In initiating this narrative I call attention to the work of Niall Ferguson as a point of contrast and comparison. Ferguson has attracted a good deal of attention as a pundit who draws ingeniously on his historical analysis in order to contribute to the increasingly intense contemporary debate on the appropriate role of law, military force, the United Nations and the United States in the making of world order. In this debate he has championed the idea that the citizens and government of the United States should remake their informal empire into a more formal construction. He wants to see the United States and its military forces assert more consistently and more systematically the global benefits of law, order and transnational capitalism in ways that come closer to the imperial techniques of Great Britain before the sun finally set on its empire after the Second World War. (7)
Ferguson is one of those rare historians who has been able to make a small rupture in the thick wall of alienation separating most of the public and the media from any sense of self-conscious engagement in how our perceptions of the past shape the present and the future. In calling attention to both the continuities and inconsistencies characterizing the global roles of the current superpower and its British imperial parent, Ferguson has performed an especially timely and important public service. As I see it, however, there are big lapses in the quality of his analysis linking the British Empire to the less formal empire of the United States. In failing to notice the importance in the era of the American Revolution of the more specific dispute over the treatment of Indigenous peoples, Ferguson replicates a rather pervasive and entrenched oversight in much of the historiography describing the USA's emergence from the British Empire.
The course of this seminal dispute over the status to be afforded the lives, the Aboriginal lands, and indigenous political institutions of the Native peoples in North America would cast a long shadow over the extension of American power to continental, hemispheric and global dimensions. Thus there were a number of broad and long-lasting implications that would flow from the pre-revolutionary conflict among non-Indians in British North America over what is today referred to in section 35 of Canada's Constitution Act, 1982, as Aboriginal and treaty rights. (8)
As I see it, this reference to Aboriginal and treaty rights in the document that brought an end to Great Britain's active control over Canada's constitution forms the basis of a juridical code with broad applications. The juridical principles
of Aboriginal and treaty rights touch on the domestic law and politics of many countries. They also touch on the genesis of various forms of international law, codes which some would like to see elevated to higher status in the ways
the world's citizenry is governed. The phrase, for instance, has particular relevance for all Commonwealth countries including Great Britain, for India, for Indonesia, for northern Scandanavia, and for all African nations south of the Sahara, including South Africa. Similarly, the phrase has relevance to several important elements of the legal and political circumstances animating the United States and all of so-called Latin America. While all of the nation-states in the Western Hemisphere, except that of Canada, emerged from rebellions by colonial populations against the law-making authority of their imperial governors, the polities which emerged from these Creole revolutions retained many of the territorial configurations as well as many of the legal and cultural elements derived from the imperial heritage of the European mother countries. Issues pertaining to the pre and post-revolutionary existence of Aboriginal rights, which were frequently recognized through treaties in the process of obtaining from Indigenous peoples what Dorothy Jones has described as a "license for empire, form a particularly rich subject in the study of the genesis of sovereignty in the so-called New World. (9)
Accordingly, the brief phrase, Aboriginal and treaty rights, introduces a new expression to identify a number of old ideas and issues whose central themes continue to converge in unfinished cycles of colonization and decolonization. These cycles of oppression and resistance were in no way terminated or severed by the dismantling of most European empires after the Second World War. Since the demise of Europe's formal empires, however, it is agencies such as the World Bank, the International Monetary Fund, global corporations and the US military which seem in the eyes of many to carry forward the contemporary outgrowths of the imperial heritage that Kipling once labelled as the White Man's Burden. All of these modern-day institutions project forward into the twenty-first century the balance sheets of assets and liabilities derived from an era when more classical exercises of imperialism formed the primary basis of world order. They carry forward the balance sheets of credit and debt that were first calculated and apportioned in a time when the trans-Atlantic slave trade and the dispossession of Indigenous peoples on a global scale formed a vital element in separating winners from the losers in the early genesis of capitalism.
Many of the unfinished cycles of colonization and decolonization are expressed in the awkward fit between around 200 nation states and around 6,000 distinct language communities, the vast majority of which are Aboriginally-rooted and locally-based. All of the cultural diversity boiling in this tumultuous cauldron of human organization is currently being blended into an increasingly uniform strain of monocultural commercialization, a single, all-embracing regime of economic relationships which can be described as global capitalism. Given the current importance of the United States as the primary symbol, heartland and enforcer of this increasingly integrated and uniform regime of global economic relations, I maintain that the study of the treatment of the rights and titles of Indigenous peoples in North America in the era of the Declaration of Independence has much light to shed on a number of the tensions and dilemmas facing humanity as we enter the twenty-first century. I argue, for instance, that the treatment afforded Aboriginal and treaty rights in the era of the founding of the United States helps explain the rather concerted antagonism on the part of the US government to any initiative that would see the world's superpower subjected to the authority of any agency embodying a jurisdictional claim higher than itself. This phenomenon was dramatically illustrated in the lead-up, against massive transnational protests, to the US-led attack on Iraq. In pushing ahead with militarized "regime change" the government of President George W. Bush, along with that of Tony Blair in Great Britain, refused to adhere to the authority of the UN Security Council, the sole agency on earth afforded the international mandate to authorize legal warfare.
In the aftermath of the military occupation of their territory the inhabitants of occupied Iraq found themselves in a position of legal and political uncertainty that bares some comparison with the constitutional twilight zone that engulfed Indigenous peoples in North America once they and their Aboriginal lands became subject to the control of the United States. Accordingly, in looking for precedents to help clarify the legal and political position of the diverse peoples of
occupied Iraq, one could do worse than to look at the treatment afforded by the US government to Indigenous peoples whose Aboriginal lands and resources provided the initial great prize for making the revolutionary break with the imperial proprietorship once claimed by Great Britain throughout much of the North American.
A glance in this direction suggests the basis for a number of questions arising from the occupation of Iraq by the United States and Great Britain. Did, for instance, the US government perceive that it was extinguishing the ancestral
title-- the Aboriginal title-- of the peoples of Iraq in the course of the military takeover of their ancestral lands? How was the legal title to the country, but particularly to its oil resources, affected in the process of the US-led attack and occupation? Will the doctrine of conquest eventually be cited in explaining the imperative of the occupying power in playing a decisive role in determining who can or cannot represent the Iraqi people in their treaty-making relations with the outside world? Will the doctrine of conquest be cited in justifying the role of the US government in deciding the eligibility of companies seeking contracts for the extraction and export of Iraqi oil? (10)
Uncertainties such as these form only the tip of the iceberg of repressed juridical questions in an era when most of the pretences and pretensions of international law have been thoroughly overwhelmed by the pre-eminence of a single superpower that has acquired such massive influence in establishing the pecking order of global power relations linking nationalities, peoples, corporations, individuals, and governments. The process of US expansion into Indian Country established many of the original precedents and underlying assumptions on which the hierarchical pecking order of the informal American empire continues to be based, even as the frontiers of American power are extended further into those extensive portions of the planet dominated by Arab-speaking people and by the religion of Islam. The Palestinians and the Kurds come to mind, for instance, as groups whose treatment in the informal American empire is most likely to remain more like that historically afforded to Aboriginal groups within the United States than to Japan and the countries of Western Europe over the course of the process which saw their rebuilding and reconstitution after the Second World War.
In the hectic days leading to the public release of the Declaration of Independence on July 4, 1776, virtually all the passages dealing with the role of the British parliament were removed from the text. The revolutionary protagonists in
British North America remained hopeful, it seems, that they would be able to maintain the friendship of some of the Whig elements in the British government. They thus had good reason to skirt many of the complex constitutional issues that might transform potential allies in the mother country into foes. Besides, it was far more manageable from a propaganda point of view to personalize the looming conflict as one directed at the alleged ruthlessness of a single, power-hungry tyrant.
This demonization of individuals to simplify and personalize the reasons for going to war, it seems to me, has remained integral to the psychology of American militarism ever since. The most recent example of this phenomenon lies in the
way US officials and their media acolytes have exploited the elaborate demonology constructed around Osama bin Laden and Saddam Hussein. This demonology has helped officialdom evade any serious grappling with the ideological complexities of a global War on Terror led by a country born of the violent overthrow of a duly constituted authority. In the aftermath of the tragic events of September 11, 2001, it was made to seem as if constant repetition and linkage of the names of bin Laden and Hussein was a mantra of sufficient magical force to replace the need for some systematic public reckoning with the continuing cycles of global colonialism.
Colonialism's continuing cycles, as epitomized by the installation and maintenance of local puppet regimes to oversee US-based oil and gas interests in parts of Latin America, Western Africa, Indonesia, and the Middle East, form key elements in the dynamics of the ever-widening polarities of global inequality, a phenomenon that some have characterized as global apartheid. (11) Any hint that a more just distribution of economic and political power might constitute the most potent antidote for the kind of ruthless attacks that took place on the Pentagon and the World Trade Centre has been quickly brushed aside by the American government in theonslaught of machismo jingoism permeating the so-called War on Terror.
In 1776 it was the alleged abuses of King George III that were presented to world by the founders of the United States as the primary justification for taking up arms against the duly established authority vested in the imperial government
of British North America. King George, the founders of the United States charged, "has plundered our seas, ravaged our coasts burnt our towns and destroyed the lives of our people." The British monarch, they alleged, "has obstructed the administration of Justice.. erected a multitude of new offices... [and] kept among us in times of peace standing armies."
There were many distortions and misrepresentations involved in making the King rather than the British parliament the supreme enemy of those who sought to found the United States of America through an act of violent revolution. King George, for instance, was condemned personally for the terms of the Quebec Act of 1774. As its name implies, the Quebec Act was not a royal proclamation but rather legislation of the British parliament. Among its many provisions, the Quebec Act enabled Roman Catholics to hold public office and to retain their more collectivist forms of land tenure in the seigneuries that took form along the St. Lawrence River in the era of New France. It also extended the boundaries of the province of Quebec to reincorporate much of the old fur-trade hinterland of Montreal, or, in other words, Canada. For this parliamentary extension of widened jurisdictions and religious toleration to the citizens and government of Quebec, King George was charged in the final version of the Declaration of Independence with "abolishing the free system of english laws in a neighboring province, establishing therein arbitrary government and enlarging its boundaries, so as to render it at once an example and fit instrument for introducing the same absolute rule into these colonies."
Virtually all of the territory added to Quebec in the Quebec Act was land which had been seized by the British imperial government from the French imperial government in the course of the Seven Years War. The transformation of the constitutional status of much of the former New France into Quebec in 1774 added another element of controversy to a process which began in 1763. In October of that year King George had "reserved" in a Royal Proclamation a vast region in North America's interior for the Indians "as their Hunting Grounds." Attending the British monarch's designation of the largest part of a vastly expanded British North America as an Indian reserve, and implicitly as a fur-trade hinterland of the newly-conquered metropolis of Montreal, was the proviso that no private person could purchase lands directly from the Indians. The authority to purchase the Aboriginal title from "the several Nations or Tribes of Indians" with whom the monarch claimed a direct "connection" was made the exclusive imperative of the King and his royal heirs. "If at any Time any of the said Indians should be inclined to dispose of the said Lands," proclaimed the King George using the royal we, "the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for the Purpose." (12)
In signing into law this one document, King George moved to set the imperial government, and, indeed, his own person as the embodiment of sovereign authority in the British Empire, in a place of immense power in North America. With the advice of Tory advisors, including Sir William Johnson, the founding Superintendent of the Northern Division of the British Imperial Indian Department, the King established himself as the principal authority in charge of regulating the pace and form of the westward expansion of the Anglo-American settlements. As the sole agent capable of purchasing Aboriginal title from Indigenous peoples, King George invested in himself and his royal heirs the exclusive capacity to pass new districts from the shared control of Indians and the imperial government to the ownership of British subjects and to the jurisdiction of the local legislatures. In making this power grab the King took advantage of a feature of British imperial law which enabled the monarch to forego on a one-time basis the principle of parliamentary supremacy. At the moment when the imperial sovereignty of the British Crown was being first formalized throughout a newly-obtained realm of the British Empire, the largely unwritten British constitution enabled the monarch to act unilaterally in setting in place the framework of local governance.
In the aftermath of the formal peace treaty with the government of France, King George III established the framework of Crown sovereignty in an expanded British North America by adding and outlining the new jurisdictions of East Florida, West Florida, and Quebec. The Royal Proclamation of 1763 also set in place a new regime for the British governance of the sugar colony of Grenada. The largest and most novel form of jurisdiction created by King George, however, was the Indian Hunting Ground established in the watershed of the Great Lakes Lakes and in the eastern half of the Mississippi Valley. Among the outcomes was the imperial government's imposition of a fixed boundary to limit the western expansion of the Anglo-American colonies. That border ran along the height of land linking the peaks of the Appalachain Mountains. The symbolism of this imposition seemed to indicate that the British imperial government had taken over from the French imperial government in allying itself with the Indigenous peoples in the continent's interior and with the mercantile interests of the Montreal fur trade. King George and his Tory patronage network had seemingly moved into the vacuum of power that the French sovereign had abandoned in Canada, depriving the Anglo-American colonists of the territorial spoils which many of them considered their rightful dessert for having emerged victorious from the Seven years War. (13)
While the Declaration of Independence made specific reference to the Quebec Act of 1774, that legislative instrument only advanced and entrenched patterns of imperial governance that originated in the Royal Proclamation of 1763. The
Royal Proclamation of 1763 was hugely influential in creating and widening the split among competing camps of British imperialists that eventually exploded onto the stage of world history in the form of the American Revolution. The idea of using British imperial forces to defend Indians and French-Canadian fur traders from the territorial acquisitions sought by land speculators and Anglo-American pioneer farmers seemed truly intolerable in many circles. The plan to tax the Anglo-American colonies to pay the costs of an imperial military establishment, whose function was to block Anglo-American expansion into Indian Country, upped the ante of antagonism on the road to civil war. (14) To Jefferson and those who rallied to the anti-monarchical cause outlined in the Declaration of Independence, this imperial scheme seemed nothing less than a violation of natural law and a betrayal of common sense.
It is the Royal Proclamation of 1763 and the political events it helped set in motion that led to the final provision in the Declaration of Independence's list detailing King George's alleged crimes, infringements and misdemeanours. That provision, which remained in tact with one small revision from the first to the final draft of the world's most famous and consequential political manifesto, alleged that King George "has endeavoured to bring on the inhabitants of our frontiers the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes, and conditions." In the process of revision the three-word phrase, "conditions of existence," was shortened. The words, "of existence," were removed to leave only "conditions." (15)
Francis Jennings has observed that the removal by Congress of Jefferson's lengthy reference to slavery in an early draft of the Declaration of Independence saved the document from becoming "the laughingstock of Europe."(16) Significantly, however, the inconsistency between a Declaration which, on the one hand, proclaimed that "all men are created equal," even as it grouped all Indigenous peoples in North America as "merciless Indian savages," has escaped much public notice from 1776 until the present day. The provision amounts to a seminal instance of racial profiling that clearly excludes an entire category of humanity from the embrace of the universal laws and liberties cited as the very reason for bringing the United States of America into existence. This excluded category of humanity is branded as being so prone to unpredictable anarchism that it members can be counted on to commit frequent acts of arbitrary violence against "all ages, sexes and conditions." This imagined attribute led the founders to exclude Indian people from those thought to possess "certain inalienable rights," including those of "life, liberty, and the pursuit of happiness." Indeed, to the authors of the Declaration of Independence, it was apparently inconceivable that Indians, all of whom they grouped together as "merciless savages," could possess even the natural right of self-defence to protect themselves, their families, their nations and their Aboriginal lands against violent or even lethal encroachment.
This provision in the Declaration of Independence, it seems to me, might well be conceived as one of the primary sources setting basic orientations and precedents whose trajectory through American history has helped to inform the philosophy and methodology permeating the present War on Terror. The champions and protagonists of this unorthodox campaign regularly proclaim their assumed right to suspend the normal principles of the rule of law, including those of due process, in favour of the unilateral imperative to conduct "pre-emptive strikes." Within this framework there are no set procedures, no rules of evidence, to determine who is terrorist or who might become one. Much as the authors of the Declaration of Independence decided that they could unilaterally exclude from universal rights and liberties those many Aboriginal groups situated along "the road to happiness and glory" that the United States would "climb" in its journey from a republic, to transcontinental nation, to a global superpower, so the determination of guilt or innocence in the War on Terror has been left pretty much to the arbitrary determination of the US government and its client regimes. This approach repeats in a different context many of the patterns carried forward in the Cold War, when the US government was left pretty much unaccountable in making decisions to direct overt or covert attacks at virtually any individual, organization, school, party or government deemed inhospitable to, or unsupportive of, the transnational operations of US-based enterprise.
Prominent among the modern-day descendants of the "merciless Indian savages" referred to in the Declaration of Independence are the "detainees" presently jailed in the US military base at Guantanimo Bay in Cuba. Like scores of Indian people imprisoned, and sometimes executed, in the course of the many dozens of undeclared Indian wars that marked the westward expansion of the United States, the Guantanimo Bay detainees lie caged within the strange legal and physical constructions of the so-called War on Terror. They are unable to gain access to either the protections vested in the domestic criminal law of the United States or in the international law of international warfare.
New World Creoles versus Old World Imperialists and Aboriginal
Like the Quebec Act, the Royal Proclamation of 1763 had among its objectives the goal of reconciling former enemies of the British government in North America to live within the imperial sphere of its influence and protection. Both instruments had this affect. The ironic outcome was that the British Empire retained the two main constituent parts of French-Aboriginal Canada even as it lost the allegiance of the largest block of English-speaking Protestants in British North America. The role of French Canadians and of most Indigenous peoples as friends and allies of the British Crown in the era of the American Revolution resulted in the maintenance of northern portion of British North America as a domain of imperial sovereignty. The maintenance of this diminished base of Crown sovereignty in North America provided a place of refuge to which many of the United Empire Loyalists, including a number of former slaves, fled from the thirteen rebellious colonies once these polities were reconstituted to form the original United States.
The spirit and intent of the Quebec Act lives on in the form of Canada's policies of official bilingualism. Similarly, the Royal Proclamation of 1763 established patterns and precedents of Crown negotiations with Indigenous peoples. These
cycles of negotiation were renewed in 1982 when Canada's constitution was patriated with a provision recognizing and affirming the existence of Aboriginal and treaty rights. (17) The rights invested in the principles of Aboriginal title
continue to be recognized in the negotiation of modern-day treaties with Indigenous peoples, most recently in the process leading to the establishment in 1999 of Nunavut in the eastern Arctic and to the entrenchment in British Columbia in 2001 of a regime of Nisga'a self-governance on an elaborately-outlined basis of Nisga'a land and jurisdiction. (18)
As is most evident in the sometimes intense controversies surrounding the ongoing negotiation of about fifty modern-day treaties in British Columbia,(19) Canadians continue to grapple in the twenty-first century with the political implications of coming to terms with King George's stipulation that non-Aboriginal privatization and exploitation of Aboriginal lands should not be pressed forward without some accommodation of the principles of Aboriginal and treaty rights.
In the British North America of 1776, however, the Royal Proclamation of 1763 came to embody the essence of much of what the would-be founders of the United States said they wanted to change by breaking free from the British Empire. Indeed, the document came to represent something of the thesis that would generate the antithesis driving the revolutionary movement to found a new sovereign polity in the Western Hemisphere. More than any single enactment in the British governance of eastern North America, the Royal Proclamation embodied the principles of monarchical authority that the leadership on the liberal side of the American Revolution seized upon in their campaign to mobilize Anglo-American public opinion behind them.
No where is the Royal Proclamation specifically referred to in the Declaration of Independence, although its existence was clearly integral to the allegation that King George had "brought on" the "merciless Indian savages" to do indiscriminate violence to the pioneer farmers on frontiers of the Anglo-American settlements. The fact that a good deal of this violence amounted to self-defence against the ruthless and largely unregulated aggressions of Anglo-American expansionism had no sway over the anti-Indian proclivities of the sworn enemies of the British King.
In the prelude to the American Revolution the British sovereign advanced Tory objectives by constructing an elaborate regime of patronage appointments in the British Imperial Indian Department. Its primary domain lay in the reserved
Indian Hunting Ground to the rear of the Thirteen Colonies. The members of this most Tory branch of colonial administration did indeed encourage Indigenous peoples to see the British sovereign as their ally. They encouraged His Majesty's Indian Allies to believe that the British head of state was committed to protecting large tracts of Indian Country, along with the mercantilistic commerce of the British North American fur trade, from the illegal incursions of British subjects, their corporate extensions and their local legislatures. (20) In advising King George in 1768 about the work of imperial Indian agents, the Lords of Trade stressed that these officials should "act under your Majesty's immediate Authority; and which, as they have reference to the general Interests of the Indians, independent of their connection with any particular Colony, cannot be provided for by the Provincial Laws." The tasks of these North American Indian agents in the service of the British Empire was to encourage "the renewal of antient Compacts or Covenant-Chains made between the Crown and the principle Tribes of Savages in that Country; the reconciling of Differences and Disputes between one body of Indians and another; the agreeing with them for the sale of surrender of Lands for publick purposes not lying within the limits of any particular Colony; and the holding of Interviews with them for these and a variety of other general Purposes, which are merely Objects of Negotiation between Your Majesty and the Indians." (21)
The Royal Proclamation confirmed and advanced an old tendency in the Americas for Indigenous peoples and imperial governments to move towards alliances of various sorts in countering the expanding claims of colonial populations. As
they sought wider powers and resource bases for themselves, the transplanted populations from Europe attempted often to indigenize their own identities even as they concurrently sought to overpower and undermine those Aboriginal
groups that presented obstacles to the growth and edification of their own Creole societies. "Creole" is a term which first developed in Spanish America to identify the offspring of immigrants who were born in the Americas. (22) Like Benedict Anderson, I use the term here to identify the native-born descendants in the Americas of emigrants from Europe, including those who formed the majority populations of the primarily Protestant and English-speaking colonies that confederated to form the original United States of America.
The imperial authorities in charge of New Spain and New England sometimes countered the muscle flexing of the indigenizing Creoles by siding with the Indians, however weakly and sporadically. In 1705, for instance, Queen Anne and her Privy Councillors got directly involved in a dispute between colonial officials in Connecticut and a group of Mohegan Indians. The English sovereign intervened to introduce a fairer approach to litigation and arbitration than the Connecticut courts were able to provide with their biased local judiciary. (23) In the sporadic alliances between Aboriginal Americans and European sovereigns, a powerful symbol of which lay in the establishment by the imperial government in New Spain of an office of the Protector of Indians,(24) Christian missionaries sometimes acted as important intermediaries.
Many ironies permeated the attractions that from time to time drew Indigenous peoples and imperial governments together in the mix of interests all vying for control over the direction, form and content of change in the Americas. Both
Indigenous peoples and European imperialists had good reason to share a common hostility towards the push of the Creole colonists for widened fields of autonomy. Both appreciated the implications of the shared understandings that
tended to animate Creole visions of the future. These visions were often founded in Creole desires to carve out new worlds for themselves by simultaneously violating the legal, political and ecological viability of the old world societies indigenous to the Americas as well as the imperial authority of old world Europe. Both old world imperialists and old world Aboriginals had their own good reasons to fear and to oppose the revolutionary make over of colonies by Creole populations, whose leading members tended to be unusually preoccupied with aggrandizing their own wealth, self-importance and latitude for fast, acquisitive and unregulated frontier expansion.
The extreme manifestations of individualism that tended to proliferate with the extension of the institution of private property into the most fundamental structures of land tenure, especially in the expanding Protestant realm of the Western Hemisphere, proved especially corrosive to the reciprocal bonds of both feudalism and Aboriginality in the Americas. The forces that sometimes drew together European imperialists and Indigenous peoples, however, went beyond a shared resistance to the expansionary thrust of Creole independence movements. The European and Aboriginal opponents of Creole rebelliousness found common ground in forms of conservatism reflecting similar, if not identical, attachments to the principle that titles to territory and jurisdiction should be able to pass from generation to generation in a fashion resistant to sharp breaks in continuity. Moreover, the feudal traditions that that had given rise to monarchical institutions in Europe shared some attributes with the collectivist principles informing the complex of ecological relationships linking Indigenous peoples with the biodiversity of their Aboriginal bioregions.
The provision in the Declaration of Independence connecting the alleged tyranny of King George to the alleged violence of "the merciless Indian savages" marks a classic expression of the relatively widespread trepidation animating a number European immigrants and their Creole descendants in most of the European colonies in the Western Hemisphere. With the marked exception of the colonists of New France, who depended collectively on friendly relations with Indians because the strategic importance of the Canadian fur trade, members of transplanted societies tended to fear getting caught in the vice-like squeeze of existing or potential alliances linking their natural frontier enemies, the Indigenous peoples, with the sometimes autocratic rule of distant imperial governors.
The activism of Thomas Jefferson exemplifies many of the most representative features of Creole identity politics. In seeking to counter a developing alliance between the imperial government and the Indigenous peoples on the frontiers of the Anglo-American settlements, Thomas Jefferson developed a particularly elaborate theory which he outlined at some length for his fellow Virginians in a pamphlet he wrote in 1774. In A Summary of the Rights of British America set Forth in Some Resolutions intended for the Inspection of the Present Delegates of the People in Virginia Now in Convention, Jefferson gave seminal articulation to many of the arguments that were about to establish him as the principal ideologist on the liberal side of the American Revolution. In his insightful survey text entitled The American Indian in Western Legal Thought, Robert A. Williams, Jr. has observed that "Jefferson's Summary View was one of the most influential and popular pamphlets published before the Revolution. In many ways, it can be seen as a trial run for many of the core statements of American political and legal discourse later elaborated by Jefferson in the Declaration of Independence." (25)
In Summary View Jefferson presented a theory that the colonial land owners in Virginia and other Anglo-American jurisdictions were invested with a kind of Aboriginal title, which he described as "Allodial title." Jefferson rooted this
claim in his view of America's pioneer settlers as the inheritors of the traditions of liberty emanating from the Saxon pioneers who had settled England in the distant past. "Our Saxon ancestors," Jefferson wrote, "held their lands, as
they did their personal property, in absolute dominion, disencumbered with any superior, answering nearly to the nature of those possessions which the Feudalists term Allodial." With literary strokes such as these, Jefferson characterized the time of Saxon hegemony in England as an inspirational golden era when no higher authority sought to limit the personal freedoms of the idealized group. As Jefferson saw it, this unbounded freedom was rooted ultimately in unencumbered land holdings flowing from Allodial rights. These Allodial rights can be pictured as the deepest and most original source of individualistic land tenure.
Having introduced this conception of unfettered Saxon liberty, Jefferson went on to apply the concept of "the Norman Yolk" to North American history. The concept of the Norman Yolk, which had come to command quite wide authority on
both sides of the Atlantic, held that the Norman Conquest of 1066 had resulted in the imposition of a number of alien feudal principles on England. Among those alien principles, argued Jefferson, was the feudal theory that all land holdings were derived from the sovereign Crown. Jefferson pictured the migration from England to America as being motivated in part by the flight of oppressed Saxons seeking to escape the impositions of a form of government alien to their own laws and traditions. "America," he wrote, "was not conquered by William the Norman, nor its lands surrendered to him or any of his successors. Possessions there are undoubtedly of the Allodial nature."
As in the Declaration of Independence, there are no specific references in Jefferson's Summary View where the Royal Proclamation of 1763 is specifically mentioned. Many of the main elements of Jefferson's rhetorical onslaught, however, are clearly aimed at blasting apart the principles outlined in King George's seminal articulation of a theory of Aboriginal and treaty rights. Attending these principles was the idea that the imperial government was the proper authority to control the pace and form of colonial expansion in British North America. The key to this control was the power to distribute and legitimate those land titles derived from the process of gradually transforming portions of the vast Crown-Aboriginal Indian reserve into Anglo-American settlements.
Jefferson's position that the land rights of colonists were Allodial in origin-- in other words, that there were no deeper Crown or Aboriginal sources underlying the existing or future land titles of settlers in the Anglo-American settlers-- was well calculated to confound King George's recognition that Indigenous peoples possess an Aboriginal title in their Aboriginal lands that cannot be transferred or extinguished without their collective consent. Jefferson's invocation of the rights of free Saxons was calculated to counter this equation, one that linked Crown recognition of Aboriginal title to the assumed power of the imperial government to control the development of the land tenure system and the taxation system throughout a vast British North American domain. In the aftermath of the Seven years War this domain had incorporated both the territory and most of the inhabitants of French-Aboriginal Canada. In seeking to discredit the principles of the Royal Proclamation, Jefferson's arguments in Summary View were pointed against the reconstitution of the British Empire to accommodate the rights, titles and interests of those merging societies that had evolved on and around the middle ground of French-Aboriginal Canada. (26) Most of all Jefferson opposed those features of the Royal Proclamation and its extension in the Quebec Act that were aimed at extending imperial power through the sovereign's assertion of an exclusive jurisdiction to purchase Aboriginal title from the inhabitants of the imperially-protected Indian reserve.
In calling paradoxically on a very specific interpretation of European history in the effort to indigenize the rights, identity and laws of Anglo-American colonists, Jefferson's pamphlet embodies a particularly good example of the intellectual contortions that often characterized Creole independence movements. According to Benedict Anderson, it was these movements that provided the original seeds from which the phenomenon nationalism subsequently grew. Jefferson's preoccupation with the locally-rooted character of the constituency he sought to represent and to lead is clearly demonstrated in the way he identified himself on the title page of Summary View. There is no reference to Jefferson by name. Instead the authorship is attributed simply to "A NATIVE, AND MEMBER OF THE HOUSE OF BURGESSES." Jefferson's identification of himself as "A Native" is entirely consistent with his interpretation of the Allodial title of colonists as the deepest and most original form of land tenure in America. It was entirely consistent with Jefferson's assertion that "It is time therefore for us to lay this matter before his majesty, and to declare that he has no right to grant lands of himself. From the nature and purpose of civil institutions, all the lands within the limits which any particular society has circumscribed around itself, are assumed by that society, and subject to their allotment only. This may be done by themselves assembled collectively, or by the legislature to whom they may have delegated sovereign authority: and, if they are allotted in neither of these ways, each individual of the society may appropriate to himself such lands as he finds vacant, and occupancy will give him title." (27)
This passage reflects especially well the deep influence of political philosopher John Locke on the thinking of Thomas Jefferson. Indeed, so prolifically did Jefferson borrow from the work of Locke in the Declaration of Independence,
that Richard Lee of Virginia characterized the political manifesto almost a plagarism. (28) Locke's Two Treatises of Government gave strong intellectual backing, first to the Whig side that emerged victorious from England's Glorious
Revolution and then, almost a century later, to those who revolted against Great Britain with the goal of forging a new sovereignty in North America. Locke's work was especially popular with Jefferson's generation of Anglo-Americans
because it gave such clear and unqualified sanction to the very process that many of them advanced in displacing Indigenous peoples in order to to reconstitute their Aboriginal lands as titled private property under the jurisdiction of their own local legislatures. Locke had given sanction to this transformation, writing, "For I ask whether in the wild woods and uncultivated waste of America left to Nature, without any improvement, tillage or husbandry, a thousand acres will yield the needy and wretched inhabitants as many conveniences of life as ten acres of equally fertile land doe in Devonshire where they are well cultivated." The archetypal member of these "needy and wretched inhabitants" Locke identified as "the wild Indian who knows no Inclosure, and is still a Tenant in Common." (29)
For Locke there was no human development, thus nothing resembling an Aboriginal title or right to the lands of the Anglo-American colonies, before the coming of the Europeans. "In the beginning," he famously wrote, "all the world
was America, and more so than that is now, for no such thing as Money was any where known."(30) Locke claimed the status of an expert in formulating such commentary, wherein Aboriginal America was made emblematic of humanity's beginnings before history and money concurrently intervened to generate both progress and destiny. As Secretary to the Earl of Shaftsbury, a Lord Proprietor of Carolina, Locke was deeply involved in the governance of the Anglo-American colonies in the era of the Restoration. Through this involvement he became somewhat familiar with much of the seventeenth-century literature of Americana, including its rudimentary ethnography. (31)
Writing from this background, Locke referred often to North American Indians to illustrate his theories in a genre of political philosophy that made the protection of property the central reason and ideal of human governance. (32)
In one of his most frequently-quoted passages, for instance, Locke wrote, "This Law of reason makes the Deer, that Indian's who hath killed it; 'tis allowed to be his property." (33) >From this starting argument Locke proceeded down a
chain of interconnected ideas which led to the conclusion, so popular with Jefferson and his fellow revolutionaries, that common property was transformed into private property in America when individual colonists invested personal labour
in the agricultural improvement of land. Jefferson spun these Lockean principles into his theory of Allodial title, an interpretation meant to pre-empt the theory of Aboriginal title as outlined in the Royal Proclamation of 1763.
Locke's writings were extremely influential in helping to cast in conceptual concrete the idea that all Indians in the Americas were primarily hunters. This misrepresentation, still prominent to this day, fails to take into account the
reality that the political economy of many Aboriginal societies throughout the Western Hemisphere was based primarily on agriculture. Indeed, at least half the crops that now form important staples of global commercial agriculture, including, for instance, corn, potatoes, coco, and tobacco, emerged long before 1492 from the ancient horticultural science of Aboriginal Americans. (34) The notion that all Aboriginal people were hunters, and that these hunters failed to utilize the lands of America in the most productive and fruitful ways, underlay Jefferson's contention that "each individual of the [colonial] society may appropriate to himself such lands as he finds vacant, and occupancy will give him title." This way of imagining America as a terra nullius-- as "vacant" domain where European immigrants and their descendants were unconstrained by pre-existing Aboriginal rights (35)-- was essential in the transformation of Locke's "wild Indians" into the Declaration of Independence's "merciless Indian savages." The demonization of all forms of Aboriginal resistance on the frontiers of American conquest can be viewed as the future superpower's first propaganda campaign to disguise its original imperial expansions behind the cover of what might be described in today's terms as a War on Terror.
Towards an International Regime of Protection for Aboriginal and Treaty Rights
Throughout the era between the American evolution and the Second World War, the Royal Proclamation seemingly disappeared into the obscurity reserved for historical anachronisms. Throughout this period Clarence Walworth Alvord was one of the few academics to break the pattern by taking the document seriously. (36) He was one of the professional scholars from the American Mid-West who made careers in extending and elaborating the frontier thesis that Frederick Jackson Turner had introduced in Chicago at the world exposition celebrating the four-hundredth anniversary of Christopher Columbus's "discovery" of America. (37) In 1917 Alvord published a major, two-volume work of American frontier history focusing on the role of land speculators and their corporate extensions in the genesis of the American Revolution. Many of those who speculated in possible scenarios for the colonization and privatization of frontier lands in America were politicians who, according to Alvord, worked the trans-Atlantic axis of British imperial relations. Prominent among them were George Washington, Benjamin Franklin and the latter's great ally in the British government, Lord Shelburne.(38)
One of the main challenges facing land speculators like Washington and Franklin was to remove or circumvent the prohibitions on the acquisition of portions of the Indian Hunting Ground set aside by King George in the Royal Proclamation of 1763. In responding to this challenge the land speculators innovated aggressively on new frontiers of the law and politics of corporate formation. Their experiments in deriving private profit from the activities of colonizing corporations, although largely unsuccessful prior to the American Revolution, helped generate the commercial pressure to create a new sovereign polity in North America more attuned the desire of European immigrants and their Creole descendants for rapid western expansion. The pre-revolutionary activities of the land speculators, who pushed the political frontiers of corporate law, anticipated the enormous roles that private railway companies would play in the transcontinental expansion of the United States in the nineteenth century, or that the American oil and gas conglomerates would play in the globalization of American interests in the twentieth century. The deployment and expansion of the US Armed Forces was instrumental in facilitating the activities of both the railway companies and the oil and gas conglomerates.
To Alvord, the Tory mercantilists who opposed and obstructed the expansionary schemes of the Anglo-American land speculators in the prelude to the American Revolution were "visionless politicians of the Old World." In flights of rhetoric which sometimes approached Jeffersonian heights, the frontier historian condemned the alleged backwardness of the men had who lent their support to the complex of interests and ideologies converging in the Canadian fur trade, the Royal Proclamation, the Quebec Act and the more centralized yet flexible approach to multiculturalism in the British Empire. These conservative imperialists, Alvord argued, failed to understand "the inexorable forces of natural law" as manifest in the fulfillment of the "logic of history.... in the occupation by the better endowed people of the territory so inadequately
utilized by the inferior race." (39)
Alvord's sympathetic concentration on the role of Anglo-American land speculators and their corporate extensions in the early genesis of the United States mirrors, edifies and celebrates the spirit of Manifest Destiny that has long
inspired American expansionism. (40) Similarly, the Royal Proclamation emerges in his study as the quintessential symbol linking the imperial and Aboriginal impediments about to be cleared away in the American Revolution. Although the term was not popularized until the 1840s, Manifest Destiny can be conceived as one of the most potent energies running through the entire course of American history, from the Old Testament impetus to constitute Puritan New England as a New Jerusalem to the theocratic certainties permeating the militaristic assertiveness of the so-called Bush Doctrine. This sense of Manifest Destiny can be seen as both a hostile response to, and a New World extension of, the older phenomenon of European imperialism.
As a country that emerged from a revolt against imperial rule, only to become "the West's" chief embodiment and instrument of global domination, the United States has been a child of paradox since its inception. Indeed, the most consistent common denominators of American personality have rested in the consistency of irony and paradox as central attributes of national character. The expansionist urges of Manifest Destiny, for instance, have long co-existed with a profound sense of isolationism that has often influenced the relationship of the United States and many of its citizens to the rest of the world. The tension between American expansionism and isolationism forms but one of the many contentions between sharply contradictory forces that have energized the United States as the premier impresario of creative illusion on the Disneyfied frontiers of McWorld's political economy. The United States was born as a hybrid combining the religious zealotry of the Reformation and the secular rationality of the Enlightenment. (41) It was born in the revolutionary tumult of a decolonization movement whose armies of liberation went on to lead the charge of an imperial ascent that today transcends even that of imperial Rome. In the course of this rise the United States acted as Europe's alter ego and its most outspoken critic, even as it also doubled as Europe's as most lucrative land speculation, as its most successful protege, and as a giant, big box amplifier of some of the most noble achievements and spectacular failures of the European people.
The ethos of irony and paradox that has urrounded the United States since the era of its emergence from the British Empire helps to explain how it is that the Royal Proclamation of 1763, a classic instrument of eighteenth-century
imperialism, should have acquired such relevance for the decolonization movement, especially as it developed with the dismantling of European empires after the Second World War. In the era of the American Revolution the Royal Proclamation was perceived by those who rallied behind the Declaration of Independence as an unwarranted imperial imposition on the imperative of Anglo-Americans to widen rapidly the extent of their settlements and land holdings after the British conquest of New France in the Seven Years War. For those on the Indian side of the new boundary dividing the Anglo-American colonies from the lands reserved to the Indians as their Hunting Grounds, however, the document had very different implications. It outlined a number of principles, however sketchily or imperfectly, that constituted positive recognition that the rights and titles of Indigenous peoples would receive some recognition and protection within the variegated framework of an evolving imperial law binding the multicultural mosaic of the British Empire.
It would not be going too far, in fact, to characterize the principles outlined in the Royal Proclamation as something of a democratic breakthrough for Indigenous peoples in the genesis of an international law of Aboriginal and treaty rights. The codification of these principles in the constitutional matrix of a changing British Empire extended some of the most important egalitarian ideals of the European Enlightenment to those facing double jeopardy on the receiving end not only of European imperialism, but also of the most lethal forms of Creole racism. The lethal extremes of Creole racism were expressed in the crimes against humanity which accompanied the western expansions of the United States. (42) The criminality directed at the elimination and removal of Indigenous peoples was both anticipated and sanctioned by the reference to merciless Indian savages in the Declaration of Independence. When seen in contrast to this provision, or to the Lockean and Jeffersonian interpretations that supported it, the Royal Proclamation takes on its fuller significance in
the gradual development of universal principles for something approaching a global rule of law. The stipulation in the Royal Proclamation that Indigenous peoples have the collective right to give or withhold consent for any changes to the
legal status of their Aboriginal territories marked an especially important step on the way towards the unrealized ideal of a global regime of democratized protection for universal human rights.
The Royal Proclamation derives much of its contemporary importance from what it demonstrates about the usefulness of a number of constitutional inheritances from European imperialism as potential checks against the lawless incursions of American Manifest Destiny. The provision in the Royal Proclamation recognizing the right of Indigenous peoples to collective roles in determining the future of their Aboriginal lands illustrates that those on the liberal side of the American Revolution had no monopoly on the process of infusing the liberating force of Enlightenment idealism into the changing
configurations of global power. The position of King George on the rights and titles of Indigenous peoples in the British Empire marks a clear illustration that, on some matters, the Tories were far in advance of the revolutionary forces in charting a more progressive course towards fairer and more sophisticated forms of social organization. The contrast is especially telling when the progressiveness of the Royal Proclamation is compared with the stunning backwardness of the Declaration of Independence on the issue of Aboriginal and treaty rights.
This contrast speaks of the continuing relevance of Red Tory movements, or, increasingly, Green Tory movements, whose proponents often bring together trajectories of interests and ideas quite at odds with the so-called conservatism of the Right in, for instance, the United States, Canada, Australia, and New Zealand. (43) In all of these outgrowths of British imperial colonization, European immigrants and their Creole descendants have long been in dominant positions. In all of these countries the Right continues to attach the rhetoric of unfettered individualism to the ideals of deregulation, privatization and expanded autonomy for business corporations. This agenda is often mixed with the strange contortions that continue to characterize Creole identity politics. These contortions were on public display in, for instance, the anti-Aboriginal, anti-immigrant policies of the One Nation Party in Australia (44) or in the Canadian Alliance Party's support for a provincial referendum in British Columbia whose loaded questions signalled a clear intent to harness majority opinion against the ongoing treaty negotiations with First Nations. In Jefferson's time or our own, Creole identity politics are often framed in opposition to the principles of Aboriginal and treaty rights. The champions of Aboriginal and treaty rights, in
turn, consistently favour the pre-eminence of central authority over the decentralization implicit in the so-called states rights or provincial rights movement.
As principles that invest the process of colonization and globalization with some prohibitions on the complete vanquishment of the weak by the strong, on the total extinguishment of the old by the new, Aboriginal and treaty rights animate strategies and actions aimed at correcting some of the most striking inequities which have concentrated huge amounts of wealth and power in the hands of a disproportionately entitled few. While the membership in this most richly entitled minority was once composed largely of European imperialism's biggest beneficiaries, its more recent instruments of elite privilege include the militarized interventions of American Manifest Destiny, the transnational reach of global corporations and the attending complex of national, international and supranational financial agencies. Among these agencies are the World Bank, the International Monetary Fund and the World Trade Organization, institutions which help maintain the balance sheets of credit and debt, assets and liabilities, derived from the time when much of the world's capital was derived from the privatization of human life through slavery and from the massive appropriation of Aboriginal resources. This appropriation continues yet, throughout, for instance, sections of the Canadian North or the remaining rainforests of Amazonia. This transfer of wealth from the Aboriginal world to that of the imperial, Creole and corporate colonizers has often been advanced with legal, moral, and political arguments stressing Lockean themes.
One mark of the growing effectiveness of the instruments of elite privilege lies in the growing divide between rich and poor. (45) One effect of this increasing polarization has been to undermine and pre-empt the high-minded idealism of the charter and many of the international instruments of the United Nations. Most of these instruments are unequivocally on the side of decolonization and against the blights of racism and discrimination based on religion, nationality, and gender. In the light of this support for decolonization from the world's most representative and important international agency, how is it that some legacies of European imperialism deserve deeper integration into the juridical framework of twenty-first century world order? How is it that an instrument such as the Royal Proclamation of 1763 should be drawn upon in an era when the formal possession of colonies by imperial powers has become, with some few exceptions, essentially a thing of the past?
As I see it, the ethos of post-colonialism as displayed, for instance, in the large and diverse range of national constituencies represented at the United Nations, disguises deeper patterns of top-down rule whose primary medium of imperial control lies in the institutional framework of the global economy. One of the clearest markers of the unfounded myth of post-colonialism, I believe, lies in the easy sense of personal identification with the plight of the Palestinians
of such a large and growing proportion of the earth's inhabitants. The Palestinians are a people whose Aboriginal rights and titles have very recently and very obviously been violated and denied. As I see it, popular identification with the plight of the Palestinians has become the global locus of a kind of proxy enabling much of the world's population, but particularly its most marginalized and dispossessed branches, to register the conviction that colonialism continues as one of the dominant forces of injustice. As demonstrated in the emphasis given Palestinian rights by such a high proportion of the delegations at the World Conference on Racism in Durban South Africa in the summer of 2001, this preoccupation extends far beyond the Arab-speaking domain to encompass a constituency that is roughly contiguous with, although not xclusive to, those regions where political independence is most tenuous and most recent.
Accordingly, the easy identification of so many groups and individuals with the struggle of the Palestinians for land and self-determination serves to suggest that that there are very few citizens of recent colonies who rest secure in the
feeling that they have achieved genuine liberation and independence with the departure of their former imperial governors. The mobilization of the global movement to restore Palestinian rights has become, in a sense, a repository for
the conviction that imperialism never ended. This new imperialism continues through largely the same means and agencies that have rendered the United States as the world's sole superpower. The convergence of the most extreme expressions of Christian fundamentalism in the United States with the right-wing movement in Israel to colonize with Jewish settlements the West Bank of the Jordan River renews in the Middle East many of the same controversies that once made the frontier between Indian Country and the Anglo-American settlements such a conflicted zone of revolutionary ferment. The contrasting positions of the Royal Proclamation and the Declaration of Independence on the rights and titles of Indigenous peoples suggests much about the range of the political pressures bearing on both Israelis and Palestinians of good will in their mutual quest for compromise. This quest for compromise is taking place on lands that are subject to overlapping claims of Aboriginal title as marked in the close proximity of the ancient holy shrines of the three Abrahamic religions.
The circumstances of the Cold War played a major role in neutralizing, undermining, and sabotaging many of the most liberating promises of the decolonization movement. The Cold War provided the United States with a means of maintaining its sense of exceptionalism and a means of expanding its expressions of Manifest Destiny, even as the old colonial powers brought their empires to an end during an era when the excesses of Naziism had thoroughly discredited the Master Race fantasies tainting most expressions of imperialism. While the original menace for the emergent Americans was seen to lie in the alliance of red Indians and King George's Red Coats, the new red scare was generated by the real or imagined protagonists of the international communist conspiracy. There are endless ironies in how the imperialism of Europe was reconfigured after the Second World War to assume the less formal structures of the USA's global empire. The paradoxical nature of the original Creole revolt in the Americas against imperial rule holds one of the main keys to understanding how this reconfiguration could have taken place.
The US sense of Manifest Destiny had developed originally to justify the extinguishment or containment of Aboriginal populations in North America as well as the displacement of European imperialism by American hegemony throughout
much of the Western Hemisphere. While American Manifest Destiny thus developed in opposition to European imperialism, it has also perpetuated the continuity of an unbroken cycles of imperial expansion that began when Christopher Columbus initiated the modern era of globalization in 1492. That unbroken cycle of imperialism continues to this day, in large measure through the inequitable workings of the global economy. The conflagration in Vietnam, where the imperial forces of the United States replaced those of France, exemplifies how the Old World colonialism of Europe was incrementally replaced by its New World extension. The heavy resistance faced in Vietnam by the Armed Forces of Japan, then France, and then the United States proved to be not so much an expression of the stimulations, attractions, and organizational prowess of international communism. This most resolute and determined of the decolonization movements, rather, proved to be more about the insistence of Indigenous peoples in Vietnam that they would exercise and defend their Aboriginal title to their own Aboriginal lands.
The demise of the Soviet Union after 1989 took away from the United States the global enemy that had helped it maintain and refine its worldwide fighting form after the Second World War. The absence of a global enemy for the superpower, however, proved short lived. The US response to the tragic events of September 11 renewed many elements of America's Cold War psyche and its sense of Manifest Destiny. The War on Terror is being waged against the kind of diffuse, pervasive and ill-defined enemy which is well suited to the continuity of a crusade that goes back to the founding of the United States on principles which included a jihad against "merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes, and conditions." The replacement of merciless Indian savages and Godless communists with the menace embodied in a global network of infidel terrorists provided the necessary enemy for the military assault of God's Chosen People, of American Manifest Destiny, to continue. It enabled the deployment of American fighting forces on the most extended frontiers of American power. It enabled a continuing conquest of evil along the journey to the promised land of a New Jerusalem, a New Israel. This promised land of American destiny can be pictured as the theocratic, military and commercial heartland of a New World Order. In the tradition of Tom Paine, George Bush Sr. seized on the idea of a New World Order to describe the end of Cold War bipolarism and the commencement of a unilateral approach to global governance as initiated in 1991 with the first US-led invasion of Iraq by a UN coalition of fighting forces.
The return by the leadership of the United States to some of the imagery and themes of the American Revolution helps call attention to the principles of the Royal Proclamation. The Royal Proclamation provided an evocative symbol of the invasiveness of British imperial rule. It became, in fact, the thesis which engendered the antithesis given such consequential and enduring articulation by Thomas Jefferson and others in the Declaration of Independence. A return to the Royal Proclamation and the principles of Aboriginal and treaty rights within the framework of international law would help encourage the superpower to engage in some reckoning with the Old World realities of its own revolutionary origins. Moreover, the application of the principles of Aboriginal title to processes of international arbitration aimed at clarifying the juridical status of, for instance, the Palestinians, the Iraqis, and the Kurds, would help guide the course of global geopolitics beneath the superficialities that presently limit the quality of negotiation and debate in the arena of global geopolitics.
There is significant potential for enhancing the quality of public debate over how globalization should proceed in the twenty-first century in calling attention to the implications of the contrast between the Royal Proclamation of 1763 and the Declaration of Independence. While the latter remains one of the best known contributions to the literary canon of liberation struggles, the Royal Proclamation too is an important foundational text with much relevance to the quest to identify universal standards and principles in the elaboration of a global rule of law. As no one could have fully appreciated in 1763, the principles applied by King George to Indian groups in an expanded British North America would have implications in the years ahead for many hundreds of millions of Aboriginal people, and many thousands of Aboriginal societies, in Asia, in Africa, and in much of Latin America. Indeed, the position of Indian peoples in North America would prove to be far more representative of the conditions faced by the largest mass of the world's population than the comparatively privileged circumstances of Creole settlers in the Anglo-American colonies.
Like the Indians of North America, many of the Indigenous peoples particularly in Africa and large parts of Asia would see themselves and their Aboriginal lands become subject to wave after wave of alien exercises of imperial domination. The division at the end of the nineteenth century of most of Africa south of the Sahara among Europe's imperial powers, with virtually no input, let alone consent from region's Indigenous peoples, illustrates the extreme biases of an international system structured on the theory that all of humanity could be starkly split between savagery and civilization. To be placed on the savage side of this equation-- to be classified among the "natives" who collectively made up the largest part of humanity-- was to be put in a position of grave disadvantage in the structures of a fragmented world order that remain lodged to this day in the architecture of global inequality. The Royal Proclamation established principles and ideals which, had they been applied more widely and aggressively, could have placed more substantial limits on the inroads and presumptions of colonialism. The principles and ideals of the Royal Proclamation could still be applied in advancing the process of decolonization beyond the very rudimentary, spotty, inequitable, and generally flawed beginnings that were made in the years when European empires succumbed beneath the weight of a global system retooled first by two superpowers, and then by a single hyperpower.
The distance between King George and Thomas Jefferson on the role to be afforded Indigenous peoples in the colonization of North America epitomizes the pattern that has often seen the proponents of wider jurisdiction for local
governments emerge as leading foes of Aboriginal and treaty rights. Alternatively, the champions of more centralized regimes of authority, whether applied within imperial, federal or global frameworks, are more likely to continue the legacy of King George in his effort to secure a recognized and entrenched place for the First Nations in the territorial and jurisdictional organization of British North America.
The process leading to the patriation of the Canadian constitution provides a recent example of the same tensions that made different positions on the rights and status of Indigenous peoples a major point of contention in both the American Revolution and in the continuation of the same struggle in the War of 1812. In the course of patriating the Canadian constitution the provincial premiers of Canada's nine, predominantly English-speaking provinces joined forces in November of 1981 in a failed attempt to rip from the country's self-declared "supreme law" the positive affirmation recognizing the existence of Aboriginal and treaty rights. While the federal government temporarily surrendered to this provincial assault on human rights and the power of central authority, the federalists took back the imperative of the central government as the defender of Aboriginal and treaty rights when they insisted on the restoration, in a slightly revised form, of section 35.
The issues raised by the Royal Proclamation point to the irony that in order to maintain a basis of cultural pluralism and ecological diversity on the planet, some universal, transnational standards will have to be formulated and enforced
across a number of jurisdictional fields, including those touching on Aboriginal and treaty rights. The edification of a branch of the United Nations charged specifically with responsibilities to formulate and enforce universal standards in the exercise of the Aboriginal and treaty rights would help set in place a new transnational instrument of central authority capable of balancing the opposite tendencies of local government. Those opposite tendencies frequently show up in the propensity for state, provincial, or even national authorities to conspire in efforts to incarcerate Aboriginal and treaty rights within the narrow and often arbitrary constraints of domestic law and politics. Worse yet, the inclination of these officials is often to downplay or deny altogether the role of their own governments in violating or extinguishing Aboriginal rights. This saga of appropriation and annihilation belongs at the centre rather than on the sidelines of world history. As Mark Cocker has argued, for instance, "when viewed as a single process the... consumption of tribal society could be said to represent the greatest, most persistent act of human destructiveness ever recorded."(46)
The problems of conflict of interest inherent in making national governments and national courts responsible for judicial proceedings involving allegations that their own officials engaged in the commission of crimes against humanity, led
to the formulation and sporadic enforcement at the international level of the Convention on the Prevention and Punishment of the Crime of Genocide. This international instrument was ratified by most member countries of the United
Nations in 1948, although the United States government didn't sanction the Genocide Convention until 1989 when the Cold War was coming to an end. The Genocide Convention can be seen as one of the first steps in establishing a few universal principles essential to the elaboration of a global rule of law. The prohibition on genocide draws its universality from the reality that virtually all human societies prohibit murder in all but a very few situations. The process of systemizing murder to eliminate whole classes of people seemed to call for the conceptualization of a new category of crime going beyond the sovereign jurisdiction of national governments to involve instead the entire global community. The efforts by the Nazis of Europe to automate on an industrial scale the mass murder of Jews, and also of gypsies, homosexuals, slavs and others, highlighted the need for new international laws and procedures to arbitrate and punish such monumental crimes against humanity.
Where the Genocide Convention build on universal prohibitions outlawing murder, the Royal Proclamation advanced principles reflecting relatively universal principles outlawing the crime of theft. It advanced the notion that just as it is wrong for one individual to steal another individual's property, so is it wrong for one society to steal the collective property of another society. Clearly this form of theft from entire peoples, a genre of crime with genocidal consequences for groups who thereby lose their collective means of economic survival and cultural renewal, is one that has been re-enacted again and again in the course of colonialism. The Royal Proclamation, however, codifies the determination, situated at the very core of what was in 1763 the world's most powerful imperial regime, to balance the process of colonial expansion with some legal protection for the collective property rights and the collective rights of self-determination of Indigenous peoples.
The need for the application of some of the Royal Proclamation's principles to the most appropriative processes fuelling globalization in its current form remains as real today today as it was in North America in 1763. Indeed, almost
never does it happen that the Aboriginal titles of Indigenous peoples are actively enforced when this variety of legal right comes into conflict with the sovereign jurisdictions claimed by national governments, state and provincial
governments, and their chartered extensions in the corporate sector. In this respect the concept of some sort of equality before the law has been virtually non-existent. As in pre-revolutionary North America, the constitutional law of Aboriginal and treaty rights is rarely, if ever, backed up with police power or military force. Who has ever gone to prison for violating an Aboriginal and treaty right in North America? On the other hand, Aboriginal activists have been routinely criminalized when they attempt to block the theft of what they see as their own resources; when they attempt to stand on the jurisdictional ground of Aboriginal and treaty rights as recognized, for instance, by the Royal Proclamation of 1763 and section 35 of the Canadian Constitution Act, 1982. (47) This process of criminalizing Indigenous peoples in the process of colonization extends far beyond the conflicts involving contested interpretations of jurisdiction over natural resources. In 1763 the Delaware prophet, Neolin, was already warning his Indian followers of Anglo-American abuses of the criminal justice system, arguing "In their imprisoning you, they will destroy you."(48)
The Royal Proclamation is a seminal constitutional instrument giving historical depth and continuity to a number of more recent attempts to formulate international law primarily at the United Nations. (49) It is connected, for instance, to the Genocide Convention. The Genocide Convention represents the dark element of a two-sided conception whose brighter aspect is the positive affirmation of the right of all peoples to self-determination. In order for a people to live, they need more than the absence of mass murder. They need the means to assemble, to make decisions among themselves, and the capacity to the renew their shared identity through a variety of contemporary institutions such as schools, broadcasting agencies, businesses, and culturally-appropriate health-care and social services agencies. This positive side of the equation is best embodied in the affirmation that all peoples have an inherent right of self-determination. (50)
In 1917 and 1918 President Woodrow Wilson of the United States called for a reconstitution of world order based on the democratic principle that all peoples, large or small, have the right of self-determination. He issued this challenge
as part of a Fourteen Point strategy that he claimed formed his basis for bringing the armed forces of his own country into the First World War. His emphasis on the self-determination of all peoples was calculated to present a liberal
alternative to the anti-imperialist rhetoric of the founders of the Soviet Union. The first Soviet leader, Vladimir Illich Lenin, had described imperialism as the highest stage of capitalism in a pamphlet he issued on the eve of the Russian Revolution. (51) Wilson's emphasis on the self-determination of peoples was designed in part to pre-empt Lenin's condemnation of colonialism. It was calculated to remind the world that the United States was born in a revolt
against imperialism. Its purpose in entering the First World War, claimed Wilson, was not to bolster the strength of one empire over another. Rather it was to end the oppressiveness of all empires.(52)
Wilson's idealism was quickly rejected within the United States. That country opted not to enter the League of Nations, the new institution meant to embody the Wilsonian vision of a world order based not on the rule of force, but rather on a global rule of law centred on a parliamentary democracy of self-determining peoples. In failing to join the League of Nations the United States retreated back to a preference for lawless unilateralism that it had developed in its spurning all efforts to internationalize issues pertaining to slavery, racial segregation and maltreatment of Indigenous peoples in the process of Euro-American expansion. This preference for unilateralism would sporadically dominate US public opinion and foreign policy until the present day. In the years immediately following the cataclysm of the Second World War a new
window of opportunity opened for the idea of extending equality rights beyond individuals to all peoples in a more democratized global arena. The former US president's agenda was reflected in the constitutional framework and legislative output of the United Nations. In 1960, for instance, the UN General Assembly carried forward many of the principles of the UN Charter in sanctioning the Declaration on the Granting of Independence to Colonial Countries and Peoples. The opening phrases of that Declaration, which were subsequently repeated in the International Covenant on Civil and Political Rights and in the International Covenant on Economic, Social, and Cultural Rights, affirmed
1.All peoples have the right of self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit in international law. In no case may a people be deprived of its own means of
subsistence.
Many of these principles of self-determination found earlier and more rudimentary expression in the Royal Proclamation of 1763. That instrument codified in the colonial law of British North America the proposition that Indian peoples
should not be unilaterally deprived of their shared rights of possession and jurisdiction in their Aboriginal lands. While the Royal Proclamation's promise to protect the reserved Indian Hunting Grounds was far from perfect, it did, nevertheless, suggest a prohibition on the kind of lethal aggressions that subsequent generations would label as genocide. Certainly the Royal Proclamation's protections for Aboriginal rights were a far cry from the virtual promotion of Indian fighting in the Declaration of Independence with its reference to the "undistinguished destruction" wrought by "merciless Indian savages."
The imperial law of 1763 outlined very explicit procedures for any purchase of Aboriginal title, stipulating that the power to dispose of Aboriginal resources was vested somewhat democratically in the collective decision-making authority of Aboriginal groups. By specifying that the power to purchase portions of the Crown-Aboriginal reserve in the heart of North America belonged exclusively to the British imperial sovereign, Indigenous peoples were encouraged to think of their transactions with the monarch as genuine treaties negotiated on a nation-to-nation, sovereign-to-sovereign basis. Hence the Royal Proclamation was more in tune with the Wilsonian vision of a world order based on the self-determination of all peoples rather than with the Jeffersonian vision, one which excluded enslaved Blacks and the Indigenous peoples of colonized territory from the imagined framework of universal liberty.
Imperial Transformations Before and After the Royal Proclamation of 1763
Those who drafted the Royal Proclamation drew on lessons derived from a number of different colonial histories, but particularly the Indian policies of New France and New Netherlands. This pattern of incorporating earlier imperial
traditions from older colonies forms one of the most striking features of British North American colonialism. In replicating this strategy, one so vital to the successful expansionism of its British imperial parent, the United States constructed its own transcontinental empire. In the process of acquiring territories, jurisdictions and powers from prior empires in North America, the United States developed a range of imperial techniques that it later extended and refined in a global context. In this respect the informal empire of the United States represents not so much a primitive, less evolved version of the British Empire as Niall Ferguson has argued. Rather the construction of the United States on the strategic foundations of several prior European empires has rendered the superpower's imperialism as a more developed and distilled version of the earlier forms of colonialism which it absorbed and replaced.
Hence the founding of the United States should be pictured more as an outgrowth than a negation of European imperialism. The Declaration of Independence is a marker of this tendency. It advanced an agenda for forms of expansion that were more aggressive and less regulated than the approach outlined by King George in the Royal Proclamation. The colonial history of the United States supports this view of the superpower as the largest outer shell of a Russian egg containing progressively smaller and more internalized versions of imperialism. A century before the transformation of New France into an expanded British North America during the Seven Years War, for instance, the English empire in
North America absorbed New Netherlands by transforming it though conquest in 1664 into New York. In the years leading up to New York's establishment, New Netherlands took over the small colony of the New Swedish Company.
The United States carried on this ingestive, praying mantis-type of ritual by devouring the imperial protein of the Spanish empire in the Americas and the Pacific Rim. In applying the Monroe Doctrine to Latin America, the US government infused its influence into the space left vacant by the retreating of power of Spain and Portugal. In 1848 the US government continued this pattern in a military land grab of the northern portion of the Mexican. The takeover of territory was formalized in the Treaty of Guadalupe Hidalgo. At the end of the nineteenth century the United States continued this consumption of the Spanish empire through the conquest of the Philippines and Cuba in the Spanish American War. In 1803 the United States purchased Louisiana from France and in 1867 it purchased Alaska from Russia. The result is that the United States presently sits on territory, portions of which were formerly claimed by Sweden, the Netherlands, France, Spain, Russia and, of course, Great Britain. The absorption of the North American colonies of these European powers, each with its own Aboriginal policy, proved to be something of a dress rehearsal for a similar process after the Second World War. In ways that severely limited the latitude available for the genuine decolonization, but especially in the realm of economic relations, the United States moved into the vacuum of power created by the final dismantling of European empires, including that of the Soviet Union.
This broader view of the genesis of the informal empire of the United States gives enlarged meaning and significance to the convergence of several older traditions of Aboriginal policy in King George's recognition of Aboriginal and treaty rights in the Royal Proclamation of 1763. The core heritage reflected and renewed in the Royal Proclamation is that of the Covenant Chain. The Covenant Chain was an extremely elaborate, intercultural diplomatic protocol that evolved over several generations between a complex of Indian nations, with the Longhouse League of Iroquoian-speaking peoples at their centre, and a complex of Anglo-American colonies, with the the fur traders and and leading colonial officials of colonial New York at their lead. (53) The Covenant Chain extended some of the ceremony and political philosophy of the confederacy of peoples who referred to themselves, to their strategically-located Aboriginal territory, and to their main seat of government at Onondaga as the Haudonosaunee--the people of the extended lodge-- of the Longhouse.(54)
The assimilative process of bringing European colonists into Longhouse traditions began in the era when the settlers of New Netherlands and New Sweden learned that developing sound treaty relations with their Aboriginal neighbours
was good policy. Not only was it advantageous in opening doors to the commercial and geopolitical benefits of participation in the fur trade, but this means of obtaining a license for colonialism from Indigenous peoples involved documented negotiations and procedures that could be useful in providing legal arguments to help fend off the competing claims of English interlopers. The Indian policies of New Netherlands, as transmitted by Dutch colonists to New York's English governors, affected the genesis of the Covenant Chain beginning in the final years of the seventeenth century.(55)
As it became increasingly clear in the era of the Seven Years war that Indigenous peoples held the balance of power in the conflict with imperial France, the Covenant Chain acquired growing importance in the strategic calculations of the
British imperial military establishment in North America. (56) Into this milieu stepped Sir William Johnson and his Mohawk lover and confidant, Molly Brant. Together they attempted to extend the intertwined power of the Longhouse
Confederacy, the Covenant Chain and the British Empire into French-Aboriginal Canada. In advancing the ambitious imperial designs of what Francis Jennings has called the ambiguous Iroquois empire, Johnson directed a steady stream of information and advice to the Lords of Trade and his other Tory friends and colleagues in Great Britain. (57) His untiring promotion of the strategic importance for the British Empire of Crown recognition Aboriginal and treaty rights was instrumental in shaping the content of the Royal Proclamation of 1763 and the course of British imperial Indian policy until the completion of the War of 1812.(58)
The English absorption in 1664 of the colonial domain of the Dutch West Indies Company became in some ways a model for the absorption of Canada after the conquest of the French Army on the Plains of Abraham in 1759. In both instances the triumphant imperial force briefly toyed with the notion of vanquishing the losers, but then relented with the determination to integrate the older colonial systems into the workings of the new regime. In the aftermath of the conquest of the French imperial forces in North America, British forces moved into the Great Lakes-Ohio Valley region where they briefly conducted themselves as a conquering army. Their imperious approach to colonial rule instigated a confederacy of Indian peoples to resist by asserting military control over several fur trade emporiums in the Interior. This Indian assertion of their Aboriginal rights and titles was explained by an Ojibway leader named Minavavana to Alexander Henry, an Ango-American fur trader, in the following terms, "Englishman, although you conquered the French, you have not yet conquered us! We are not your slaves. These lakes, these woods and mountains were left to us by our ancestors. They are our inheritance; and we will part with none."(59)
News of the Indian resistance, which is most often associated with the name of the Ottawa strategist, Pontiac, reached the British capital in time to affect the content of the Royal Proclamation. The Indian Confederacy's own patriotic stand in opposition to the initial imposition of British rule in the Great Lakes area had rung many alarm bells in the imperial capital. The news of Pontiac's stand was widely interpreted within the imperial cabinet as proof of the wisdom of extrapolating the techniques of Indian diplomacy developed in the Covenant Chain to wider horizons in an expanded British Empire. For many years Sir William Johnson had been laying the analytical foundations upon which this conclusion was ultimately reached. The decision advanced in the Royal Proclamation to extend the politics of the Covenant Chain to France's former Indian allies entrenched Johnson's power as the great patriarch of the northern division of the British Imperial Indian Department. It strengthened the weight of his many recommendations that the Indian policies of New France should be emulated in the expansion of British North America. The French, Johnson declared in one of his letters emphasizing the merits of what he saw as a superior system of Indian administration, "would never employ a Trader to negotiate any matters with the Indians but a King's officer, who in whatever Rank or capacity is attended by a retinue of Soldiers accordingly to denote his importance."(60)
The desire to copy and replicate within the British Empire the French system for the conduct of relations with Indigenous peoples in North America is a well developed theme in the official correspondence of imperial Britain. One of the
clearest expressions of this position was the report penned for the Lords of Trade by Edmond Aitken, a Charleston-based fur trader. His report in 1755 led almost immediately to the creation of the British Imperial Indian Department as a arm of the British Military Establishment in North America. Aitken became Superintendent in the Department's southern division whereas Johnson assumed the superintendency of the northern division. The decision to centralize under
imperial control the administration of Indian Affairs was based in large measure on Aitken's praise of the merits of French colonialism in America. He wrote "It is universally known, that the Indian [affairs] have been managed and conducted on one plan, steadily pursued throughout Canada and Louisiana, under the immediate direction of the Crown; the chief object of which is, to exclude us not only from the Mississippi but from all the Indian Nations on this side of it.
In execution whereof are employed Men of the greatest Knowledge and Experience, by early and long Service, from among the Officers and Missionaries; who are supported by the Trade with the Indians, who rest their hopes of Preferment on their own Behaviour, and who on all Occasions support the Honour and the Dignity of the French Nation, and watch all opportunities to turn every Occurrence to their own Advantage, or to the Disadvantage of Great Britain and her Colonies."
Aitken advanced this analysis within the context of a broader assessment emphasizing the importance of relations with Indigenous peoples as a major determinant of the overall health and viability of British colonialism in North America. This assessment was one of the factors that gave the subject of Indian Affairs such prominence in the minds of those who drafted the Royal Proclamation. Aitken argued "The importance of Indians is now generally known and understood. A Doubt remains not, that the prosperity of Colonies on the Continent, will stand or fall with our Interest and favour among them. While they are our Friends, they are the Cheapest and Strongest Barrier for the Protection of our Settlements; when Enemies, they are capable by ravaging in their method of War, in spite of all we can do, to render those Possessions almost useless."(61)
By way of comparison with the French imperial system, Aitkin outlined what he saw as the disorganized malaise plaguing the checkered Indian policies of the Anglo-American colonies as long as local priorities prevailed. He asserted "Some of the colonies have no regulations at all in Indian Affairs; others have made different ones, and some but seldom if at all send proper persons to look into them. But the management of them hath often been left to Traders, who have no skill in Public Affairs, are directed by their own interests, and being generally the loosest kind of People, are despis'd and held in great Contempt by the Indians as Liars, and Persons regarding nothing but their own Gain."
This aspect of Edmond Aitken's report presents a small glimpse the complex history beneath the explanation in the Royal Proclamation of the provision prohibiting private purchases of Indian lands. King George declared, "Whereas Great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the Great Prejudice of our Interests, and to the Great Dissatisfaction of the said Indians; In order, therefore, to prevent such Irregularities in the future, and to the End that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do, with the Advice of our Privy Council strictly enjoin and require, that no private Person do presume to make any Purchase from the said Indians of any Lands reserved to the said Indians....."
The great frauds and abuses referred to by King George went far beyond the machinations of a hand full of self-interested Anglo-American fur traders. A major source of uncertainty in Anglo-American colonization before 1763 was the lack of a clear and consistent set of conventions for acquiring Indian lands. While exterminating the Aboriginal inhabitants of a region constituted one means of clearing the Original title, private purchases of Indian lands formed another, less drastic strategy of acquisition. As long as there were no clear and consistent procedures for such transfers, however, chaos tended to prevail. It frequently happened, for instance, that the same parcel of territory was claimed by two or more parties based on different purchases from different groups of Indians. There was simply no guarantee that an Indian group prepared to sell a certain plot was the Indian group in fullest possession of the territory in question. Moreover, it happened that some Indian groups were perfectly happy to sell the lands of their Aboriginal enemies, and more than once if possible.
One outcome of this unregulated approach to colonial expansion on the frontiers of Indian Country was marked by worsening cycles of violence and recrimination. It also resulted in many trans-Atlantic visits to the imperial capital by a growing number of delegations representing increasingly complex and varied coalitions of colonial and Aboriginal interests. Many of these delegations sought the intervention of the imperial government as the ultimate arbiter in a proliferating array of land disputes. The famous imperial test case entitled Mohegan versus Connecticut first arose in the early eighteenth century as an outgrowth of what Francis Jennings has dubbed "the deed game." (62) Collectively this genre of dispute became a legal and political quagmire. The provisions in the Royal Proclamation calling for the implementation of a single, consistent set of rules and procedures for the acquisition of Indian lands addressed an old imperial problem that had bedeviled relations among colonists even as it had helped drive many Indian groups into alliance with the French. Moreover, it removed the basis for future arguments based on the premise that direct purchases from Indian groups by private individuals or corporations placed the buyer inside the legal jurisdiction of the Aboriginal sellers. Only by making the sovereign the purchaser could it be made clear that jurisdiction as well as title was changing hands.
The Royal Proclamation drew also on traditions of treaty relations linking Quaker settlers with the peoples indigenous to the colony founded by "the Great Proprietor," William Penn. Prominent among the treaty allies of the Quakers were some groups of Lenni Lape, who were also referred to as Delaware on account of the name attached to the river running through their Aboriginal territory. (63) The tradition of Quaker diplomacy in Indian Country was rooted in a number of factors, not the least of which was the authentic conviction held by the most sage members of the Society of Friends that the Christian ideals of fairness and brotherly love demanded that the English colonization in North America should be accompanied by compensation to, and consent from, the continent's Aboriginal inhabitants.(64)
The Quaker influence was most direct in the the negotiation in 1758 of the Treaty of Easton, an agreement that elaborated one of the core principles which the Royal Proclamation further codified. In that transaction Sir William Johnson called on Quaker leader, Israel Pemberton, to help bring together the parties. The central provision of the Easton Treaty established a fixed boundary line between the Anglo-American colonies and the reserved Indian Hunting Ground. The success of that negotiation helped shift the tide of the Seven Years War. The promise of British officials to prohibit unregulated Anglo-American land grabs in the upper reaches of the Ohio Valley helped pull away Aboriginal groups in the region from their long tradition of alliance with the French. The outcome was the British takeover without a battle of the French post of Fort Duquesne. It then was named Fort Pitt and subsequently Pittsburg.(65)
Legal historian John Borrows has pointed to a major Crown-Aboriginal gathering which took place at Niagara in 1764 as evidence that the terms of the Royal Proclamation were not unilaterally imposed but subject rather to negotiations between a number of First Nations and imperial officials, including Sir William Johnson. As Borrows sees it, wider knowledge of what transpired at Niagara "would go a long way to dispelling notions that regard First Nations as subservient to or dependent upon the Crown in pressing and preserving their rights." It would help advance the appreciation of Indigenous peoples "as active participants in the formulation and ratification of their rights."(66)
At the Niagara council the Royal Proclamation was discussed through translators expert in English and several Aboriginal languages. The main ideas to emerge from the exchange were, according to Borrows, the idea of an Indian relationship with the imperial power based on peace and friendship, alliances with the Crown, free trade, and the necessity of Aboriginal consent for any cession of the protected Indian territories. The principles of relationship outlined in the assembly were marked on a famous wampum delivered to the Crown's Indian allies by Sir William Johnson. In that era many of the most important transcultural transactions in the Indian Affairs of eastern North America were signified and preserved in pictoral representations beaded into shelled belts known as wampums.
The history of the dissemination of wampum and the protocols accompanying this medium of diplomacy are closely associated with the links of continuity connecting the expanding spheres of influence radiating first from the Longhouse League, then from the Covenant Chain and then from the Indian Confederacy that eventually defended Canada from annexation by the United States in the War of 1812. The adoption of wampum in the Indian diplomacy of the Swedish, the Dutch, the French, the Anglo-American colonies, the British imperial regime and the US government is evidence of the influence of Aboriginal culture and laws on the culture and laws of the colonizing societies in North America. It is evidence of the progress of an ideal demanding reciprocity and compromise from all sides on the middle ground between those who envisioned America as a New World and those grounded in the knowledge of the Western Hemisphere as the site of many Old Worlds. In today's terms this ideal of reciprocal compromise might be described as Aboriginal and treaty rights.
After the American Revolution the United States was organized on principles that elevated the role of central authority by putting the federal government firmly in control of the process of western expansion. A key to this distribution of powers was to centralize jurisdiction over the conduct of war or over the negotiation of treaties with Indigenous peoples. In making this adjustment, one that helped orient the national government of the United States to its continental, hemispheric and global role in empire building, many of the principles animating the Royal Proclamation of 1763 were reproduced within the context of American independence.
Many of the powers once claimed by King George, for instance, were taken over by Congress in 1787 in a legislative enactment entitled the Northwest Ordinance. The Northwest Ordinance laid out the framework for the organization of lands north of the Ohio River and South of the Great Lakes as an internal colony of federal jurisdiction. This legislative instrument, one which created the prototype for many federal territories yet to come in the expansion of both the United States and Canada, proclaimed,
"Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. The utmost good faith shall always be observed towards the Indians; their land and property shall never be taken from them without their consent; and in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them."(67)
The language employed in the Northwest Ordinance is a far cry from the reference in the Declaration of Independence to "merciless Indian savages." This change in tone can be interpreted as an outgrowth of the success of the American War of Independence. With this success came a broadened willingness on the part the Creole victors to integrate into the international system controlled by the small circle of imperial powers which had recognized the sovereignty of the United States in the Treaty of Paris of 1783. The enactment of the Northwest Ordinance seemed to signal to this imperial constituency that the federal government of the United States was ready to continue the civilizational mission of western Europe in colonizing the Western Hemisphere. It seemed to signal that the United States was assuming its responsibilities as both outgrowth and instrument of Western Civilization; as both outgrowth and instrument of the Judeo-Christian and Greco-Roman heritage.
The Northwest Ordinance seemed calculated to impress on the international community that the United States would treat Indian peoples in North America fairly. The document's drafters seemed less concerned, however, with putting forward such reassurances in terms likely to persuade Indigenous peoples themselves of the federal government's good intentions. With the Royal Proclamation of 1763 the opposite seems to have been the case. The imperial document seems inspired by a genuine desire to persuade Indian peoples that they could survive and thrive within the British Empire. It seems to have been drafted with the hope of persuading Indian peoples of the imperial government's "determined Resolve" to bring them "Justice" through the protection of Aboriginal land rights. Like the Royal Proclamation, the Northwest Ordinance stipulated that Indian consent should accompany the process of western expansion. Unlike the Royal Proclamation, however, the Northwest Ordinance laid out a scheme of "lawful wars... founded in justice" as an alternative means of imposing non-Aboriginal jurisdiction on Indian peoples and their Aboriginal lands. Given that Congress would act as the sole arbiter of the lawfulness and justice of its own frontier wars, this provision essentially reserved the right of conquest as a means of nation building.
Between the American Revolution and 1871 the US government entered into almost four hundred treaties with Indian nations in the process of western expansion. (68) Often treaty negotiations did not occur until the US Army had demonstrated the superiority of its military strength through acts of conquest.
Unlike the Indian treaties negotiated in what remained of British North America according to the Royal Proclamation's terms, Indian treaties in the United States were afforded the same treatment given treaties with foreign powers. To become law they had to be approved in Congress by a two-thirds plurality of votes in the Senate.(69)
A severe break in the continuity of the treaty system of the United States occurred in the 1830s. Under the presidency of Andrew Jackson, Congress passed laws calling for the relocation of all Indian groups east of the Mississippi to new homes west of the Mississippi. The implementation of a policy of Indian removal on this scale violated virtually all of the Indian treaties conducted up until that time with the US government. Nevertheless, the scheme was pressed forward even in the face of a decision of the Supreme Court clarifying the illegality of Jacksonian Indian removal. The episode culminated in the so-called Trail of Tears, the most dramatic of the forced removals of the Cherokee and other members of the so-called Five Civilized Tribes from their home territory in the American Southeast.(70)
The treaty system going back to the Royal Proclamation of 1763 and the Northwest Ordinance of 1787 was terminated in 1871 with an act of Congress. The congressional enactment stated, "no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty." (71) This legislation represented not only a retreat away from a tradition of domestic law within the United States. It also represented a move away from the nascent international law of Aboriginal and treaty rights. It represented a move away from multilateralism towards the unilateralism that would become such a dominant theme in US foreign policy at the beginning of the twenty-first century. Hence there were many global implications in the retreat by the future superpower from the rule of law towards a doctrine preoccupied with the manipulation of force. As John R. Wunder has written, "The Resolution of 1871 not only represented an end to pretense in Indian relations, but it also meant a serious modification and violation of international law and a threat to the diplomacy of the United States."(72)
In 1987 the US government clarified its dependence on the doctrine of conquest, a justification for power that essentially makes the rule of force superior to the rule of law. That clarification came in the form of a reply from the U.S. State Department to the United Nations Human Rights Commission. The State Department was responding to a complaint brought forward by Hopi traditionalists. Like some of the key activists among the Western Shoshone and Six Nations peoples, Hopi people have been among the most active intervenors in venues of international law. (73) In answering the Hopi complaint, the executive branch of the American government declared, "conquest renders the tribes subject to the legislative powers of the United States and in substance, terminates the external powers of the sovereignty of the tribe." (74)
The shift from consent to conquest as the formal way of explaining the relationship of power between Indigenous peoples and the US government is consistent with an approach which has seen the United States favour the rule of force over the rule of law across many fields of human affairs. One need only invoke the names of Hiroshima or Nagasaki to illustrate the American propensity to favour conquest-- the principle that might is right-- as the ultimate determinant of how world order should be constructed. The importance of capital punishment and of long jail sentences for a large proportion of the American citizenry offer further evidence of the growing dependence in the United States on state force and state coercion as bastions of social cohesion. At the same time the resistance to gun control in the United States is indicative of a widely-held attitude within the superpower that legitimacy is ultimatley derived from weapons rather than ballots, legislatures, statutes and courts.
This emphasis on the rule of force over the rule of law expresses very well the Darwinian conviction that the progress of society, but particularly capitalist society, is based on a perpetual struggle for survival where the fittest triumph and the where the weak fall away through vanquishment, death and obsolescence. The outcome of this attitude is evident in forms of global organization that afford worldwide market relations far wider latitude than the United Nations or international human rights law in establishing the institutional configurations of human relationships on a global basis. The outcome of this attitude lies in a sytem of world order that makes monopoly capitalism, as dominated by a few dozen of the world's largest corporations, the basis on which the very broad outlines of global governance are ultimately founded. In the prelude to the US-led invasion of Iraq there developed a huge transnational protest registering vast global antagonism towards this approach, one which vests final authority over world order in the war making capacity of the US military-industrial complex rather than in the constitutional framework and law making capacity of the United Nations.
The Royal Proclamation of 1763 underlies to this day the continuing negotiation of treaties between Indigenous peoples and the sovereign Crown of Canada. One of the reasons the law of Aboriginal and treaty rights has remained more integral to the federalism of Canada than the federalism of the United States is that the former's imperial constitution lies deeply implanted in the culture, history and law of the fur trade. That fur trade was one of the few commercial activities in the colonization of the Western Hemisphere that provided a basis for economic and political collaboration between Indigenous peoples and newcomers. So elaborate did this collaboration become in North America that the Indian Confederacy and the British Army formed an alliance that ultimately prevented Canada from being annexed by the United States in the War of 1812. As Supreme Court Justice Samuel Henry Strong wrote in a minority opinion on the St. Catherine's Milling case, litigation between the Dominion and Ontario governments that unfolded between 1885 and 1888, (75) the Royal Proclamation led to a dramatic reduction of frontier conflicts for British North Americans. "Indian nations," he wrote, "from that time became and have since continued to be firm and faithful allies of the Crown and have rendered it important military service in two wars-- the war of the Revolution and that of 1812."(76)
The Royal Proclamation's tradition of Crown recognition of Aboriginal and treaty rights was briefly submerged as a operational factor in Canada's development between 1929 and 1973. In 1929 the making of the eleven numbered treaties came to a close with a ceremony marking the adhesion at Big Trout Lake Ontario of a group of Oji-Cree people to Treaty 9. Treaty 1 was negotiated in 1871, the very year that Congress retreated from further adherance to the international law of Aboriginal and treaty rights. In 1973 the Supreme Court of Canada recognized the concept of Aboriginal title as one belonging to Crown law in British Columbia and, by implication, throughout much of the rest of the Commonwealth as well. One result was the negotiation of a number of modern-day Crown-Aboriginal treaties in Canada beginning in 1975 with the James Bay and Northern Quebec Agreement. A similar dynamic was set in motion in Australia in 1992, when the High Court's Mabo ruling raised the pressure to bring that country more in line with the international law of Aboriginal and treaty rights.
The intensifying controversies engulfing Israel, Palestine, Kurdistan, Iraq, Iran and many other hot spots on the contested frontiers of the informal empire of the United States help to increase the need to clarify the international status of Indigenous peoples, but particularly those peoples living in nation-states which are indifferent, or actively hostile to their rights of self-determination. No longer is it acceptable to dismiss such claims by falling back on old distinctions drawn, for instance, in the Declaration of Independence between merciless savages and those entitled to participate in the universal liberties of life, liberty and the pursuit of happiness. In facing the tensions between its current role as the world's sole superpower and its history of Indian fighting and empire building within North America, the US government might not yet have escaped the constitutional aura cast by King George III. There may be future chapters of American history to write about how the superpower comes to terms with the legacy of Thomas Jefferson's imperial nemisis, the law giver behind the principles of Aboriginal and treaty rights as seminally codified in the Royal Proclamation of 1763.
Endnotes
1.This paper draws from and extends arguments outlined at greater length in The American Empire and the Fourth World. The text, part one of a larger project entitled The Bowl With One Spoon, is being published this fall by McGill-Queen's University Press. ISBN 0-7735 2332-4
2.John Adams to Thomas Jefferson cited in Carl Becker, The Declaration of Independence: A Study in the History of Political Ideas (New York: Alfred A. Knopf, 1969), p. 135
3.See Pauline Maier, American Scripture: Making the Declaration of Independence (New York: Knopf, 1997)
4.Carl Becker, The Declaration of Independence, pp. 147-150
5.Gregg Easterbrook, "American Power Moves Beyond the Mere Super," The New York Times, 27 April, 2003, section 4, pp. 1, 5
6.See Richard W. Alstyne, The Rising American Empire (Chicago: Quadrangle Books, 1965); Francis Jennings, The Creation of America through Revolution to Empire (Cambridge: Cambridge University Press, 2000)
7.Niall Ferguson, The Cash Nexus: Money and Power in the Modern World, 1700-200 (New York: Basic Books, 2001), pp. 390-425; Empire: The Rise and Demise of the British World Order and the Lessons for Global Power (New York: Basic Books, 2002); "The Empire Slinks Back," The New York Times Magazine, 27 April, 2003, pp. 52-57
8.Hall, "What Are We? Chopped Liver?" in Michael D. Behiels, ed., The Meech Lake Primer: Conflicting Views of the 1987 Constitutional Accord (Ottawa:University of Ottawa Press, 1989), pp. 423-456
9.Dorothy V. Jones, License for Empire: Colonialism by Treaty in Early America
(Chicago: The University of Chicago Press, 1982)
10.Timothy O'Brien, "Just What Does America Want To Do With Iraq's Oil?," The New York Times, 8 June, 2003, section 4, p. 5
11.Timothy O'Brien, "Just What Does America Want To Do With Iraq's Oil?," The New York Times, 8 June, 2003, section 4, p. 5
12.The Royal Proclamation of 1763 cited in Native Rights in Canada. Second Edition, Peter Cumming et. Al., eds, (Toronto: The Indian-Eskimo Association of Canada and General Publishing, 1972), p. 291
13.Fred Anderson, Crucible of War: The Seven Years War and the Fate of Empire in British North America, 1754-1766 (New York: Vintage Books, 2000)
14.Jack M. Sosin, Whitehall and the Wilderness: The Middle West in British Colonial Policy, 1760-1775 (Lincoln: University of Nebraska Press, 1961)
15..Carl L. Becker, The Declaration of Independence, p. 180
16.Francis Jennings, The Creation of America, p. 170
17.See Michael Asch, ed., Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Diversity (Vancouver, UBC Press, 1997)
18.For the background of these contemporary treaty negotiations in British Columbia see Paul Tennant, Aboriginal Peoples and Politics: The Indian Land Question in British Columbia, 1849-1989 (Vancouver: University of British Columbia Press, 1990);Tom Molloy with Donald Ward, The World Is Our Witness: The Historic Journey of the Nisga'a into Canada (Calgary: Fifth House, 2000)
19.Christopher McKee, Treaty Talks in British Columbia: Negotiating a Mutually Beneficial Future (Vancouver, UBC Press, 1996)
20.See Robert S. Allen, His Majesty's Indian Allies: British Indian Policy in Defence of Canada, 1774-1815 (Toronto: Dundurn Press, 1992)
21.Representatives of the Lords of Trade on the State of Indian Affairs, 7 March, 1768, To the King's Most Excellent Majesty, in Clarence Alvord and Clarence Edwin Carter, eds, Trade and Politics, 1767-1769. Collections of the
Illinois State Historical Library, Vol. 16, British Series, Vol. 3 (Springfield: Illinois State Historical Library, 1921), p. 190
22.See Benedict Anderson, Imagined Communities: Reflections on the Origins and Spread of Nationalism. Revised Edition (London: Verso, 1991)
23.J.H. Smith, Appeals to the Privy Council from the American Plantations (New York: Columbia University Press, 1950), pp. 417-441; Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain, and France, c.
1500-c.1800 (New Haven: Yale University Press, 1995), p. 138
24.Charles R. Cutter, The Protector de Indios in Colonial New Mexico, 1659-1821 (Albuquerque: University of New Mexico Press, 1986)
25.Robert A. Williams, Jr., The American Indian in Western Legal Thought: The Discourses of Conquest (New York: Oxford University Press, 1990), p. 255
26.See Richard White, The Middle Ground: Indians, Empires, and Republics in the Great Lakes Region, 1650-1815 (Cambridge: Cambridge University Press,
1991); Bruce G. Trigger, Natives and Newcomers: Canada's Heroic Age Reconsidered (Montreal: McGill-Queen's University Press, 1985)
27.Thomas Jefferson, A Summary of the Rights of British America set Forth in Some Resolutions intended for the Inspection of the Present Delegates of the People in Virginia Now in Convention ((Williamsburg: Clementinarind, 1774),
reprinted in The Papers of Thomas Jefferson, Julian P. Boyd, ed., (Princeton: Princeton University Press, 1950), Vol. 1, 1760-1776, pp. 132-133
28.Robert A. Williams, Jr., The American Indian in Western Legal Thought, p. 246
29.John Locke, Two Treatises of Government, 1690, republished in Two Treatises of Government: A Critical Edition with an Introduction and Apparatatus Criticus by Peter Laslett. Revised Edition (New York: Mentor, 1965), pp. 336,
328
30.Ibid, 343
31.James Tully, "The Two Treatises and Aboriginal Rights," in Tully, An Approach to Political Philosophy: Locke in Contexts (Cambridge University Press, 1993), pp. 140-141
32.Crawford Brough Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford: Clarendon Press, 1962)
33.John Locke, Two Treatises of Government, p. 331
34.R. Douglkas Hurt, Indian Agriculture In America (Lawrence: University Press of Kansas, 1987); Carl O. Sauer, Seeds, Spades and Herds: The
Domestication of Animals and Foodstuffs (Cambridge Mass.: The MIT Press, 1972); Betty Fussell, The Story of Corn: The Myths and History, the Culture and Agriculture, the Art and Science of America's Quintessential Crop (New
York: North Point Press, 1992)
35.See Boyce Richardson, The People of Terra Nullius: Betrayal and Rebirth in Aboriginal Canada (Vancouver: Douglas and McIntyre, 1993)
36.Solon J. Buck, "Clarence Walworth Alvord, Historian," The Missississippi Valley Historical Review, Vol. 15, no. 3, December, 1928, pp. 309-320
37.Frederick Jackson Turner, "The Significance of the Frontier in American History," first published in 1893, reprinted in The Frontier in Perspective, Walker D. Wyman and Clifton B. Kroeber, eds, (Madison: University of Wisconsin Press,1965); Walter Prescott Webb, "The Frontier Thesis and the 400 Year Boom," in The Turner Thesis, Concerning the Role of the Frontier in American History (Lexington Mass.: Heath and Company, 1972)
38.See Clarence Walworth Alvord, "Lord Shelburne and the Founding of British-American Goodwill," Annjual Raleigh Lecture in History, Proceedings oof the British Academy, 1924-25, p. 384
39.Clarence Walworth Alvord, The Mississippi Valley in British Politics: A Study in Trade, Land Speculation, and Experiments in Imperialism Culminating in the American Revolution. 2 Vols. (Cleveland: The Arthur H. Clark Company, 1917)
40.Albert K. Weinber, Manifest Destiny: A Study in Nationalist Expansion in American History (Baltimore: Johns Hopkins Press, 1935); Reginald Horsman, Race and Manifest Destiny: The Origins of American Racial Anglo-Saxonism (Cambridge Mass.: Harvard University Press, 1981)
41.Conor Cruise O'Brien, On the Eve of the Millenium (Toronto: Anansi, 1994), pp. 3-64
42.Ward Churchill, A Little Matter of Genocide: Holocaust and Denial in the Americas, 1492 to present (Winnipeg: Arbeiter Ring Publishing, 1998); Richard Drinnon, Facing West: The Metaphysics of Indian-Hating and Empire Building
(Minneapolis: University of Minnesota Press, 1980); Richard Slotkin, Regeneration Through Violence: The Mythology of the American Frontier, 1600-1800 (Middleton Conn.: Wesleyan University Press, 1973); Slotkin, The Fatal Environment: The Myth of the Frontier in the Age of Industrialization, 1800-1890 (New York: Atheneum, 1985); Slotkin, Gunfighter Nation: The Myth
of the Frontier in Twentieth-First Century America, (New York: Atheneum, 1992)
43 George Grant, Lament for a Nation: The Defeat of Canadian Nationalism (Toronto: McClelland and Stewart, 1965); David Orchard, The Fight for Canada:Four Centuries of Resistance to American Expansionism, (Toronto: Stoddart,1993)
44.John Pilger, "Secret Waters," in Pilger, Hidden Agendas (London: Vantage, 1999), pp. 223-248
45.Bruce R. Scott, "The Great Divide in the Global Village, Foreign Affairs, January/February, 2000
46.Mark Crocker, Rivers of Blood, Rivers of Gold: Europe's Conquest of Indigenous Peoples (New York: Grove Press, 1998), p. xiii
47.Hall, "Treaties, Trains, and Troubled National Dreams: Reflections on the Indian Summer in Northern Ontario, 1990," in Law, Society, and the State: Essays in Modern Legal History, Louis A. Knafla and Susan W.S. Binnie, eds.,(Toronto: University of Toronto Press, 1995), pp. 290-320; Sidney L. Harring, White Man's Law: Native People in Nineteenth-Century Canadian Jurisprudence (Toronto: University of Toronto Press, 1998), pp. 273-281
48.Neolin cited in Richard White, The Middle Ground: Indians, Empires, and Republics in the Great Lakes Region, 1650-1815, p. 284
49.See S. James Anaya, Indigenous Peoples in Internationa Law (New York: Oxford University Press, 2000)
50.Antonio Cassese, Self-Determination of Peoples: A Legal Appraisal (Cambridge: Cambridge University Press, 1996)
51.V.I. Lenin, Imperialism, the Highest Stage of Capitalism: A Popular Outline (1916;Moscow: Progress Publishers, 1966)
52.Arno J. Mayer, Political Origins of the New Diplomacy, 1917-1918, New York: Vintage Books, 1970); Victor S. Mamatey, The United States and East Central Europe, 1914-1918, (Princeton: Princeton University Press, 1957)
53.Cadwallader Colden, The History of the Five Nations of Canada, Which Are Dependent on the Province of New-York in America, and Are the Barrier Between the English and the French in That Part of the World, 2 Vols (London:
T. Osborne, 1747)
54.Lewis Henry Morgan, League of the Ho-de-no-sau-nee or Iroquois (Rochester New York, 1851)
55.Francis Jennings, "Dutch and Swedish Indian Policies," in Handbook of North American Indians, William C. Sturtevant. ed., Vol. 4, History of Indian-White Relations, Wilcomb E. Washbirn, vol. Ed., (Washington: Smithsonian Institution, 1988), pp. 13-19
56.Francis Jennings, Empire of Fortune: Crowns, Colonies and Tribes in the Seven Years War in America (New York: W.W. Norton, 1988)
57.Francis Jennings, The Ambiguous Iroquois Empire: The Covenant Chain Confederation of Indian Tribes with British Colonies from Its Beginning to the Lancaster Treaty of 1744 (New York: W.W. Norton, 1984)
58.Sir William Johnson, The Papers of Sir William Johnson, James Sullivan et. al., eds., 15 Vols., (Albany: University of the State of New York, 1921 1965)
59.Alexander Henry, Travels and Adventures in Canada and the Indian Territories between 1760 and 1776 (Edmonton:Hurtig, 1969), pp. 44-45
60.Johnson cited in Timothy J. Shannon, "Dressing for Success on the Mohawk Frontier: Hendrick, William Johnson and Indian Fashion, William and Mary Quarterly, Third Series, Vol. 53, no. 1, January, 1996, p. 40
61.Edmond Aitken, The Appalachian Indian Frontier. The Edmond Aitken Report and Plan of 1755 (Lincoln: University of Nebraska Press, 1967), pp. 3-8
62.Francis Jennings, The Invasion of America: Indians, Colonialism, and the Cant of Conquest (New York: W.W. Norton, 1976), pp. 128-145
63.See Anthony F.C. Wallace, Teedyuscung: King of the Delawares, 1700 1763 (Salem N.H.: Ayer, 1984)
64.Samuel M. Janney, The Life of William Penn, (Freeport N.Y.: Books for Libraries Press, 1970) originally oublished in 1851, pp. 164-170, 185 186; Edward C.O. Beatty, William Penn as Social Philosopher, (New York: Columbia University Press, 1939), pp. 266-273
65.Francis Jennings, Empire of Fortune, pp. 369-404
66.John Borrows, "Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government," in Michael Asch, ed., Aboriginal and Treaty Rights in Canada, p. 171
67.Northwest Ordinance, 1787, from Albert L. Hurtado and Peter Iverson, eds. Major Problems in American Indian History: Documents and Essays (Lexington Mass.: D.C. Heath and Company, 1994), pp. 168-169
68.Francis Paul Prucha, American Indian Treaties: The History of a Political Anomoly, (Berkeley: University of California Press, 1994); Charles J. Kappler, Indian Affairs: Laws and Treaties, 5 Vols., (Washington D.C. Government Printing Office, 1903-1941)
69..Hayden Ralston, The Senate and Treaties, 1789-1817: The Development of the Treaty-Making Functions of the United States during Their Formative Period, (New York: Macmillan Company, 1920)
70.Angie Debo, And Still The Waters Run: The Betrayal of the Five Civilized Tribes (Princeton N.J.: Princeton University Press, 1940)
71..Cited in John R. Wunder, "No More Treaties: The Resolution of 1871 and the Alteration of Indian Rights to Their Homelands," in Wunder, ed., Working The Range: Essays on the History of Western Land Management and the Environment, (Westport Connecticut: Greenwood Press, 1985), p. 39
72.Ibid, p. 53
73.See Alexander Ewen, ed., Voice of Indigenous Peoples: Native People Address the United Nations, (Sante Fe: Clear Light Publishers, 1994); Lydia van de Fliert, ed., Indigenous Peoples and International Organizations, (Nottingham England: Spokesman, 1994)
74.United Nations Document E/CN.4/GR.1987/7/Add.1230, September, 1987, pp. 18-19, cited in Frank Wilmer, The Indigenous Voice in World Politics: Since Time Immemorial, (Newbury Park: Sage Publications, 1993), p. 58
75.Hall, "The St. Catherine's Milling and Lumber Company versus the Queen: Indian Land Rights as a factor in Federal-Provincial Relations in Nineteenth-Century Canada," in Aboriginal Resource Use in Canada: Historical and Legal Aspects, Kerry Abel and Jean Friesen, eds, (Winnipeg: University of Manitoba Press, 1991), pp. 267-286
76.Reports of the Supreme Court of Canada, Vol. 13, pp. 609-610
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