Beyond Indigenous Property Rights: Exploring the Emergence of a Distinctive Connection Doctrine
Indiana University Robert H. McKinney School of Law
Washington University Law Review, Vol. 86
Human rights law has begun to offer normative protection for what remains of indigenous lands. Yet territory now better defended from conquest and encroachment is increasingly threatened by their byproducts. Water scarcity, food security, waste deposition, climate change - in short the multiple impacts of industrial development - pose a new territorial challenge to indigenous communities that will test the reach and capacity of the human rights regime.
This article examines that challenge and argues a solution may lie in emerging human rights doctrine recognizing indigenous peoples' land rights not as heirs to a European conception of property but as peoples with a distinctive historical, cultural, and spiritual relationship to the land and environment. The article doesn't purport to create this doctrine, but merely to name it and examine its contours. The author traces multiple sources of law that affirm indigenous property rights based on land-connectedness and proposes, for the sake of analysis, a distinctive connection doctrine. The article asks:
1. How has this doctrine been defined and applied in indigenous property claims based in part on cultural and spiritual land-relationships; and
2. Can it be effectively deployed to protect against the "new" territorial encroachment; the impact on indigenous communities' environment?
While a distinctive connection has been repeatedly advanced its significance has not been fully deployed to address natural resource and ecological concerns of indigenous peoples. The author thus offers an analytic framework within which the connection might be further understood, emphasizing its relevance to the environment. The article looks by way of example at recent indigenous environmental cases - an Inuit climate change claim, Western Shoshone concerns regarding mining practices and nuclear waste disposal on traditional lands, and remedial rights of Inuit communities affected by the Exxon Valdez oil spill - to suggest that a distinctive connection doctrine may offer a means of redressing injury bound up with indigenous communities' relationship to the land and environment.
Number of Pages in PDF File: 58
Keywords: Indigenous Rights, Property Rights, Environmental Law, Human RightsAccepted Paper Series
Date posted: April 3, 2008 ; Last revised: August 8, 2013
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