GLOBAL HUMAN RIGHTS IS 16 Counter-Hegemonic Human Rights Winter 2023 Mon Wed 10:00 - 11:20 Instructor: María Montenegro (she/her) Teaching Assistant: Alison (Ally) Jones (she/her) WEEK 8. INDIGENOUS PEOPLES’ RIGHTS PART 1 Wednesday, March 1: Settler Colonialism, Land, Reparations QUESTIONS? ● Check-in Prompts? ● In-Class Discussion doc? ● Final (Un)Essay? ● Grading contract? ● Lecture content? ● Readings? ANNOUNCEMENTS ● Check-in Prompts: ○ ○ ● In-class Discussion Posts: ○ ○ ● Check-in prompt #4 opens right after class today and is due by Sunday, March 5. Check out for feedback on Check-in prompt #3 by the end of the week. 5 classes left = 5 discussion breaks left Due by March 15 Final (Un)Essay: ○ Will spend time on this on Monday 6. HUMAN RIGHTS NEWS / EVENT TODAY WEEK 8: INDIGENOUS PEOPLES’ RIGHTS PART I Wednesday, March 1: Settler Colonialism, Land, Reparations/Apologies - Assigned Readings: - (Book Chapter) Miranda Johnson (2020) Connecting Indigenous Rights to Human Rights in the Anglo Settler States: Another 1970s Story. In A. Moses, M. Duranti, & R. Burke (Eds.), Decolonization, Self-Determination, and the Rise of Global Human Rights Politics (Human Rights in History, pp. 109-131). Cambridge: Cambridge University Press. - (Red paper) Yellowhead Institute (2019), LandBack: Executive Summary - (Academic Article) Sheryl Lightfoot (2015) Settler-state apologies to Indigenous peoples: a normative framework and comparative assessment. Journal of the Native American and Indigenous Studies Association 2(1), pp. 15-39. WHAT IS SETTLER COLONIALISM? ● A land-centered project entailing permanent settlement. ● Canada, New Zealand, Australia, US ● Distinguished from other forms of colonialism: 1. Settler colonizers “come to stay” Settler colonialism “Destroys to replace.” 2. Settler colonial invasion is a structure, not an event. 3. Settler colonialism seeks its own end. “This leads us to the distinction between what I call settler colonialism, which refers to a foreign society invading a Native society and trying to take over all of it so as to replace the Natives rather than use them as labor. Settler colonialism brings its own labor. It tries to eliminate the Natives and do something completely new with the Land that was theirs.” Settler Colonialism Then and Now: A Conversation between J. Kēhaulani Kauanui and Patrick Wolfe, Politica & Societá (2012), pp. 235-258. WHAT IS SETTLER COLONIALISM? (cntd.) References: J. Kēhaulani Kauanui, "“A structure, not an event”: Settler Colonialism and Enduring Indigeneity," Lateral 5.1 (2016). https://doi.org/10.25158/L5.1.7 Tuck, E. and Yang, K.W. (2012). Decolonization Is Not a Metaphor. Decolonization: Indigeneity, Education & Society 1, 1. Wolfe, P. (1999). Settler Colonialism and the Transformation of Anthropology: The Politics and Poetics of an Ethnographic Event. London: Cassell. Veracini, L. (2015). The Settler Colonial Present. London: Palgrave Macmillan. Miranda Johnson (2020) Connecting Indigenous Rights to Human Rights in the Anglo Settler States: Another 1970s Story ● Transnational and comparative approach ● Indigenous peoples in settler states in the 70s: distinctive discourse of Indigenous rights. ● Claims at the level of the state (collective identity, treaties, land rights, sovereignty) while expanding and deploying an international language of human rights. ○ Shifting state policy away from assimilation and toward internal self-determination. ○ Demanding recognition of their peoplehood as a human right. ● Recognition: dependent on the political will of settler states >> sought international standing for their collective claims at the UN. ● Expand international human rights framework to encompass Indigenous rights = political strategy. Miranda Johnson (2020) Connecting Indigenous Rights to Human Rights in the Anglo Settler States: Another 1970s Story (cntd.) ● Settler colonialism: Usurpation of Indigenous legal systems and political societies. ● New institutions and traditions as a form of domination: Treaties, land deeds, reserve lands, etc. ● Indigenous claims for land title rights began to win legal recognition after World War II: deployment of human rights discourse + internationalization of Indigenous peoples rights. ● 60s and 70s: Indigenous claims for equality: Labor protests, support for anti-racist and anti-apartheid causes, Black Power. ● Settler assimilation (boarding schools, citizenship) ● More protests… ● Settler extractivism (mining and energy companies in Indigenous land) ● More protests… Miranda Johnson (2020) Connecting Indigenous Rights to Human Rights in the Anglo Settler States: Another 1970s Story (cntd.) ● 70s: Land and treaty rights. ● “The land is our history…” ● Distinct political and conceptual language to advance their claims. ● New social contract between settler states and Indigenous peoples. ● They argued that they were nations within the settler state whose collective rights to land needed to be urgently recognized. Miranda Johnson (2020) Connecting Indigenous Rights to Human Rights in the Anglo Settler States: Another 1970s Story (cntd.) ● Two strategic demands: ○ ○ Treaty rights ■ Claim absent from UDHR and other forms of decolonization discourse. ■ Demand maid in direct relation to the U.S. policy of termination. ■ Led by the AIM Land rights ■ Governments to recognize customary land rights in the form of aboriginal or native title. ■ Collective property right of indigenous peoples to their lands. ■ Symbolic and economic value. ■ indigenous peoples’ as “first peoples” Miranda Johnson (2020) Connecting Indigenous Rights to Human Rights in the Anglo Settler States: Another 1970s Story (cntd.) ● Mid-to-late 1970s: transnational rights organizations to lobby the UN (translate Indigenous rights) ○ ○ The World Council of Indigenous Peoples International Indian Treaty Council ● These organizations spearheaded a new campaign at the United Nations in the 1980s, seeking international recognition of indigenous rights within the human rights framework. ● Controversy around the definition of self-determination. ● UNDRIP attests to how indigenous rights became a global issue through the connection of indigenous rights claims to the broad discourse of human rights and self-determination. ● Renewed understanding of indigenous rights as human rights. LANDBACK MOVEMENT LANDBACK: WHY IT MATTERS? ● The movement for decolonization is not complete without land restitution for Indigenous people. ● Land restitution — including water, natural resources, and infrastructure on the land — supports Indigenous sovereignty. ● Landback secures self-determination, environmental sustainability, and economic justice. ● Land restitution focuses on the redistribution of power back to Indigenous communities. ● This act is a step in unsettling, which works to reverse some of the damage of settler colonialism. ● Landback as a response to state-developed strategies to address the demands Indigenous peoples: ○ State recognition of Indigenous rights has meant the continuation of colonization through new means – the terms of recognition have tended to reinforce the state’s monopoly on power. ○ Is the goal simply that Indigenous people make decisions about how to participate in Western social, economic, and political systems? Yellowhead Institute LANDBACK IN PRACTICE LANDBACK IN PRACTICE (cntd.) LANDBACK IN PRACTICE (cntd.) CHECK-IN PROMPT #4 In which ways is the Landback movement different from the Land rights movements described in Johnson’s chapter? (Due by Sunday, March 5, 11:59 pm or Monday 6, 9:00 am) NEXT CLASS WEEK 9: Indigenous Peoples’ Rights Part II Monday, March 6: Capitalism, Dispossession, Extractivism - Assigned Readings: - (Academic Article) Shannon Speed (2017) Structures of Settler Capitalism in Abya Yala, American Quarterly 69(4), pp. 783-790. - (Report) Joe Bryan (2019) For Nicaragua’s Indigenous Communities, Land Rights in Name Only, NACLA Report on the Americas, 51(1), pp. 55-64. Thank you! …and remember to practice self-care 4 Connecting Indigenous Rights to Human Rights in the Anglo Settler States Another 1970s Story Miranda Johnson “To remain Indians and yet Americans, we believe to be a democratic principle and a human right in a free world.”1 So declared the Santa Clara Pueblo anthropologist Edward Dozier in his keynote address to hundreds of native people from across the United States gathered for the American Indian Chicago Conference in June 1961. Like other indigenous leaders and intellectuals in the postwar Anglo settler states (including Canada, Australia, and New Zealand as well as the United States), Dozier deployed the “language of the wider world,” as Vine Deloria (Standing Rock Sioux) put it, in order to push forward particular claims to identity, citizenship, and land.2 Dozier’s statement, however, raised the question of how indigenous rights claims that at that time prioritized collective identity – the preservation of Indian-ness – in the context of American citizenship was a more fundamental human right. Why, according to Dozier, were apparently parochial claims a matter that should demand the recognition of a universal human right? The answer lies in the history of dispossession and more recent experiences of assimilation that Dozier and other indigenous actors resisted. The nature of this resistance was particular, but the stakes of survival involved – that is, the right to exist as a people – they argued lay at the heart of what it meant to be human. I would like to thank Tim Rowse and Michael Goodman for their astute comments on drafts of this chapter. Research was supported by the Australian Research Council DP150102810. 1 “A Human Right in a Free World (1961),” in Say We Are Nations: Documents of Politics and Protest in Indigenous America since 1887, ed. Daniel M. Cobb (Chapel Hill: University of North Carolina Press, 2015), 115–19. 2 Quoted in Daniel M. Cobb, “Talking the Language of the Larger World: Politics in Cold War (Native) America,” in Beyond Red Power: American Indian Politics and Activism Since 1900, ed. Daniel M. Cobb and Loretta Fowler (Santa Fe, NM: School for Advanced Research, 2007), 162. 109 https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press 110 Miranda Johnson Dozier’s reference to human rights did not refer to the protection of individuals from state or mass violence in this case. His claim about the right to be able to remain Indian depended on the vexed achievement of rights of American citizenship. Campaigns for equal citizenship rights were a central focus of native activism in the mid-twentieth century. Yet the security that civil rights afforded also threatened indigenous distinctiveness. Did being an American (or Australian, or Canadian) citizen mean giving up indigenous identity and sovereignty? Settler governments’ postwar assimilation policies were specifically aimed at this goal. Resisting this trade-off, indigenous activists in the 1960s began to argue for additional rights to their collective indigenous identity and as a matter of survival. Dozier’s invocation of a “human right” to capture these ideas was a significant moment in the evolution of native activism. Taking a transnational and comparative approach, this chapter examines how a distinctive discourse of indigenous rights threaded claims at the level of the state – about collective identity, treaty promises, land rights, and sovereign peoplehood – together with an international language of human rights. This genealogy is distinct from the anti-colonial claims of Third World leaders for statehood, ones that also appealed to the discourse of human rights at the time as Bonny Ibhawoh argues (see Chapter 1, this volume).3 It is also different from the revisionist account advanced by Samuel Moyn and others who argue that a modern human rights discourse came into its own in the West in the 1970s, as advocates critiqued failing postcolonial governments and aimed to protect individual citizens from state violence. The emergence of this advocacy, Moyn proposes, was both a sign and effect of the retreat of the social democratic state, distracting from the “politics of citizenship at home.”4 While revising Moyn’s periodization of the full flowering of modern human rights discourse forward into the post-Cold War 1990s, Stefan-Ludwig Hoffmann similarly observes that Western human rights discourse is focused on “individual, pre-state [rights]” and is “concerned primarily with distant suffering.”5 See also Bonny Ibhawoh, “Colonialism,” in Encyclopedia of Human Rights, 5 vols., ed. David P. Forsythe (Oxford: Oxford University Press, 2009), 1: 361–71. Roland Burke argues that Third World leaders were themselves crucial to the development of human rights discourse. See Burke, Decolonization and the Evolution of International Human Rights (Philadelphia: University of Pennsylvania Press, 2010). 4 Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: Belknap Press of Harvard University Press, 2010), 12. More generally see Jan Eckel and Samuel Moyn, eds., The Breakthrough: Human Rights in the 1970s (Philadelphia: University of Pennsylvania Press, 2013). 5 Stefan-Ludwig Hoffmann, “Viewpoint: Human Rights and History,” Past and Present, no. 232 (2016): 279–310, here at 282; see also the reply by Samuel Moyn, “The End of Human Rights History,” Past and Present, no. 233 (2016): 307–22. 3 https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press Indigenous Rights, Human Rights, and Anglo Settler States 111 In the alternative genealogy traced in this chapter, indigenous peoples in the heart of “the West” claimed collective, quasi-sovereign, and substate rights in part by deploying, and expanding, the language of human rights. In some cases, they were remarkably successful. Indigenous peoples carved open a new space for recognition of their distinct rights and even shifted state policy away from assimilation and toward internal self-determination. By publicizing the effects of broken promises made in historical treaties and pursuing land rights claims in court, indigenous actors won wider support for their claims and they argued persuasively that the recognition of their peoplehood was a human right. Yet the transformative possibility of recognition was dependent on the political will of settler governments. In the late 1970s, some transnational indigenous actors and activists turned their attention to the United Nations seeking international standing for their collective claims. These activists saw potential in expanding the international human rights framework to encompass their indigenous rights. As a matter of political strategy, these activists hoped that international recognition could serve to shame individual states in regard to their treatment of indigenous peoples and provide a footing for indigenous claims outside the contingency of national politics. As a matter of philosophy, the expansion of human rights to incorporate the recognition of indigenous peoplehood would realize Dozier’s claim, that the right to be and remain Indian was also a core human right. Settler Colonialism, Dispossession, and Law The Native American activists addressed by Dozier had gathered together to oppose what they perceived as an attack on the legal and political bases of their collective rights and identities in the modern settler state. They were not alone. Mounting a surprisingly effective moral argument about their rights to exist as indigenous in the 1960s and 1970s, leaders and activists across the predominantly anglophone settler states of Australia, Canada, New Zealand, and the United States forced settler states to respond to their claims, drawing on the “language of the wider world,” including that of human rights, and idioms of justice specific to their entangled colonial histories with settler societies and states. Indeed, many of the claims that leaders brought to the law in new terms in the 1970s were decades old, in some instances stretching back into the eighteenth and nineteenth centuries. Shaped by histories of loss and struggle, such claims were themselves intergenerational and defined indigenous peoples’ histories and identities. Before I turn to how and why these activist discourses became so prominent in the 1970s, I briefly https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press 112 Miranda Johnson describe the longer and shorter-term historical dynamics of settler colonialism in which the rising indigenous activism of the 1960s and 1970s intervened and sought to transform. This is a story of the formation of settler nations, and the dispossession of indigenous ones, in countries regarded as part of the West. Notably, the history of settler colonialism informed neither the making of the Declaration of Human Rights in 1948 nor the design of major instruments of international law regarding rights of self-determination in subsequent decades. For most of the twentieth century, indigenous peoples were not regarded as having standing as nations within international law. At least two delegations of indigenous peoples, one from the Six Nations in Canada and another from a religious and pan-tribal movement in New Zealand, had approached the League of Nations in the interwar period asserting their nationhood, but they were turned away before they could win a formal hearing for their claims.6 The situation did not change following the creation of the United Nations and the passage of key international declarations and conventions, which largely ignored the rights of indigenous peoples.7 Within settler states in the immediate postwar period, few scholars referred to the history of the dispossession of indigenous peoples as a colonial one in terms comparable to those of overseas colonization. The terminology of “settler colonialism” had yet to be invented. Today, scholars use the rubric of settler colonialism to refer to the ways in which “new world” lands were colonized, especially during periods of what historian James Belich has called “explosive colonization” of the later nineteenth century.8 White settlers, mainly from the British Isles, 6 On appeals to the League of Nations, see Ronald Niezen, The Origins of Indigenism: Human Rights and the Politics of Identity (Berkeley, University of California Press, 2003), 31–6; Ravi de Costa, “Identity, Authority, and the Moral Worlds of Indigenous Petitions,” Comparative Studies in Society and History 48, no. 3 (2006): 669–98. 7 Indigenous “populations” were referenced in the Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, 1957 (ILO No. 157). Indigenous activists later successfully pushed for the revision of the convention which they argued was assimilatory. See Douglas Sanders, “The UN Working Group on Indigenous Populations,” Human Rights Quarterly 11, no. 3 (1989): 406–33; Niezen, Origins of Indigenism, 37. However, Tim Rowse points out that the 1957 convention did provide for the recognition of Indigenous peoples’ reserve lands, and also introduced notions of cultural difference, and so was not only assimilatory. See Rowse, “Global Indigenism: A Genealogy of a NonRacial Category,” in Rethinking the Racial Moment: Essays on the Colonial Encounter, ed. Alison Holland and Barbara Brookes (Newcastle: Cambridge Scholars Publishing, 2011), 229–53. 8 Belich differentiates this later and more destructive form of colonialism from earlier “incremental colonization” that did not necessarily threaten indigenous lands and economies. James Belich, Replenishing the Earth: The Settler Revolution and the Rise of the https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press Indigenous Rights, Human Rights, and Anglo Settler States 113 flooded into North America, southern Africa, and the Pacific, intending to create more egalitarian societies than those they had left, on what they saw as vacant or under-utilized lands. In the process, settler colonizers dispossessed the original inhabitants through wars and sporadic frontier violence, squatting on unceded lands, and by using specially designed legal instruments for the seizure of land, such as land courts that redistributed titles and made it easier for individuals to sell their holdings.9 Indigenous people were decimated by introduced diseases and the impoverishing consequences of dispossession. By the end of the century, burgeoning settler states had pushed survivors to the edges of colonial territories, forcing them onto reservations and mission stations. Settler colonial conditions in Anglo settler states took particular forms and produced different effects compared to other sites of colonialism (and imperial metropoles) – and even in other, non-Anglo settler colonies such as French Algeria and Japanese Korea.10 Nineteenth-century settler colonization in North America and Australasia proceeded through dispossessing indigenous peoples. The settler societies that formed on indigenous lands became majority populations who stayed. Settler colonialism was also a project of the imagination, particularly as European settlers invoked the vanishing of indigenous peoples, sometimes as a justification for their dispossession or in disavowal of what they had inflicted.11 Patrick Wolfe argues that settler colonialism is an ongoing structure of dispossession driven by a “logic of elimination,” either physical or cultural, of indigenous peoples who found themselves in the way of settler expansion, although not all indigenous peoples were destroyed nor were they completely assimilated to settler society.12 Wolfe’s Marxist-inflected argument takes little notice of the ambiguous role of law in settler states – critical to later rights histories – as an Angloworld, 1783–1939 (Oxford: Oxford University Press, 2009); see also Donald Denoon, Settler Capitalism: The Dynamics of Dependent Development in the Southern Hemisphere (Oxford: Oxford University Press, 1983). 9 On the legal and extralegal instruments that setters used to take new lands, see John C. Weaver, The Great Land Rush and the Making of the Modern World, 1650–1900 (Montreal: McGill-Queen’s University Press, 2003). 10 For example, see Caroline Elkins and Susan Pedersen, eds., Settler Colonialism in the Twentieth Century: Projects, Practices, Legacies (New York: Routledge, 2005). 11 See Steven Conn, History’s Shadow: Native Americans and Historical Consciousness in the Nineteenth Century (Chicago: University of Chicago Press, 2004); Bain Attwood, “Denial in Settler Society: the Australian Case,” History Workshop Journal 84, no. 1 (2017): 24–43. 12 Patrick Wolfe, “Land, Labor and Difference: Elementary Structures of Race,” American Historical Review 106, no. 3 (2001): 865–905; Wolfe, “Settler Colonialism and the Elimination of the Native,” Journal of Genocide Research 8, no. 4 (2006): 387–409; Wolfe, Traces of History: Elementary Structures of Race (London: Verso, 2016). https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press 114 Miranda Johnson instrument of dispossession (a version of what John Comaroff has called “lawfare”) and as a space for creative, if not emancipatory, recourse.13 The settler states that are the focus of this chapter became liberal democracies and shared British traditions including a basis in the common law. In many cases, imperial and settler authorities had recognized some rights of indigenous peoples in the nineteenth century. (Indeed, another genealogy of recent indigenous rights claims could extend back into early modern European debates about whether native people bore inalienable natural rights or not, and dovetail with Lynn Hunt’s account of and the production of “imagined empathy” in nineteenth-century European evangelical and humanitarian discourse.)14 However, Lisa Ford argues that the imposition of settler sovereignty in territorial terms in nineteenth-century colonial Georgia and New South Wales was “uniquely destructive of indigenous rights,” meaning that settler colonizers did not, on the whole, try to establish terms of indirect rule in colonized lands as they did elsewhere. Rather, they usurped the legal systems and political societies of indigenous peoples. Here, Ford uses the term “indigenous rights” to connote that precolonial plurality; my use of the term refers to a late-twentieth (re)construction of such rights in arguably “post” colonial conditions.15 Yet the story of colonial legal imposition was, as Ian Hunter and Shaunnagh Dorsett have argued, a creative as well as a destructive act. Understood as a story of “political improvisations and innovations,”16 settler colonialism was a dispossessory and even at times eliminatory See John Comaroff, “Colonialism, Culture, and the Law: A Foreword.” Law and Social Inquiry 26, no. 2 (2001): 305–14. “Law was central to the colonizing process but in a curiously ambiguous way,” as Sally Merry argued in her classic essay. Merry, “Law and Colonialism,” Law and Society Review, 25, no. 4 (1991): 889–922. 14 Lynn Hunt, Inventing Human Rights: A History (New York: Norton, 2007), ch. 1. For legal and philosophical genealogies of native rights and justifications for empire, see Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain and France, c. 1500–1800 (New Haven, CT: Yale University Press, 1995); Andrew Fitzmaurice, Sovereignty, Property, and Empire, 1500–2000 (Cambridge, UK: Cambridge University Press, 2014). 15 Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836 (Cambridge, MA: Harvard University Press, 2010). For critiques of use of the term “postcolonial” in settler states which the following scholars argue are sites of ongoing colonialism, see for example Linda Tuhiwai Smith, Decolonizing Methodologies: Research and Indigenous Peoples (London: Zed Books, 1999); Aileen Moreton-Robinson, The White Possessive: Property, Power, and Indigenous Sovereignty (Minneapolis: University of Minnesota Press, 2015). See also Miranda Johnson, “Reconciliation, Indigeneity and Postcolonial Nationhood in Settler States,” Postcolonial Studies 14, no. 2 (2011): 187–201. 16 Shaunnagh Dorsett and Ian Hunter, “Introduction,” in Law and Politics in British Colonial Thought: Transpositions of Empire (New York: Palgrave Macmillan, 2010), 2. 13 https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press Indigenous Rights, Human Rights, and Anglo Settler States 115 form of domination that also created new institutions, including new notions of customary law itself. Imperial authorities established traditions such as treaty-making with indigenous polities, which some settler authorities continued particularly when they sought to avoid costly warfare and negotiated land and sovereignty cessions instead. Even in places where treaties were not made, settler authorities entered into less formal agreements with indigenous peoples, or established reserve lands for what they perceived as remnant populations. Arrangements such as these continued to be made well into the twentieth century, particularly in remote areas where there was little white settlement. Treaties, land deeds, informal agreements, and even the establishment of reserves on “Crown land” were understood and reinterpreted by the different parties in very different ways over time. While settler officials may have seen treaties as expedient instruments of empire, for instance, some indigenous peoples regarded them as a vitally important recognition of their political status and standing.17 Moreover, treaties, in written and oral form, were not negotiated in consistent terms across time and space. Early trade or alliance treaties on the North American frontier when different European empires vied for land and authority, for instance, gave way to asymmetrically designed instruments in the later nineteenth century on the United States and Canadian frontiers. These treaties were often written ahead of negotiations on the ground, reproducing many of the same clauses in vastly different regions. They required signatories to cede their rights to extensive tracts of land, in return for which Indians received small payments in kind, treaty annuities, and reservations.18 The Treaty of Waitangi signed in New Zealand Robert A. Williams argues that European law, including treaty-making, was “the West’s most vital and effective instrument of empire during its genocidal conquest and colonization of the non-Western peoples of the New World, the American Indians.” See Williams, The American Indian in Western Legal Thought: The Discourses of Conquest (New York: Oxford University Press, 1990), 6; Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (Cambridge, MA: Belknap Press of Harvard University Press, 2005). 18 On the history of treaty-making in Canada, see J. R. Miller, Compact, Contract, Covenant: Aboriginal Treaty-Making in Canada (Toronto: University of Toronto Press, 2009). For indigenous accounts of “Treaty” elsewhere in Canada see, for example, references to “Treaty 7 Tribal Council” in The True Spirit and Original Intent of Treaty 7, ed. Walter Hildebrandt, Sarah Carter, and Dorothy First Rider (Montreal: McGill-Queen’s University Press, 1996), esp. 67–82; Sharon Venne, “Understanding Treaty 6: An Indigenous Perspective,” in Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference, ed. Michael Asch (Vancouver: University of British Columbia Press, 1997), 173–207. In the American context, the seminal text on treaties made with Native Americans is Francis Paul Prucha, American Indian Treaties: The History of a Political Anomaly (Berkeley: University of California Press, 1994). See also Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier 17 https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press 116 Miranda Johnson in 1840 which purported to annex the North and South Islands for Britain, was ambiguously translated into the Maori language. It was much briefer and yet at the same time more expansive in its promises to indigenous signatories than some North American treaties.19 Reserves, established in Australia’s north without formalized treaty in the twentieth century, were granted on the premise that such land was in the Crown domain; yet indigenous peoples understood reserves as their land, a recognition of their ongoing sovereignty. In many instances, land was taken without treaty, land deed, or other agreement. Even in places where indigenous peoples’ lands were recognized as belonging to them, according to developing notions of customary land tenure or “native title,” settler legal institutions developed mechanisms by which such lands could be easily disposed of, such as land courts and allotment policies.20 The sharp practices of land assessors and purchasers provoked further conflict with the state and between indigenous peoples. Indigenous peoples also protested the fact that promises made to them in treaties, such as the provision of schooling or medical resources, were not forthcoming. In Australia, parts of Canada, and California where no treaties had been made with native people, or if they had been were not officially ratified, native leaders petitioned governments, the president, and, in the Commonwealth states, even the British monarch for their rights. While some claims were successful, on the whole, they were largely ignored or relegated to legal insignificance by lawyers in the settler states during the later nineteenth and early twentieth centuries.21 However, as we shall see, resurgent appeals to settler law for native or customary land title rights began to win legal recognition after World War II, with complex and unexpected consequences. (Cambridge, MA: Belknap Press of Harvard University Press, 2005); Robert A. Williams, Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600–1800 (New York: Oxford University Press, 1997). 19 The Treaty of Waitangi, particularly since its revivification in the 1970s, has become the subject of an extensive literature in New Zealand. Some key works include Claudia Orange, The Treaty of Waitangi (Wellington: Allen & Unwin, 1987); William Renwick, ed., Sovereignty and Indigenous Rights: The Treaty of Waitangi in International Contexts, (Wellington: Victoria University Press, 1991); Michael Belgrave, Historical Frictions: Maori Claims and Reinvented Histories (Auckland: Auckland University Press, 2005). For a comprehensive treatment of the English text, see Ned Fletcher, “A Praiseworthy Device for Amusing and Pacifying Savages? What the Framers Meant by the English Text of the Treaty of Waitangi” (PhD diss., University of Auckland, 2014). 20 David Williams, Te Kooti Tango Whenua: The Native Land Court, 1864–1909 (Wellington: Huia Publishers, 1999). 21 See for example Sidney L. Harring, White Man’s Law: Native People in NineteenthCentury Canadian Jurisprudence (Toronto: Osgoode Society for Canadian Legal History, 1998). https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press Indigenous Rights, Human Rights, and Anglo Settler States 117 Postwar Settlements: Assimilation and Equal Rights Demographic shifts drove some of the new conflicts around indigenous rights in the 1960s and 1970s. By the mid-twentieth century, indigenous populations had significantly increased and were experiencing booming birth rates, putting paid to late nineteenth-century ideas of vanishing Indians. Moreover, the fact that settler governments continued to distinguish indigenous populations, often revising definitions of who counted as indigenous, was itself a political artefact that had ongoing effects on the distribution of resources and the grounds of identification.22 Young indigenous men and women were leaving rural and remote homelands and searching out new economic and educational opportunities in cities as well as encountering more direct forms of racism. Indigenous servicemen, returning from fighting in the war, found their expectations of equal treatment on their return to the countries they had fought for frustrated.23 These experiences provoked claims for equality that were at times explicitly connected to human rights issues. In the 1950s, with support from the labor movement, for instance, Aboriginal people in Australia’s north protested unequal wages seeking, as the North Australian Workers’ Union put it, their “place in the community as workers and citizens.” Union activists, white and Aboriginal, pushed forward the argument that they were being denied their “fundamental rights and liberties,” and made appeal to the United Nations on the basis of human rights claims, intending to shame the Australian government into action.24 Later, in 1968, the labor activist Tom (Tama) Poata created the Maori Organization on Human Rights, more commonly known as MOOHR, following his association with anti-racist and antiapartheid organizations. MOOHR protested racism domestically, and opposed sporting ties with South Africa – a matter of considerable political dispute in a country whose national image was inextricable from its sporting prowess in rugby, and whose major rugby rival was On the imaginary of indigenous “populations,” see Tim Rowse, Rethinking Social Justice: From “Peoples” to “Populations” (Canberra: Aboriginal Studies Press, 2012), esp. ch. 1. 23 General histories of twentieth-century indigenous peoples that cover some of these issues include Charles Wilkinson, Blood Struggle: The Rise of Modern Indian Nations (New York: Norton, 2005); J. R. Miller, Skyscrapers Hide the Heavens: A History of Indian–White Relations in Canada, 3rd ed. (Toronto: University of Toronto Press, 2000); Tim Rowse, Indigenous and Other Australians Since 1901 (Sydney: University of New South Wales Press, 2017); Richard S. Hill, Maori and the State: Crown–Maori Relations in New Zealand/Aotearoa, 1950–2000 (Wellington: Victoria University Press, 2009). 24 Bain Attwood, Rights for Aborigines (Sydney: Allen & Unwin, 2003), 132–6. 22 https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press 118 Miranda Johnson South Africa. At the same time, Poata understood the oppression of Maori in New Zealand as akin to class oppression.25 In response to social and civic pressures, national governments searched for ways to incorporate young and growing populations into the domestic workforce and meet intensifying demands for equality. They did so primarily by outlining new policies of assimilation, by which they envisaged indigenous peoples could become full citizens who aspired to the same things that other settlers did. Policymakers were focused on the assimilation of indigenous populations into the settler body politic. In the United States, this included discharging any remaining obligations on the part of the federal government to the tribes through the United States Indian Claims Commission, established in 1946.26 In the 1950s, congress tried to “terminate” the special recognition of Native American tribes, first by extending criminal jurisdiction over tribal reservations.27 Governments in Canada, Australia, and New Zealand likewise advanced policies of assimilation in respect of indigenous populations in the 1950s and early 1960s. These policies in turn spurred a new wave of young indigenous activists, often urban-based and university educated, to protest policies of assimilation. They argued that these policies entailed the erasure of their indigeneity.28 Young activists linked the failure of settler authorities to meet the specific agreements or promises made to their communities in the past and the contemporary language of human rights and genocide. Resisting an attempt by the federal government in Canada to terminate Indians’ treaty rights there, akin to the policy of the federal government in the United States, the young Cree activist Harold Cardinal accused the Canadian government of “cultural genocide,” asserting that, “If our [treaty] rights are meaningless . . . then we as a people are meaningless.”29 Activists like Cardinal who protested policies of assimilation and termination were thinking about what they had already lost in terms of 25 Ranginui Walker, Ka Whawhai Tonu Matou: Struggle without End (Auckland: Penguin, 1990); Hill, Maori and the State, ch. 7. See Harvey D. Rosenthal, Their Day in Court: A History of the Indian Claims Commission (New York: Garland, 1990); Arthur Ray, Aboriginal Rights Claims and the Making and Remaking of History (Kingston: McGill-Queen’s University Press, 2016). 27 See Wilkinson, Blood Struggle, pt. 1. 28 For a comparative discussion of assimilation policy in the Commonwealth settler states, see Andrew Armitage, Comparing the Policy of Aboriginal Assimilation: Australia, Canada and New Zealand (Vancouver: UBC Press, 1995). 29 Harold Cardinal, The Unjust Society: The Tragedy of Canada’s Indians (Edmonton: M.G. Hurtig, 1969), 30. On the use of the genocide concept in Australia, see A. Dirk Moses, ed. Genocide and Settler Society: Frontier Violence and Stolen Indigenous Children in Australian History (New York: Berghahn Books, 2004). 26 https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press Indigenous Rights, Human Rights, and Anglo Settler States 119 their own indigenous cultures and languages, particularly as a consequence of residential schooling, and they wanted to ensure that no further harm was inflicted on generations to come. The new generation of activists also drew on the actions and ideas of anti-colonial, anti-apartheid, and American Black Power movements in confronting settler states and settler publics with their demands. As Aboriginal activists explained when they erected the “Tent Embassy” on Australia’s federal parliament grounds in Canberra in 1972, “like black men in Africa, who fought so hard for the right to decide their own destiny,” Aboriginal people, too, were entitled to a much greater degree of political power.30 The language of human rights was not in this instance drawn on extensively; instead activists found common cause with anti-colonialism, and used the language of sovereignty to imagine an “Aboriginal state,” apart from but still a part of the federation; or more broadly advocated a kind of cultural nationalism, as espoused by black activists such as poet Kath Walker who published a list of “Black Commandments” in 1969 that included, “Thou shalt resist assimilation with all thy might,” and “Thou shall think black and act black.”31 While these forceful critiques of assimilationist policy were gaining traction in the cities, new resource projects in remote areas provoked renewed conflicts over land. Remote areas in the geographically larger settler states that had not been of much interest to settler governments now became of increasing value to mining and energy companies, powered by post-World War II wealth and feeding the need for resources in growing Asian economies. A bauxite mine in Australia’s north, and hydroelectric schemes and the building of oil and gas pipelines in Canada’s north, became the focus of local then nationwide indigenous struggles. The attention that these struggles won caught settler governments in each country by surprise, since it had not occurred to them that they should consult with local indigenous peoples whose lands were affected about mining and development projects, and they assumed they were under no legal obligation to do so since governments assumed this was “Crown land.” These assumptions were about to be radically undone, as traditional leaders, lawyers, missionaries, anthropologists, and others joined forces in demanding that the settler state recognize indigenous peoples’ collective land and treaty rights. Indigenous people began taking their claims to John Newfong, “The Aboriginal Embassy: Its Purpose and Aims,” Identity (July 1972): 5. See also Heather Goodall, Invasion to Embassy: Land in Aboriginal Politics in New South Wales, 1770–1972 (Sydney: Allen & Unwin, 1996), 339–51. 31 Quoted in Russell McGregor, “Another Nation: Aboriginal Activism in the Late 1960s and Early 1970s,” Australian Historical Studies 40, no. 3 (2009): 347–8. 30 https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press 120 Miranda Johnson the courtroom with the intention of forcing governments to respond. At times drawing on human rights ideals, these leaders pressed for distinct forms of customary land rights, thereby revivifying older colonial legal languages for the purposes of making new collective identity claims. As indigenous peoples took their collective claims to municipal courts in the 1970s seeking recognition of land and treaty rights, many emphasized that they needed rights that went far beyond the protection of individual property interests. Their lands, waters, sacred sites, hunting grounds, and so on were so important to them because these places constituted who they were as a people: “the land is our history,” was a commonly used phrase in activism and legal claims, doubly referencing land loss as well as the existential importance of place to identity.32 This broad-brushstrokes account of nineteenth-century conditions and twentieth-century pressures points to some of the historical differences that indigenous leaders and activists faced compared to other anticolonial and civil rights movements in the post–World War II era of decolonization. Indigenous leaders’ political aspirations were different from those fighting for self-determination in the form of separate statehood as in the Third World – a political claim that “turned the world into the stage of history,” as historian Prasenjit Duara puts it33 – or to end racial violence, as in the South African and African American contexts. The political and economic structures from which indigenous claims emerged, and the political futures to which indigenous peoples aspired, were unlike these situations. In the settler states of Canada, the United States, Australia and New Zealand the settlers would not go home as they had in Algeria, for example. There would be no (repeat) anti-colonial revolution. Indigenous peoples formed small minorities, unlikely to use violence or armed resistance to achieve their aims as some had done in the past. In the 1960s, most indigenous communities were poor and unevenly enfranchised, with limited electoral power and little representation at any levels of settler government. A New Social Contract Indigenous activists had to develop a distinct political and conceptual language to advance their claims, often in relation to the state’s legal 32 33 See for instance Galarrwuy Yunupingu quoted in Johnson, Land Is Our History, 54. Prasenjit Duara, Decolonization: Perspectives from Now and Then (London: Routledge, 2003), 1. Duara’s textbook, like most on decolonization, does not include examples from the “Fourth World.” On this point, see also, Tracey Banivanua Mar, Decolonisation and the Pacific: Indigenous Globalisation and the Ends of Empire (Cambridge, UK: Cambridge University Press, 2016), esp. the introduction. https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press Indigenous Rights, Human Rights, and Anglo Settler States 121 traditions as well as their own and by appealing to histories shared and contested with settler societies. A central argument emerged from claims about historical treaty promises made but not kept. Indigenous actors used the idea of treaty to hold settler states to account in a contractual sense, as a fiduciary duty, specifically referring to what they had lost and the redress and restitution they demanded in the present. In so doing, activists further argued that the contracts that treaties represented were actually of fundamental importance to the settler states in a postcolonial age: they represented broader social contracts according to which settler states had established legal authority. If states were to maintain that authority, then they had to recognize that they were in an ongoing relationship or even partnership with indigenous treaty signatories. Claimants insisted that settling treaty grievances was a matter of moral urgency and for rethinking national belonging.34 At the culmination of the 1961 Chicago conference at which Edward Dozier gave his inspiring keynote, delegates released the “Declaration of Indian Purpose.” Explicitly invoking the 1948 Universal Declaration of Human Rights, the declaration began thus: “We believe in the inherent right of all people to retain spiritual and cultural values.”35 By far the largest section of this declaration, however, addressed the issue of upholding the “eternal word” of American Indians’ treaties, a kind of claim that was referred to neither in the Universal Declaration, nor in other versions of decolonization discourse.36 Promises that indigenous peoples associated with treaties continued to be abrogated. The most recent example, as many attendees at the conference discussed, was the federal government’s policy of “termination” which referred to the ending of distinct recognition of tribes, established in treaties, in an effort to integrate Indians into the majority population.37 By the late 1960s, debate about and appeal to treaties was heating up around the United States, bringing together a range of activists from different campaigns. In the Pacific Northwest, local Native Americans who were frequently being arrested for fishing in rivers without a license, protested their right to fish on and off their reservations, as promised in historical treaties. They drew the attention of national organizations, including the National Association for the Advancement of Colored 34 See the discussion in Alexandra Harmon ed., The Power of Promises: Rethinking Indian Treaties in the Pacific Northwest (Seattle: Center for the Study of the Pacific Northwest and University of Washington Press, 2008), introduction. 35 “This Is Not Special Pleading,” in Say We Are Nations, 120–3. 36 “This Is Not Special Pleading,” 122. 37 See Lurie “The Voice of the American Indian: Report on the American Indian Chicago Conference,” Current Anthropology 2, no. 5 (1961): 478–500. https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press 122 Miranda Johnson People, which provided some material support for their protests. Out-ofstate activists helped local protestors to design a new campaign they called a series of “fish-ins” along the Nisqually and Puyallup rivers, explicitly recalling the “sit-in” tactics of earlier African-American civil rights campaigns. This group of “maverick fishers and pan-Indian activists” won extensive media attention, and, eventually, a remarkable court case that upheld their treaty rights.38 One of the activists involved in this campaign, Hank Adams, become central to later nationwide Indian protests in the 1970s – sometimes referred to as “Red Power” – that included the “Trail of Broken Treaties” march of 1972 that traveled across the United States. Often depicted as radical, these activists nonetheless often used rhetorical strategies that appealed to settler audiences by resonating with their historical identities at the same time as the movement asserted indigenous goals. As the “preamble” to the American Indian Movement’s “20 Point Position Paper,” issued in 1972 explained, “We seek a new American majority – a majority that is not content merely to confirm itself by superiority in numbers, but which by conscience is committed toward prevailing on public will in ceasing wrongs and doing right.”39 The wrongs that the American Indian Movement (AIM) were concerned about in particular, in common with the concerns of many Indians across the country, were violations of treaties and the failure of the federal government to uphold treaty promises. The position paper, aimed directly at Richard Nixon, who looked most likely to win the upcoming presidential election, proposed the creation of a new commission tasked with contracting a new treaty relationship with tribes around the country, and ratifying historic treaties (particularly in California) that were not officially recognized. In the fracas that followed AIM’s presentation of the paper at the Bureau of Indian Affairs in Washington DC on November 3, 1972, the organization telegrammed the United Nations asking for a team to be sent to investigate the protestor’s treatment and hoping that the “whole matter of Indian rights could be considered” by that body. It was not.40 In Canada and New Zealand, treaty claims levered open a moral space in the state as indigenous claimants and lawyers protested the “breach of 38 See Alexandra Harmon, Indians in the Making: Ethnic Relations and Indian Identities Around Puget Sound (Berkeley: University of California Press, 1998), 233; Charles Wilkinson, Messages from Frank’s Landing: A Story of Salmon, Treaties and the Indian Way (Seattle: University of Washington Press, 2000). 39 American Indian Movement, “The Trail of Broken Treaties: An Indian Manifesto,” October 1972, www.aimovement.org/archives 40 See Vine Deloria, Behind the Trail of Broken Treaties: An Indian Declaration of Independence (Austin: University of Texas Press, 1985 [1974]), 57–8. https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press Indigenous Rights, Human Rights, and Anglo Settler States 123 faith” on the part of federal or central government action (or inaction). This was perhaps clearest in the New Zealand case, where Maori activists demanded justice and politicians and jurists began to rethink the state in “bicultural” terms, focused on the Treaty of Waitangi. In the 1960s, the Treaty – signed in 1840 by Maori leaders from different polities – was officially commemorated by the settler state as the founding of a unified nation and a symbol of much-vaunted racial harmony. In the 1970s, this belief was challenged by Maori activists. In 1971, at fiery protests of the official celebrations on the grounds where the treaty had been signed, a young activist group, Ngā Tamatoa (the Young Warriors) challenged the myth of racial harmony that the Treaty of Waitangi symbolized and the idea of nationhood that it evoked. They repudiated a settler nationalist story of racial harmony and instead drew attention to the effects of dispossession, language loss, poverty, and crime on New Zealand’s indigenous population. This was a particularly critical national moment, due to fact that the country’s economic ties to Britain were dissolving. New Zealand’s primary agricultural export market was threatened by Britain’s decision to join the European Economic Community, and the loss of the British market also provoked a rethinking of cultural ties.41 In a moment of national uncertainty, settler leaders sought to assert an independent identity by reenacting a mythical founding moment; and Maori activists demanded a rethinking of the social contract. Some even referred to the Treaty as a “fraud.”42 In 1975, older leaders and young activists joined forces on a nationwide “land march” to parliament, along the lines of “Trail of Broken Treaties” undertaken by Native American activists in the United States in 1972. Their cause was the retention of the last remaining lands in Maori hands and redress for dispossession. According to historian Aroha Harris “Setting up Te Matakite [the vision or prophesy] was practically as great a feat as the march itself. It was a synergy of old and new ideologies and methods, which unified a range of groups and interests: kuia, kaumātua [female and male elders] and rangatahi [youth], young 41 For this reason, historian Anthony Hopkins argues that the Commonwealth settler states should be included in the postwar history of decolonization, see A. G. Hopkins, “Rethinking Decolonization,” Past & Present, no. 200 (2008): 211–47. See also James Curran and Stuart Ward, The Unknown Nation: Australia after Empire (Melbourne: Melbourne University Press, 2010). None of these authors, however, draw on indigenous rights activism, its powerful critique of colonialism, and the challenge that surviving indigenous identities posed to the state, to explain or complicate their latetwentieth-century stories. 42 See the “Treaty Is a FRAUD” poster from the late 1970s, Te Ara: Encyclopedia of New Zealand, www.teara.govt.nz https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press 124 Miranda Johnson urban activists and older conservative traditionalists.”43 This “synergy” of old and new included the way the march drew on and reembodied the protest marches of earlier Maori leaders; that the memorial of right that the leaders took with them emphasized land rights; and that leaflets that some marchers handed out linked land loss with loss of identity and matters of class: “We want a just society allowing Maoris to preserve our own social and cultural identity in the last remnants of our tribal estate . . . the alternative is the creation of a landless brown proletariat with no dignity, no mana [authority] and no stake in society.”44 The march added pressure on the government at the time, and the Minister of Maori Affairs Matiu Rata in particular, to establish a specially designed commission of inquiry to examine treaty breaches, which it did in 1975 in the form of the Waitangi Tribunal. The Tribunal, which did not really gain teeth until a further amendment in 1985 provided it with the power to examine breaches of the Treaty going back to 1840, was tasked not only with examining specific claims but also with defining broader “principles” of the Treaty by which the state and Iwi (tribes) could be held to account for their actions in the past and into the future.45 Two key principles were that of “partnership,” which acknowledged the ongoing political authority of Maori people, mainly as they were represented by tribal leaders; and that of “protection” which meant that the Crown was obliged to protect Maori interests and rights.46 This modern interpretation of the treaty became the basis for its consideration in quasi-constitutional terms in what has become known as Aotearoa New Zealand. Going to Court for Land Rights As well as advancing the idea that indigenous peoples and settler states had to make a new social contract, premised on historical treaties, or forged through new agreements, indigenous leaders and their lawyers forced unwilling governments to recognize customary land rights in the form of aboriginal or native title. This form of title recognized the 43 Aroha Harris, Hikoi: Forty Years of Māori Protest (Wellington: Huia Publishers, 2004), 70. 44 45 As quoted in Hill, Maori and the State, 168. Treaty of Waitangi Act, 1975. 46 For a discussion of Treaty principles emerging from early Tribunal reports and seminal court cases, see Janine Hayward, “Appendix: The Principles of the Treaty of Waitangi,” in National Overview: Waitangi Tribunal Rangahaua Whanui Series, ed. Alan Ward, 2 vols. (Wellington: Waitangi Tribunal, 1997), 2: 475–94. The idea of protection itself has a long, complex history in empire. See for a discussion, Lauren Benton, Adam Clulow, and Bain Atwood, eds. Protection and Empire: A Global History (Cambridge, UK: Cambridge University Press, 2018). https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press Indigenous Rights, Human Rights, and Anglo Settler States 125 collective property right of indigenous peoples to their lands based on their historic and ongoing attachment to them, if it had not been extinguished by settler governments in the past through treaties or other instruments.47 Native title rights gave indigenous owners stronger rights than those of use and access that had been awarded to them on an ad hoc basis prior to the 1970s. Unlike other property rights, claimants to native title did not necessarily have to show that they exercised exclusive ownership of the lands under claim; though, considered to be “inalienable rights,” neither could they sell lands awarded such title on an open market.48 Foregrounding their ongoing presence on and attachment to the land, native title conveyed great symbolic as well as economic value. It promised to give tangible legal form to the expression of indigenous peoples’ historical claims as “first peoples” who were the prior occupiers of the land. It overturned popular historical representations of vast areas of unoccupied land, purportedly “free” of prior owners and available for the taking.49 Implicitly, the revitalization of native title recognized a kind of sovereignty held by indigenous peoples as autonomous groups with their own laws and forms of government prior to the arrival of white settlers who had maintained a degree of autonomy despite colonization.50 Claimants argued for the distinctiveness of their entitlements in terms of continuities with the past. These “new” rights were, they proposed, in fact very old; “indigenous rights” somehow preexisted the creation of settler states, both challenging their founding and potentially offering a new grounding for their constitution. In economic and symbolic terms, the advent of native title claims was a potentially radical historical moment within settler states, given that it was based in the possibility for rewriting both the common law in these countries and an account of history that buttressed common law doctrines. 47 See McHugh, Aboriginal Title, ch. 1. In the nineteenth century, the inalienability of such title effectively excluded indigenous peoples from participating in the property market since they could only sell their lands to the Crown or federal state. In this sense, the doctrine portrayed indigenous peoples as living out of time with settler capitalism. See Stuart Banner, How the Indians Lost Their Land, esp. ch. 3. 49 The classic statement on “free land” and the frontier was made by Frederick Jackson Turner, in “The Significance of the Frontier in American History.” 50 As Jeremy Webber explains, the recognition of a collective land title held by indigenous peoples does not mean that, within those societies, all land is held communally. Rather, native title implicitly recognizes the “political and legal autonomy of indigenous societies” and therefore their capacity to determine landholding internally. Jeremy Webber, “Beyond Regret: Mabo’s Implications for Australian Constitutionalism,” in Political Theory and the Rights of Indigenous Peoples, ed. Duncan Ivison, Paul Patton, and Will Sanders (Cambridge, UK: Cambridge University Press, 2000), 60–88. 48 https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press 126 Miranda Johnson In the United States, the revival of native title got underway before World War II, notably in the southwest Hualapai’s long-running land rights battle, a story that had huge import not only for Hualapai themselves but also for the writing of American Indian history in the postwar period.51 In Canada, a notion of “aboriginal title” was reinvented in the landmark case Calder v. Attorney-General of British Columbia (1973).52 The most dramatic story of the resurgence of customary land title, however, occurred in Australia, where claims to distinct land rights were quite novel in the 1960s, and Aboriginal people and Torres Strait Islanders had very little recourse to the courts in protesting their retention. British colonists in the nineteenth century did not explicitly recognize territorial rights of native people nor did they make formal treaties with landholders across the Australian continent, as was common practice in North America and New Zealand.53 Since there was no formal recognition of land rights, campaigners in the 1960s thought it unlikely that indigenous peoples would win recognition for their land in the courts.54 This was about to change. In 1969, Yolngu people in northeastern Arnhem Land, the far north of the country, launched a legal case for their land rights arguing that their hunting grounds and sites of cultural and spiritual significance were threatened by a bauxite mine being built on their lands without their permission. Yolngu peoples’ native title claim was based on their prior and ongoing use and occupation of lands on the Gove peninsula, which had been declared an “inviolable reserve” in 1931. The government assumed that since the reserve was “Crown land” it could excise parts of it at will. But this was not the understanding of Yolngu residents; they saw the reserve as recognizing their land. Their claim for native title, the first ever made in an Australian court, failed in court because while the judge recognized Yolngu customary law over the area as fact, he was not able to frame their legal system as a 51 On the revival of native title by Hualapai leaders in the United States, see Christian McMillen, Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory (New Haven, CT: Yale University Press, 2007). For a comparative account of the revival of this legal doctrine across Anglo settler states after World War II, see Paul McHugh, Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights (Oxford: Oxford University Press, 2011). 52 On the importance of the case and its antecedents, see Hamar Foster, Heather Raven, and Jeremy Webber, eds. Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (Vancouver: UBC Press, 2007). 53 Bain Attwood, Possession: Batman’s Treaty and the Matter of History (Melbourne: Miegunyah Press, 2009). 54 Johnson, Land Is Our History, 24–5. https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press Indigenous Rights, Human Rights, and Anglo Settler States 127 source of Australian law.55 However, the case brought unprecedented attention to indigenous peoples’ land claims and the sympathetic publicity generated by the case became a key election issue in 1972. In his capstone campaign speech, the leader of the Labor opposition, Gough Whitlam promised land rights legislation “for Aborigines,” arguing in high-minded terms that this was necessary “not just because their case is beyond argument but because all of us as Australians are diminished while the aborigines [sic] are denied their rightful place in this nation.”56 The following year, Whitlam’s Labor government delivered on the promise, at least in part, by establishing a commission to inquire into Aboriginal land rights and shifting the focus of government policy away from assimilation and toward self-determination. This would be the cornerstone of Aboriginal policy for the next three decades.57 The commission recommended new legislation, passed in 1976 by another government as the Aboriginal Land Rights (Northern Territory) Act. It established criteria for Aboriginal communities in the Northern Territory to apply for recognition of distinct land title, and created new land councils to mediate between local communities and state authorities. It was a transformative moment that held huge promise for Aboriginal people within the Northern Territory and beyond. In the years to come, state governments around Australia passed their own land rights legislation.58 Finally, in 1992, the High Court of Australia found that Meriam Islanders in the Torres Strait had native title rights.59 This decision drew explicitly on the international law of human rights in defending indigenous peoples’ property interests. Justice Gerard Brennan argued that indigenous peoples’ ownership of land had not been recognized previously because of how they were positioned in a racial hierarchy. W. E. H. Stanner, “The Yirrkala Land Case: Dress-Rehearsal (1970),” in White Man Got No Dreaming: Essays 1938–1973 (Canberra: Australian National University Press, 1979); Nancy M. Williams, The Yolngu and Their Land: A System of Land Tenure and the Fight for Its Recognition (Stanford: Stanford University Press, 1986). 56 Gough Whitlam, “It’s Time for Leadership,” election speech delivered at Blacktown Civic Centre, New South Wales, 13 November 1972. Online at Whitlam Institute, University of Western Sydney, www.whitlam.org/collection 57 Nicolas Peterson, “Common Law, Statutory Law, and the Political Economy of the Recognition of Indigenous Australian Rights in Land,” in Aboriginal Title and Indigenous Peoples, ed. Louis Knafla and Haijo Westra (Vancouver: UBC Press, 2010), 171–84. 58 See for example Heidi Norman, What Do We Want? A Political History of Aboriginal Land Rights in NSW (Canberra: Aboriginal Studies Press, 2015). 59 On the Mabo case, its making, and its impact, see, among many other works, Peter Russell, Recognising Aboriginal Title: The Mabo Case and Indigenous Resistance to EnglishSettler Colonialism (Sydney: University of New South Wales Press, 2005); Nonie Sharp, No Ordinary Judgment: Mabo, the Murray Islanders’ Land Case (Canberra: Aboriginal Studies Press, 1996). 55 https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press 128 Miranda Johnson Such an “unjust and discriminatory doctrine . . . can no longer be accepted.” He found that Australian common law had to be brought into line with international law declaring the “existence of universal human rights,” particularly in terms of racial equality.60 Distinctively, the human right and racial equality that Brennan invoked was not that only of the individual but also of the collective owner of land. The following year, the federal parliament passed the Native Title Act (1993) which created a process by which Aboriginal people and Torres Strait Islanders anywhere in Australia could go to a specially designed tribunal, or to court, in order to have their native title claim assessed.61 Internationalizing Indigenous Rights In the 1970s in Anglo settler states, young activists and older leaders pushed forward the idea that the settler state needed to make a new social contract with indigenous peoples. Demonstrating the effects of dispossession on their communities as well as emphasizing their persistence as peoples, these actors opened up debate on their collective political futures. They were nations within the settler state whose collective rights to land needed to be urgently recognized particularly in the context of new mining and development ventures in remote areas. If many in the West were becoming more concerned with individual human rights in the 1970s, critiquing the excesses and failures of new postcolonial states in the Third World, in the world of indigenous rights activism notions of collective rights and internal self-determination were coming into their own. In the 1980s and 1990s, these claims began to be addressed by settler law and state bureaucracies on a nationwide scale (that is, beyond local and often ad hoc arrangements) in Canada, Australia, and New Zealand in particular. In these three Commonwealth countries, indigenous activists and leaders were able to tie their struggles for recognition of their sovereign rights to matters of national identity and the rethinking of state constitutions. For some activists, however, working at the level of the state was not enough. In the mid-to-late 1970s, some indigenous activists primarily from the Anglo settler states created transnational rights organizations to lobby the United Nations for recognition of their right to selfdetermination. Their goals were political, inspired by Third World anti-colonialism, and also philosophical. According to historian Jonathan Crossen, the World Council of Indigenous Peoples, formed in 60 61 Mabo and Others v. Queensland (No. 2) [1992] HCA 23; 175 CLR 1, 42. Richard H. Bartlett, Native Title in Australia (Sydney: LexisNexis Butterworths, 2014). https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press Indigenous Rights, Human Rights, and Anglo Settler States 129 1974, aspired “to fundamentally change the basis of international law by incorporating a vision of Indigenous rights.”62 The World Council’s founder, Secwepemc (British Columbia) man George Manuel, was strongly influenced by African socialism largely due to his executive assistant Mary Smallface Marule. A Blood Tribe (Alberta) activist and academic who had spent time in Zambia where she encountered African socialists and members of the African National Congress, Marule and her husband – an ANC activist – helped Manuel forge links with Zambian and Tanzanian leaders. Manuel credited his coinage of the term the “Fourth World” to describe the struggles of indigenous peoples in countries where the colonizers did not leave, to conversations he had when visiting with Tanzanian leaders.63 The term was the title of a 1974 book that Manuel cowrote with a settler political scientist and that capture the imaginations of activists, artists, and intellectuals across the Anglo settler world. According to Vine Deloria, who wrote a foreword to the book, the philosophy behind the concept of the Fourth World was a universal one. The authors offered, he argued, nothing less than a “vision of human existence beyond that of expediency and the balancing of powers that speaks to the identity crisis that has gripped every land and its peoples.”64 Another transnational organization, the International Indian Treaty Council, was also directly inspired by Third World anti-colonialism although, unlike the World Council, it did not initially aspire to represent global indigenous politics. As Crossen points out, the Treaty Council was conceived of as the “international wing” of the militant AIM in the United States and its first meeting was held on the Standing Rock Sioux reservation in 1974 following the armed stand-off at Wounded Knee. The Treaty Council prided itself on its grassroots representation and rejected state recognition; the World Council, by contrast, brought together leaders from state-recognized organizations such as the National Indian Brotherhood, the New Zealand Maori Council, and the National Aboriginal Action Committee, all of which relied on state funding. Furthermore, the Treaty Council initially aimed at winning recognition at the UN for the nationhood of particular tribes rather than indigenous peoples more broadly. Nonetheless, the Treaty Council announced a broader vision in a 1977 meeting at Geneva. According to its Declaration of Principles for the Jonathan Crossen, “Another Wave of Anti-colonialism: The Origins of Indigenous Internationalism,” Canadian Journal of History 52, no. 3 (2017): 557. George Manuel and Michael Posluns, The Fourth World: An Indian Reality (New York: Free Press, 1974). 64 Vine Deloria, “Foreword,” ibid., xii. 62 63 https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press 130 Miranda Johnson Defense of the Indigenous Nations and Peoples of the Western Hemisphere, “Indigenous peoples shall be accorded recognition as nations, and proper subjects of international law.” The declaration defined such peoples as those with a permanent population, defined territory, government, and the ability to enter into international relations.65 These organizations spearheaded a new campaign at the United Nations in the 1980s, seeking international recognition of indigenous rights within the human rights framework. Debate on what constituted indigenous human rights was fraught and lengthy, demanding considerable concessions from indigenous actors particularly around the definition of self-determination (which many states wanted to ensure did not trigger a right of secession) and a limitation of the right of selfgovernment to internal matters. However, in 2007 the General Assembly did finally pass the Declaration on the Rights of Indigenous Peoples (UNDRIP).66 Beginning with affirmations of equality and emphasizing principles of nondiscrimination, while also recognizing the value of diversity and rights to cultural difference, the declaration insists that indigenous peoples are full human rights subjects (Article 1) who are “free and equal” (Article 2) and who bear rights to self-determination (Article 3) and self-government (Article 4). The making of UNDRIP attests to how indigenous rights became, unexpectedly, a global issue as activists successfully connected distinctive indigenous rights claims to the broad discourse of human rights and self-determination.67 In turn, the declaration offers hope to some indigenous leaders for a renewed understanding of indigenous rights as human rights. Thus, Pawnee attorney and legal scholar Walter Echo-Hawk claims that UNDRIP invites us to view federal Indian law in a new way. It is possible to go beyond that amoral body of law to conceive of Native American rights as “human rights” . . . This vista sees fundamental freedoms that transcend our shores to inure to the benefit of every person worldwide.68 65 See the text reproduced in Sheryl Lightfoot, Global Indigenous Politics: A Subtle Revolution (Routledge: New York, 2016), 213–15. On the making of UNDRIP, see, for example, Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples, ed. Claire Charters and Rodolfo Stavenhagen (Copenhagen: IWGIA, 2009); Erica-Irene A. Daes, “An Overview of the History of Indigenous Peoples: Self-Determination and the United Nations,” Cambridge Review of International Affairs 21, no. 1 (2008): 7–26; Lightfoot, Global Indigenous Politics. 67 As I discuss elsewhere. See Miranda Johnson, “Indigenizing Self-Determination at the United Nations: Reparative Progress in the Declaration on the Rights of Indigenous Peoples,” forthcoming in Journal of the History of International Law. 68 Walter R. Echo-Hawk, In the Light of Justice: The Rise of Human Rights in Native America and the UN Declaration on the Rights of Indigenous Peoples (Golden, CO: Fulcrum Press, 2013), xiii. 66 https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press Indigenous Rights, Human Rights, and Anglo Settler States 131 Conclusion The claims of indigenous activists to rights of identity and sovereignty were not considered human rights in the way that international institutions and civil society was employing the concept in the 1970s. That is, to protect individuals from violence and suffering at the hands of the state. Yet indigenous peoples in the Anglo settler states argued that their claims to collective rights were matters of concern to humanity. If many in “the West” did not (yet) appreciate the severity of threats to indigenous communities, activists themselves began to argue that their particular struggles constituted a fundamental human right. As Yolngu land rights claimants put it, who would they be without their land? Was not the cultural genocide spelled by assimilation policy and the denial of treaty rights that recognized the collective peoplehood of Canadian Indians something that a universal notion of humanity should be concerned to protect, as Harold Cardinal argued? Giving new meaning to the universal protection offered by the concept of human rights, indigenous rights activists did open up new legal and political space in the 1970s for redress and recognition within settler states and even at the United Nations. By asserting rights to land and demanding compensation for what had been lost, in terms that drew on and critiqued state policy and settler colonial history, activists challenged notions of cultural homogeneity and assimilation and invited new political futures. At the international level, indigenous activists had considerable success in expanding definitions of human rights and self-determination to encompass their collective rights. This story of indigenous activism in the 1970s demonstrates the power of the discourse of human rights for integrating discrete rights struggles. Significantly, this chapter provides an alternative story of 1970s activism in which indigenous actors in settler states stretched the discourse of human rights beyond individualist claims. https://doi.org/10.1017/9781108783170.006 Published online by Cambridge University Press
Purchase answer to see full attachment