Asa Kowals-Rose | Blog for RFILP

Here are the sources I’ve selected. I’ll seek out more as I comb through these and begin my first draft.

Aboriginal Title and Indigenous Peoples: Canada, Australia, and New Zealand. Vancouver: UBC Press, 2010.

Abunimah, Ali. The Battle for Justice in Palestine. Chicago, IL: Haymarket Books, 2014.

Bourassa, Steven C., and Ann Louise Strong. “Restitution of Land to New Zealand Maori: The Role of Social Structure.” Pacific Affairs 75, no. 2 (2002): 227–60. doi:10.2307/4127184.

Byrnes, Giselle M. “Jackals of the Crown? Historians and the Treaty Claims Process in New Zealand.” The Public Historian 20, no. 2 (1998): 9–23. doi:10.2307/3379416.

Crais, Clifton. “Custom and the Politics of Sovereignty in South Africa.” Journal of Social History 39, no. 3 (2006): 721–40.

Duffié, Mary Katharine. “The Treaty of Waitangi and Its Relationship to Contemporary American Indian Sovereignty Issues.” Wicazo Sa Review 14, no. 1 (1999): 45–59. doi:10.2307/1409515.

Echo-Hawk, Walter R. In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided. Golden, Colo: Fulcrum Publishing, 2010.

Fleras, Augie. “From Social Control towards Political Self-Determination? Maori Seats and the Politics of Separate Maori Representation in New Zealand.” Canadian Journal of Political Science / Revue Canadienne de Science Politique 18, no. 3 (1985): 551–76.

Gilbert, Shirli. “Jews and the Racial State: Legacies of the Holocaust in Apartheid South Africa, 1945–60.” Jewish Social Studies 16, no. 3 (2010): 32–64. doi:10.2979/jewisocistud.16.3.32.

Murphy, Michael A. “Representing Indigenous Self-Determination.” The University of Toronto Law Journal 58, no. 2 (2008): 185–216.

Mylonas-Widdall, Michael. “Aboriginal Fishing Rights in New Zealand.” The International and Comparative Law Quarterly 37, no. 2 (1988): 386–91.

Tong, Maureen. “Decolonisation and Comparative Land Reform with a Special Focus on Africa.” International Journal of African Renaissance Studies 9, no. 1 (January 2014): 16–35. doi:10.1080/18186874.2014.916857.

Tsuk, Dalia. “The New Deal Origins of American Legal Pluralism.” Florida State University Law Review 29, no. 189 (2001): 189–268.

Ülgen, Özlem. “Developing the Doctrine of Aboriginal Title in South Africa: Source and Content.” Journal of African Law 46, no. 2 (2002): 131–54.

Wotshela, Luvuyo. “Territorial Manipulation in Apartheid South Africa: Resettlement, Tribal Politics and the Making of the Northern Ciskei, 1975-1990.” Journal of Southern African Studies 30, no. 2 (2004): 317–37.

From the Stranger–Indigenous Activists in Seattle Launch a “Stop Disenrollment” Campaign

I’ve been focusing on two things this week. First, I’m gathering the last of the research materials I’ll be using as a foundation for my paper. I’ve also started more in-depth research on Maori land rights in New Zealand. This has focused on two important events: the 1840 Treaty of Waitangi, and the 2003 Ngati Apa v. Attorney General case. I’ll post more information on these in the coming days, as well as my complete list of sources.

Aboriginal Title and Indigenous Peoples: Canada, Australia, and New Zealand is a collection of ten papers by different authors about a multitude of issues related to native land rights in settler-colonial states. The book’s introduction, written by editor Louis A. Knafla, previews the material and provides a brief historical overview of indigenous-settler relations and aboriginal rights in the three theaters discussed in the book. The main text is split into two sections; the first broadly discusses the means by which aboriginal peoples have had their sovereignty and land rights extinguished, while the second details modern efforts to re-assert aboriginal title through judicial and legislative processes. To accommodate the length limit, this review will discuss in-depth on one article from each section.

Part one of the book is titled Sovereignty, Extinguishment, and Expropriation of Aboriginal Title. It contains the articles From the US Indian Claims Commission to Delgamuukw: Facts, Theories, and evidence in North American Land Claims, by Arthur Ray; Social Theory, Expert Evidence, and the Yorta Yorta Rights Appeal Decision, by Bruce Rigsby; Law’s Infidelity to Its Past: The Failure to Recognize Indigenous Jurisdiction in Australia and Canada, by David Yarrow; The Defense of Native Title and Dominion in Sixteenth-Century Mexico Compared with Delgamuukw, by Haijo Westra; and Beyond Aboriginal Title in Yukon: First Nations Land Registries, by Brian Ballantyne. This review will discuss David Yarrow’s piece.

Law’s Infidelity to Its Past contextualizes the issue of indigenous sovereignty by discussing different ways in which competing jurisdictions have been reconciled historically. Yarrow discusses legal pluralism in the early colonial period, specifically the relationship between feudal manorial courts and English common law. Under this system, lords of manors had jurisdiction over their serfs, while those occupying freehold land were subject to common law established throughout England. Yarrow contends that this system could have provided a model for legal pluralism in settler-colonies, but was ignored as a result of the English perception of indigenous peoples as racially inferior. In other words, that indigenous sovereignty was ignored out of racism, not an inability to reconcile different systems of law within a territory. Yarrow identifies the 1836 case R. v. Murrell, wherein the New South Wales Supreme Court claimed jurisdiction over a case involving two Aborigines, as a product of the legal singularity imposed by the English on their colonies. He compares this to the Quebec Act of 1774, which returned civil law in Quebec to what it had been under French rule. This decision reflected the Crown’s willingness to accommodate multiple legal systems, provided each was controlled by a “civilized” people. Yarrow points out that the initial extinguishment of aboriginal title was in part a result of the Crown using English common law to define land ownership. He contends that respect for aboriginal title is a key part of promoting indigenous sovereignty, and that that English legal history provides ample precedent for the kind of legal pluralism that would exist as a result.

Part two of the book is titled Native Land, Litigation, and Indigenous Rights. It contains the articles The “Race” for Recognition: Toward a Policy of Recognition of Aboriginal Peoples in Canada, by Paul L.A.H. Chartrand; The Sources and Content of Indigenous Land Rights in Australia and Canada: A Critical Comparison, by Kent McNeil; Common Law, Statutory Law, and the Political Economy of the Recognition of Indigenous Australian Rights in Land, by Nicolas Peterson; Claiming Native Title in the Foreshore and Seabed, by Jacinta Ruru; and Waterpower Developments and Native Water Rights Struggles in the North American West in the Early Twentieth Century: A View from Three Stoney Nakoda Cases, by Kenichi Matsui. For section two, this review will discuss Nicolas Peterson’s piece.

Common Law, Statutory Law, and the Political Economy of the Recognition of Indigenous Australian Rights in Land discusses some of the social, legal, and political aspects of the fight for indigenous rights in Australia. Peterson points to changing attitudes toward colonialism in the aftermath of World War II as a driver for international indigenous rights efforts. Part of this was the international reaction to Nazi aggression; Hitler’s attempt to establish a genocidal settler-state in Eastern Europe provoked increased sympathy for the plight of indigenous minorities in other countries. This era also saw self-determination become the basis for international law, helping to build support for indigenous sovereignty in addition to decolonization. Peterson details and critiques a number of Australian judicial and legislative actions taken in this context. One key piece of legislation he discusses is the Aboriginal Land Rights (Northern Territory) Act of 1976, which created a limited framework for pursuing aboriginal land claims in Australia’s Northern Territory. Peterson argues that, while the legislation was an important step in asserting aboriginal land rights, it did not do enough to enough to benefit the rights of aboriginals who had been alienated from their lands and communities for generations. He contends that further progress was made with the passage of the Native Title Act of 1993, which better established legal plurality where land rights were concerned. Peterson concludes that the complex nature of aboriginal land issues in Australia was exacerbated by the length of time between the initial extinguishment of aboriginal title and the modern campaign to re-assert it, since much of the aboriginal land in question was appropriated in the interim period.

The book’s conclusion, Power and Principle: State and Indigenous Relations across Time and Space, by Peter W. Hutchins, synthesizes the different works that comprise the book. He reiterates specific points raised in the different papers to form a coherent critical examination of the legal basis—or lack thereof—for the expropriation of aboriginal land, and how ideas surrounding that legality have changed over time. His conclusion is that English settler-colonialism was practiced with utter disregard for common law of the time; as the Crown’s primary concern in the matter was the ability to seize and control land, not preserve the integrity of the law. Peterson shares Walter Echo-Hawk’s view that the legal precedent established during the colonial era should be rooted out and be replaced with a legal system aimed at protecting indigenous culture and customs through a guarantee of indigenous sovereignty. He also makes an interesting connection between the ongoing campaigns to establish indigenous sovereignty and the Thirty Years War: Peterson expresses hopes that current efforts can establish for indigenous people the same respect for sovereignty that European nations achieved with the Peace of Westphalia in 1648.

In summation, Aboriginal Title and Indigenous Peoples: Canada, Australia, and New Zealand provides a comprehensive examination of indigenous sovereignty and land rights in the past and present. Length constraints prevent this review from doing the book justice, but it should suffice to say that it is a must-read for those interested in aboriginal title.

I began my research this week with the book Aboriginal Title and Indigenous Peoples: Canada, Australia, and New Zealand. It features several authors’ work on the social, political, and legal aspects of settler colonialism, and discusses ongoing legal battles over indigenous rights. I’ll be writing about the book in greater detail as my book review, so check back Friday for more information on this fascinating text.

This chapter discussed different types of case law and how to use them. One topic that stood out to me was the complexity of a judge’s decision, specifically that it has four distinct parts. I didn’t realize that the direct ruling on the legal issue at hand is considered mandatory authority,  but the discussion of broader issues isn’t.

These chapters detailed relatively recent Supreme Court decisions that further denied American Indians land rights. In the 1955 Tee-Hit-Ton decision, the court ruled that Tlingit Indians in Alaska were not protected from loggers’ encroachment on their land. This ruling was issued with references to the doctrine of conquest, despite the fact that no real conquest had taken place in Alaska. In the 1988 Lyng decision, the court ruled that sacred Indian land in California was not protected under the First Amendment’s guarantee of religious freedom.

The Lyng case reminded me of the court’s stance on the Espionage and Sedition Acts in the 1910s. In each of these situations, the Supreme Court was willing to restrain fundamental rights as a means of protecting government power, and in doing so weakened the protections offered by the First Amendment. This further exposes a major flaw in the design of the Supreme Court. From the beginning, the justices of the Supreme Court have often been political allies of the executive branch, and have used their influence to bolster executive power. This was the case in the Lyng decision, which trampled on the rights of American Indians for the benefit of the U.S. Forest Service.

These chapters discussed the Supreme Court’s activity during the Gilded Age and through the New Deal era. During this time, they ruled on numerous business-related cases. Many of these pitted the rights—those related to the right to property—of businesses against laws meant to ensure the decent livelihoods for working people. Prior to the 1930s, the court embraced laissez-faire ideology and ruled in favor of unrestrained capitalism. These years showed that the Supreme Court, far from being immune to corrupting influence, is often just as corrupt as the rest of the political system. Most of the justices nominated by McKinley, Taft, and Harding had been involved in corporate law, and maintained their allegiance to oligarchs once they had joined the Supreme Court. At the same time, they showed general disregard for the First Amendment rights of speech and assembly, once again putting the rights of money before the rights of people.

Nitpicking time: Look, I don’t think Irons is a bad author; he writes with wit, and does a thorough job when going in-depth on judicial history. However, his willingness to mischaracterize history for brevity’s sake is wearing on me, even if it doesn’t interfere with the main information he discusses. In this week’s chapters, he glosses over key points about the nature of World War I. On page 263, he says, “When German submarines attacked American shipping in the Atlantic, Congress declared war on Germany in April 1917.” This is not inaccurate: Germany’s decision to engage in unrestricted submarine warfare—after a previous agreement not to—was a factor in the United States joining the war effort. However, it omits the discovery of the Zimmermann Telegram, which revealed Germany’s intent to ally with Mexico against the United States. This was a critical factor in the United States’ entry into the war. I was going to overlook this, until I encountered another passage.

On page 264, Irons writes, “Many in United States had good reason to resist appeals to support the King of England in his territorial squabbles with the German Kaiser.” This is an understandably brief summary of the First World War, but it misconstrues the conflict. World War I was essentially a Mexican standoff between the powers of Europe, and while there were several territorial disputes, none of the important ones existed between Germany and Great Britain. While, the latter claimed to enter the war in response to the former’s violation of Belgian territorial neutrality, this is not what is generally understood by “territorial dispute.” Furthermore, someone with Irons’ ability to read historical subtext should be able to read Britain’s claim as a façade. Britain had no great respect for territorial neutrality: she and France occupied parts of Greece during the war, despite the fact the Greeks had not yet entered the conflict on either side. Britain was more concerned with maintaining a balance of power in Europe, as doing so protected its global influence. Germany did, however, have clear territorial disputes with other countries. It had annexed French territory at the end of the Franco-Prussian War in 1871, and the resentment caused by this had made another conflict between France and Germany inevitable. Prior to the war, German leaders also expressed desires to annex Russian territory as a means of stopping Russia from surpassing Germany militarily. Mentioning either of these situations would have more effectively described World War I than “the King of England in his territorial squabbles with the German Kaiser.”

Does any of this matter with regard to the Supreme Court? No. Why did I write three hundred words on it? Because I will use any excuse to bring up European political history for no real purpose.

This chapter covered methods one can use to find specific cases from citations, online, and at law libraries. I found it interesting that—ok, you know what? I didn’t find anything particularly interesting. This was a short chapter in an understandably dull book; while it might be useful as a study aid, I could find nothing of intrigue whatsoever. I guess I could just offer a more detailed summary to make it look like I absorbed the material, but truthfully, I would need to refer to the book via the table of contents to make use of use any of the information covered. It’s nothing against the author—Stephen Elias does a fantastic job of making the information accessible—the material is simply too dry to be memorable. Anyway, here’s a picture of the Supreme Court but with Antonin Scalia’s head made into a jack-o-lantern with a Hitler mustache. I don’t know why either.

These chapters discussed centuries of attacks on Indians’ religious artifacts and practices. While some of these were—to put it lightly—inconsiderate consequences of unrelated pursuits, many more were cruel and deliberate efforts to eliminate native religion. Almost all of these were either done with complete governmental complicity, or were perpetrated directly by soldiers and BIA agents.

Reading this history, I found myself questioning the government’s supposed purpose for aggressive cultural destruction. While most of the rhetoric surrounding this saga is in line with the “white man’s burden” beliefs expressed for centuries, this would imply a genuine concern for the lives of American Indians, albeit borne out of an extremely racist worldview. If this were actually the case, it would be quite difficult to reconcile those beliefs with the government’s long history of violence towards American Indians. Even paternalistic concern for a group’s social development should, one would think, discourage acts of genocide.

When one examines other applications of “white man’s burden” thinking—the colonization of Africa, for example—there are clear ulterior motives. Colonies generated huge amounts of wealth for the countries that held them, and were important accessories to nations involved in the centuries-long competition for European hegemony. This pattern explains the assault on American Indian religious practices during the nineteenth century: the U.S. government’s quest to “civilize” was nothing more than a way to justify profitable westward expansion, as indicated by its willingness to resort to violence during the process. However, it does not explain the government’s drive to Christianize American Indians long after they had been forced from their land and were no longer an impediment to wealth extraction.

Perhaps the destruction of Indian culture over the past hundred years was a way to bolster nationalism in the United States in a manner similar to Otto von Bismarck’s kulturkampf in newly unified Germany. Strong national identity is often considered a necessary component to the strength and longevity of an empire: many schools of thought hold that the Western Roman Empire fell in part as a result of “Germanization”—the loss of Roman identity among peoples in its conquered territory—and could have survived if its subjects all spoke Latin and viewed the emperor as one of their countrymen. However, it is utterly ridiculous to think that the survival of Indian cultural identity posed any threat to the unity of the American Empire after 1890, given the extreme population difference between Indians and descendants of settlers. What’s more, Indian culture and American nationalism did not seem to be mutually exclusive. After all, tens of thousands of American Indians served in the United States military throughout the twentieth century.

If not for economic gain or national unity, why did the United States government endorse a policy of ethnocide well into the twentieth century? While racist notions of cultural inferiority were certainly used to justify the pursuit, there have almost always been additional motives behind governmental efforts to stamp out cultural identity. Was the history described in this week’s reading simply an exception to this pattern, or is there more to the issue?