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

Fradera on citizens and subjects in four empires

In 2018, Josep M. Fradera, Pompeu Fabra University in Barcelona published The Imperial Nation: Citizens and Subjects in the British, French, Spanish, and American Empires with Princeton University Press. From the publisher:

Historians view the late eighteenth and early nineteenth centuries as a turning point when imperial monarchies collapsed and modern nations emerged. Treating this pivotal moment as a bridge rather than a break, The Imperial Nation offers a sweeping examination of four of these modern powers—Great Britain, France, Spain, and the United States—and asks how, after the great revolutionary cycle in Europe and America, the history of monarchical empires shaped these new nations. Josep Fradera explores this transition, paying particular attention to the relations between imperial centers and their sovereign territories and the constant and changing distinctions placed between citizens and subjects.

Fradera argues that the essential struggle that lasted from the Seven Years’ War to the twentieth century was over the governance of dispersed and varied peoples: each empire tried to ensure domination through subordinate representation or by denying any representation at all. The most common approach echoed Napoleon’s “special laws,” which allowed France to reinstate slavery in its Caribbean possessions. The Spanish and Portuguese constitutions adopted “specialness” in the 1830s; the United States used comparable guidelines to distinguish between states, territories, and Indian reservations; and the British similarly ruled their dominions and colonies. In all these empires, the mix of indigenous peoples, European-origin populations, slaves and indentured workers, immigrants, and unassimilated social groups led to unequal and hierarchical political relations. Fradera considers not only political and constitutional transformations but also their social underpinnings.

Presenting a fresh perspective on the ways in which nations descended and evolved from and throughout empires, The Imperial Nation highlights the ramifications of this entangled history for the subjects who lived in its shadows.

In praise of the book: 

“Prodigious and stimulating, The Imperial Nation reveals the complexities of the relationship between empire and nation in the Atlantic world from the late eighteenth century into the twentieth. This impressive and vigorously argued book will be the focal point of scholarly debate for some time to come.” - Frederick Cooper

“Superb, important, and complex, this book compares and analyzes the British, Spanish, French, and American empires between 1750 and 1920: how they adopted constitutions, treated different populations, and viewed the construction of the state in an imperial context. With its revolutionary arguments, The Imperial Nation will help historians understand the complex social and ethnic battles of the past two centuries. An amazing book by an original and brilliant historian.” - Antonio Feros

Further information is available here. 

-Mitra Sharafi

Schneider on the Tanana Chiefs Conference

Out in 2018 with the University of Alaska Press (distributed by the University of Chicago Press) was The Tanana Chiefs: Native Rights and Western Law, edited by William Schneider. From the publisher:

At the turn of the twentieth century, life was changing drastically in Alaska. The gold rush brought an onslaught of white settlers to the area, railroad companies were pushing into the territory, and telegraph lines opened up new lines of communication. The Native groups who had hunted and fished on the land for more than a century realized that if they did not speak up now, they would lose their land forever. 

This is the story of a historic meeting between Native Athabascan leaders and government officials, held in Fairbanks, Alaska in 1915. It was one of the first times that Native voices were part of the official record. They sought education and medical assistance, and they wanted to know what they could expect from the federal government. They hoped for a balance between preserving their way of life with seeking new opportunities under the law. 

The Tanana Chiefs chronicles the efforts by Alaska Natives to gain recognition for rights under Western law and the struggles to negotiate government-to-government relationships with the federal government. It contains the first full transcript of the historic meeting as well as essays that connect that first gathering with the continued efforts of the Tanana Chiefs Conference, which continues to meet and fight for Native rights.

Praise for the book includes:

 “William Schneider, Alaska’s premier oral historian, whose dedication to the preservation of Alaska and Alaska Native culture is widely known and highly respected, makes a significant contribution with this volume on the Tanana Chiefs conference in Fairbanks in the summer of 1915.” -Alaska History

Further information is available here.

AHR forum: Ingenous Agency and Colonial Law

This month's AHR forum features work on legal history and indigenous agency. Here are some highlights from AHR 124:1 (1 Feb. 2019): 

Joshua L. Reid, "Introduction," 20-27

Introduction excerpt: "The essays in this AHR forum bracket three centuries of experiences that Indigenous peoples have had with colonial legal systems in North America. In seventeenth-century Spanish colonial Mixteca, Oaxaca, in today’s southern Mexico, Ñudzahui communities contended with a system of hierarchically nested judicial and authority structures that blended Indigenous and early modern Spanish legal practices. In a radically different colonial and natural environment thousands of miles to the north and several hundred years later, Yellowknives Dene peoples of Canada’s Northwest Territories found their lives circumscribed by international and national laws that were at odds with treaty rights they had reserved for themselves in the early twentieth century. Despite the disparate times and places of the legal cases analyzed in these two essays, they both demonstrate the centrality of colonial law to Indigenous lives."

Bianca Premo and Yanna Yannakakis, "A Court of Sticks and Branches: Indian Jurisdiction in Colonial Mexico and Beyond," 28-55

Abstract: Recent global legal histories argue that jurisdictional competition between authorities, often at the edges of territories, ordered empires and nations. But we still need more concrete, grounded understandings of how local actors understood and produced jurisdiction, and we need clearer methodologies for recovering those understandings from archives that privilege imperial, often European concepts of law, authority, and territory. A single case from southern Mexico, centered on the 1683 arrest of a native man named Juan Matías at a makeshift court built on a wheat field, provides both. Close attention to this case, supplemented with regional and temporal comparison, offers glimpses of how imperial law on the books animated local understandings of jurisdiction on the ground. In turn, in the very act of translating local events and native practices for a Spanish judge, Juan Matías demonstrates how jurisdiction—in this case “Indian jurisdiction,” a unique plane of native authority within the Spanish Empire—was not merely captured on the page in legal documentation but produced through it by native judges and legal agents.

Miranda Johnson, "The Case of the Million-Dollar Duck: A Hunter, His Treaty, and the Bending of the Settler Contract," 56-86

Abstract: In settler states such as Canada, indigenous peoples’ claims for sovereignty in the late twentieth century became matters of intense public and political debate. Provoked by widespread indigenous rights activism of the 1970s, the Canadian state embarked on a large-scale examination of claims for rights and restitution. By focusing on the 1962 case of a duck hunter who insisted on his treaty right to hunt as he pleased in a Canadian borderlands region that was becoming more tightly woven into the fabric of the settler nation, this article argues for the value of recovering the discursive strategies of indigenous peoples in making sovereign claims prior to 1970s activism. I suggest that such claims were effective in bending the “settler contract,” which refers to the founding of settler states in dispossession and the silencing of indigenous actors. My approach brings to the fore a distinctive form of non-elite politics, what I call “treaty talk,” or the vernacular stories, civic rituals, and political disputes concerning the treaty promises that Canadian authorities made to northern indigenous communities earlier in the twentieth century. Although treaty talk did not break the settler contract, it posed a significant challenge to settler law and led one judge to reinvent a Canadian myth of benevolent empire.

Further information is available here.

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.

Girard, Phillips and Brown on Canadian legal history

Philip Girard (Osgoode Hall, York University), Jim Phillips (University of Toronto) and R. Blake Brown (Saint Mary's University) have published volume one of A History of Law in Canada with the University of Toronto Press. From the publisher: 

This book is the first of two volumes devoted to the history of law in Canada. This volume begins at a time just prior to European contact and continues to the 1860s, while volume two will start with Confederation and end at approximately 2000. The history of law includes substantive law, legal institutions, legal actors and legal culture. The book assumes that since 1500 there have been three legal systems in Canada – the Indigenous, the French, and the English. At all times, these systems have co-existed and interacted, with the relative power and influence of each being more or less dominant in different periods. 

The history of law cannot be treated in isolation, and this book examines law as a dynamic process, shaped by and affecting other histories over the long term. The law guided and was guided by economic developments, was influenced and moulded by the nature and trajectory of political ideas and institutions, and variously exacerbated and mediated by inter-cultural exchange and conflict. These themes are apparent in this examination, and through most areas of law including family law, constitutional, commercial, land settlement and tenure, and criminal.

Further information is available here.

Bhandar on colonialism and property

Brenna Bhandar, School of Oriental and African Studies, has published Colonial Lives of Property: Law, Land, and Racial Regimes of Ownership with Duke University Press. From the publisher: 

In Colonial Lives of Property Brenna Bhandar examines how modern property law contributes to the formation of racial subjects in settler colonies and to the development of racial capitalism. Examining both historical cases and ongoing processes of settler colonialism in Canada, Australia, and Israel and Palestine, Bhandar shows how the colonial appropriation of indigenous lands depends upon ideologies of European racial superiority as well as upon legal narratives that equate civilized life with English concepts of property. In this way, property law legitimates and rationalizes settler colonial practices while it racializes those deemed unfit to own property. The solution to these enduring racial and economic inequities, Bhandar demonstrates, requires developing a new political imaginary of property in which freedom is connected to shared practices of use and community rather than individual possession.

Praise for the book: 

"I am obsessed with the force and eloquence with which [Bhandar] analyzes the birth of private property and its ongoing devastating effects. This book is going to be precious to me and many other people, too."  -Jordy Rosenberg

“Brenna Bhandar's enthralling book peels the veneer of property law from that which lies concealed beneath—the multiplicitous structures of dominance that define our contemporary settler-colonial world, all the way from Parramatta to Palestine. Here is a trenchant reassertion of the capacities of Marxist analysis to plumb dispossessions both historic and current, and to expose the entwined regimes of ownership and of racial hegemony that sustain them.” -Christopher Tomlins

“In this original study, Brenna Bhandar analyzes the constitutive role of colonialism in the development of modern property law and the modern legal subject. Bhandar's sophisticated comparative research on the political-economic imagination and legal infrastructure of settler colonialism is completely fascinating. And her stunning elaboration of what she names 'racial regimes of ownership' is utterly brilliant. A timely and essential book that will fundamentally change the way we think about race, property, and subjectivity.”  -Avery F. Gordon

Further information is available here.  

law&history (2018) 5:1

Volume 5:1 for 2018 of law&history, the journal of the Australian and New Zealand Law and History Society has been published. Here is the Table of Contents: 

Editors Comments: Diane Kirkby

1. Tim Rowse, "The Moral World of the Native Mounted Police"

2. Isabella Alexander, "Cartography, Empire and Copyright Law in Colonial Australia"

3. Danielle Boaz Fraud, "Vagrancy and the ‘Pretended’ Exercise of Supernatural Powers in England, South Africa and Jamaica"

4. Ann P. Hunter, "Towards Amalgamationist Governance: Governor Hutt and Contradictions in British Colonial Policy Regarding Aboriginal People in Western Australia"

5. Peter Prince, "‘Australia’s Most Inhumane Mass Deportation Abuse’: Robtelmes v Brenan and Expulsion of the ‘Alien’ Islanders"

FORUM

The Myall Creek Massacre of 1838: Genocide, War Crimes, Crimes against Humanity?

Ann Curthoys, "Introduction"

Mark Tedeschi, "Speech at the Annual Myall Creek Memorial Ceremony on 11 June 2017 for Those Who Died in the Myall Creek Massacre of 1838"

Jennifer Balint, "Naming Genocide in Law"

Daniel Joyce, "Understanding the Myall Creek Massacre in the Terms of International Criminal Law"

BOOK REVIEWS

Mark Tedeschi, Murder at Myall Creek: The Trial that Defined a Nation (Alexander Cameron-Smith)

Ann McGrath, Illicit Love: Interracial Sex and Marriage in the United States and Australia (Angela Wanhalla)


Jesse Adams Stein, Hot Metal: Material Culture and Tangible Labour (Emma Robertson)

Further information is available here.

New issue of Legal History

The current issue of the revived Australian journal, Legal History, is out. Here are the articles with abstracts for issue 17, no.2:

• Ann Hunter, "The status of Aboriginal customary law in early colonial Western Australia - A parallel Aboriginal Jurisdiction?": This article examines the debates regarding legal pluralism and the status of Aboriginal law in Western Australia when John Hutt was governor from 1839 to 1846 and had a specific objective to develop a model of colonial governance over Aboriginal people. As in New South Wales, it was not simply a matter of expediency, but moral and legal obligations, which drove a few officials and lawyers to criticise the extent of the application of British sovereignty and law. While there has been some studies of the case of R v Wewar, there has not been an investigation into the extent of the legal debates arising after this case. The question of Aboriginal jurisdiction and legal autonomy was largely debated where European lives and property were not regarded as directly affected. Lawyers at the time realised that the assertion of British Crown sovereignty over Aboriginal people was uncertain and evolving. In seeking guidance, they looked more to theory and practice in other parts of the British Empire where more pluralistic legal systems existed, such as in India, North America and the early United States. They contrasted the conduct of the governments and courts there in relation to Indigenous peoples where a degree of indigenous legal autonomy was accommodated, with that in Australian colonies including WA.

• Joshua Krook, "A Brief History of Legal Education: A Battle Between Law as a Science and Law as a Liberal Art": The history of legal education is one of transformation. From the Inns of Court in London to the modern university, from informal ad hoc teaching to formalised accreditation, from law schools experimenting in techniques and methods to the dominance of a single method of instruction.The history is a battle of ideas. Ideas over what the law is, how it should be taught and the kinds of student a law school should produce. Frequently, law schools have been the battleground of fierce intellectual rivalries, with rival schools of thought battling for supremacy and control over the future of the curriculum. The major battle has been between those who see law as a liberal art and those who see law as a science. Over time, the latter group has largely prevailed, creating the modern legal education system that we know today, one that is dominated by a view of law as a technical skill, taught as a vocation or trade.

• Joella Marron, "Divine Violence and the Outlaw: The Works, Deeds and Words of Ned Kelly":  Inherent tensions between emerging or post-conflict states and the outlaw are not new. The creation of ‘outlaws’ can help a state define itself by reference to the ‘other’.  A dilemma facing individuals and movements resisting State oppression and the violence of the law, is how and when to work within and outside the law and the (il)legitimacy of unsanctioned counter-violence.  This paper considers an example from Australian colonial history, the case of the legendary outlaw Ned Kelly, which occurred at a critical juncture in the formation of state in Australia. Through a critical legal analysis of Ned Kelly’s works, deeds and words, this paper aims to generate insight into the dynamics between law, violence, power and justice and the nexus between the outlaw and the state-building project in the Australian context. By exploring the tensions between violence internal and external to the law and drawing on the Benjaminian concept of ‘divine’ violence as existing outside and beyond the law, this paper notes the potentially transformative effects of divine violence and its continued relevance to contemporary struggles between states and the oppressed.

Further information is available 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. 

Maxwell on indigenous child-removal policies

Krista Maxwell has published "Settler-Humanitarianism: Healing the Indigenous Child-Victim," Comparative Studies in Society and History 59:4 (2017), 974-1007. Here is the abstract: 

Victims of colonial, Indigenous child-removal policies have attracted public expressions of compassion from Indigenous and settler-state political leaders in Canada since the 1990s. This public compassion has fueled legal and political mechanisms, leveraging resources for standardized interventions said to “heal” these victims: cash payments, a truth-telling forum, therapy. These claims to healing provide an entry-point for analyzing how and why the figure of the Indigenous child-victim, past and present, is morally and politically useful for settler-states and their public cultures. I use the formulation of “settler-humanitarianism” to express how liberal interventions of care and protection, intended to ameliorate Indigenous suffering, align with settler-colonialism's enduring goal of Indigenous elimination (Wolfe 2006). Removal of Indigenous children was integral to the late nineteenth-century formation of the Canadian and Australian settler-states. Missionaries and colonial administrators represented these practices as humanitarian rescue from depraved familial conditions. Settler-humanitarians have long employed universalizing moral registers, such as “idleness” and “neglect,” to compel state interventions into Indigenous families. More recently, “trauma” has emerged as a humanitarian signifier compelling urgent action. These settler-humanitarian registers do political work. Decontextualized representations of Indigenous children as victims negate children as social actors, obscure the particularities of how collective Indigenous suffering flows from settler-colonial dispossession, and oppose children's interests with those of their kin, community, and nation. I analyze how and why Aboriginal healing as settler-humanitarianism has been taken up by many Indigenous leaders alongside settler-state agents, and examine the ongoing social and political effects of the material and discursive interventions it has spawned.

Further information is available here.

Sen on Terra Nullius in the Andamans

Uditi Sen, Hampshire College has published "Developing Terra Nullius: Colonialism, Nationalism, and Indigeneity in the Andaman Islands" in Comparative Studies in Society and History 59:4 (2017), 944-73. Here is the abstract: 

This article explores the legal structures and discursive framings informing the governance of one particular “backward” region of India, the Andaman Islands. I trace the shifting patterns of occupation and development of the islands in the colonial and postcolonial periods, with a focus on the changes wrought by independence in 1947 and the eventual history of planned development there. I demonstrate how intersecting discourses of indigenous savagery/primitivism and the geographical emptiness were repeatedly mobilized in colonial-era surveys and postcolonial policy documents. Postcolonial visions of developing the Andaman Islands ushered in a settler-colonial governmentality, infused with genocidal fantasies of the “dying savage.” Laws professing to protect aboriginal Jarawas actually worked to unilaterally extend Indian sovereignty over the lands and bodies of a community clearly hostile to such incorporation. I question the current exclusion of India from the global geographies of settler-colonialism and argue that the violent and continuing history of indigenous marginalization in the Andaman Islands represents a de facto operation of a logic of terra nullius.

Further information is available here. 

Monchalin on Colonialism, Crime, and Canada's First Nations

Lisa Monchalin, Kwantlen Polytechnic University, has published The Colonial Problem: An Indigenous Perspective on Crime and Injustice in Canada with the University of Toronto Press. From the publisher:

Indigenous peoples are vastly overrepresented in the Canadian criminal justice system. The Canadian government has framed this disproportionate victimization and criminalization as being an “Indian problem.” In The Colonial Problem, Lisa Monchalin challenges the myth of the “Indian problem” and encourages readers to view the crimes and injustices affecting Indigenous peoples from a more culturally aware position. She analyzes the consequences of assimilation policies, dishonoured treaty agreements, manipulative legislation, and systematic racism, arguing that the overrepresentation of Indigenous peoples in the Canadian criminal justice system is not an Indian problem but a colonial one.

Some reviews of the book:

“Monchalin's timely and innovative book exposes ugly truths about Canada's 'colonial problem' in a comprehensive and compelling way. With a clear focus on the restoration of justice and harmony for Indigenous peoples, Monchalin provides pathways for reimagining and decolonizing current relationships via land-based resurgence, artistic resistance, community campaigns, and ultimately reclaiming the rebellious dignity of Indigenous nations and peoples. This is an important read for anyone seeking Indigenous perspectives on justice and the impacts of ongoing, shape-shifting colonization on Indigenous communities.” -Jeff Corntassel

“Written from an Indigenous perspective, comprehensive yet easy to read, and complete with discussion questions and activities, this book would be a useful classroom text for justice studies, sociology, Indigenous studies, political science, and history. Highly recommended!” -Rob Nestor

“This textbook is long overdue, brilliantly written, and filled with pertinent information that all Canadians and all Indigenous peoples need to know. Monchalin leaves no stone unturned. Understanding this text is key if we truly want to learn to 'live together in a good way' and move toward a 'just' society.” -Wenona Victor

Further information about the book is available here.

van Deusen's Global Indios

We missed this one back in 2015. Nancy E. van Deusen, Queen’s University, published Global Indios: The Indigenous Struggle for Justice in Sixteenth-Century Spain. From the press:

In the sixteenth century hundreds of thousands of indios—indigenous peoples from the territories of the Spanish empire—were enslaved and relocated throughout the Iberian world. Although various laws and decrees outlawed indio enslavement, several loopholes allowed the practice to continue. In Global Indios, Nancy E. van Deusen documents the more than one hundred lawsuits between 1530 and 1585 that indio slaves living in Castile brought to the Spanish courts to secure their freedom. Because plaintiffs had to prove their indio-ness in a Spanish imperial context, these lawsuits reveal the difficulties of determining who was an indio and who was not—especially since it was an all-encompassing construct connoting subservience and political personhood and at times could refer to people from Mexico, Peru, or South or East Asia. Van Deusen demonstrates that the categories of free and slave were often not easily defined, and she forces a rethinking of the meaning of indio in ways that emphasize the need to situate colonial Spanish American indigenous subjects in a global context.

Praise for the book:

"Weaving names and fragments of lives into a richly textured narrative, van Deusen does justice to their stories, placing the reader in the heart of the empire, facing its darkest moment." -Kathryn Lehman

"This book offers many interesting insights into the experiences of indio slaves and servants who ended up in Castile." - Ida Altman

"Van Deusen concentrates her attention on the microcosm of a village society in the area of Seville and on the part played in it by indios imported from America, but she also gives consideration to the indio menials of the New World and to the Asian context from which some slaves were drawn. The evidence throws light mainly on the southern part of Castile, but the book’s perspective is global, sophisticated, admirable, and pathbreaking." - Henry Kamen

"Nancy van Deusen has written a masterpiece of early modern ethnohistory that brings to light a veritable diaspora of indigenous slaves in Spain, while expanding the meaning of indio as a global and changing identifier constructed outside the colonial confines of America." - Alcira Dueñas

Further information is available here.

Jones on New Zealand & Māori Law

Carwyn Jones, Victoria University of Wellington has published New Treaty, New Tradition: Reconciling New Zealand and Māori Law with UBC Press. From the publisher:

While Indigenous peoples face the challenges of self-determination in a postcolonial world, New Treaty, New Tradition provides a timely look at how the resolution of land claims in New Zealand continues to shape Indigenous and non-Indigenous cultures alike. As Canada moves towards reconciliation with its own First Peoples, we can learn much from the Waitangi Treaty example.

 Legal cultures change in response to social and economic environments. Inevitably, the settlement of historical land claims has affected issues of identity, rights, and resource management. Interweaving thoughtful analysis with Māori storytelling on legal themes, Carwyn Jones shows how the New Zealand treaty settlement process limits Indigenous authority. At the same time, the author reveals the enduring vitality of Māori legal traditions, making the case that genuine reconciliation can occur only when we recognize the importance of Indigenous traditions in the settlement process. 

Drawing on examples from Canada and New Zealand, Jones illustrates how Western legal thought has shaped the claims process, deepening our understanding of treaty work in the former British colonies and providing context for similar work in Canada. As Indigenous self-determination plays out on the world stage, this nuanced reflection brings into focus prospects for the long-term success of reconciliation projects around the globe.

Praise for the book:

"This book breaks important new ground in Māori studies. Even more impressive is Jones's masterful use of a variety of critical methodologies and scholarship that can be applied to the contemporary human rights situation of Indigenous peoples around the world. In an analysis thoroughly grounded in Māori language and storytelling traditions, Jones reveals a powerful new way of using Indigenous knowledge to critique, reform, and undermine the grounding assumptions of the West's racist, colonial legal regimes and systems of non-Indigenous governmentality and law imposed on Indigenous peoples."  -Robert A. Williams Jr.

"New Treaty, New Tradition is a tour de force. Intricately argued and beautifully sculpted, this book is useful to both scholars and Indigenous peoples around the world engaged in treaty and resource recovery negotiations." -Margaret Mutu

"Carwyn Jones has written a book that will enrich the popular discourse of Indigenous politics, governance, decolonization, and resurgence." -Val Napoleon

Full information is available here.

Johnson on Indigeneity and Settler States

Miranda Johnson, University of Sydney has published The Land Is Our History: Indigeneity, Law, and the Settler State with Oxford University Press. From the publisher:

The Land Is Our History tells the story of indigenous legal activism at a critical political and cultural juncture in Australia, Canada, and New Zealand. In the late 1960s, indigenous activists protested assimilation policies and the usurpation of their lands as a new mining boom took off, radically threatening their collective identities. Often excluded from legal recourse in the past, indigenous leaders took their claims to court with remarkable results. For the first time, their distinctive histories were admitted as evidence of their rights. 

Miranda Johnson examines how indigenous peoples advocated for themselves in courts and commissions of inquiry between the early 1970s to the mid-1990s, chronicling an extraordinary and overlooked history in which virtually disenfranchised peoples forced powerful settler democracies to reckon with their demands. Based on extensive archival research and interviews with leading participants, The Land Is Our History brings to the fore complex and rich discussions among activists, lawyers, anthropologists, judges, and others in the context of legal cases in far-flung communities dealing with rights, history, and identity. The effects of these debates were unexpectedly wide-ranging. By asserting that they were the first peoples of the land, indigenous leaders compelled the powerful settler states that surrounded them to negotiate their rights and status. Fracturing national myths and making new stories of origin necessary, indigenous peoples' claims challenged settler societies to rethink their sense of belonging.

Praise for the book:

"Miranda Johnson's wonderful, engaging, and nuanced new work, The Land Is Our History, crosses disciplinary, theoretical, geographic, and national boundaries. It not only compares the emergence of distinct indigenous rights movements across three Commonwealth settler states but also examines how such movements have transformed the meanings of national history within them. Impressively conceptualized and deeply comparative, this work is an important addition to the growing field of global indigenous history." -Ned Blackhawk 

"An important book, The Land is Our History offers critical insights into the tensions between white settler colonialism and indigenous peoples in the struggle over land. Over the last thirty years, Australia, New Zealand, and Canada shifted from policies of assimilation to recognition of indigenous claims to land. This book traces the structures of power which dispossessed indigenous peoples from their lands at the same time as it recognizes the capacity of indigenous leaders and particular judges and lawyers to change this trajectory. It brilliantly shows the capacity of law to offer, from time to time, power to the powerless, to those who have moral claims but lack economic and political power."-Sally Engle Merry 

"The Land Is Our History is an exemplary illustration of the complex and intertwined histories of indigenous politics and indigeneity in settler colonial societies. Moving beyond a conventional nation-state paradigm, it engages with the re-imagining of nationalist identities since the 1960s within a global context. Underscored is the forging of new legal spaces and opportunities to reframe nationalist myths, while also acknowledging the pitfalls and compromises involved in pursuing indigenous justice within formal western law. This sophistical historical account deserves attention from everyone interested in indigenous peoples' engagement with state law and the ways such engagement informs contemporary politics and cultural relations." -Eve Darian-Smith

More information is available 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.