Stanley-Ryan on Maori History and International Law

Ash Stanley-Ryan has posted Ka mua, ka Muri: He Whakaputanga, Concealed Indigenous Histories, and the Making of International Law, which is forthcoming in Law&History, the journal of the Australian and New Zealand Legal History Society:

He Whakaputanga

This article examines how our understanding of international law is harmed by the systematic erasure of indigenous experiences and histories. He Whakaputanga o te Rangatira o Nu Tireni is used as a case study. The article first considers several methodological considerations for legal historians. A theoretical approach is constructed which centres Maori voices and Te Reo Maori, and accepts that history is both political and contingent. In the next section, two parallel histories are detailed: pakeha stories of he whakaputanga as act to secure Imperial interests; and Maori recollections of he whakaputanga as an affirmation of independence, in response to an ever-more-intrusive world. The two histories are then considered through the lenses of jurisdictional encounter and international legal reproduction. These lenses show how history and law have undertaken a demarcating exercise, concealing Maori histories and removing he whakaputanga from legal relevance. This process has harmed international law, because it legitimises imperialism and hides law’s contingent nature. The article closes by recalling Moana Jackson’s call for ‘honesty about the misremembered stories and the foresight to see where different stories might lead’.

--Dan Ernst

Seeley, "Race, Removal, and the Right to Remain: Migration and the Making of the United States"

The Omohundro Institute of Early American History and Culture and the University of North Carolina Press have published Race, Removal, and the Right to Remain: Migration and the Making of the United States, by Samantha Seeley (University of Richmond). A description from the Press:

Who had the right to live within the newly united states of America?

In the country’s founding decades, federal and state politicians debated which categories of people could remain and which should be subject to removal. The result was a white Republic, purposefully constructed through contentious legal, political, and diplomatic negotiation. But, as Samantha Seeley demonstrates, removal, like the right to remain, was a battle fought on multiple fronts. It encompassed tribal leaders’ fierce determination to expel white settlers from Native lands and free African Americans’ legal maneuvers both to remain within the states that sought to drive them out and to carve out new lives in the West. Never losing sight of the national implications of regional conflicts, Seeley brings us directly to the battlefield, to middle states poised between the edges of slavery and freedom where removal was both warmly embraced and hotly contested.

Reorienting the history of U.S. expansion around Native American and African American histories, Seeley provides a much-needed reconsideration of early nation building.

Advance praise:

“Since the founding of the United States, lawmakers have funneled enormous energy into policing and confining the mobility of Native and Black people while casting free movement as white privilege. Against these fantasies, Indigenous people crafted powerful arguments to claim sovereignty and territory, while African Americans mobilized to remain in communities they called home. Seeley brings a much-needed perspective to these interconnected histories of race, rights, and migration.”—Honor Sachs

“Positing removal as a foundational concept in American life, Seeley radically expands its meaning and traces its impact beyond the discrete moment of the Trail of Tears and the Indian Removal Act. This is pathbreaking work, a significant intervention in early American historiography.”—Michael Witgen

More information is available here.

-- Karen Tani

Weekend Roundup

• Via our friends at Iowa Law, word of a faculty fellowship position, appointed at the rank of Visiting Assistant Professor of Law. The fellowship "prioritizes applicants who seek to conduct interdisciplinary research that connects with other fields of study at the University of Iowa." 

• As always, the Washington Post's "Made by History" section published a number of interesting op-eds this week, including "Utah women had the right to vote long before others — and then had it taken away," by Katherine Kitterman (Ph.D. candidate, American University); and "What’s behind Virginia’s latest move to fix lending laws and protect borrowers," by Anne Fleming (Georgetown University Law Center).

• To mark the hundredth anniversary of the passage of the Nineteenth Amendment and the first year in which the editors-in-chief of all of the nation’s top sixteen law reviews are women, those sixteen law reviews joined together to publish an issue on "Women & Law." Legal historians are well represented. For example, the Duke Law Journal's contribution comes from Dean Kerry Abrams and is titled "Family, Gender, and Leadership in the Legal Profession." The Stanford Law Review's contribution is by Maggie Blackhawk (University of Pennsylvania): "On Power and Indian Country." University of Virginia's Dean Risa Golobuff contributed a piece "On Firsts, Feminism, and the Future of the Legal Profession." 

• Burnita Shelton Matthews, National Woman’s Party, and Condemning Land for the Marble Palace.

• New from Law and History Review and Cambridge Core: Accounting for Colonial Legal Personhood: New Intersectional Histories from the British Empire, by Antoinette Burton.

• Just published, a second edition of Law and People in Colonial America (Johns Hopkins University Press), by Peter Charles Hoffer, University of Georgia.

•  The Woodrow Wilson Center seeks applications for the 2020 Summer Institute on Conducting Archival Research.

• Dire financial exigency is forcing the Historical Society of Pennsylvania to sell some of its holdings, including "the Freedom Box" citizens of New York gave Andrew Hamilton after his defense of John Peter Zenger.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Lo Extrajudicial, Premo

My last two posts with Judith Mansilla discussed a dimension of law that consumed perhaps the greatest part of colonial Spanish Americans’ legal experiences: a world of verbal agreements, handshakes, and homemade contracts or bills of sale. But we confronted the historian’s dependence on the more official legal archive to provide us glimpses of this dimension, specifically on the civil case record where litigants and witnesses referred to their “pacts,” or “oral receipts.” 

We should not, however, assume that this dimension of law was unsanctioned or fell into a category of the broadly “normative” as opposed to the strictly “legal.” (cont'd)

McNeil on indigenous land rights

Kent McNeil (Osgoode Hall Law School, York University) has published Flawed Precedent: The St. Catherine's Case and Aboriginal Title in UBC Press' Landmark Cases in Canadian Law series. From the publisher:

In 1888, the Judicial Committee of the Privy Council in London ruled in St. Catherine’s Milling and Lumber Company v. The Queen, a case involving the Saulteaux people’s land rights in Ontario. This precedent-setting case would define the legal contours of Aboriginal title in Canada for almost a hundred years, despite the racist assumptions about Indigenous peoples at the heart of the case.

In Flawed Precedent, preeminent legal scholar Kent McNeil thoroughly investigates this contentious case. He begins by delving into the historical and ideological context of the 1880s. He then examines the trial in detail, demonstrating how prejudicial attitudes towards Indigenous peoples and their use of the land influenced the decision. He also discusses the effects that St. Catherine’s had on Canadian law and policy until the 1970s when its authority was finally questioned by the Supreme Court in Calder, then in Delgamuukw, Marshall/Bernard, Tsilhqot’in, and other key rulings.

McNeil has written a compelling and illuminating account of a landmark case that influenced law and policy on Indigenous land rights for almost a century. He also provides an informative analysis of the current judicial understanding of Aboriginal title in Canada, now driven by evidence of Indigenous law and land use rather than by the discarded prejudicial assumptions of a bygone era.

This book is vital reading for everyone involved in Aboriginal law or title, for legal historians and scholars, and for anyone interested in Indigenous rights in Canada.

Some blurbs:

"Flawed Precedent is a brilliant, critical analysis of St. Catherine’s Milling, the 1888 decision that, for a century, had the enormous and pernicious effect of denying Aboriginal peoples the right to own their homelands … This book also charts the way forward to a jurisprudence that overcomes the racist attitudes that underlay St. Catherine’s." - Peter Russell

"Contemporary Canadian law is profoundly shaped by the racism embedded in its foundation. Kent McNeil has written the definitive work about Canada’s 'leading' Indigenous land rights case. He successfully packs a lifetime of scholarly research into this work." -John Borrows

"Kent McNeil provides a masterful examination of one of the most significant cases in Canadian law and the precedents it set for Aboriginal title and provincial rights within the federal system. He lays bare the racism and prejudice inherent in the ruling, and explains subsequent appeal court decisions in the case. His findings have the potential to affect contemporary land claims cases today." -Heidi Bohaker

Further information is available here.

MacDonald on Canada's Residential Schools

From the University of Toronto Press comes The Sleeping Giant Awakens: Genocide, Indian Residential Schools, and the Challenge of Conciliation by David B. MacDonald, University of Guelph. From the press:

Confronting the truths of Canada’s Indian residential school system has been likened to waking a sleeping giant. In The Sleeping Giant Awakens, David B. MacDonald uses genocide as an analytical tool to better understand Canada’s past and present relationships between settlers and Indigenous peoples. Starting with a discussion of how genocide is defined in domestic and international law, the book applies the concept to the forced transfer of Indigenous children to residential schools and the "Sixties Scoop," in which Indigenous children were taken from their communities and placed in foster homes or adopted.

Based on archival research, extensive interviews with residential school Survivors, and officials at the Truth and Reconciliation Commission of Canada, among others, The Sleeping Giant Awakens offers a unique and timely perspective on the prospects for conciliation after genocide, exploring the difficulties in moving forward in a context where many settlers know little of the residential schools and ongoing legacies of colonization and need to have a better conception of Indigenous rights. It provides a detailed analysis of how the TRC approached genocide in its deliberations and in its Final Report.

Crucially, MacDonald engages critics who argue that the term genocide impedes understanding of the IRS system and imperils prospects for conciliation. By contrast, this book sees genocide recognition as an important basis for meaningful discussions of how to engage Indigenous-settler relations in respectful and proactive ways.

Here's the Table of Contents:

Introduction
1. Understanding Genocide: Raphael Lemkin, the UN Genocide Convention, and International Law
2. Pluralists, Indigenous Peoples, and Colonial Genocide
3. Forcible Transfer as Genocide in the Indian Residential Schools
4. The Sixties and Seventies Scoop and the Genocide Convention
5. The Truth and Reconciliation Commission of Canada and the Question of Genocide
6. The TRC, Indigenous Death, Inside and Outside the Residential Schools
7. Indigenous Genocide: Remembering, Commemorating, Forgetting
8. Indigenous Peoples and Genocide: Challenges of Recognition and Remembering

9. Reconciliation, Resurgence, and Rollback in the Aftermath of Genocide

Further information is available here.

--Mitra Sharafi

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)).