Rights? What rights?

Something indigenous people never get tired of hearing about is how we were conquered/defeated/never had rights.  I know I just can’t get enough of having this explained to me by loudmouthed bigots and helpful progressives both!  It leaves me with a warm fuzzy feeling in the depths of my liver when I learn about how generous the Canadian state is when it deigns to grant us any rights at all, despite the historical fact that we aren’t actually entitled to anything.

So it is with a heavy heart that I introduce the following information for your rejection.  I apologise profusely for bothering you with this, but there are some uppity natives and settlers both who insist on denying the patent and obvious truth of indigenous rightslessness.  I just thought you should hear the silly things they have been saying is all.

Don’t worry.  I will endeavour to provide you with iron-clad refutations to these ridiculous rights-based claims, and you will leave with all the ammunition you need to soldier on during those frustrating forum wars and comment-section skirmishes.

The Doctrine of Discovery and Terra Nullius are invalid justifications for gaining sovereignty.

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 natives and bleeding-heart settler academics contest this.

The Doctrine of Discovery is rooted in a 15th century Papal Bull called the Romanus pontifex, which pretty clearly explained that since there were a lot of 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!  Judge John Catron summed it up well in State v. Foreman, 16 Tenn. 256 (1835).  I suggest whipping this baby out when native 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.”

So we’re talking about a very old tradition, over 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 waaaaaaay back.  Besides, if we didn’t agree with the Papal Bull, we could have petitioned the Pope to change it or something.  I’m pretty sure that by not opposing it before the Europeans arrived, we agreed to it.

Terra Nullius is a latin term that basically means “land that belongs to no-one”.  The Doctrine of Discovery doesn’t need much support, but terra nullius does help to clarify the point a little.  Despite claims to the contrary*, aboriginal peoples didn’t believe in land ownership! But 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 not owned by anyone.  Ridiculous.  Sounds like that Canadian Calder case back in 1973:

“…the 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 don’t respect 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 terra nullius:

  • You should pedantically point out that the term terra nullius is of recent (early 20th century) origin.  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. 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.  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 will often buy you enough time to get out of Dodge before things get ugly.

Most importantly, don’t let it bother you too much.  The obvious fact that landing on the shores of this country gave Europeans the inherent 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.  Well, I mean a lot 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.

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!  Everyone has been conquered at some point by someone else! Okay so Europeans didn’t exactly approach what is now Canada and the US as conquerors, but smallpox killed way more natives than settlers and so it was sort of like conquering us, right?  Whatever, the point isn’t whether or not we were actually conquered or not.  The Doctrine of Conquest still totally applies and explains why indigenous peoples lost sovereignty over these lands, and the Europeans gained it!

There are all sorts of namby pamby rejection of such principles, but those only started in earnest in the 20th century, and Europeans conquered (okay not really but kind of) native people 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.

Other stuff about how native peoples still have rights.

It’s a pretty well recognised 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.

If you need any other arguments to support the erasing or outright denial of aboriginal rights, please read this source.  Just make sure to edit out the parts where these various justifications are rejected or refuted.

Another awesome tactic is to refer to the Treaties (don’t worry, you don’t actually have to know anything about them) and tell people that these agreements had indigenous people agree to give up all their lands forever for only $5 a year in compensation.  Haha, suckers!  Yeah there are all sorts of crazy interpretations of the Treaties out there, and there are a bunch of places in Canada where there were no Treaties, or Treaties which can’t really be interpreted as having given up land,  but the fundamental issue remains the same.  Which is um…oh, yeah!  No aboriginal rights!

Thanks for reading, folks…now go out there and vigorously deny indigenous rights any way you possibly can!

* Some of the refutations of the fact that aboriginal peoples never believed in owning property and therefore Europeans weren’t stealing anything can be found in such ridiculous decisions like: Delgamuukw v. B.C., [1997] 3 S.C.R. 1010; and Calder v. A.G. (B.C.), [1973] S.C.R. 313.  Be careful, indigenous radicals love to use the “Supreme Court of Canada Agrees With Us” card.  Also, some intellectuals  and aboriginal 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. 

About âpihtawikosisân

Métis from Lac Ste. Anne, Alberta. Currently living in Montreal, Quebec. Passions: education, Aboriginal law, the Cree language, and roller derby. Education: BEd, LLB, working on a BCL
This entry was posted in Aboriginal law, Injustice, Law and tagged , , , , , , , . Bookmark the permalink.

9 Responses to Rights? What rights?

  1. Thank the great Father above that you wrote this! For as long as I remember I would be making all these arguments for Aboriginal rights (you know… with my being Aboriginal and all) but I always felt in the pit of my stomach that I was full of shit. So now when ever I talk to somebody about those silly made up rights I can finally (!) tell myself to shut up and just go to McDonalds and get a quadruple BIg Mac.

    • Exactly! And don’t forget that equality requires that we have no rights, because being different is discrimination! Also, it’s in our best interests that we finally be completely assimilated, as this is the only option open if we truly want to escape the social ills that okay sure there are historical and contemporary reasons for, but whatever. Point is, we need to be like everyone else because this is inherently the best thing to be!

      *washes brain out with bleach*

  2. nokamis says:

    Brilliantly FUNNY!

    Thanks for the laughs!

  3. APG says:

    For serious? The name given to a written declaration of the Pope, including the oldest justification for colonization, is *bull*? I feel like the 15th century pope might be dropping us a hint that we shouldn’t take him too seriously.

    (p.s. As a white Canadian who went to public school and never learned a thing about Aboriginal issues until very recently, I want to join the chorus of praise for your work on this blog. Thank you for your clarity and patience.)

  4. Emo says:

    The court decision hidden under a hyperlink as “namby pamby” doesn’t relate to the subject of the conversation in a clear way (nor to the particular sentence you’re invoking it in)… but it was interesting to read it, and it raises a number of interesting points (that I assume you wanted to raise but didn’t have time to discuss in this posting).

    Really, the only thing I have to say is: the British Empire broke innumerable treaties, all over the world. They didn’t keep the treaty they signed (1815) with the King of Kandy, either –an example that you’d find strangely familiar, despite the exotic locale, if you had some free time to read the history of it. The more that First Nations know about the uncanny parallels to their own history that can be found around the world (and I do mean all the way around the world) the less isolated they may feel in facing down this legacy. The British Empire went everywhere, and ended up nowhere; it was bad in its motives, bad in its means, and bad in its outcomes.

    • I’ll take a look later on this morning to see if I put the right case up (and will provide a quick quote to situate it better:) ).

      • There:) I left the original link to the case itself, and then followed up with a case brief which explains how the Court specifically rejected the Doctrine of Conquest as having had terminated the Treaty of 1752. That whole resource is pretty cool actually.

  5. Renu says:

    Thank you for writing this blog. I have added a link to it on my website. I hope you don’t mind. Just want more people to read it.

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