Peter d'Errico: Native leaders challenge law to protect resources

Several factors are involved in the resurgence of Native strength. One is the United Nations Declaration on the Rights of Indigenous Peoples and the Permanent Forum on Indigenous Issues, an advisory body to the Economic and Social Council. The Permanent Forum focuses on economic and social development, culture, the environment, education, health, and human rights.

The UN Declaration contains a number of sections regarding land resources: Article 8, 2(b); Articles 25-28; Article 29, 1; and Article 32. The basic principle requires "free, prior, and informed consent" by Indigenous Peoples for "any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources."

The UN Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, has strongly affirmed the principle of "free, prior, and informed consent" in meetings with governments and international organizations. In February 2013, he spoke to the World Intellectual Property Organization, where he pointed to the centuries-long regime of colonization premised on the doctrine of "terra nullius," under which "land occupied…by indigenous peoples was regarded as vacant."

"Terra nullius" is a religious doctrine imported into law, an outgrowth of the concept of "Christian Discovery," which asserted that Indigenous Peoples were subordinate to the colonizers from Christendom. One might suppose that this doctrine, now outmoded, is no longer in effect legally. But that supposition is wrong: In the United States, Christian Discovery is still part of federal Indian law, cited by the Supreme Court as recently as 2005 in its decision against the Oneida Indian Nation.