CAN THE LAND TRULY BE DECOLONIZED?
Reflections on a month-long series of events exploring Indigenous land rights and reparations as part of our six-part series on “Decolonizing History”
As part of the Lepage Center’s 2020–21 six-part event series on “Decolonizing History,” we explored the theme of “Decolonizing Land” during the month of October. We began with a conversation about treaty law with Dr. Elizabeth Ellis, Assistant Professor of History at NYU. Our second event continued the discussion with a roundtable featuring Dr. John Maynard, Professor of Indigenous History at the University of Newcastle (Australia), Dr. Doug Kiel, professor of Native American History at Northwestern University (Chicago, USA), and Tembeka Ngcukaitobi, a South African lawyer and legal historian. Our last event of the month featured Villanova’s own Dr. Whitney Martinko, an Associate Professor of History.
Can the Land Truly Be “Decolonized”?
In the September series on “Decolonizing the Curriculum,” the Lepage Center’s events focused on decolonizing intellectual spaces. Though they focused mostly on the educational curriculum, many of our September speakers argued that true decolonization should extend to include physical spaces as well. During the October series on “Decolonizing Land,” we picked up on this theme. The role of law and history permeated our inquiries, surfacing a challenging question with no clear-cut answer: Can the same laws used as tools to colonize lands be used as tools to decolonize lands?
What role does history play in “decolonizing land”?
To understand present demands to decolonize land, one must understand past histories of colonization. Modern European colonialism took several forms, including settler colonialism, which involved attempts to displace and replace indigenous people in an area with a new population of settlers. In what is today Australia, the first interactions between Aboriginal populations and British naval Captain James Cook ended in bloodshed. When Cook arrived in Botany Bay on April 29, 1770, he shot at two Aboriginal men as they approached his crew with spears. “All they seem to want from us is to be gone,” Cook later wrote.
Aware of the violence they brought with them, how did Cook and others justify the seizure of land through legal means? At our roundtable discussion on October 14, Dr. John Maynard, Dr. Doug Kiel, and Mr. Tembeka Ngcukaitobi explored the significance of the concept of terra nullius, or “nobody’s land.” European colonizers used this concept as a legal framework to justify the conquest and seizure of Indigenous lands across the globe.
Kiel, a member of the Oneida Nation of Wisconsin, observed that colonial legal concepts inherited from Britain are today “baked into U.S. law.” Legal decisions such as Supreme Court case of Johnson vs. M’Intosh (1823), which established that private citizens could not purchase land from Indigenous peoples, in effect determined that Native Americans did not have the capacity to own title to land.
Law was presented by Europeans as a “civilizing” force, explained Ngcukaitobi, but it often justified violence in areas that it purported to civilize. European concepts of land and legality were imposed on Indigenous groups. In Australia, for example, Maynard noted that British settlers reorganized Aboriginal governments based upon their own model of governance, with a single, hierarchical male leader. This replaced the structure and dynamic of an egalitarian council system with male and female members that had previously existed among Aboriginal populations. Maynard, a Warimi Aboriginal man, noted that past changes to Indigenous societal structures and concepts of land ownership have present consequences. “We as Aboriginal people spend most of the time fighting amongst ourselves now,” he said.
What kinds of law can help “decolonize land”?
Can laws and legal systems that were used to colonize land in the past be used to decolonize land in the present and future? Dr. Elizabeth Ellis, Assistant Professor of History at NYU, emphasized the contemporary relevance and strategic importance of legal treaties made between the U.S. and Native tribes in the 19th century. A recent Supreme Court Decision, McGirt vs. Oklahoma (2020), reiterated the binding power of a treaty signed with the Creek Nation in 1866, which established a portion of eastern Oklahoma as Creek territory. Though the ruling does not constitute an eviction for the non-Creek people who live on this land, it does mean that only the Federal Government, not the state of Oklahoma, can criminally try a Creek citizen.
The Dakota Access Pipeline (DAPL) controversy offers another important example of the role of law in the historical project to decolonize land. The debate over DAPL centers on whether the pipeline violates the 1868 Fort Laramie treaty which guarantees the Standing Rock Sioux’s undisturbed use and occupation of lands surrounding the pipeline. “When you hear Lakota or Dakota people talk about this,” Ellis, a prominent DAPL activist noted, “they start in the 19th century.” What is at stake with these debates is whether the federal government must uphold its guarantees of land rights and sovereignty to Native peoples.
Decolonizing land can also involve bringing in forms of law and exploring jurisdictions beyond colonial governmental frameworks. Given the sovereign status of Indigenous people in the U.S., for example, Ellis proposed that the United Nations could be used as a venue to resolve disputes with the U.S. government. Kiel argued for the value of “creating space for Indigenous peoples…to create their own justice system.”
Some scholars and activists believe it is possible for Indigenous communities to work towards justice and land rights within existing legal systems designed to dispossess and oppress them. Ngcukaitobi discussed the history of black South African lawyers who worked within constitutional law and used it as a tool against land dispossession and injustice. Ellis introduced the concept of the “politics of refusal,” in which Indigenous groups can assert their historic rights by refusing to accept all of the state’s mandates as legitimate. When asked whether working within or outside the law was preferable, Ellis said, “Personally I think you need both approaches.”
Using law to decolonize land is not only a problem of land ownership. Dr. Whitney Martinko, Associate Professor of History at Villanova University, introduced the issue of food sovereignty at our third event. The rights to hunt and fish, for instance, are as important as legal title to the land itself. In the face of confrontations between non-Native and Native fishermen in Michigan, the court case People vs. Leblanc reaffirmed the original treaty rights of the Bay Mills Indian community to fish. Martinko also gave the example of new laws instituted to protect nature. For example, the White Earth Chippewa band successfully argued for the legal recognition of the rights of nature, specifically those of wild rice, or Manoomin. In this case, law is significant not only for protecting the land rights of human, but also for acknowledging the rights of the natural world.
How does the project of “decolonizing land” relate to history in the public interest?
Our speakers in October all advocated for broader awareness, discussion and debate about demands to decolonize land in ways that the broader public can understand. Ngcukaitobi emphasized the importance of writing for “the common man” to reach broader audiences. But much of this outreach depends more on establishing a personal connection with audiences rather than developing scholarship with limited public appeal.
For many of our speakers, academic work was inspired by deeply personal reasons. Kiel’s experience as a first-generation college graduate, funded largely through the Oneida Nation, gave him the realization that “I have to do something politically useful with this important opportunity,” and inspired the trajectory of his studies.
Maynard, a prolific author who did not become a professional historian until after he turned forty, described the alienation he experienced in school. He was largely inspired in his own research by the absence of Aboriginal people in mainstream history curriculum. He came to history when his father asked him to document the personal story of his grandfather who established the Australian Aboriginal Progressive Association (AAPA) in 1924. “The whole driver was my grandfather and his organization and what he stood for which wasn’t historically recognized,” Maynard said.
Ellis, meanwhile, a citizen of the Peoria Tribe of Indians of Oklahoma, used her knowledge of history to help members of another Indigenous community in lower Louisiana near Tulane University (her alma mater) to apply for federal recognition for their tribe. This experience led her to question her assumptions about the establishment of reservations and treaties in the U.S. and guided her research to tell stories like these.
Martinko, who is not Indigenous, comes from a background in public history and firmly believes that those seeking to decolonize should go beyond written scholarship to support collaborative projects. By partnering with tribal knowledge keepers and preservation officers, historians can work in practical ways to decolonize things that describe the land (such as historical markers), as in the case of efforts in Michigan to rewrite markers from an Indigenous rather than colonizing perspective. Martinko also highlighted the importance of supporting access to Indigenous knowledge held in archives. Many were compiled and catalogued in the era of colonization, but scholars are currently working to decolonize archives to increase access to linguistic knowledge, treaty history, and more. Projects such as these seek to decolonize land by sharing historical authority with stakeholders and building Indigenous knowledge of places as a matter of history in the public interest.
Common to all these public-facing endeavors are the goals of recognition and inclusion of Indigenous people in conversations over the past, the present, and their implications for land. Crucial to decolonizing land is centering knowledges and stories from the past in order to shape the future.
Resources:
· American Philosophical Society’s Indigenous Community Research Fellowships
· Elizabeth Ellis, “Centering Sovereignty: How Standing Rock Changed the Conversation,” in Standing with Standing Rock: Voices from the #NoDAPL Movement eds. Jaskiran Dhillon and Nick Estes (2019)
· Doug Kiel, “Nation v. Municipality: Indigenous Land Recovery, Settler Resentment, and Taxation on the Oneida Reservation” (2019)
· John Maynard, The Aboriginal Soccer Tribe: A History of Aboriginal Involvement with the World Game (2011)
· Tembeka Ngcukaitobi, The Land Is Ours: South Africa’s First Black Lawyers and the birth of Constitutionalism (2018)
· Interactive Map of Land Cessions in Minnesota
· ‘Yuraki — History, Politics and Culture Node’ of the Australian Research Council-funded National Indigenous Research and Knowledges Network (NIRAKN)
· Honor the Earth (support for Native American environmental issues including #NoDAPL)
· DAPL Pipeline Facts (official website of DAPL)
· Guide to Land Acknowledgement
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Lori Wysong is a 2020–2021 Graduate History Fellow at the Lepage Center for History in the Public Interest.
