It was reported by Yahoo News that #Obama warned China to abide by a legally binding ruling from The Hague, denying China's territorial claims in the South China Sea. Indigenous persons may believe that such a warning is hypocritical. The US was formed through the deliberate militaristic expansion into territories belonging to indigenous nations. In many cases, the United States recognized the territorial rights of the indigenous nations it invaded by entering into treaties with them. Treaties are bilateral international legal instruments and are legally binding. The United States has signed over 500 treaties with indigenous nations and is in violation of every one. It has also ignored legally binding court decisions in favor of indigenous territorial claims.

The United States ignores legally binding decisions on indigenous territorial claims

In the 1832 US Supreme Court case Worcester v. Georgia, Chief Justice John Marshall asserted that indigenous nations were distinct political entities with territorial boundaries within which their authority was exclusive. Unfortunately, in a previous 1831 case Cherokee Nation v. Georgia, Marshall characterized indigenous nations as “domestic dependents” of the United States. Worse still, was Marshall's decision in the 1823 case Johnson v. McIntosh in which Marshall argued that indigenous peoples only have a right of occupancy to their lands rather than legal title and that territorial claims can be extinguished based on the Doctrine of Discovery. 

This has been viewed as a racist contrived legal fiction asserting that a discovering Christian sovereign of any land can claim sovereignty over it if its inhabitants are not Christian. Such racist legal fiction is what allowed President Andrew Jackson and the state of Georgia, who wanted the gold discovered in Cherokee territory, to force Cherokee citizens out of their legally recognized territory; territory the United States had recognized by treaty and a legally binding Supreme Court decision. Four thousand died on a forced march called the Trail of Tears. This racist legal framework continues to allow powerful private interests to deny indigenous territorial rights.

The United States ignores indigenous territorial rights today

Despite the disadvantageous and racist legal framework the United States created to deny indigenous territorial rights, there are some laws that work in favor of indigenous nations. Under US federal case law the canons of construction for treaty interpretation assert that treaties must be liberally construed in the light most favorable to the Indians and in a way they would have understood them. No indigenous leader entering into treaty negotiations with the United States would have understood treaties to mean that Congress could extinguish indigenous title to their territories. Every historical indication is that indigenous leaders understood treaties to be bilateral legally binding international legal instruments. Despite the stacked deck of laws against indigenous nations the United States recognized after World War II that it did not have legal title to at least 40 percent of the territory it claimed. In 1946 Congress enacted the Indian Claims Commission which created special courts to settle territorial disputes between the United States and indigenous nations. It was an empty gesture as decisions in favor of indigenous nations were nearly always an award of monetary damages rather than return of territorial jurisdiction. Indigenous peoples usually refuse the award and demand recognition of territorial rights. Such is the case with the Oceti Sakowin (Sioux Nation) and the Dakota Access pipeline.

While Obama demands that China abide by a legally binding decision denying its territorial claims in the South China Sea, the United States is actively violating the legally binding Ft. Laramie Treaty of 1868 by attempting to build an oil pipeline through legally recognized Sioux Nation territory.  #World Politics #Conservation