Indigenous Land Rights Pt II

In case anyone out there who thinks that discrimination towards Indigenous peoples or Eurocentrist beliefs which harm Native peoples are things of the past, please read on.

(Bullets and highlighting are mine added for ease of the reader.)

II. HISTORY AND BACKGROUND: IMPACT OF THE DOCTRINES OF DISPOSSESSION

"The gradual deterioration of indigenous societies can be traced to the non-recognition of the profound relationship that indigenous peoples have to their lands, territories and resources, as well as the lack of recognition of other fundamental human rights.

"The colonization of indigenous territories has affected indigenous peoples in a number of ways.

• Demographic deterioration occurred through maltreatment,enslavement, suicide, punishment for resistance, warfare, malnutrition due to destruction of the natural environment or over-exploitation of natural resources, disease and outright extermination. Rodolfo Stavenhagen states that “the entire population of the Americas decreased by 95 per cent in the century and a half following the first encounter”.
• The intent to convert indigenous peoples to Christianity and bring them under the “sovereignty” of foreign monarchs created widespread havoc, despite some early attempts at “friendly treatment”.
• With population decline came the destruction of the traditional social order, due to the efforts of missionaries and Western attitudes towards the divisions of labour and of gender, among other things.
• The introduction of the practice of attaching a monetary value to things and of buying and selling things previously considered non-merchantable, including land, added the stress of an economic environment quite opposite to the traditional economic order of most indigenous communities.
• These concepts were all alien to the collective social organization of indigenous communities.

"It is safe to say that the attitudes, doctrines and policies developed to justify the taking of lands from indigenous peoples were and continue to be largely driven by the economic agendas of States.

"In most situations, it was only through rationalization and military domination that colonizers secured “ownership” of the lands, territories and resources of indigenous peoples. The territories of indigenous peoples in the Americas and elsewhere were taken through many means, but largely by military force. Where “just war” could not be waged, treaties sometimes were concluded. In regard to North America, Vine Deloria, Jr. wrote:

"Treaty-making was a feasible method of gaining a foothold on the continent
without alarming the natives. Treating with the Indians, then, brought an air of
civility and legitimacy to the white settlers’ relations with the Indians and
provoked no immediate retaliation by the tribes. Instead of the Indians being
subjected to bondage or their lands merely seized through the use of force,
which Spain eventually did, civility reigned in North America. Indian land and
the rights to live in certain areas were purchased at formal treaty sessions.”

"The doctrines of dispossession which emerged in the subsequent development of modern
international law, particularly terra nullius and “discovery”, have had well-known adverse effects on indigenous peoples. The doctrine of terra nullius as it is applied to indigenous peoples holds that indigenous lands are legally unoccupied until the arrival of a colonial presence, and can therefore become the property of the colonizing power through effective occupation. Strictly speaking, in the seventeenth, eighteenth, and nineteenth centuries, the doctrine of “discovery” gave to a discovering State of lands previously unknown to it, an inchoate title that could be perfected through effective occupation within a reasonable time. The doctrine, as it has come to be applied by States with little or no support in international law, gives to the discovering colonial power free title to indigenous lands subject only to indigenous use and occupancy, sometimes referred to as aboriginal title. Only recently has the international community begun
to understand that such doctrines are illegitimate and racist."

Here's an example:

"The High Court of Australia in its 1992 decision in Mabo v. Queensland discussed the
legal and other effects of the doctrine of terra nullius. The Court denounced the doctrine by concluding that this “unjust and discriminatory doctrine ... can no longer be accepted”. This decision gave rise to the Native Title Act, adopted by the Government of Australia in 1993, which established a framework and mechanism by which Aboriginal peoples in Australia could secure land rights. However, Australian Aboriginal peoples have reported to the Working Group that they have great difficulties with the Act, and regard as unjust and ill-founded the State’s asserted authority, recognized in the Mabo decision, to extinguish indigenous land rights.

"To what extent the Government of Australia can continue to extinguish indigenous land title through legislation that discriminates against indigenous title is a matter of ongoing debate. The Committee on the Elimination of Racial Discrimination, on 18 March 1999, issued a decision finding that provisions in the 1998 Native Title Act Amendments extinguish or impair the exercise of indigenous title rights and interests and discriminate against native title holders (A/54/18, para. 21, decision 2 (54))... It demonstrates that Eurocentrist and discriminatory ideas continue to be evident in legal theory and action and that such attitudes in national legislation and court decisions may trap indigenous peoples in a legal discourse that does not embrace their distinct cultural values,beliefs, institutions or perspectives."

Tomorrow, I'll post excerpts from part III: FRAMEWORK FOR THE ANALYSIS OF CONTEMPORARY PROBLEMS REGARDING INDIGENOUS LAND RIGHTS

Colleen