Native Claims: Indigenous Law Against Empire, 1500-1920
November 4, 2013
Review By Daniel Clayton
This major interdisciplinary study shatters the illusion that only Europeans contributed to modern legal debate about the legitimacy of empire and nature of imperial sovereignty and colonial possession. The basic – twofold — premise of the conceptually and thematically interwoven ten chapters of Native Claims is that the established need on the part of Europeans to justify their claims to distant territory and dominion, both to each other and to Native peoples, did not have just European roots (in Roman, canon, and natural law traditions), and was never simply imposed on alien lands and peoples. Aboriginal groups had their own (diverse) ways of dealing with property and territory, and were not silent witnesses to their own dispossession. They adapted quickly to the way European arguments about conquest and possession were presented, articulated their own arguments rigorously and effectively, and thus helped to forge legal middle grounds. “In the history of legal argument regarding indigenous rights,” Saliha Belmessous observes in her wide-ranging Introduction, “the people most concerned have been kept off stage. Our study … shows that the struggle for reconciling indigenous peoples with settler societies can only be met through the inclusion of a legal voice that has often been present but not heard” (15).
Present but not heard: these words capture the challenge that the case studies developed in this volume pose to both imperial historiography and contemporary debates over Native rights. The authors (all of them leaders in the fields of history, law, philosophy, and international relations) examine Native and European claims to property and possession with compassion and subtlety, original scholarship, and richly detailed examples. The first three chapters deal with sixteenth-century Iberian imperialism in the New World; the next three with seventeenth- and eighteenth-century British and French North America; a further three with nineteenth-century Australia and New Zealand; and a final chapter with colonial West Africa between 1840 and 1920. (The Dutch and Portuguese are not covered in any detail.) The normative implications of these historical explorations for contemporary debate are dealt with in an Afterword by political philosopher Duncan Ivison.
Such a project faces significant methodological problems of “ventriloquism” and ethnographic “up-streaming:” the fact that many of the archival fragments that scholars today read as Native “legal” argument were generated by Europeans; and the problem of translating past Native language and imagery into latter-day legal categories and understandings. The authors grapple with these problems creatively, if not in every instance convincingly. Interestingly, their historical work brushes against the grain of subaltern and postcolonial strictures about how Native subjects only enter colonial history, and then with a compromised agency, when they rebel and their actions are decried by colonial state authorities and represented as “primitive” and “illegitimate” (Ranajit Guha’s famous colonial “prose of counter-insurgency”). The authors here reveal how, on some occasions, Native dialogue and protest over property and dispossession preceded rebellion, and colonial authorities were pressed into responding to Native arguments and petitions that were taken to be rational and emphatic. However, such dialogue and protest are dealt with in this volume chiefly in textual terms. While there are references to maps, there is considerably more scope for the ways in which European and Native cartography served as a crucial modality of dialogue and dispute.
Another important facet of the book is the way Native inclusion in what has hitherto been seen as a largely European framework of thought about “the law of nations” can be derived from the same traditions of post-Renaissance humanism that gave us the noble savage and ideas of Native primitivism (including Hobbes’s infamous characterisation of Native life as “nasty, brutish and short”). In a fine essay on Powhatan legal claims, for instance, Andrew Fitzmaurice seeks to show that “It was no more remarkable for the English that the Powhatans should launch these legal arguments than that they employed bows and arrows” (102).
At the same time, Craig Yirush points out, “The sophistication of the natives’ legal and political arguments did not, of course, stop their dispossession” (146). History cannot simply be rewritten. However, history can be — and to some degree in places such as British Columba, already has been – re-valorised: made more responsive to historic injustices over the alienation of Native land and resources and how they have been shaped by the politics of the archive. Native claims have come in a wide variety of forms, are often not easily heard, and generalisations are not easily reached. The authors writing in this volume generally err on the side of empirical caution and take a regional and case study approach. Yet that, in all likelihood, there was always and everywhere some sort of Native argument against dispossession, and thus that law was not solely a European matter, might now form the crux of a different kind of historical project. There is no heady political idealism at work here. Rather, in this volume there is a superbly crafted scholarly effort to show that Native people have helped to shape a shared (if unequal) legal tradition. If this is accepted, there is no longer the same need for judges, politicians, and advocates to agonise over how or whether (given their colonising inflections) it is appropriate to deploy or abide by “European” legal conventions in legal and political adjudications of Native rights. Admitting Native precepts and voices into colonial legal history does not make European law seem any less important or egregious. Rather, it works to correct the “terrible mistake” of assuming that legal history unfolded in exclusively European terms (248).
“Brilliant” and “groundbreaking” are much over-used adjectives in blurbs for academic works, but their appearance on the back cover of this edited collection is fully deserved. None of the essays in this volume are about British Columbia. But Native Claims has far-reaching implications for the way the relationship between law and history are construed in the province. It is an international and interdisciplinary work with profound regional implications, and will give considerable encouragement to those in the historical and legal professions in British Columbia who are committed to developing more complex and less divisive ways of talking about the overlapping and competing histories and entitlements of Natives and newcomers.
Native Claims: Indigenous Law Against Empire, 1500-1920
Saliha Belmessous, editor
Oxford: Oxford University Press, 2012. vii + 278 pp. $74.00 cloth