An Indigenous Lens into Comparative Law: The Doctrine of Discovery in the United States and New Zealand
Robert J. Miller
Arizona State University (ASU) - Sandra Day O'Connor College of Law
University of Otago
Lewis & Clark Law School Legal Studies Research Paper No. 2008-7
West Virginia Law Review, Vol. 111, 2008
North America and New Zealand were colonized by England under an international legal principle that is known today as the Doctrine of Discovery. When Europeans set out to explore and exploit new lands in the fifteenth through the twentieth centuries, they justified their sovereign and property claims over these territories and the Indigenous people with the Discovery Doctrine.
This legal principle was justified by religious and ethnocentric ideas of European and Christian superiority over the other cultures, religions, and races of the world. The Doctrine provided that newly-arrived Europeans automatically acquired property rights in the lands of Native people and gained political and commercial rights over the inhabitants. England was an avid supporter of the Doctrine and used it around the world.
The English colonial governments and colonists in New Zealand and America, and later the American state and federal governments and New Zealand governments, all utilized Discovery and still use it today to exercise legal rights to Native lands and to control their Indigenous people.
In this article, the authors, an American Indian and a New Zealand Maori, use a comparative law methodology to trace and compare the legal and historical application of Discovery in both countries. The evidence uncovered helps to explain the current state of United States Indian law and the New Zealand law relating to Maoris. While the countries did not apply the elements of Discovery in the exact same manner, and at the same time periods, the similarities of their use of Discovery are striking and not the least bit surprising since the Doctrine was English law. Viewing American and New Zealand history in light of the international law Doctrine of Discovery helps to expand one's knowledge of both countries and their Indigenous peoples.
Number of Pages in PDF File: 60
Keywords: Doctrine of Discovery, Manifest Destiny, American Indians, Maori, Treaty of Waitangi, Comparative Law, Indigenous people, English Colonization, American colonies, Preemption, Terra Nullius, Conquest, Johnson v. McIntosh, New Zealand, First Discovery, Ethnocentric
Date posted: March 3, 2008 ; Last revised: August 8, 2013