Abstract
Using the theft of Indigenous land and territory and the destruction of Indigenous political authorities as an example, this paper examines two theories of territorial rights in relation to their treatment of historical territorial injustices. We apply Simmons’s historical theory of rights over territory, and the occupancy/self-determination theory of territorial rights associated with Moore and Stilz, to three problems: the Continuity Problem, the Particularity Problem, and the Distributive Justice Problem. We argue that the occupancy/self-determination theory is more promising for resolving all three, but that the historical title theory can also be modified to accommodate this insight.
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Notes
The mere passage of time does not designate an act of injustice as ‘historical’. We take historical injustices to refer to injustices that occurred in the past where the original victims and/or perpetrators are dead (multi-generational injustices); or, in the case of groups, injustices in the past, which have had an effect in the present, and where some proportion of the original victims and/or perpetrators are still alive. This would designate wrongdoing in the 1960s and 1970s as, to some extent historical, in cases where the injustice is against the group, and suggests a continuum along which injustices can be measured for their effects being primarily on original victims or primarily on descendants of original victims. This definition assumes that there is an important distinction between historic injustices and structural injustices. Although structural injustices were often committed at times in the past, these primarily concern the way in which standing institutions, policies, and practices affect or would affect persons, perhaps through structures of domination. An analysis of this would require a different paper.
The concern here is with permanent or long-standing taking of territory, either through annexation or the settlement of a favoured group that reproduces their culture and political system on a territory previously occupied by another group. This clarification rules out territorial incursions into an area, perhaps in an unjust war, such as the U.S.-led 2003 invasion of Iraq which was arguably unjust and affected a territory (in the sense that the war was within the territory of Iraq), but which did not involve settlement or annexation. Its primary aim seems to have been regime change.
While this paper considers historic territorial injustice in the context of Indigenous peoples, the features of these cases are similar to historical territorial injustice more broadly, e.g., cases where a people’s control over territory is limited for multiple generations by annexation or settlement, and our argument should apply there as well.
These passages are drawn from the chapter of his book directly concerned with historical entitlement arguments, rather than claims about disgorging the benefits. Also, to be fair, although Butt does not discuss unjust territorial acquisitions directly as part of a theory of reparative justice, he can address it insofar as unjust territorial acquisition has given rise to present-day advantage and disadvantage. There, he does accept the conclusion that we think is politically unpalatable in modern settler societies. See Butt, ‘Settling Claims of Reparations’ (2022).
Daniel Butt’s disgorge-the-benefit-in-compensation view has a complicated argument for measuring benefit. The baseline that he adopts is not a state of nature (no contact) but a moralized one, which measures ‘benefit’ in relation to just interaction. It seems likely that it would still result in a monumental transfer of land and resources to Indigenous people, which perhaps would be unpalatable to his readers who are overwhelmingly of settler-origin and settler societies. It is also distinct from Goodin’s view that unjust enrichment should be disgorged because Butt emphasizes that it is done in compensation.
Alfred’s view is not without warrant. The commitment of the Canadian state to genuine rectification remains ambiguous despite increasing recognition of Indigenous land rights by the Canadian courts. For example, the precedent-setting 1973 Calder decision recognized the existence of common law rights of Aboriginal title that flow from historic occupation of land by Indigenous groups, and which persist into the present unless extinguished by treaty or specific legislation. Although the Court was split on whether title had been extinguished in the particular case at trial, the judgment led to uncertainty about the legal status of many holdings, especially those where there had never been an historic treaty. While subsequent cases have further clarified the concept of Aboriginal title, serious questions remain about the legitimacy of the current political procedures for concretely negotiating Indigenous land and self-government rights, leading some scholars to conclude that present-day colonialism operates through state-driven procedures of rights ‘accommodation’ (Tully 2008), and/or state-dominated practices of ‘recognition’ (Coulthard 2014). While the progressive recognition of Aboriginal (title) rights within the common law has given Indigenous peoples a legal mechanism for asserting rights to their traditional territories, including land title rights, in practice many of these rights, and inherent self-government rights generally, remain undefined until they are negotiated politically with the state. Thus, since the first in 1975, the Canadian state has ratified dozens of modern treaties with Indigenous peoples that never signed historic treaties through the modern ‘comprehensive land claims procedure’. However, it is plausible that these agreements—which in principle could function to rectify illegitimate distributions of territorial rights between settler and Indigenous peoples—are as Alfred (2001) says, negotiated under conditions of asymmetrical political and economic power and may render Indigenous territorial holdings contingent upon the discretion of the politically dominant (settler) group. Accordingly, our paper investigates the requirements of corrective justice for historic territorial injustices. While this does not directly address the potential for domination in negotiations, it addresses important requirements of corrective justice, including inter-group fairness in territorial holdings, that any justifiable procedure ought to reliably track.
We are specifying this case to distinguish it from another kind of unjust historical territorial injustice case, which has the complicating feature that the taking of territory occurred by treaty. This requires a separate exposition, which analyses when obligations to abide by the terms of treaties no longer apply, which in turn requires an analysis of the unfairness of the terms or the procedure. We do not attempt to do that work here.
One might argue, however, that there are structural and/or cultural reasons to explain this disproportionality.
Thanks to Avery Kolers for this example, which he once posed to Margaret Moore at a conference.
This does not of course mean that there are not questions about (i) who counts as Indigenous, in particular since there are different membership rules in different communities, or (ii) who can legitimately speak for or represent an Indigenous group. We are setting these aside as problems as they do not relate specifically to historic injustice arguments. They must be addressed in any (current or present-ist) Indigenous claim.
There is, though, a question of whether Simmons’s argument here would need to be supplemented by an additional consent story between individual Indigenous property-holders and Indigenous political authorities, to explain how these Indigenous collective agents are holders of collective property rights in the first place.
This possible reply to the Mercian case sits in tension with Simmons’s characterization of the descendants of original victims of historical territorial injustices as (1) the ‘children’ or ‘offspring’ of original victims with rights to inheritance against their parents, who (2) need not be disadvantaged vis-à-vis comparators in contemporary society for the injustice to be relevant to the state’s territorial legitimacy. This account seems consistent with his property view on the supposition that we can make assumptions about inheritance of property along genetic lines in most cases. However, our point, following Stilz, is that this characterization of normatively relevant ‘descendants' leads to implausible results in some cases of historical territorial injustices, such as the Mercians, where we do not think that the legitimacy of the state is compromised. From our perspective, solely genetic descendants, or a group of genetically related people, may not be politically mobilized, share a political identity, or be in any way committed to, capable of, or interested in exercising territorial jurisdiction. Thus, they are not the right kind of agent to exercise territorial rights and cannot demand territorial restitution. However, even if Simmons wished to maintain a purely genetic theory of descendants in light of these worries (which it is not certain he would, considering the above, and his treatment of Indigenous claims in terms of the claims of collectives or Native American nations such as ‘the Navajo' against the state), he would still have to address the fairness concerns with his theory.
One problem with the response ascribed to Simmons is that it invites him to explain how the current state would be territorially legitimate. It does not seem to have been transferred by the earlier people through consent. Do we regard such land as in some way commonly owned, and so subject to original acquisition?
This is not meant to imply that any group that resides or occupies a place is an occupancy group in the relevant sense. In Moore (2015), the criteria for counting as an occupancy group—shared history, aspirations for self-determination, and relations and identification with others and with the place—applies only to certain kinds of groups, among them Indigenous peoples. There are, however, some attachments and relationships that are connected to living (with others) in a place, which also have moral force, as we argue below.
We are not attributing this view to Indigenous peoples who seek the restitution of their territory (jurisdictional authority and resource rights). It is intended to illustrate the moral force of present occupancy.
Another interpretive difficulty is that Simmons's view oscillates between two conceptions of historic Indigenous land rights in the present. On the first, many of them are infringed or overridden by the urgent needs of settlers (thus the discussion of them in terms of an ‘emergency’). On the overridden view, the rights do not disappear and get replaced even with the coming of many newcomers. The original groups retain rights to the land unless they consent—they may be overridden, but not lost through settler need. On the second view, many historic entitlements to land have been consensually downsized or are in the range of particularized mandatory downsizing options. Here, the injustice of settlement relates to the terms of the consent. Think here of Indigenous peoples who have signed treaties with incoming settlers, treaties that were deeply unfair and whose terms were structured by power relations. It is not clear whether consent to downsizing in that case has any moral force. Or, alternatively, suppose we think that original unceded holdings ought to be subject to mandatory downsizing, because incoming settlers have a claim to some portion of land (on Earth). This suggests that the original group’s rights persist somewhere in the historic territory, but that they lose rights to some parts of their original territory. They are not merely overridden but are lost. In this case, there is a further question as to whether the incoming group can simply insist on rights there rather than other places on Earth—that is whether there is not a fairness requirement which should be applied to those who have a duty to accept mandatory downsizing. If the As have nowhere to go, and have universal rights (to self-determination, to resources, to live somewhere), then it seems that it is not just the Bs who have to downsize their holdings to make room for them, but other groups as well, out of a concern for fairness. For a more extensive discussion, see Luoma 2023.
As discussed above, it may be that there are tragic limit cases of historical territorial injustice where the restitution of territorial rights is no longer possible due to the total or near total elimination of the group and their capacity to maintain a political system for making and/or enforcing law on the territory. In yet other cases, it may be possible to enable a group to exercise some jurisdictional rights, but not all. While this discussion of the sociological requirements (e.g., the numbers, willingness, and capacity of persons) for territorial self-rule is entirely lacking in Simmons, it is plausibly necessary for a theory of historical territorial injustice.
It also raises the question of whether an inter-generational community is entitled to keep more than they need at the time, to accommodate population growth or changes in preferences.
We say ‘many’ because cultural objects are also non-fungible.
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Acknowledgements
We would like to thank audiences at the Conference on Past and Future Justice (IFILNOVA, Instituto de Filosofia da Nova, Lisbon, Portugal, 30 May, 2023) and the Political Philosophy Reading Group at Queen’s University (Kingston, Canada, 6 February, 2023) for their helpful questions and comments on earlier drafts of the paper.
Funding
Funding was provided by the Social Sciences and Humanities Research Council of Canada (SSHRCC), Grant No. 341611.
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Luoma, M., Moore, M. Rectifying Historical Territorial Injustices. Res Publica (2024). https://doi.org/10.1007/s11158-024-09660-4
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DOI: https://doi.org/10.1007/s11158-024-09660-4