization stages with sufficient time for consideration and/or amendment. Further, ‘informed consent’ implies that information made available provides sufficient qualitative and quantitative data (i.e., various impact assessment studies) that are objective, clear, and accurate, and are presented in the manner that is understandable to and requested by the impacted Indigenous peoples.
Since there is no accepted definition of ‘consent,’ it proves most difficult to capture. According to Anaya, it is far from “a freestanding device of legitimation” or a shorthand for “yes” to a predetermined decision.3 Instead, it can only be achieved when it is free, prior and informed and when there is an explicit agreement to proceed. Consent should emerge out of effective consultations, pursued in good faith, and as a result of collaboration and meaningful engagement with appropriate Indigenous political and legal institutions. Achieved agreements should not be considered final, but rather include mechanisms for ongoing reviews and renewals at any stage of proposed projects, including withdrawal of consent itself. As an integral element of self-determination, consent also constitutes a collective participatory right, where Indigenous stakeholders not only have a voice in consultations but are the decisionmakers themselves.
The application of FPIC, understandably, seeks to raise the standards for engaging with Indigenous peoples. This need emerges from the lessons of history that continue to pose challenges to Indigenous peoples’ full enjoyment of their rights.
Doctrine of Discovery and the Function of Indigenous Consent:
FPIC was hardly the framework that European States relied on, when, in the 15th, and 16th centuries, they began carving up the Americas into their exclusive spheres of influence. At best, proclamations were read in foreign languages to empty shores, missing the mark on informed consent. Even when more direct consent was attempted, it was hardly prior.[^4] A theologically-derived international law guided by the Doctrine of Discovery, vested European States with absolute dominion and ownership in Indigenous territories, even before they set foot there. Crucially, under this legal framework, a State could preempt other European States from interfering with their territorial claims and trade monopolies solely on the basis of first discovery; hence, without any regard for Indigenous peoples already living there.4
Having emerged from the Doctrine of Discovery, preemption rights helped implement this foundational, yet fabricated, legal doctrine in North America, this time, relying on Indigenous consent to operate. With the establishment of settled colonies, preemption was employed as an exclusive right of first purchase of Indigenous lands, subject only to Indigenous occupancy. However, as an incomplete (or future) proprietary right, it required Indigenous consent to extinguish their own territorial rights for preemption to become a full proprietary, or fee simple, title.5 Over time, the pressure on Indigenous nations to grant consent became so intense that any semblance, dignity or respect, characteristic of originally conceived, consensual treaty relations between Indigenous nations and settler colonies began to erode.
As a tool of colonial expansion, preemption redefined Indigenous consent in three significant and interrelated ways that have left a lasting imprint on the exercise of FPIC today. First, preemption depended on establishing and maintaining unequal power relations for its existence and effectiveness. Indigenous right to withdraw consent was progressively superseded by the Euro-American right to buy and replace Indigenous land relations with settler colonial proprietary rights. However, doing so by means of purchase helped conceal the true nature of this power dynamic, implying mutual, fair, and legal agreements, where, in theory, each partly benefited equally from such transactions.6
Second, in order for preemption to operate, it required (a) Indigenous lands to be translated into a marketable commodity; (b) Indigenous land relations redefined as a proprietary title; and (c) Indigenous nations acknowledged as owners and sellers of their lands, capable of passing legally recognizable titles onto non-Indigenous buyers. As a result, it generated a lucrative market where preemption was bought and sold as exclusive licenses to land speculators, permitting them to negotiate with Indigenous nations for the sale of their lands. A preemption holder, as a sole investor, would purchase Indigenous lands at a minimal cost and resell them at a high profit margin. Hence, it was in the interest of that preemption holder to secure Indigenous consent by any means necessary, including coercion, fraud, deceit, manipulation, or even force, gradually leading to a general dissatisfaction among Indigenous nations.7
In response, the Royal Proclamation of 1763 was passed to restore and centralize the exercise of preemption as an executive privilege of the British Crown, a structure that was later replicated by the U.S. federal government.8 While it established additional protective measures against fraudulently obtained land agreements through the 1790 Trade and Intercourse Act, the federal government continued to diminish the power of Indigenous consent, resorting to similar tactics that land speculators used to obtain land cessions under the guise of consensually-negotiated treaties.9
Finally, preemption is inscribed into U.S. law as a complementary, though not equal, title to the one held by Indigenous nations following the Supreme Court decision in Johnson v M’Intosh (1823). Even though Indigenous nations were not party to this lawsuit, their title becomes formally incorporated into the unitary, western land tenure system (as opposed to distinctly operating ones by virtue of their distinct sovereignties).10 According to this decision, preemption, still exercised as an incomplete and exclusive right in Indigenous lands held by the federal government, creates an impairment on Indigenous land title, now referred to as an ‘Indian title.’ This impairment removes the right of free alienability from Indigenous nations, or simply put, the ability to choose a buyer and hold sovereign-to-sovereign relations with other nations.11 The legitimacy of this structure, where neither title is complete nor can exist without the other, hinges on Indigenous consent to validate negotiated land transfers. To put it bluntly, Indigenous consent is used as a permission to realize preemption into a fee simple title and, in the process, erase Indigenous possession and presence from the land.
Consequently, this manipulation and erosion of Indigenous consent rights as a mere function of this fabricated land tenure system leads the Supreme Court in Cherokee Nation v Georgia (1831) to proclaim Indigenous peoples as “domestic dependent nations,” which, in turn, leads Congress to unilaterally end Indigenous-U.S. treaty relations in 1871, eradicating the nearly 100-year-old tradition of sovereign-to-sovereign, consent-based diplomacy.12
Doctrine of Discovery’s Long Shadow over FPIC:
Deep asymmetries of power, where preemption, though an incomplete right, redefined Indigenous land relations into a subordinate ‘Indian title,’ continue to pose barriers to Indigenous full and meaningful participation in decisions impacting their sovereign and territorial rights. When power imbalance is built into political relations, consent can hardly be free, hence failing to meet the first principle of FPIC. Even when coercion, manipulation or intimidation are absent, Indigenous nations are left to contend with greater risks than benefits of proposed actions, measures, or projects. This is especially true of development projects, seeking to extract natural resources from Indigenous territories. Compared to the States and industry, Indigenous nations operate with more limited access to technical expertise and financial resources or are subject to restrictive timelines that make it difficult to reach informed, collective decisions. Neither are there established processes for conducting fair consultations, accepting Indigenous decisions to withhold consent, or submitting grievances to mitigate adverse by-products of proposed actions.13
Building on the persistence of the deep power asymmetries that eventually locked the exercise of ‘Indian title’ within a single land tenure system, preemption rights have accelerated the process of stripping Indigenous consent of its authority, thus, making it easier for the United States to justify its rejection of FPIC. This rejection was most clearly voiced in response to Indigenous framing of their right to self-determination in the Draft Declaration on the Rights of Indigenous Peoples (1994). To safeguard Indigenous self-determination, the Draft Declaration contains strong and straightforward language on the requirement of consent, asserting that “States shall obtain free and informed consent” (Art. 20 and Art. 30) or outright prohibits certain actions, such as storage of hazardous materials on Indigenous territories (Art. 28). Over the course of negotiating the Draft Declaration, States consistently tried to weaken that language by adding qualifying words like ‘merely’ to their duty to consult or ‘significant’ in describing impact of proposed actions in an effort to limit the scope of their responsibility. Although UNDRIP’s final version did not include these terms, the language they settled on is intentionally ambiguous, cautious, and less restrictive, requiring States to ‘consult in order to obtain consent’ (Articles 19 and 32).14 In doing so, they prioritize consultation, while leaving consent as an aspirational goal, and not a requirement, of that process.
In addition to these efforts, the requirement of Indigenous consent was forcefully condemned by the United States as anti-democratic and discriminatory, analogous to an Indigenous veto power over the interest of the Nation. While supporting “the full participation of Indigenous peoples in democratic decision-making process,” the United States declared that it “cannot accept the notion of a subnational group having a ‘veto’ power over the legislative process.”15 This sentiment is echoed in the last-minute addition of Article 46 to UNDRIP, by which the States prohibit any action by Indigenous nations that could impair their “territorial integrity or political unity,” whereby, implying Indigenous nations constitute part of that unity. In the end, the United States’ commitment to the consultation-only approach in negotiations with impacted Indigenous nations prevailed. In its 2010 endorsement of UNDRIP, “the United States recognizes the significance of the Declaration’s provisions on free, prior and informed consent, which… [it] understands to call for a process of meaningful consultation with tribal leaders, but not necessarily the agreement of those leaders, before the actions addressed in those consultations are taken.”16 This clearly articulated, non-consensual approach and commitment to maintaining power imbalance continues to define federal Indian law and policy and was recently rearticulated in President Biden’s 2021 Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships.17
The United States’ response to Indigenous resurgence of consent rights through the Draft Declaration and UNDRIP warrants further clarification. The common thread that runs through these reactions demonstrates that the framework established by the Doctrine of Discovery continues to provide the scaffolding for the legal standing of setter nations, such as the United States. This framework redefined Indigenous territorial rights into an incomplete ‘Indian title’ that is not only subordinate to the future interest of the United States but is also built into the United States’ legal system to protect its own interest.18 Therefore, any power to withhold consent that is inconsistent with that interest, even if harmful to Indigenous nations, is negated and condemned as a veto power, the same power that each member of the international community readily claims when an action or an agreement is harmful to their interests.
Simply put, full recognition of Indigenous consent rights, the very rights that safeguard all other Indigenous rights, poses a threat to the United States authority and integrity. The same sense of threat kept the United States from signing the 1989 International Labor Organization’s (ILO) Convention #169 concerning Indigenous and Tribal Peoples in Independent Countries, a binding international instrument that imposes on State signatories a duty to consult with an objective of achieving agreement on measures impacting Indigenous peoples. Neither does the United States avail itself to be bound by the FPIC-focused decisions of the Inter-American Court of Human Rights, which not only affirmed the States’ ‘duty to consult’ and their responsibility for any inadequacies in the consultation and decision-making process in protecting Indigenous human rights, but also made Indigenous consent a requirement in large-scale development projects.19
Consequently, both international instruments are only partially successful in their advocacy of Indigenous consent rights, as neither makes it an unnegotiable requirement. This trend points to a broader failure in respecting and upholding Indigenous rights, which was on full display in the 2016 Dakota Access Pipeline (DAPL) protests. Energy Transfer LP refused to respect the Standing Rock Sioux Tribe’s decision to withdraw their consent from the project, let alone, include them in a meaningful consultation process. Those non-consensual practices, together with a lack of federal oversight of the company’s actions, left the citizens of the Tribe and their supporters exposed to harassment, intimidation, and violence. This case also revealed that U.S. courts, which litigated this case, lacked the understanding of ‘meaningful and good faith consultations,’ much less FPIC, by accepting a mere transfer of partial information as such. Today, extractive industries together with legislation and legal decisions of the United States government pose the most serious challenges to FPIC. It is also where UNDRIP’s language in Articles 19 and 32 was significantly compromised to diminish the requirement of Indigenous consent. Even though DAPL was eventually ordered to cease, the oil was left to flow through the pipelines without further repercussions.20
Indigenous consent rights are critical to the full realization of Indigenous right to self-determination. Therefore, it is important that FPIC is not treated as a blanket agreement and includes a meaningful range of choices that are consistent with each Indigenous nation’s priorities and values. It should insist on consensus, rather than compromise-seeking procedures among equally empowered decision-makers.21 These are precisely the terms of a centuries old Two Row Wampum Treaty, entered between the Haudenosaunee and each of the colonial powers, where each party were considered as equals, promising not to interfere with each other’s affairs but rather respect each other’s sovereign and territorial rights.
Understanding how Indigenous consent was captured and redefined to fit the purposes of the colonial powers can serve as one of many steps towards reclaiming this power in relations with settler states, the power that already exists in these nations and communities but is impacted by those historical roadblocks on their way to being fully realized.
Banner, Stuart. How the Indians Lost their Land: Law and Power on the Frontier. Cambridge, Mass.: The Belknap Press of Harvard University Press, 2005
Barelli, Mauro. “Free, Prior, and Informed Consent in the UNDRIP Articles 10, 19, 29(2), and 32(2),” in The UN Declaration on the Rights of Indigenous Peoples: A Commentary, edited by Jessie Hohmann and Marc Weller, 247-269. Oxford University Press, 2018
Blumm, Michael C. “Retracing the Discovery Doctrine: Aboriginal Title, Tribal Sovereignty, and their Significance to Treaty-Making and Modern natural Resources Policy in Indian Country,” Vermont Law Review 28. (2004): 713-777. Accessed at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=593621
Brillman, Marina. “Consenting to Dispossession: The Problematic Heritage and Complex Future of Consultation and Consent of Indigenous Peoples,” Columbia Human Rights Law Review 49, no. 2 (Winter 2018): 1-72. Accessed at: https://hrlr.law.columbia.edu/hrlr/consenting-to-dispossession-the-problematic-heritage-and-complex-future-of-consultation-and-consent-of-indigenous-peoples/
Fredericks, Carla F. ”Operationalizing Free, Prior, and Informed Consent,” Albany Law Review 80, no. 2 (2016-2017): 429-482. Accessed at: https://scholar.law.colorado.edu/faculty-articles/804
Iseli, Claudia. “The Operationalization of the Principle of Free, Prior and Informed Consent: A Duty to Obtain Consent or Simply a Duty to Consult?” UCLA Journal of Environmental Law and Policy 38, no. 2 (2020): 259-275. Accessed at: https://escholarship.org/uc/item/25w7d11q
Kades, Eric. “The Dark Side of Efficiency: Johnson v. M’Intosh and the Expatriation of American Indian Lands,” University of Pennsylvania Law Review 148, (2000): 1065-1190. Accessed at: https://scholarship.law.wm.edu/facpubs/198/
Kinnison, Akilah Jenga, “Indigenous Consent: Rethinking U.S. Consultation Policies in Light of the U.N. Declaration on the Rights of Indigenous Peoples,” Arizona Law Review 53 (2011): 1301-1332. Accessed at: https://arizonalawreview.org/kinnison/
Lindley, M. F. The Acquisition and Government of Backward Territory in International Law: Being a Treatise on the Law and Practice Relating to Colonial Expansion. New York: Negro Universities Press, 1969.
McNeill, Kent. Common Law Aboriginal Title. Oxford: Clarendon Press, 1989
————— “Self-Government and the Inalienability of Aboriginal Title” McGill Law Journal 47, (2002): 473-510. Accessed at: https://digitalcommons.osgoode.yorku.ca/scholarly_works/1119/
Miller, Robert J. Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies. Oxford: Oxford University Press, 2010
Morales, Sarah. “Braiding the Incommensurable: Indigenous Legal Traditions and the Duty to Consult,” in Braiding Legal Orders: Implementing the United Nations Declaration on the Rights of Indigenous Peoples, edited by Oonagh E. Fitzgerald, John Borrows, and Larry Chartrand, 65-81. Center for International Governance Innovation Press, 2019
O’Sullivan, Dominic. ‘We Are All Here to Stay:’ Citizenship, Sovereignty and the UN Declaration on the Rights of Indigenous Peoples. ANU Press, 2020
Owen, John R. and Deanna Kemp. “‘Free, Prior and Informed Consent,’ Social Complexity and the Mining Industry: Extablising a Knowledge Base,” Resources Policy 41 (2014): 91-100. Accessed at: https://www.sciencedirect.com/science/article/pii/S0301420714000300
Piasta-Mansfield, Urszula. “Seneca Nation’s Lands and the Preemption Rights Doctrine: Exploring the Agency of the in-between Space of the Two Rows of Guswentah.” Order No. 3541148, State University of New York at Buffalo, 2012. https://www-proquest-com.proxy.library.cornell.edu/dissertations-theses/seneca-nations-lands-preemption-rights-doctrine/docview/1112070314/se-2.
Prucha, Francis Paul., ed. Documents of United States Indian Policy. 3Rd ed. Lincoln: University of Nebraska Press, 2000
Robertson, Lindsay G. Conquest By Law: How the Discovery of America Dispossessed Indigenous Peoples of their Lands. New York: Oxford UP. 2005
Taylor, Alan. The Divided Ground: Indians, Settlers, and the Northern Borderland of the American Revolution. New York: Vintage Books, 2006
The Sanding Rick Sioux Tribe’s Litigation on the Dakota Access Pipeline. EarthJustice. Accessed at: https://earthjustice.org/features/faq-standing-rock-litigation
Ward, Tara. “The Right to Free, Prior, and Informed Consent: Indigenous Peoples’ Participation rights within International Law.” Northwestern Journal of International Human Rights 10, no. 2 (2011): 54-84. Accessed at: https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1125&context=njihr
Weaver, John C. The Great Land Rush and the Making of the Modern World, 1650-1900. Montreal & Kingston: McGill-Queens UP, 2003
Wilkins, David E. “Deconstructing the Doctrine of Discovery.” Indian Country Today, September 12, 2018, Accessed at: https://indiancountrytoday.com/archive/deconstructing-the-doctrine-of-discovery
Wilkins, David E. and Hank Adams. “Nothing Less than Consent: Consultation and the Diminishment of Indigenous Rights.” Indian Country Today, April 8, 2019 (updated). Accessed at: https://ictnews.org/opinion/nothing-less-than-consent-consultation-and-the-diminishment-of-indigenous-rights
Williams, Robert A. “Jefferson, the Norman Yoke, and American Indian Lands.” Arizona Law Review 29, no. 2. (1987): 165-194. Accessed at: https://heinonline.org/HOL/LandingPage?handle=hein.journals/arz29&div=14&id=&page=
————— The American Indian in Western Legal Thought: The Discourses of Conquest. New York: Oxford University Press, 1990
Wolfe, Patrick. “Settler Colonialism and the Elimination of the Native.” Journal of Genocide Research 8, no. 4 (2006): 387-409
Court Rulings, Declarations, Conventions, and other Government Documents:
Cherokee Nation v. Georgia, 30 U.S. 1 (1831). Accessed at: https://supreme.justia.com/cases/federal/us/30/1/
Draft United Nations Declaration on the Rights of Indigenous Peoples, UN Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 46th Session, UN doc. E/CN.4/Sub. 2/1994/30. Accessed at: http://www.un-documents.net/c4s29445.htm
Economic and Social Council, Impact on Indigenous Peoples of the International Legal Construct Known as the Doctrine of Discovery, which served as the Foundation of the Violation of their Human Rights, UN Doc. E/C19/2010/13 (April 19-30, 2010) (by Tonya Gonnella Frichner) Accessed at: https://www.un.org/esa/socdev/unpfii/documents/E.C.19.2010.13%20EN.pdf
George, R. III, Royal Proclamation of 1763. Accessed at: https://primarydocuments.ca/royal-proclamation-1763/
Human Rights Council, Free Prior and Informed Consent: A Human Rights-Based Approach, Study of the Expert Mechanism on the Rights of Indigenous Peoples, UN Doc. A/HRC/39/62 (10 August 2018). Accessed at: https://www.ohchr.org/en/documents/thematic-reports/free-prior-and-informed-consent-human-rights-based-approach-study-expert
International Labor Organization, Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries, Geneva, 76th ILC session, adopted June 27, 1989. Accessed at: https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C169
Johnson v. M’Intosh, 21 U.S. 543 (1823). Accessed at: https://tile.loc.gov/storage-services/service/ll/usrep/usrep021/usrep021543/usrep021543.pdf
Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships, Federal Registrar 86, (January 29, 2021): 7491-7492. Accessed at: https://www.federalregister.gov/documents/2021/01/29/2021-02075/tribal-consultation-and-strengthening-nation-to--nation-relationships
Special Rapporteur on the Rights of Indigenous Peoples, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development: Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, UN Doc. A/HRC/12/34 (July 15, 2009) (by S. James Anaya) Accessed at: https://www.right-docs.org/doc/a-hrc-12-34/
Guswentah or the Two-Row Wampum: https://www.onondaganation.org/culture/wampum/two-row-wampum-belt-guswenta/
UN Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Report of the Working Group on Indigenous Populations on its 22nd Session, 56th sess, UN Doc E/CN.4/Sub.2/2004/28 (3 August 2004). Accessed at: https://www2.ohchr.org/English/issues/indigenous/docs/wgip23/WP1.doc
UN Declaration on the Rights of Indigenous Peoples, September 13, 2007. G.A. Resolution 61/295, U.N. Doc. A/RES/61/295 (2007). Accessed at: https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html
U.S. Department of State. “Announcement of U.S. Support for the United Nations Declaration on the Rights of Indigenous Peoples” (January 12, 2011). Accessed at: https://2009-2017.state.gov/s/srgia/154553.htm
U.S. Laws, States, Etc. “An Act to Regulate Trade and Intercourse with the Indian Tribes…” June 23d, 1790. Philadelphia. Printed by John Fenno. Accessed at: http://hdl.loc.gov/loc.rbc/rbpe.21401300
 in Prucha 2000, 12. ↩
Fredricks 2017, 430-1; Ward 2011, 55-59; ↩
All arguments laid out in this section can be examined in more detailed in my dissertation: Piasta-Mansfield, Urszula. “Seneca Nation’s Lands and the Preemption Rights Doctrine: Exploring the Agency of the in-between Space of the Two Rows of Guswentah.” 2012. ↩
Miller 2010, 3-21; Williams 1990, 152-183; Lindley 1969, 24-44, 124-135; Economic and Social Council 2010, 6-10; Wilkins 2018. ↩
Miller 2010, 2-7, 28-9; Kades 2000, 1075-1080; Banner 2005, 20-24, Blumm 2004, 715-716; ↩
Kades 2000, 1105-7, 1118-25; Weaver 2003, 152-153, 139-140; Banner 2005, 15, 69-79; ↩
Multiple sources speak to the way, the ‘land market’ operated and the role of land speculation in it. Here are a few of them: Weaver 2003, 53-65, 69-121, 141-175; Banner 2005, 18-19, 49-84; Taylor 2006, 15-45; Miller 2010, 28-30; ↩
Banner 2005, 85-113, 161; Williams 1990, 236-238; Williams 1987, 170-172, 175-7; Kades 2000, 1115-1116; Miller 2010, 2-9; Weaver 2003, 142-143, 154-156; ↩
Prucha 2000, 45, 143; Miller 2010, 31-34, 44; Banner 2005, 114-142; ↩
Johnson v. M’Intosh, 1823; McNeil 1989, 216-229, 244-267; McNeil 2002, 502-505; Weaver 2003, 66, 180-1; Williams 1990, 312-313; Kades 2000, 1098, 1188; ↩
Johnson v. M’Intosh, 1823; Blumm 2004, 738-741, 745-746; McNeil 1989, 221-235; McNeil 2002, 497-498, 501-502; Kades 2000, 1074, 1096-1097; Miller 2010, 54-56; Williams 1987 168, 191-2; Williams 1990, 312-316; Robertson 2005, 96-100; ↩
Cherokee Nation v Georgia, 1831; McNeil 1989, 247, 252-253, 262; Banner 2005, 247-253; Blumm 2004, 744-745, 748-751, 761-766; Lindley 1969, 342; Wilkins and Adams 2019; ↩
Brillman 2018, 34-38, 66-71; Iseli 2020, 272-275; Kinnison 2011, 1328-9; Owen and Kemp 2014; ↩
Barelli 2018, 251-256 ↩
O’Sullivan 2020, 73; on veto and prioritization of consultation over consent, see also: Fredricks 2016-2017, 439-41; Brillman 2018, 32-35; Kinnison 2011, 1326-1328; Morales 2019, 77 ↩
U.S. Department of State, 2011; see also: Kinnison 2011, 1325-1326 ↩
Memorandum on Tribal Consultation…, 2021; see also: Fredricks 2016-2017, 467-469 ↩
For discussion on subversion of consent-based relationships, see: Wolfe 2006; Brillman 2018, 14; Wilkins and Adams 2019 ↩
Brillman 2018, 20-27; Bareli 2018, 257-258; Ward 2011, 59-65, 83-84; ↩
EarthJustice; Fredricks 2016-2017, 472-477 ↩
Morales 2019, 80 ↩
Urszula Piasta-Mansfield, Ph.D., "Indigenous Consent: A Right Rooted in the Doctrine of Discovery," Doctrine of Discovery Project (24 February 2023), https://doctrineofdiscovery.org/blog/indigenous-consent-right-rooted-doctrine-discovery/.
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