Modern Legal Landscape on Native Sovereignty and If America is on a Path to Reconciliation - Kat Lanzalotto
I want to analyze how the tempered settler contract in North America impacts contemporary legal decisions based on Native land and sovereignty and see if America is on the path towards reparations, which Pateman argues for. First, I will outline Pateman’s argument on the tempered settler contract. Then I want to contextualize the tempered settler contract and analyze its modern legal importance.
Pateman considers the right of husbandry alongside a lack of sovereignty to illustrate settlers’ justification for colonizing terra nullius, expropriating native land, and ruling over native people. I will briefly summarize the right of husbandry before more deeply analyzing ideas of sovereignty in North America. Pateman argues that settlers justified claims to terra nullius through the right of husbandry, the idea that land was unowned if it were populated yet uncultivated. These arguments about the rights of husbandry (which appear in conjectures about private property formation and the state of nature) claim that “Native territories are empty wastelands.”
While Pateman considers Locke and Grotius’ arguments which justify colonization and dispossession of native land via the right of husbandry, I want to focus more on ideas of sovereignty justifying territorial expansion. Locke, with his assertion that individuals have a natural right to property, faced two problems, according to Pateman, to justify European settlement in North America. He has to answer how communal property can become private property and how land can be appropriated without consent. Locke’s theory has answers to these questions. Patemen finds three notable points on Locke’s arguments on appropriation. Pateman outlines Locke’s conception of property, from the just appropriation of land, then the idea of appropriating commons, and his spoilage proviso. Her analysis concludes that by the mid-18th century, Locke’s arguments “culminated in a denial that Native peoples were owners at all” (Pateman 52).
The other justification for the dispossession of native land and settlement in the “New World” was that native people lacked sovereignty. Pateman cites Hobbes, who argues that many parts of America lacked government and only had small-scale governments in the form of families. Locke differs in that he recognizes that Native people had governments but asserts that “they exercise only ‘a very moderate sovereignty”’ (Pateman 53). Further, Locke asserts that during wartime, “‘Kings of the Indians in America”’ are merely army generals; in peacetime, no one is sovereign over society (Pateman 53-54). So, Native people have neither proper sovereignty nor a proper political government. Pateman uses Locke’s tenets of civil government being the proper political form to assert that with America representing terra nullius, without husbandry or sovereignty, New world settlers arrived in a state of nature. Pateman then separates the ideas of the state of nature and civil society as abstract ideas and a more concrete depiction of “a world that is in its first stage of history” (Pateman 54). The latter consideration of the state of nature implies that settlers must develop a terra nullius, a state of nature, into civil society. Pateman notes how Natives were considered unable to transform their lands because they lacked “all the attributes of civil conditions,” so settlers “ planted themselves in the New Worlds to establish their own civil societies and could do so because they were already civilized beings” (Pateman 55). Pateman asserts that a civil society that comes from an agreement to leave the state of nature constitutes an original contract. Yet, this differs in a terra nullius, where a settler contract replaces the original contract. As such, Native people are subject to a settler contract (“their lives, lands, and nations are recorded by it”) but they are not part of it (Pateman 56).
Relations between the British crown and Native tribes in the New World informed the tempered settler contract in the Americas. Pateman asserts that "Native people regarded themselves as nations" (Pateman 56). The British needed Natives as allies in their conflicts with France; as such, royal proclamations and treaties acknowledged Native sovereignty in North America. As colonists wanted to expand their territory westward into America's terra nullius, the British feared their alliance with Natives would be threatened. So, they proclaimed that land beyond the eastern mountains must remain uncultivated/disturbed by settlers. The British basis for their proclamation illustrates the legal understanding (which Johnson v. Macintosh affirmed) that only the British crown could buy land from Natives. But, the Americans did not like this settlement limit (they profited much from land speculation and expansion). So, the settlers declared that Native people were original land occupants and thus had the right to sell their land as they wish (not only limited to sale with the British monarchy). But, the colonists likewise did not want Native sovereignty to prevent them from expanding in the terra nullius. As such, the tempered settler contract emerges and holds that "any recognition of Native nations must be on the terms of the new imperium. Inside the territory of a modern state, there can only be one sovereign power" (Pateman 59). This means, Pateman explains, that the Natives had to resort to a new kind of rule since they lacked the power to dispose of their land as they pleased and '‘their rights to distinct sovereignty, as independent nations, were necessarily diminished" (Pateman 59). This new rule was realized in Worcester v. Georgia and Cherokee Nation v. Georgia, which decided that Native tribes are part of the American government and remain under its protection but (considering the law of nations), are still a self-governing group; Marshall designated Natives as America's wards. Pateman concludes, "In North America, the logic of the settler contract was tempered and in the United States the Native peoples had their own jurisdictions… within the bounds of their new state" (Pateman 61).
So, I now want to consider the implications of the United States reservation system and tempered settler contract in the contemporary legal space alongside reparations. In recent years, many consequential legal decisions on native sovereignty and territory have transpired. But, I want to focus on the 2020 US Supreme Court case McGirt v. Oklahoma. In this case, a Muscogee Nation member was convicted (by Oklahoma) of sex crimes against a child within the historical boundaries of his tribe. McGirt argued using the Major Crimes Act, legislation that would allow federal legal jurisdiction over trying certain crimes by Native people within Native territory. The jurisdiction of reservation systems that American settlers created for Native people through their tempered settler contract complicated the issue of Oklahoma trying McGirt for his crime. Although the Muscogee territory was never formally recognized as a reservation (with that specific language), because of an 1856 treaty that promised the Creek nation an unrestricted right to self-government within their reservation’s boundaries, McGirt argued that he should be tried under federal jurisdiction rather than by the state of Oklahoma. Since states need Congressional sanctions to dissolve a federal reservation, and Congress had no intent to dissolve the Creek territory, McGirt successfully argued that Oklahoma did not have the jurisdiction to try his crime. The Supreme Court reinforced the 19th century and recognized the land as a self-governing native territory over which Oklahoma has no control. While this case may seem unrelated to the tempered settler contract in America, without the Native reservation system and particularly developed concept of Native sovereignty developed through the settler contract, the case would be decided differently. Only because of the old agreements which granted Natives self-governance under the sovereign American system (based on a settler contract and considering the jurisdiction America gave to Native tribes) could McGirt object to his prosecution by the state.
The McGirt case was a massive victory for Native groups, and an arguable starting point for reparations and an example of America’s obligation, based in history, to acknowledge its wrong doings. Pateman argues that “the trust and mutual respect violated in the past should be reestablished” (Pateman 76). By respecting the treaties which stipulated Native self-government, America can start justly reconciling their settler contract’s impacts on Native people. In fact, under the McGirt decision and similar legal battles, 43% of Oklahoma was considered Native land (including Tulsa, Oklahoma, one of the state’s most populated cities) – a clear starting point for reconciliation.
And yet, the assumption that Native people and institutions are less capable than their American counterparts still emerges. Thus, Native people are continuously subjected to the sovereignty of state institutions. As important as McGirt was as a starting point to recognize Native land holdings and provide reparations to Native people, its decision was undercut in July of 2022. The state of Oklahoma claimed that the Creek territory legal system was undergoing a “criminal justice crisis” after McGirt (a fact which the tribes wholly dispute). The tribes in question claim in their amicus brief that the state, “Instead of supporting funding requests, engaging with Congress, or negotiating with the Nations, the Governor and his counsel tout litigation to circumvent and undermine McGirt as the State’s primary effort.” The OK governor publicly referred to the recognition of native land and McGirt decision as creating a “lawless state” in Oklahoma. And, in July 2022, the McGirt decision was undermined, and the court granted the state significant power over Native territory (the court, to dissenting Justice Gorsuch, ignored Congressional rules on tribal sovereignty and usurped tribal sovereignty).
America exemplifies the trend to maintain (or at least not acknowledge) the unjust, tempered settlers contract. Pateman argues in the final section of her Settler Contract that “A democratic state whose ‘beginning’ is the settler contract requires the creation of new political legitimacy, the building of new settlement with Native people” (Pateman 77). But, there is a trend in the United States which starts legally repairing past injustices against Native people only to reverse the apology and decision quickly. The courts deprive or diminish their land rights and sovereignty and continue to violate the treaties they joined into due to the settler contract. So, I ultimately agree with Pateman in wondering how exactly America can repudiate the settler contract and negotiate democratic settlement with Native people. More importantly, I doubt, considering America’s current legal landscape and recent set precedent, that the USA will delegitimize their tempered settler contract and begin a process of permanent reparations and reconciliation with Native people – at least no time soon.
Links to the McGirt case info and other non-Pateman sources:
https://www.oyez.org/cases/2019/18-9526
https://www.supremecourt.gov/opinions/21pdf/21-429_8o6a.pdf
Comments
Post a Comment