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Publication Title

Washington University Law Review

Abstract

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 that 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 does not 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 contours remain uncertain and it 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 at examples of 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 addressing environmental impacts bound up with indigenous communities' relationship to the land and environment. The author argues this doctrine may thus give rise to a property right beyond title and trespass: one that protects the deeper ecological values of this distinctive connection.