22.RCAP, “Volume 4: Perspectives and Realities,” http://www.collectionscanada.gc.ca/webarchives/20071124125120/http://www.ainc-inac.gc.ca/ch/rcap/sg/sj1_e.html#Perspectives%20and%20Realities.
23.RCAP, “Volume 5: Renewal: A Twenty-Year Commitment,” http://www.collectionscanada.gc.ca/webarchives/20071124125120/http://www.ainc-inac.gc.ca/ch/rcap/sg/sj1_e.html#Perspectives%20and%20Realities.
24.RCAP, “Appendix A: Summary of Recommendations Volumes 1–5,” http://www.collectionscanada.gc.ca/webarchives/20071124130154/http://www.ainc-inac.gc.ca/ch/rcap/sg/ska5a1_e.html#Appendix%20A:%20Summary%20of%20Recommendations,%20Volumes%201-5.
25.AFN, Royal Commission on Aboriginal People at 10 Years: A Report Card (Ottawa: Assembly of First Nations, 2007), accessed December 3, 2015, http://www.turtleisland.org/resources/afnrcap2006.pdf.
26.Ibid., 2 (original emphasis).
27.Indigenous Bar Association, “Making Aboriginal Policy: A Conference Ten Years After the Final Report of the Royal Commission on Aboriginal Peoples,” http://www.indigenousbar.ca/pdf/2006%20IBA%20Final%20Conference%20Report.pdf; Robert K. Groves, “The Curious Instance of the Irregular Band: A Case Study of Canada’s Missing Recognition Policy,” Saskatchewan Law Review 70 (2007): 153–459.
PART 5
Land, Learning, Law, and Treaties
26
Rights? What Rights?
Doctrines of Colonialism
You know what? I’ve changed my mind. Despite everything I’ve been saying so far, I’ve come to realize all of that is in the past, and it’s time to move on. In fact, I want to decimate the past!
My whole life I have been told Indigenous peoples were conquered, defeated, never had rights, and I suppose this truth took until right this second to finally sink in! For all those people who endlessly repeat this refrain of Indigenous failure and obsolescence, don’t give up; I am living proof that if you say it for long enough, it will be the only truth we need.1
I have spent so long on the other side of this debate that I think I have some really great arguments to lend to the cause.2 People who argue in favour of Indigenous rights tend to rehash the same points over and over, and I am here to provide you with ironclad refutations of these ridiculous rights-based claims. Once you have finished reading this chapter, you will leave with all the ammunition you need to soldier on during those frustrating forum wars and comment section skirmishes.
Claim #1: The Doctrine of Discovery and Doctrine of Occupation (terra nullius) are invalid justifications for gaining sovereignty over Indigenous lands.
It would seem like common sense that discovering a nation inhabited only by Indigenous peoples would entitle Europeans to take over and assert their own sovereignty, but some Indigenous peoples and bleeding-heart settler academics contest this.3 Quick! You need to defend the Doctrine of Discovery!
The Doctrine of Discovery is rooted in two 15th-century papal bulls called the Dum Diversas (1452) and the Romanus Pontifex (1455).4
The Dum Diversas gave Christians the right to take “pagans” (non-Christians) as perpetual slaves. This gem led directly to the transatlantic slave trade. So, if someone brings up this unsavoury history, remind them of the Sublimes Deus (1537), which later forbade the enslavement of Indigenous peoples of the Americas! Plenty of colonizers and conquistadors continued enslaving people from the Americas – and it was still totally legal to enslave Africans – but if no one else brings this up, you might want to consider moving on to the next papal bull.
The Romanus Pontifex clearly explained that since there were many people (heathens) around the world who weren’t really using the land they were on, Europeans had every right to take that land and do something with it!5 Unfortunately, this papal bull also extolls the legitimacy of the enslavement of non-Christians, but since most people will not be carrying around a complete text of the Romanus Pontifex, it probably won’t be pointed out. Besides, the heart of this papal bull is what matters. Judge John Catron summed it up well in State v. Foreman, 16 Tenn. 256 (1835). I suggest whipping this baby out when Indigenous radicals question the Doctrine of Discovery:
We maintain, that the principle declared in the fifteenth century as the law of Christendom, that discovery gave title to assume sovereignty over, and to govern the unconverted natives of Africa, Asia, and North and South America, has been recognized as a part of the national law [Law of Nations], for nearly four centuries, and that it is now so recognized by every Christian power, in its political department and its judicial.6
We’re talking about a very old tradition, more than 500 years old. Indigenous peoples like to talk about how our traditions are super ancient and, therefore, more important than European traditions, but come on. The Doctrine of Discovery goes way back and is still an important part of international law.7 Besides, if Indigenous peoples didn’t agree with the papal bull, we could have petitioned the pope to change it or something.8 I’m pretty sure that by not opposing it before the Europeans arrived, we agreed to it. After all, ignorance of the law is no excuse!
All right, we’ve got the Doctrine of Discovery sewn up; let’s move on!
The Doctrine of Occupation relies on a concept known as terra nullius, which is a Latin term that basically means “land that belongs to no one.” The Doctrine of Discovery doesn’t need much support beyond its obvious rightness, but terra nullius does help to clarify the point a little. Despite claims to the contrary, Indigenous peoples didn’t believe in land ownership! Some of the refutations of the fact that Indigenous peoples never believed in owning property and, therefore, Europeans weren’t stealing anything, can be found in such ridiculous decisions as Calder and Delgamuukw.9 Be careful; Indigenous radicals love to play the “Supreme Court of Canada Agrees With Us” card. Also, some settler intellectuals and Indigenous radicals make far-out claims about Indigenous people having legal traditions that included some form of ownership of lands – but it doesn’t count because it isn’t a European property regime, so don’t worry about it too much.10
Australia messed things up a lot when a bunch of liberal judges caved and said that okay, sure, Indigenous people didn’t have European systems of land ownership, but this didn’t mean settlers could waltz in and claim the land was unoccupied or unowned by anyone11 – ridiculous and clearly wrong. Sounds like that Canadian Calder decision back in 1973: “[T]he fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means.”
This is the kind of thinking you’re up against. But never fear! I have some really great suggestions for how you can at least get away from the radicals if they belligerently disrespect the “we’ve been doing this for over 500 years” argument, or they want to point to Supreme Court decisions that sort of reject the Doctrine of Discovery and the Doctrine of Occupation (via terra nullius):
You should pedantically point out that the term terra nullius is of recent (early 20th century) origin, and, therefore, isn’t even a thing you can argue against.12 You’ll have the radicals wondering whether any part of their argument is true if they got that one wrong! I suggest just dropping that bomb and walking away. Or, you may have to face the fact that, before this term became popular, international law used res nullius which is basically the same thing.13 Res nullius is a concept based in Aristotelian notions of the need to exploit nature in order to exercise ownership over it. Failure to do so voids your ownership.
If anyone brings up res nullius, merely say that terra nullius is a synecdoche.14 This will confuse most people enough that they’ll shut up about it. Of course, this just means international law has come to apply res nullius to land, but no one needs to know that. Using an obscure word most folks haven’t seen since their last high-school poetry class will often buy you enough time to get out of Dodge before things get ugly.
Most important, don’t let it bother you too much. The obvious fact that landing on the shores of this country gave Europeans the inhe
rent right to claim the land for their own is still supported in domestic and even international law, at least to the extent that no one is seriously challenging underlying Crown sovereignty.15 Well, I mean many of us Indigenous people are, but you know what I mean. When the radicals argue this should change, I suggest merely saying, “neener neener” from a distance.
Claim #2: The Doctrine of Conquest is discredited and does not apply.
Another obvious fact is that when you conquer someone, you get their stuff. It happens all over the world and is an acceptable result of losing a battle. Everyone has been conquered at some point by someone else.16 The Doctrine of Conquest states that whoever wins a war gets to claim sovereignty over the territory of the conquered. This was a recognized principle in international law until it sort of fell out of favour in the early 20th century with things like the Covenant of the League of Nations, the Kellogg-Briand Pact, the Stimson Doctrine, the United Nations Charter, and so on.17
Some people will argue that Europeans didn’t exactly approach what is now Canada and the United States as conquerors, as evinced by things like treaties that were made with various Indigenous nations. Still, smallpox killed many more Indigenous people than settlers and so it was sort of like conquering us, right?18 After all, if you were originally 100 percent of the population and now you’re only about 4 percent, then clearly you’ve lost something. Besides, people are so eager to remind Indigenous peoples that we were conquered – it surely must be true in some way!
Whatever. The point isn’t whether or not we were actually conquered. This Doctrine still totally applies and explains why Indigenous peoples lost sovereignty over these lands, and the Europeans gained it!
There are all sorts of obnoxious rejections of such principles that affirm a relationship based on treaty versus conquerors and conquered, but those only started in earnest in the 20th century, and Europeans conquered (okay, not really, but kind of) Indigenous peoples way before that.
Check and mate! If people want to reject the Doctrine of Discovery or terra nullius, just hit them with the fact that the Europeans “won.” If anyone asks for more details, it’s probably time to make your exit.
Claim #3: Other stuff about how Indigenous peoples still have rights
If you find yourself in a situation where, for whatever reason, you have not been able to successfully argue the Doctrine of Discovery, Conquest, or Occupation, fear not! There are other Doctrines you can yank out of your back pocket like a linty caramel of Truth!
It’s a pretty well-recognized principle that if you walk into someone’s house and refuse to leave – living there for many years – eventually, the house is yours. Right? Exactly. This gem is called the Doctrine of Adverse Possession.19 It requires that you live in someone else’s territory for an extended period of time, and you exercise peaceful and unchallenged sovereignty over that territory.
Take Manitoba, for example. The Selkirk Settlement was established in 1811 after the Hudson’s Bay Company (HBC) granted the Earl of Selkirk a concession of 300 000 square kilometres. Okay, so the HBC acknowledged Indigenous sovereignty and didn’t interfere with it much because they didn’t want to mess up their fur-trading business, but Selkirk definitely wanted this to be his land. Unfortunately, Selkirk’s governor, Miles Macdonell, set off something called the Pemmican War, which culminated in the Battle of Seven Oaks, wherein a Métis leader, Cuthbert Grant, led a party against the governor of HBC territories, killing him and 19 of his men.20
Um, that might not be the best example. You can probably find some area in Canada that settlers lived on for a long time, over which they exercised peaceful and unchallenged sovereignty. None comes to mind, but don’t let that get you down!
When all else fails, you can blurt out, “the Doctrine of Cession!” and then bask in the glow of knowing you have played your trump card, and things are well once again. Cession is the formal giving up of rights, property, or territory. This Doctrine refers to the voluntary surrender of Indigenous lands in exchange for things like five dollars a year per person in compensation in perpetuity.21 The best thing about this Doctrine is that it is completely supported by Canadian law as the basis for sovereignty over lands covered by the Numbered Treaties 1 through 11.22 According to Indian Affairs:
At their base, the treaties were land surrenders on a huge scale. A total of 11 Numbered Treaties were negotiated during this period culminating with Treaty 11 in 1921. Furthermore, in the eyes of the Federal Government, the act of signing treaty brought Aboriginal people of the Northwest under the jurisdiction of the Dominion of Canada and its laws.23
There are hundreds of thousands of square kilometres in Canada that are not covered by these land-surrender treaties (almost all of British Columbia, for example), but why worry about that? You can circle back to laying claim to them via aforementioned Doctrines if you need to, regardless of whether or not those Doctrines have been discarded as invalid earlier on in your conversation.
You will encounter people who argue the Numbered Treaties were not land-surrender treaties, but rather were land-sharing agreements. They will say things like this:
“The land, waters, and all life-giving forces in North America were, and are, an integral part of a sacred relationship with the Creator. The land and water could never be sold or given away by their Nations.”24
“With respect to land-sharing arrangements, the Elders’ understanding was that the initial treaty discussions focused solely on the agricultural land requirements of the Crown, which would be used by her British subjects.”25
The Commissioner had said, “It is not all your land I am interested in, only the places where my people will be coming on those lands down to the depth of a plough – that is what I am asking for.”26
These versions of the Numbered Treaties are said to be truer to the actual negotiations than what ended up written on paper, but the law is pretty clear that oral history of Indigenous peoples on this is trumped by the written word of settlers; so, what’s the point of even entertaining these understandings? Why bother trying to come to some sort of agreement that respects Indigenous sovereignty when you can just take it all and benefit from all the lands and resources without ever having to share with the original inhabitants?
Anyway, that basically covers the different justifications and explanations for Canadian sovereignty over Indigenous lands in Canada, and why Indigenous peoples basically have no rights. I hope this has been a helpful tool for those of you interested in vigorously denying Indigenous rights any way you possibly can!27
NOTES
1.Shout out to Conrad Black, Thomas Flanagan, Jonathan Kay, Christie Blatchford, Margaret Wente, and every other fellow Canadian Warrior for Justice Against the Hegemony of Indigenous Tyranny.
2.The cause is clearly the complete and total assimilation of Indigenous peoples into mainstream society, once and for all!
3.Careful! When you appeal to common sense, some people will attempt to point out you are committing the logical fallacy known as an “appeal to popularity.” This logical fallacy suggests that an idea must be true because it is widely held. The appeal to popularity logical fallacy goes something like this example: (1) Most people believe in some form of a God or higher power; therefore, (2) God, or a higher power, must exist. The idea is that popular opinion can be mistaken, though we know that can only be true if popular opinion believes in things like respecting treaty rights or allowing Aboriginal title to be a thing.
4.This is a document issued by the pope or his offices. Documents issued by the pope had different names for many centuries, but they are all retroactively known as papal bulls now. They could range from excommunications, canonization, or declarations about the legitimacy of European global hegemony.
5.The Bull Romanus Pontifex (Nicholas V), January 8, 1455, last accessed November 19, 2015, http://www.nativeweb.org/pages/legal/indig-romanus-pontifex.html. Here, you can read the text of this irrefutable piece of evidence that Indigenous peoples have no claim
to any lands whatsoever.
6.William Wilcox Cooke, Reports of Cases Argued and Determined in the Supreme Court of Tennessee, vol. 40 (Soule, Thomas, and Winsor, 1879), 256, http://tinyurl.com/qc866t2.
7.United Nations, “‘Doctrine of Discovery,’ Used for Centuries to Justify Seizure of Indigenous Land, Subjugate Peoples, Must Be Repudiated by United Nations, Permanent Forum Told,” un.org, last modified May 8, 2012, http://www.un.org/press/en/2012/hr5088.doc.htm.
8.Julian Brave NoiseCat, “Indigenous Leaders Want Pope Francis to Rescind Bull Justifying Imperialism,” Huffington Post, last modified September 27, 2015, http://www.huffingtonpost.com/entry/pope-francis-doctrine-of-discovery_56058eb9e4b0dd8503076c17.
9.Calder et al. v. Attorney-General of British Columbia, 1973, [1973] SCR 313, CanLII 4 (SCC), https://www.canlii.org/en/ca/scc/doc/1973/1973canlii4/1973canlii4.html; Delgamuukw v. British Columbia, 1997, [1997] 3 SCR 1010, http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1569/index.do.
10.Eric Dannenmaier, “Beyond Indigenous Property Rights: Exploring the Emergence of a Distinctive Connection Doctrine.” Washington University Law Review 86 (2008): 53, http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1114&context=law_lawreview; Val Napoleon, “Ayook: Gitksan Legal Order, Law, and Legal Theory” (PhD dissertation, University of Victoria, 2009), https://dspace.library.uvic.ca:8443/bitstream/handle/1828/1392/napoleon%20dissertation%20April%2026-09.pdf?sequence=1. Know your enemy! Here are some arguments about Indigenous property regimes and their supposed legitimacy.
11.Mabo and Others v. Queensland (No. 2), 1992, [1992] HCA 23; 175 CLR 1, http://www.austlii.edu.au/au/cases/cth/HCA/1992/23.html; ABC TV, Mabo, TV movie, produced by Blackfella Films, June 10, 2012, http://www.abc.net.au/tv/mabo/movie/. The first source is a case that found terra nullius does not apply to Australia. To learn more about the unfortunate events that led to undermining such an obviously true doctrine, you can watch a film (second source) about the man who brought this case to the Australian High Court.
Indigenous Writes Page 29