McNeil on Aboriginal Title in Canada

Kent McNeil, York University Osgoode Hall Law School, has posted Discarding Old Prejudices: Judicial Precedent and Aboriginal Title.  This is the Law Foundation of Saskatchewan Lecture, delivered at the University of Saskatchewan College of Law on October 28, 2019.  It is based on the author’s Flawed Precedent: The St. Catherine’s Case and Aboriginal Title (Vancouver: UBC Press, 2019)

This talk on judicial precedent and Aboriginal title combines legal history and current law. The legal history is important because it informs the current law. It also reveals the racism in Canadian law that retarded the development of the concept of Aboriginal title until the 1970s.

My discussion of the early case law focuses on St. Catherine’s Milling and Lumber Co. v. The Queen, decided by the Privy Council in 1888. It was the leading judicial precedent on the source and content of Aboriginal title right up to the Supreme Court of Canada’s 1973 decision in Calder v. Attorney General of British Columbia. The question in St. Catherine’s was this: Did the Crown in right of Ontario or the Crown in right of Canada benefit from the surrender by the Saulteaux people of the Anishinaabe Nation of their Aboriginal title by Treaty 3 in 1873?

--Dan Ernst

Saxine, "Properties of Empire"

New York University Press has released Properties of Empire: Indians, Colonists, and Land Speculators on the New England Frontier (April 2019), by Ian Saxine (Bridgewater State University). A description from the Press:

Properties of Empire shows the dynamic relationship between Native and English systems of property on the turbulent edge of Britain’s empire, and how so many colonists came to believe their prosperity depended on acknowledging Indigenous land rights.

As absentee land speculators and hardscrabble colonists squabbled over conflicting visions for the frontier, Wabanaki Indians’ unity allowed them to forcefully project their own interpretations of often poorly remembered old land deeds and treaties. The result was the creation of a system of property in Maine that defied English law, and preserved Native power and territory. Eventually, ordinary colonists, dissident speculators, and grasping officials succeeded in undermining and finally destroying this arrangement, a process that took place in councils and courtrooms, in taverns and treaties, and on battlefields.

Properties of Empire challenges assumptions about the relationship between Indigenous and imperial property creation in early America, as well as the fixed nature of Indian “sales” of land, revealing the existence of a prolonged struggle to re-interpret seventeenth-century land transactions and treaties well into the eighteenth century. The ongoing struggle to construct a commonly agreed-upon culture of landownership shaped diplomacy, imperial administration, and matters of colonial law in powerful ways, and its legacy remains with us today.

A few blurbs:

"Properties of Empire clearly reflects the authors deep immersion and strong understanding of Wabanaki and Anglo-American social, and cultural patterns. A significant contribution to the field of Native-colonial relations." -- Daniel Mandell

"An intriguing, thought provoking, and important [book] that recognizes the importance of land issues in Indian Country today through close historical work on the ideologies that surround land ownership in previous centuries." -- Christopher Bilodeau

More information is available here.

-- Karen Tani

Blackhawk on "Federal Indian Law as a Paradigm Within Public Law"

As I read Katie Eyer's piece on JOTWELL yesterday -- an admiring review of a recent article by Maggie Blackhawk (Penn Law) -- I was reminded that we had not yet flagged this article for our readers. There is lots of legal history here! Here's the abstract for "Federal Indian Law as a Paradigm Within Public Law," published this spring in the Harvard Law Review.

U.S. public law has long taken slavery and Jim Crow segregation as a paradigm case through which to understand our constitutional law: cases adjudicating issues of slavery and segregation form the keystones of our constitutional canon. Reconstruction, or the so-called “Second Founding,” and the Civil Rights Era periodize our constitutional histories. Slavery and Jim Crow segregation supply normative lessons about the strengths and failings of our constitutional framework. This paradigm teaches that if there is too much power in the states and not enough limitation on state power in the form of national power or rights, America might again reenact similar atrocities. Although there is much to learn from the United States’ tragic history with slavery and Jim Crow segregation, resting our public law on this binary paradigm has led to incomplete models and theories. This Nation’s tragic history of colonialism and violent dispossession of Native lands, resources, culture, and even children offers different, yet equally important, lessons about our constitutional framework.

In this Article, I argue for a more inclusive paradigm that reaches beyond the black/white binary, and I highlight the centrality of federal Indian law and this Nation’s tragic history with colonialism to public law. Currently, to the extent that federal Indian law is discussed at all within public law, it is generally considered sui generis and consigned to a “tiny backwater.” While I concede that the colonial status of Native peoples and the recognition of inherent tribal sovereignty do render aspects of federal Indian law exceptional, federal Indian law and Native history have much to teach about reimagining the constitutional history of the United States. Interactions between the national government and Native Nations have shaped the warp and woof of our constitutional law from the Founding across a range of substantive areas, including vertical and horizontal separation of powers, the Treaty Clause, war powers, executive powers in times of exigency, and many others. I aim to open a conversation as to whether these doctrines ought to take their rightful place in the canon or, perhaps, the anticanon.

Beyond simple canonization, federal Indian law offers paradigmatic lessons about the strengths and failings of our constitutional framework. Broadening the binary paradigm to include federal Indian law could allow interventions into a range of general principles of public law. It has often been said that federal Indian law is “incoherent” and in need of reform, because the doctrine does not comport with general public law principles. But perhaps it is the general principles of public law, and the incomplete paradigm of slavery and Jim Crow segregation on which those principles rest, that are in need of reform.

More than simple canonization, the inclusion of federal Indian law as an additional paradigm case could lead to fundamental reformulation. A full catalogue is beyond the scope of this Article, but I offer an example here in the hope that it will invite more. As I’ll show, federal Indian law leads public law to a very different set of principles in the context of minority protection, unsettling reigning theories of how best to distribute and limit power in order to prevent government abuse of minorities. Unlike slavery and Jim Crow segregation, federal Indian law teaches that nationalism is no panacea for majority tyranny, and that rights can wound as well as shield minorities.

Here's a taste of Professor Eyer's review:

Federal Indian law might seem an unlikely paradigm around which to center our understanding of constitutional law. But as Maggie Blackhawk lays out in her excellent new article, Federal Indian Law as Paradigm Within Public Law, the history of Native Nations and indigenous peoples in the United States, and their treatment as constitutional subjects, is equally central to our constitutional history as slavery and Jim Crow. And yet it is far less common for Native history to play a role in our canonical stories and in our understandings of what constitutional law does, or ought to, provide.

Read on here.

-- Karen Tani

On the Indigenous Experience in the Americas

One of the issues that habitually frustrates me is the disconnect between historians who work on the colonial period and those who specialize in the indigenous world. Theoretically, both engage with the same period and depend on similar or even (on occasions) identical sources, but their aims and their readings are often diverse, the bibliography they consult is habitually distinct, and they frequently belong to different fields and professional associations. The result is that they are seldom in conversation with one another. Having participated recently in a search for a historian of Indigenous North America made this clear to me, but so have many years working as a scholar of Spanish America.

How could one place colonial and indigenous history in dialogue? To answer this question, I authored two pieces. The first piece was concerned with Indigenous right to land, the other focused on campaigns to resettle natives in new, Spanish-style communities.[i]

Attempting to understand why some historians insisted on Spanish respect to native land rights (mostly historians of the Spanish colonial state) while others criticized Spain for the massive dispossession of natives (mainly historians interested in the native experience of empire), I observed how respect to native rights operated in the colonial period.  I argued that respect did not guarantee continuity. On the contrary, it (often) introduced change. This could happen because Spanish judges, although willing to recognize indigenous right to land, understood land rights not according to Indigenous law but according to European juridical traditions. These judges tied land rights to occupation and described occupation in ways that resonated with the European experience. The result was both the suppression of ancient rights as well as the invention of new entitlements. In other words, examination of how European norms were applied vis-à-vis natives enabled to affirm that respect to native rights and native dispossession could operate simultaneously.

With regards to native resettlement, historians of native Spanish America usually denounced resettlement campaigns as a colonial measure aimed at controlling, converting, and exploiting the native population. Yet, as a historian of Spain in both Europe and the Americas I knew that resettlement did not only target natives but also Spaniards and that it operated in both the Old and the New World. Justifying it were contemporary convictions that only people who resided in proper communities (and indigenous communities were not considered “proper”) could be tied to the polity religiously and civically. The question when resettlement was required, against whom, and for which end, thus demanded a larger and a longer vision. As happened in the case of native land rights, just looking at natives, just looking to the Americas, was insufficient.

These remarks are not meant to diminish the plight of native Americans. European colonialism turned the native world upside down. It was a human-made hurricane that touched and upset almost everything. But, regardless of how terrible it had been, if we wish to understand how it operated, we should not separate the study of the native world from the study of the colonial (and by extension European) world, with which it was closely entangled.

---

[i]  Tamar Herzog. “Colonial law and ‘Native Customs’: Indigenous Land Rights in Colonial Spanish America.” The Americas 63(3) (2013): 303-321 and Tamar Herzog. “Indigenous Reducciones and Spanish Resettlement: Placing Colonial and European History in Dialogue.” Ler História 72 (2018): 9-30 (an earlier version of this work was published under the title “Terres et déserts, société et sauvagerie. De la communauté en Amérique et en Castille à l’époque moderne.” Annales HSS 62 (3) (2007): 507-538)).

Pappas on Native American dispossession

Back in 2016, George D. Pappas (a practicing lawyer in North Carolina) published The Literary and Legal Genealogy of Native American Dispossession: The Marshall Trilogy Cases with Routledge. From the press: 

The Literary and Legal Genealogy of Native American Dispossession offers a unique interpretation of how literary and public discourses influenced three U.S. Supreme Court Rulings written by Chief Justice John Marshall with respect to Native Americans. These cases, Johnson v. M’Intosh (1823), Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832), collectively known as the Marshall Trilogy, have formed the legal basis for the dispossession of indigenous populations throughout the Commonwealth. The Trilogy cases are usually approached as ‘pure’ legal judgments. This book maintains, however, that it was the literary and public discourses from the early sixteenth through to the early nineteenth centuries that established a discursive tradition which, in part, transformed the American Indians from owners to ‘mere occupants’ of their land. Exploring the literary genesis of Marshall’s judgments, George Pappas draws on the work of Michel Foucault, Edward Said and Homi Bhabha, to analyse how these formative U.S. Supreme Court rulings blurred the distinction between literature and law.

Here is the Table of Contents:

Part I Theoretical Foundations & The Marshall Trilogy Cases 
Chapter 1. Theoretical Foundations 
Chapter 2. The Marshall Trilogy Cases: An Overview 
Chapter 3. Colonial Knowledge: A Unity of Discourses 

Part II Refining the Native American 
Chapter 4 Theory of Discourse in a Colonial Context: Edward Said and the American Eighteenth Century Literary Archive 
Chapter 5 The Discourse of the Vanishing Indian in Literature 
Chapter 6 Fenimore Cooper’s The Last of the Mohicans 
Chapter 7 The Wilderness in American Art and Literature 

Part III Resistance to Colonial Discourse 
Chapter 8. Law and Literature 
Chapter 9. Cherokee Resistance: Mimicry as Deception

Further information is available here.

Rosser on Ablavsky, The Rise of Federal Title

Here's another recent JOTWELL review of interest: Writing for the Property section, Ezra Rosser (American University Washington College of Law) reviews "The Rise of Federal Title," by Gregory Ablavsky (Stanford Law School). The article appeared in Volume 106 of the California Law Review (2018). Here's a taste:

Ablavsky’s article draws upon the history of western expansion across the Appalachian mountains from the original colonies and states to the fertile land beyond (especially present day Tennessee and Ohio) to show how the federal government came to have so much power over all aspects of land ownership in the territories and states. As numerous scholars have highlighted, although military conquest dominates the country’s historical imagination, non-Indians acquired land from Indian tribes largely through purchases and agreements. 

What Ablavsky adds is a sense of the messiness of land claims in the frontier, in the territories, and in newly admitted states. Ablavsky describes how speculators rushed to claim western land and how fortunes were made and lost on land speculation. Adding to the chaotic mix of speculative claims were those of veterans who had been promised western land for their service and those of individuals who unilaterally asserted the right to land based on state law preemption allowances.

Read on here.

Colwell on reclaiming native American culture

Chip Colwell, Denver Museum of Nature & Science, has published Plundered Skulls and Stolen Spirits: Inside the fight to reclaim Native America's Culture with the University of Chicago Press in its Law and Society series. The book won Choice Magazine's Outstanding Academic Title Award. From the publisher: 

Who owns the past and the objects that physically connect us to history? And 
who has the right to decide this ownership, particularly when the objects are sacred or, in the case of skeletal remains, human? Is it the museums that care for the objects or the communities whose ancestors made them? These questions are at the heart of Plundered Skulls and Stolen Spirits, an unflinching insider account by a leading curator who has spent years learning how to balance these controversial considerations.

Five decades ago, Native American leaders launched a crusade to force museums to return their sacred objects and allow them to rebury their kin. Today, hundreds of tribes use the Native American Graves Protection and Repatriation Act to help them recover their looted heritage from museums across the country. As senior curator of anthropology at the Denver Museum of Nature & Science, Chip Colwell has navigated firsthand the questions of how to weigh the religious freedom of Native Americans against the academic freedom of scientists and whether the emptying of museum shelves elevates human rights or destroys a common heritage. This book offers his personal account of the process of repatriation, following the trail of four objects as they were created, collected, and ultimately returned to their sources: a sculpture that is a living god, the scalp of a massacre victim, a ceremonial blanket, and a skeleton from a tribe considered by some to be extinct. These specific stories reveal a dramatic process that involves not merely obeying the law, but negotiating the blurry lines between identity and morality, spirituality and politics.

Things, like people, have biographies. Repatriation, Colwell argues, is a difficult but vitally important way for museums and tribes to acknowledge that fact—and heal the wounds of the past while creating a respectful approach to caring for these rich artifacts of history.

 Praise for the book:

 "Colwell ably and sensitively tells the often conflict-ridden story of how and why museums in the US relinquished their hold over this material. . . . Colwell finds himself squarely in the middle of each quandary: a practising anthropologist who works alongside Native Americans every day and is sensitive to their cultural dynamics. Colwell’s account favours the Native American perspective--a sensible approach for a book aimed at scientifically literate readers who may lean the other way. Readers will come away with a deeper appreciation of Native American cultural imperatives and the complexity of the situation." -New Scientist

“Plundered Skulls and Stolen Spirits breaks new ground. Colwell’s dual roles of museum curator and human rights advocate offers a narrative of personal growth and professional practice that couples a humanist’s sensitivities with a historian’s insistence on primary documentary sources. The resulting breath of fresh air contributes mightily to still-controversial conversations about American reburial and repatriation. The message sounds loud and clear: Twenty-first century museums can indeed stand tall in addressing their own complex histories. Why do some still feel obliged to cover up past performance, to lock out qualified researchers from their archives and to sugar-coat their past in the hopes that nobody will notice?” -David H. Thomas

“Plundered Skulls and Stolen Spirits uses the story of one museum to show how Native American symbols of identity and ceremony and ancestral bones were initially appropriated as objects of cultural patrimony, but recently have become part of a complicated struggle of ownership. As Colwell profoundly shows, the emotional price paid by everyone involved—Native American, archaeologist, and museum curator—is never small.” -Larry J. Zimmerman

Further information is available here. 

Ellinghaus on Native Americans and Assimilation Policy

New from the University of Nebraska Press: Blood Will Tell: Native Americans and Assimilation Policy (August 2017), by Katherine Ellinghaus (University of Melbourne). A description from the Press:

Blood Will Tell reveals the underlying centrality of “blood” that shaped official ideas
about who was eligible to be defined as Indian by the General Allotment Act in the United States. Katherine Ellinghaus traces the idea of blood quantum and how the concept came to dominate Native identity and national status between 1887 and 1934 and how related exclusionary policies functioned to dispossess Native people of their land. The U.S. government’s unspoken assumption at the time was that Natives of mixed descent were undeserving of tribal status and benefits, notwithstanding that Native Americans of mixed descent played crucial roles in the national implementation of allotment policy.

Ellinghaus explores on-the-ground case studies of Anishinaabeg, Arapahos, Cherokees, Eastern Cherokees, Cheyennes, Chickasaws, Choctaws, Creeks, Lakotas, Lumbees, Ojibwes, Seminoles, and Virginia tribes. Documented in these cases, the history of blood quantum as a policy reveals assimilation’s implications and legacy. The role of blood quantum is integral to understanding how Native Americans came to be one of the most disadvantaged groups in the United States, and it remains a significant part of present-day debates about Indian identity and tribal membership. Blood Will Tell is an important and timely contribution to current political and scholarly debates.

A few blurbs:

“Katherine Ellinghaus brilliantly traces the uneven practices that produced a powerful discourse of American Indian blood quantum. With sure hand and subtle interpretation, Blood Will Tell offers a compelling new reading of a technology of identity at once complicated and crude.”—Philip J. Deloria  

“Written with great clarity and precision. . . . Ellinghaus develops several key insights that will make contributions to historical scholarship on Indians, race, and western American history.”—Margaret Jacobs

More information is available here.

Richotte, Jr., "Claiming Turtle Mountain's Constitution"

New from the University of North Carolina Press: Claiming Turtle Mountain's ConstitutionThe History, Legacy, and Future of a Tribal Nation's Founding Documents (August 2017), by Keith Richotte, Jr. (University of North Carolina, Chapel Hill). A description from the Press:

In an auditorium in Belcourt, North Dakota, on a chilly October day in 1932, Robert Bruce and his fellow tribal citizens held the political fate of the Turtle Mountain Band of Chippewa Indians in their hands. Bruce, and the others, had been asked to adopt a tribal constitution, but he was unhappy with the document, as it limited tribal governmental authority. However, white authorities told the tribal nation that the proposed constitution was a necessary step in bringing a lawsuit against the federal government over a long-standing land dispute. Bruce’s choice, and the choice of his fellow citizens, has shaped tribal governance on the reservation ever since that fateful day.

In this book, Keith Richotte Jr. offers a critical examination of one tribal nation’s decision to adopt a constitution. By asking why the citizens of Turtle Mountain voted to adopt the document despite perceived flaws, he confronts assumptions about how tribal constitutions came to be, reexamines the status of tribal governments in the present, and offers a fresh set of questions as we look to the future of governance in Native America and beyond.

A few blurbs:

"An important contribution not only to Native American law and legal history but also to American legal history--a well-written, well-researched story that engages the reader."--Sidney L. Harring 

"Keith Richotte Jr. has given us the most detailed and thorough telling of the Turtle Mountain Band of Chippewa Indians' complex legal history ever written. A richly researched contribution to the field."--Robert A. Williams

More information is available here.

Tweedy Reviews Reséndez, "The Other Slavery"

Catching up on our JOTWELL reading, we see that Anne Tweedy has posted an admiring review of The Other Slavery: The Uncovered Story of Indian Enslavement in America (Mariner Books, 2016), by Andrés Reséndez (University of California, Davis). Here's the first paragraph:

The Other Slavery: The Uncovered Story of Indian Enslavement in America is a devastating encyclopedic account of slavery in the Spanish colonial New World. For me, the ultimate effect was a surprising combination of a renewed sense of the intractability of old problems like racism and slavery and an acute sense of having awoken to a new historical reality that I previously knew next to nothing about.

Tweedy goes on to praise The Other Slavery as "indispensable reading for professors in the U.S. who teach federal Indian law" and recommends Chapter One, in particular, to "everyone who teaches some aspect of New World history at any level."

Read on here.

Commentaries on The King's Two Bodies

Law, Culture and the Humanities 13:1 has published a commentary section on Ernst Kantorowicz's classic work, The King's Two Bodies. 

Here are the abstracts:

Stephanie Elsky, "Ernst Kantorowicz, Shakespeare, and the Humanities' Two Bodies"

This commentary reflects on two very different revivals of Ernst Kantorowicz’s The King’s Two Bodies: A Study in Medieval Political Theology in the field of early modern studies, the first during the heyday of New Historicism and the second in the current post-New Historicist moment that is still defining itself. The first revival focused on the literal meaning of king’s two bodies, the second on its figurative and fictional nature. The first trained its lens on the doctrine’s absolutist potential, the second on its constitutionalist strain. To account for these political and literary shifts I turn to a larger trend in literary and humanistic studies, the desire to move away from ideology critique and to reframe the humanities in terms of its capacity to articulate “a new vision for human community,” to borrow Victoria Kahn’s phrase. I argue that the peculiarly ironic status of the king’s two bodies offers a way to intervene in this debate, which I term “the humanities’ two bodies.” The commentary concludes by offering Laertes’ popular rebellion in Hamlet as a brief test case of the limits and promise of this most recent turn in the career of Kantorowicz’s protean text.

Karl Shoemaker, "The King's Two Bodies as Lamentation"

The King’s Two Bodies is, as has long been recognized, a genealogy of modern state power. But it is also something else less clearly recognized. The King’s Two Bodies is a lamentation. In Kantorowicz’s poignant eulogy, the sovereign that medieval lawyers had made in the imago dei, was revealed at last to be an idol. Profound reverence for the rule of law crumbled into absent-minded legality. The lawful sovereign became diabolical power, forever deciding exceptions but incapable of justice or grace. In The King’s Two Bodies, Kantorowicz mournfully shows how the death and tragic afterlife of a particular medieval concept of sovereignty helped to make possible the horrors of modern political absolutism and state idolatry.

Paul Raffield, "Time, Equity, and the Artifice of English Law: Reflections on The King's Two Bodies"


The aim of this article is to analyze the contribution of the early modern English legal institution to the formulation of the theory of the king’s two bodies. I explore three principal themes in the course of this article, all of which relate directly to central tenets of the thesis proposed by Kantorowicz in The King’s Two Bodies. First, is the centrality of time and continuity to theories of kingship and to the ideology of common law. Secondly, I consider the importance of equity to the formulation of decision-making in English law, and in pursuit of this end, the manipulation by the judiciary of political theology concerning the king’s two bodies. Lastly, I analyze the persuasive power of the trope, and especially the capacity of metaphor and metonym to embody such invisible and intangible juristic concepts as justice, equity, and law itself. Whilst recognizing the magisterial quality of Kantorowicz’s magnum opus, I take issue with some of the more extravagant of the author’s claims for the pervasive power of mystical kingship and its influence over English jurists and the English legal profession.

Sarah Burgess, "The Sovereign Claims from Within: The Rhetorical Displacement of Sovereign Bodies in Adoptive Couple v. Baby Girl"

This article considers the impact of Ernst Kantorowicz’s The King’s Two Bodies for understanding how claims of sovereignty are authorized and legitimated in a secular age devoid of the divine grace that underwrites the sovereignty of the king in medieval times. Through a reading of Adoptive Couple v. Baby Girl, 133 S.Ct. 2552 (2013), a case concerning the custody of a child of Cherokee descent, it demonstrates that sovereign bodies are constituted, (dis)placed, and recognized through an appeal to biopolitical logics. This insight is important as it invites a form of rhetorical critique that might account for the conditions in which sovereign claims fashion the terms of political community.