The Equitable Application of International Law: Revised Principles for a Solution to the Maasai Land Dispute
![handle is hein.journals/arzjl37 and id is 983 raw text is: THE EQUITABLE APPLICATION OF
INTERNATIONAL LAW: Revised Principles for
a Solution to the Maasai Land Dispute
Regina Jefferiest
In the past century, the Maasai people of present-day Kenya have
struggled to maintain their traditional pastoral and nomadic culture in the
face of colonial invasion and the legal framework of oppression that it left
behind. As a pastoral people heavily dependent on cattle for survival, the
Maasai consider access to grazing land of great significance, both in order
to preserve their economic welfare and to preserve an important aspect of
Maasai culture.' However, as a result of colonization, white settlers from
Great Britain were allowed to appropriate the traditional lands of the Maasai
and other indigenous groups in order to establish ranches and homesteads,
and the Maasai were forced to move to reservations created under the
authority of the colonial government.2 Today, forty-one years after Kenya
gained independence from colonial rule, the Maasai are still struggling to
assert the land rights they enjoyed before British colonization, and as an
indigenous culture separate from that of the Kenyan majority, to defend
their traditional way of life.3
Indigenous groups are often viewed by the majority culture as sub-
groups capable of and ready for assimilation into the overarching legal,
political, and cultural systems of a nation-state.4 However, these types of
t J.D. candidate, Arizona State University College of Law, 2005; B.A. International
Affairs, George Washington University, 2002. The author would like to thank Professor
Rebecca Tsosie for her guidance in writing this Comment.
1. Office of the United Nations High Commissioner for Human Rights, The Anglo-
Maasai-Agreements/Treaties-A Case of Historical Injustice and the Dispossession of the
Maasai Natural Resources (Land), and the Legal Perspectives, § 2.0 HR/GENEVA/TSIP/
SEM/2003/BP.7 (Dec. 15-17, 2003) (prepared by Joseph Ole Simel) [hereinafter Anglo-
Maasai-Agreements].
2. Id.
3. See Caroline Mango, Kenya; MPs Back Community Land Claims, E. AFR. STANDARD,
Aug. 26, 2004; John Mbaria, Big Step Towards New Land Laws, DAILY NEWS, Oct. 6, 2004.
4. This is evidenced by the United States' treatment of Native American tribes
indigenous to North America as Domestic Dependent Nations (DDN) rather than as
comparable to foreign nations with all of the sovereignty such recognition entails. See
Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831); see also Johnson v. M'Intosh, 21 U.S. 543,
568 (1823) (Even if it should be admitted that the Indians were originally an independent
people, they have ceased to be so. A nation that has passed under the dominion of another, is no](ViewImageLocal?handle=hein.journals/arzjl37&div=31&collection=&method=preview&ext=.png&size=3)
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The Equitable Application of International Law: Revised Principles for a Solution to the Maasai Land Dispute
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