The Grand Experiment: Evaluating Indian Law in the 'New World'

Abstract:     
This article attempts to begin the process of learning about the legal systems that have developed over the past 500 years in the “New World” and their relationship to, and impact on, indigenous people. It focuses on the policies of eight countries with respect to a single, but extremely important, legal issue for indigenous people, their right of sovereignty or self-determination. Four of the countries: the United States, Canada, Australia, and New Zealand, are common-law countries whose policies were shaped to some extent by their English predecessors. The other four countries: Chile, Brazil, Mexico, and Nicaragua, are civil law countries, whose policies are more closely tied to that of their Iberian predecessors, Spain and Portugal.

A broader cross-sample of legal issues and countries will have to be considered before any final conclusions can be reached. Yet, this paper focuses on what may be the central issue for indigenous peoples; the right of self-determination or sovereignty. The eight country sample is sufficiently broad to include civil and common law systems, and yet the scope is sufficiently narrow in that all the countries were influenced by the early Spanish experience in the new world. Each state developed at roughly the same time period and under similar conditions. From these circumstances we may draw a few general observations.

Keywords: Self-determination, sovereignty, indigenous people, legal history, Latin America, British Commonwealth

Accepted Paper Series