Elizabeth Cassell’s The Terms of our Surrender: Colonialism, Dispossession and the Resistance of the Innu is a powerful, lucid exposition of relations among Indigenous peoples and states. She elucidates “euro-centric” concepts (e.g.: ‘wardship,’ ‘trust,’ ‘fiduciary,’ ‘public interest’) and legal processes that manipulate these concepts to undermine Indigenous existence. She illuminates the wide gap between colonialist and Indigenous worldviews, especially as to human-land relations (e.g.: not only to ‘own’ land but to ‘belong to’ land; to see nature as ‘other life forms’ rather than ‘resources’).
Her trenchant critique of arguments that rely on old notions of social hierarchies to declare the “rightness” of Crown claims of superiority —“barbarism, savagery, and civilization”— [Chapter 19, “Academic Solutions”] was written before the very recent publication of The Dawn of Everything [David Graeber and David Wengrow, November 2021]. That work, a compilation of the latest archaeological and anthropological evidence about ancient Indigenous societies, fully supports her critique, demonstrating the scientific untenability of the view of Indigenous societies as “lower” in complexity than European societies. As they put it, “To begin making sense of the new information [about the history of human societies] that’s now before our eyes, … a conceptual shift is…required.” [5] Cassell’s writing moves in that direction.
I want to take this occasion to explore a key element in her book: The argument that the Royal Proclamation of 1763 provides significant leverage for Indigenous peoples in legal contests with the Crown. It seems to me that unresolved ambiguity (which she acknowledges) about the meaning of the Proclamation undermines this argument. Cassell stresses throughout her work the availability of other arguments based on clearly Indigenous grounds—especially land ownership by prior possession from time immemorial.
To explicate the ambiguity:
In one formulation (repeated in various phrasing throughout the book), the Proclamation is described as a document “to establish the Crown’s supremacy over its North American territories” [96] and “for the benefit of the Crown in order that all settlers took their title to land from the Crown.” [323] This formulation closely tracks the text of the document, which opens by referring to “extensive and valuable Acquisitions in America, secured to our Crown” and declares that “Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.” [Appendix A] One sees here the underlying claim of domination over the land, accompanied by a promise (on the ‘honor’ of the Crown) to do right by the Indigenous peoples who have been prerogatively transformed from owners into somewhat privileged tenants.
Another formulation presents the “undertaking” in the Proclamation as having been “recorded both in the Treaty of Niagara of 1764 and in the wampum belts” that were exchanged contemporaneously with that Treaty. The wampum belts are said to “embody the indigenous understanding of the terms of this Treaty – that settlers and indigenous peoples should live side by side, following parallel paths which preserve their respective cultures, joined in mutual respect, peace and friendship.” [4] That Indigenous understanding is not coherent with a claim of Crown superiority. Hence the ambiguity of meaning.
The author directly addresses the ambiguity with specific attention to the crucial phrase in the Proclamation, “reserve under our Sovereignty, Protection and Dominion, for the use of the said Indians.” She cites John Borrows, who “notes the ambiguity of the wording, which ostensibly affords the indigenous people the protection of their way of life as indicated by the wampum belts and at the same time affords a mechanism through which indigenous lands could be acquired.” [100] Cassell adds, “‘For the use of’ is … the form of wording used in the numbered treaties to establish the Crown’s fee-simple title over indigenous lands.” Moreover, she says, “words such as ‘sovereignty’ and ‘dominion’ were inserted into the Royal Proclamation without the consent of the indigenous peoples.” These points all undermine the utility of the Proclamation as a basis for arguing Indigenous land rights.
It is precisely the fact that similarly ambiguous documents and argument are major themes in Indigenous rights litigation in all the former British colonies that makes them important to examine closely. I understand the difficulties of arguing against dominant doctrines in the courts of the dominator; but if we shy away from challenging these doctrines (and especially if we kowtow to the doctrines, as so many litigants at least in the US do, opening their briefs with formulaic deference to US claims of authority), fundamental Indigenous positions and worldviews will remain hidden and unargued.
To elaborate:
The notion of a “fiduciary duty” to “protect” Indigenous interests, however ambiguous, is a major theme of legal argumentation in the US as well as Canada. The Royal Proclamation does not apply to the US, but parallel documents occupy the role of rhetorically promising government “protection.” These include the 1787 Northwest Ordinance passed by the US Congress (“The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent”) and the texts of the three foundational US Supreme Court decisions authored by Chief Justice John Marshall (Johnson v. McIntosh [1823] (“It has never been contended, that the Indian title amounted to nothing.”); Cherokee Nation v. Georgia [1831] (“Indians… relations to the United States resemble that of a ward to his guardian.”); Worcester v. Georgia [1832] (the US “right of acquiring the soil… could not affect the rights of those already in possession…as aboriginal occupants.”). The rhetoric in these documents (in Marshall’s opinions, all clearly dicta) echoes the “protection” language and “honor” concepts embedded in the Proclamation. But, like the Proclamation, the US documents rest on the major premise of a claim of colonial “sovereignty” and “land title.”
The “protective” fiduciary relation is explained as “no indigenous land could be purchased or taken in any way other than through the British Crown.” [4] In the US, this is usually referred to as a “right of preemption,” the “exclusive power of acquiring” Native land. The Marshall trilogy is typically cited in support.
We need only a bit of economic theory to unpack what this means. It is what economists call “monopsony.” The Oxford English Dictionary defines monopsony as a market in which a single buyer controls trade. This is precisely what the “exclusive power of acquiring” creates. Eric Kades [Law and History Review 19, no. 1 (Spring 2001)] described it “as a means of expropriating Indian land at minimal cost. Just as sellers can charge more when they are monopolists without competitors, so too buyers can pay less when they are monopsonists without competing bidders.” James Warren Springer [American Journal of Legal History 30, no. 1 (January 1986)] didn’t use the technical term “monopsony,” but came to the same conclusion: “It is a reasonable generalization to say that land purchases from Indians were a governmental monopoly.” Stuart Banner [Law & Society Review 34, no. 1 (2000)] studied the monopsony condition in New Zealand, where Johnson v. McIntosh was copied as the rule for dealing with Maori lands. Banner said, “Economic theory predicts that the government would realize a tidy profit in these roles, and in fact such was the case. By 1844, the government had paid slightly more than £4,000 for land, but had realized over £40,000 in land sales.” Banner said the doctrine “was defended primarily on paternalistic grounds …[that] Government was needed as a mediator between greedy buyers and easily duped sellers…. The argument contained a great deal of hypocrisy… as was frequently noted at the time. … All the problems the Maori had in negotiating with private purchasers — the inability to predict future prices, the failure to understand what the British meant by a sale, and so on — were accentuated when the Maori sold to the government, because the government faced no competition that might have pushed prices higher….”
Economic analysis demolishes any notion that Crown or US domination of Native land transactions “protects” Natives. Quite the contrary. Arguments relying on such ambiguous, double-dealing documents and precedents place Indigenous peoples in a precarious position. Cassell’s book provides food for further fruitful discussion of this dilemma.
Elizabeth Cassell has provided an important, well-researched, persuasively argued book. I look forward to discussing with her the possibilities for and implications of moving beyond the ambiguous, self-serving documents of state claims of domination over Indigenous lands and peoples. I will soon offer my own book, Federal Anti-Indian Law – Entrapment of Indigenous Peoples (forthcoming 2022), to develop the comments I have made here.