Dispossession of the Passamaquoddy."
by
Excerpt from thesis:
“The central purpose of this work is to demonstrate the way in which these elements of the European intellectual tradition have determined the course of colonization in North America. The history of the Passamaquoddy, of southwestern New Brunswick and Eastern Maine, provides a practical example of way in which dispossession of Aboriginal peoples has proceeded since the time of first contact”.
Biography:
Mary L. Caldbick was born in Timmins, Ontario, Canada and
attended the University of Waterloo (Bachelor of Science 1987) and the University of New Brunswick (Bachelor of Arts, Poli. Sci. 1994, Master of Arts, Poli. Sci. 1997 and Bachelor of Laws, 1999). Called to the Bars of the Provinces of New Brunswick (2000) and Ontario (2001), practiced law in Ontario from Oct. 2000 to Sept. 2003. Currently employed as a Claims Analyst in Research with the Specific Claims Branch of Indian and Northern Affairs Canada.
A culture that discovers what is alien to itself simultaneously
manifests what is in itself.[1]
In attempting to write what he describes as an “archaeology of anthropology”, Bernard McGrane delineates the different stages through which European understanding of the non-European cultures has passed, from the sixteenth to the early nineteenth centuries. Prior to the development of anthropology as a distinct social science, non-European cultures were understood through different lenses, each of which gave its own specific meaning to those cultures. In the sixteenth century, it was Christianity which provided the mode of understanding of non-European cultures. During the Enlightenment, it was science and knowledge which provided the lens through which non-Western societies were examined. As McGrane notes:
In the Enlightenment it was ignorance that came between the European and the Other. Anthropology did not exist; there was rather the negativity of a psychology of error and an epistemology of all the forms and causes of untruth; and it was upon this horizon that the Other assumed his significance.[2]
Finally, in the nineteenth century, the era of Darwin and evolutionary theory, it was time which “came between” the European and the Other.
McGrane’s analysis of European conceptualizations of ‘alien’ cultures is significant for what it reveals about the Western intellectual tradition. McGrane asserts that from its earliest origins, anthropology has been a manifestation of “that egocentric tendency of our Western mind to identify itself as separate from what it perceives as external to itself.”[3] But McGrane’s characterization of anthropology can also be extended to the whole of the Western intellectual tradition. Calvin Martin has argued that the ethnocentric bias of “Indian-white history” has never fully been acknowledged by members of the discipline.[4] What has passed for Amerindian-white history in the past has, in his view, been simply a history of the interaction of whites with Native peoples, written with only a superficial understanding of Native “phenomenology, epistemology and ontology.”[5] As such it has only limited value.
Admittedly, there is nothing novel about decrying this
tendency among historians, many of whom would doubtless
protest that they are faithfully reproducing the literary
record of the Indian-white experience. Fair enough. But
we should quit deluding ourselves about the significance
and explanatory value of such history, for it is essentially
white history: white reality, white thoughtworld.[6]
Analyses such as these serve as caveats to those who are seeking a truthful account of Aboriginal history. Seen in these terms, McGrane’s typology of the Western intellectual tradition provides a useful guide to understanding the way in which Western cultures have dealt with Aboriginal peoples throughout the world, from the time of colonization to the present.
It is trite to say that European understanding of Native cultures has always been and still is, ethnocentric, without a deeper analysis of what that actually means in practical terms. Anthropological and historical records have served ideological purposes which extend far beyond their immediate, ostensibly educational and explanatory role. They have helped to shape Western perceptions of Aboriginal cultures and have played an important role in determining the manner in which those cultures are or have been treated by Western societies. In concrete terms, the less an indigenous society resembles Western culture politically, socially and economically, the easier it is for Western societies to deny the legitimacy of those indigenous societies. However, once similarities are found between Western and non-Western societies it becomes more difficult to deny the validity of those cultures.
Since the first encounters between European and Aboriginal cultures, the former has never strayed from its belief in its own superiority, in its belief that all other cultures are less highly evolved. This is a constant theme which runs throughout the history of Native-European relations in North America. It is a focus of this work, which examines in detail the way in which Europeans have understood the relationship between Native peoples and the lands they inhabit. In particular, this work analyzes the manner in which Western societies have attempted to undermine the legitimacy of Native land “ownership”, in order to justify appropriation of Native lands. The political theorist John Locke provided an effective tool for this process in his theory of property acquisition through labour. By contrasting his theory of property acquisition with the landholding patterns of North American Native peoples, Locke was able to provide a rationale for unfettered acquisition of Aboriginal lands by European settlers. So successful was Locke’s labour theory of property acquisition that it was taken up by the immigrant society’s institutions of law and government, with the result that his understanding of that fundamental institution of Western society has endured and still operates in the present.
In the late nineteenth and twentieth centuries, as McGrane has described, the discipline of anthropology began to provide a seemingly more objective analysis of Aboriginal societies. After nearly three centuries of unabated destruction of their cultures by European immigrants, Aboriginal peoples in North America were mostly destitute and landless. Ethnographers and ethnohistorians who were, in the main, sympathetic to the plight of Aboriginal peoples, began to uncover evidence that there was a ‘legitimate’ social order among those societies. A manifestation of this approach to understanding Aboriginal cultures was the family hunting territory debate, sparked by the work of Frank Gouldsmith Speck, an early pioneer ethnographer. Speck was regarded by his peers as a “friend” of Aboriginal peoples and his discovery of what was believed to be a form of private property amongst the Algonkians was no doubt, in his view, evidence of the legitimacy of their social order. Once again, however, the tendency of the European intellect to search for signs vindicating the institutions of its own societal order, is highlighted by the family hunting territory debate. Speck’s theory held sway until the mid-twentieth century, when Eleanor Leacock’s work among the Montagnais-Naskapi of Northern Labrador revealed that family hunting territories had not existed aboriginally, but were, in fact, an artifact of the European fur trade.
McGrane asserts that much insight can be gained by examining that which a particular culture perceives as alien to itself. This assertion finds support in Locke’s use of Native North Americans, and in the family hunting territory debate. The way in which Locke utilized America, as an empirical example of a pre-civil society, in effect mirrors the search by modern ethnographers for indications that private property existed amongst Aboriginal peoples. They represent examples of the continuing search by modern liberal societies for empirical evidence which will serve to validate the ideological tenets forming the basis of institutions such as property. When confronted with social orders in which these tenets do not dominate, the Western mind will leave no stone unturned in its search for signs of these ‘universal’ values.
The central purpose of this work is to demonstrate the way in which these elements of the European intellectual tradition have determined the course of colonization in North America. The history of the Passamaquoddy, of southwestern New Brunswick and Eastern Maine, provides a practical example of way in which dispossession of Aboriginal peoples has proceeded since the time of first contact. From the first encounters between European explorers and the Passamaquoddy, the cultural conflict between the two groups has been resolved in favour of colonizing governments, despite the fact that European settlements relied greatly on the beneficence of Native groups like the Passamaquoddy. A distorted and ethnocentric understanding of Aboriginal cultures has served to justify this process.
As important as it is to expose the underlying rationales which historically have been used to underwrite the dispossession of Native peoples, it is equally if not more important to educate members of modern polities about the legitimate claims of Aboriginal cultures to the lands they inhabit. Accordingly, this paper attempts to provide a countervailing analysis of the history of the Passamaquoddy people and their treatment by colonizing governments. Central to this analysis is the attachment of the Passamaquoddy to Kun-as-Kwam-Kuk, or what is today known as St. Andrews, New Brunswick. This important settlement has figured prominently in the history of the Passamaquoddy people but its importance to them, like other elements of Aboriginal culture, has been systematically ignored by successive governments. Through all the various phases of European colonization up to and including the present era, the relationship between the Passamquoddy and their ancestral lands has remained unchanged. It is a spiritual and physical attachment to place which endures.
CHAPTER ONE: LOCKE’S
DOCTRINE OF PROPERTY
INTRODUCTION
The relationship to the land found amongst Native people in North America was incompatible with European settlement. Native cultures did not perceive the lands they inhabited as property to be acquired, cultivated and “improved.” Rather, they viewed themselves as intimately connected to their surroundings, every element of which, was possessed of a soul no different from their own. A vindication of rights of Europeans to dispossess Aboriginal peoples was thus necessary for European expansion to proceed. In the initial stages of colonization, this justification was based primarily on religious teachings. In particular, the Biblical dictum that God had given the world to mankind to subdue, served to underwrite the rush by Christian nations to claim as much new territory as they could. When this scramble to acquire new lands led to conflicting claims between various nations, new, more refined political and legal doctrines were sought to legitimize European claims in the ‘New World.’
One of the most potent rationales for dispossession in the Enlightenment era lay, in part, in the writings of the seventeenth century philosopher, John Locke. Locke based his entire rationale for the existence of civil society on the right of individuals to privately appropriate land and resources. His writings are particularly relevant to the discussion of Aboriginal land tenure in North America because he expressly mentioned Native Americans as a putative example of the points he was making in his discussion of property.[7] In her extensive thesis on John Locke and colonialism, Barbara Arneil asserts that Locke’s understanding of the `New World’ derived from two principle sources: his collection of books containing accounts of contemporary travel; and his involvement in colonial administration, first as Secretary to the Lords Proprietors of Carolina and later as a Commissioner on the Board of Trade. His rationale for private appropriation of land and resources was actually adopted, implicitly and sometimes explicitly by European settlers.
John Locke’s Two Treatises of
Government, written over 300 years ago, are generally held to have been
written partly as a response to Sir Robert Filmer’s Patriarcha and partly as a justification for the overthrow of the
English monarch Charles II, in the latter part of the seventeenth century.[8] The influence of the Two Treatises however has been felt far
beyond the immediate historical context in which they were written. Most notably, Locke’s theories are generally
recognized as having been a major influence on the drafters of the United
States constitution. The idea of a
constitutional government delegated authority by its citizens, who possess the
right to life, liberty and property and to overthrow any government which
ceases to uphold these rights, is Locke’s best-known contribution to modern political thought. Theorists continue to employ the concepts developed by Locke and
many of his ideas continue to inform much of modern political and legal
thought. This is particularly true of
Locke’s justification of private property based on labour.
Yet the significance of Locke’s view of property for Aboriginal
peoples is routinely ignored by modern political analysts. It is important to understand that the
supposedly timeless and transcendental ideas which Locke expressed were in fact
the expression of a particular ideological viewpoint which was gaining ground
in Locke’s own time. His ideas were
written with particular political purposes in mind. Accordingly, the discussion
which follows in this chapter analyzes not only the Locke’s idea of property,
but also the context in which it was written and the effect it had on the
treatment of Native peoples by European colonizers. The chapter is divided into three parts: the first part lays out
Locke’s theory of property, contained in the sections leading up to, and
including Chapter V of the Second
Treatise. The second part of this chapter provides an analysis of the origins of Locke’s theory, and something
of the economic and political background
against which the Second
Treatise was written. In part
three, the significance of Locke’s theory vis-a-vis Aboriginal peoples is
discussed.
Locke begins his Second
Treatise with a refutation of the idea of a divine right of rulers, derived
from their special status as descendants of Adam. A restatement of the ideas expressed in the First Treatise, this argument is intended as a response to Filmer’s
work on that subject, Patriarcha.[9] Locke argues that since it
is impossible to prove that any ruler is a direct descendant of Adam, this
cannot be used as justification for supreme executive power.
...it is impossible that the Rulers now on Earth, should make any benefit, or derive any the least shadow of Authority from that, which is held to be the Fountain of all Power, Adam’s Private Dominion and Paternal Jurisdiction...[10]
He then sets himself
the task of deriving another, more rational justification for political power,
which he takes to mean the right of determining laws and penalties for breaches
of those laws, including the penalty of death.
He begins by describing the state of nature, a situation which exists
prior to civil society, where positive (human-made) laws are absent. In
this state of nature, each individual has perfect freedom, to “order their
Actions, and dispose of their Possessions, and Persons as they think fit.”[11] This freedom is subject only
to the restrictions imposed by the laws of nature. In this state of nature, Locke argues, men are basically governed
by the maxim: “do unto others as you would have them do unto you”; that is, if
you harm someone else, you may expect harm in return.[12] The laws which govern human
behaviour in the state of nature then, are the laws of nature, which are also
the laws of reason.
Notwithstanding this general rule of behaviour however, men also
have, in the state of nature, a duty to preserve themselves. This is true,
Locke argues, in paragraph six of his chapter, “Of the State of Nature”,
because men are the “workmanship” of god, and are therefore his property, “made
to last during his, not one anothers Pleasure.”[13] As the property of god, men
are obligated to preserve themselves. To accomplish this, men must have the power to punish those who
interfere with their person or property.[14] The only reason an
individual may lawfully do harm to another, is punishment for violations of the
law of nature, for “in transgressing the Law of Nature, the Offender declares
himself to live by another Rule, than that of reason and common Equity, which
is the measure God has set to the actions of Men for their mutual security...”[15] Those who do not adhere to
the law of nature then, are in Locke’s view, dangerous to mankind, and others
have a right to punish them, to the point of destroying them. An individual may thus become, as Locke
declares, the “Executioner of the Law
of Nature.”[16]
In defending this thesis, Locke argues that laws which are made by
national governments have no extraterritorial authority and so they cannot
govern those, such as Aboriginal people, who are not citizens of those
nations. This is the first use made by
Locke of the example of Aboriginal peoples.
He argues that the only law which can be said to command the obedience
of all mankind, is the law of nature.
Those who have the Supream Power of making Laws in England, France or Holland, are to an Indian, but like the rest of the World, Men without Authority: And therefore if by the Law of Nature, every Man hath not a Power to punish Offences against it, as he soberly judges the Case to require, I see not how the Magistrates of any Community, can punish an Alien of another Country, since in reference to him, they can have no more Power, than what every Man naturally may have over another.[17]
It is significant that
Locke uses the example of Aboriginal peoples in the context of a justification
for punishment of transgressors of the law of nature.
The problem which arises, however, if each individual
has the right to decide who has done him an injury, and to be both judge and
jury so to speak in his own case, is that they will almost certainly decide in
their own favour and may go too far in punishing those they believe to be
offenders. Locke agrees that the remedy
for these “inconveniences” of the state of nature is government, but he argues
that a monarch who can be both judge and jury in his
own cause is actually worse than the situation in the state of nature. In summing up his thesis regarding the state
of nature, Locke answers the objection which may be raised as to whether and where such a state of nature could be said to have
existed. He argues that contemporary
rulers of the nations are in a state of nature with one another, because the
only act which can negate such a state, is the mutual agreement to enter into
one political community. In addition,
Locke again expressly mentions the case of Native peoples in America as an
example of the state of nature:
The Promises and Bargains for Truck, etc. between the two Men in the Desert Island, mentioned by Garcilasso De la vega, in his History of Peru, or between a Swiss and an Indian, in the Woods of America, are binding to them, though they are perfectly in a State of Nature, in reference to one another.[18]
In Chapter Three, Locke makes the distinction between the state of
nature and the state of war. A state of nature exists
where men live together, according to reason, without
a common superior or authority to judge between them. A state of war arises at the moment when one person uses force or
aggression against another. Unlike
Hobbes’ state of nature, in which “every man is Enemy to every man”, Locke’s imagined
state of nature is less brutal.[19] It is only the use of force which places men in a state of war with
one another. To avoid this,
men enter into society with one another and agree to
be governed by a common authority.
Having thus dealt with one justification for political society, Locke next turns, in Chapter V of the Second Treatise, to a discussion of property, the preservation of which he regards as the most important reason men have for entering into a civil society. He begins his discussion with the statement that whether we appeal to natural reason, or to God’s directives as stated in Genesis, it is clear that the world was given to mankind in common for its preservation.[20] Given the fact of original communistic property ownership, Locke’s sets himself the task of trying to answer what he calls “the very great difficulty” of how any one person should ever come to have a property right in lands which were originally given by God to all men.[21] It is here that Locke presents his version of the labour theory of property. He argues that “every Man has Property in his own Person.”[22] If an individual appropriates something from Nature, he has mixed his labour with that thing, and has therefore removed it from the commons. It then becomes his own property. By attaching something which is one’s own property, that is, one’s labour, an individual is able to claim that item as his own. He “hath by his labour something annexed to it, that excludes the common right of other Men.”[23] Since man has a duty to preserve himself, his appropriation of items from the commons does not require the consent of others. If it did, Locke argues, one would starve for want of such consent.[24]
In paragraph thirty-two of the Second Treatise, Locke comes to the “chief matter of Property”, which is not the produce of the land, but rather the land itself. Here Locke argues that “as much Land as a Man Tills, Plants, Improves, Cultivates and can use the Product of, so much is his Property.” This private appropriation of land also does not require the consent of others Locke argues, because when God gave the world to all men, he also commanded them to subdue and improve it.[25] Thus men, in obeying god’s command and improving or cultivating the land, join their labour with it and are entitled to it as property.
There are limits set by nature, however, on the right of private appropriation of property. The first limitation is that of sufficiency; that is, the notion that there must be “enough and as good” left for
others. Secondly, Locke argues that
there is a spoilage limitation, in that no one can appropriate more than he is
capable of using before it spoils.
As much as any one can make use of to any advantage of life before it spoils; so much he may by his labour fix a Property in. Whatever is beyond this, is more than his share, and belongs to others. Nothing was made by God for Man to spoil or destroy.[26]
A third limitation is
that which is imposed by man’s own abilities.
He is only able to appropriate as much as he can procure by his own
labour; “the measure of Property, Nature has well set, by the Extent of Mens Labour,
and the Conveniency of Life..”.[27]
It is the introduction of money, however, which allows these limitations, imposed by nature, to be
overcome. Locke states explicitly that
the rule of property, whereby men may only appropriate as much as they can
use, would still govern property in contemporary
societies were it not for “the Invention of Money, and the tacit Agreement of
Men to put a value on it...”; money thereby “introduced (by Consent) larger
Possessions and a Right to them.[28] Thus, to use Locke’s
oft-quoted phrase, before men “agreed, that a little piece of yellow Metal,
which would keep without wasting or decay, should be worth a great piece of
Flesh, or a whole heap of Corn”, land and its products could not be
appropriated by one person in such large amounts that the rights of others
would be infringed.[29]
At this point in his discussion of property, Locke digresses to
present an argument for a labour theory of value. He begins by asserting that labour increases the common stock of
mankind. To illustrate this view he
uses the example of America. He argues
that a thousand acres of uncultivated and unimproved land in America would
support as many people as ten acres of cultivated land in Devon. In paragraph forty, Locke asserts that labour “puts the
difference of value on everything.” He argues that ninety-nine
percent of all the things that are really useful to the life of
man, are the products of labour. Locke
again uses the example of America to support his view, arguing that the poorest person in England is richer than any of the
inhabitants of America who, though they have plenty of lands and resources,
have not cultivated, tilled or otherwise “improved” them.[30] Although an acre of land in
England and an acre of land in America no doubt possess the same intrinsic
value, the benefit received from one is greater than the other. With land, as
with other items, “tis to [labour] we owe the greatest part of all its useful
products.”[31] Locke is preparing the way for
his explanation of the manner in which unequal
acquisition of property is justified. By arguing that labour increases the
common stock of mankind, he can present a partial justification for the unequal division of property, which occurs with
the introduction of money into societies.
In paragraph forty-five Locke discusses the emergence of
nations. In the beginning, he notes,
men simply made use of what “unassisted” Nature provided. But as people and stock increased and money
was introduced, lands became scarce and therefore more valuable. As a result, communities were formed and
their boundaries were established.
Within those communities laws of properties were also established to
regulate property. Nations, by their
tacit agreement to recognize each other’s boundaries, gave up their original rights to the commons. They have, in effect, settled a property amongst themselves. However, this is not true of
all the world. According to Locke:
...there are still great Tracts of Ground to be found, which (the Inhabitants thereof not having joyned with the rest of Mankind, in the consent of the Use of their common Money) lie waste, and are more than the People, who dwell on it, do, or can make use of, and so still lie in common.[32]
This is not the case
(lands still held in common), says Locke,
where men have consented to use money.
Locke talks here, as Aristotle did, of the difference between the value
of objects which inheres in their usefulness, and the value of things like money,
which are desired as commodities. Most
things which are useful in sustaining life are perishable. But things such as gold, silver and
diamonds, have value because of the “fancy and agreement” of men, not because
they are inherently useful.[33]
Until the introduction of money, the material and moral
limits of one’s property
could not be exceeded. If one had more
than one could use before it spoiled, one might trade it for other useful items
and this would not be considered a breach of the natural laws which bounded property,
since nothing had been left to spoil.
Men could also trade their surplus produce for non-perishable items,
such as shells or metal, etc. Again,
since nothing was allowed to spoil, the laws of nature were not violated; “the
exceeding of the bounds of [one’s] just Property not lying in the largenesse of
his Possessions, but the perishing of anything uselessly in it.”[34]
Since money does not spoil, it allows one to overcome the spoilage
limitation.
And thus came in the use of Money, some lasting thing that Men might keep without spoiling, and that by mutual consent Men would take in exchange for the truly useful, but perishable Supports of Life.[35]
By consenting to use
money, “Men have agreed to disproportionate and unequal Possession of the
Earth, they having by tacit and voluntary consent found out a way, how a man
may fairly possess more land than he himself can use the product of, by
receiving in exchange for the overplus, Gold and Silver.”[36]
In the Renaissance era, the discovery of the `New World’ and its
inhabitants had sparked new debates with respect to canon and Roman law.[37] In the initial stages of
`discovery’ of North America, the ecclesiastical authority of the Pope, based
on God’s grant of the world to all men, was used as a justification for
European nations to claim dominion over lands which were not under the control
of a Christian ruler.[38] As various European monarchs
began making overlapping claims to territories in North America, however, it became necessary to develop new political and legal
doctrines which would serve the rising nation states of Europe. In addition, the changes which were taking
place during the sixteenth and seventeenth centuries, especially the rise of
science and rationalism and the decline of ecclesiastical authority resulting
from the Protestant Reformation, required new ways of explaining the order of
human existence. The doctrine of
natural law fulfilled this need. As
Leonard Krieger notes:
Locke was one of those who found the concept of natural law useful in
deriving a political theory. In basing
his doctrine of property on natural law theory, he was following in the
tradition of two important political theorists who preceded him: the Dutch
jurist Hugo Grotius (1583-1645) and his student, the German philosopher Samuel
Pufendorf (1632-1694). All three of
these theorists were concerned with reviving the concept of natural law which
had existed since Roman times but had been largely superseded by theistic
doctrines, to provide a new, more rational justification for the modern
political and social order.
It is important to realize, however, that Locke, like Grotius and Pufendorf, developed his ideas
within the social and economic context of his day. More importantly, he
framed his theory of government with a
view to his own nation’s political and economic
interests. In the introduction to his
analysis of Locke’s Essay Concerning
Human Understanding, Neal Wood describes Locke in the following way:
Like the theories of
Grotius and Pufendorf, Locke’s doctrine of property was “tempered by the
exigencies of his own country’s colonial interests”, a fact which has
apparently either been overlooked or accorded little significance by modern
analysts of political theory.[40]
Natural law, especially as it applied to appropriation of new lands,
served to justify increasing territorial expansion by European
governments. Barbara Arneil uses the
telling example of Hugo Grotius’, Mare
Liberum (1609), which was written primarily as a justification for freedom
of the seas. In it Grotius develops a
theory of property which depends on the idea of enclosure. He argues that since the seas cannot be
enclosed, they are open to all and no national government can restrict the
access of another nation to any part of them.[41] Arneil notes that Grotius
originally developed this view of property to justify his nation’s claims
against the Spanish, with respect to trade in the East Indies. In 1611, however, when the English `joined the fray’ and began tapping into
trade in the East Indies, the Dutch were forced to defend their interests and
resorted to the same arguments the Spanish had used. Grotius, who was chosen to represent Dutch interests, was forced
to argue against the position he had previously advanced, in favour of an
unlimited right to freedom of the seas.[42]
Grotius’ subsequent work, entitled De Jure Belli ac Pacis, “On the Law of War and Peace (1620-25), was written primarily to provide
a justification for war as a legitimate
defense of self and property. To accomplish this
Grotius first had to define property.
Like Locke, he did this by theorizing a state of nature. It is with Grotius, that the comparison of America to a state of
nature originates.
Beginning with Grotius and followed shortly by John Locke, the state of nature as it has developed in political and Christian thought from Cicero to Aquinas is, with the seventeenth-century thinkers wholly grafted, without consideration for the implications, on to the European notion of America and its natives. Christianity and legal theory are fused and become, through natural law, the singular viewpoint for understanding the New World and its inhabitants.[43]
Roger Scruton describes
Grotius’ theory of natural law as being designed to suit the needs of the new
nation states of Europe. He believes
that the idea of natural law harmonized with existing principles of law, as
defined by ecclesiastical jurisdiction, but unlike religious law, it would
“command assent at all times and places, irrespective of whether there is some
power, secular or ecclesiastical, able to give support to its manifest moral
authority.”[44]
Samuel von Pufendorf also followed the natural law tradition which Grotius had developed.[45] Pufendorf was German born, but spent most of his career in Sweden as professor of law and later as court historian to the King of Sweden.[46] Those most familiar with Locke’s work, assert that it was Pufendorf’s De Jure Naturae et Gentium, which proved to be the greatest influence on Locke’s work.[47] This is a significant point, in view of the fact that Pufendorf’s theory of property and his view of the peoples of America, differed greatly from Locke’s. Unlike Grotius, Pufendorf was not concerned with providing a justification for colonial interests, an important point which can be attributed to the fact that the nation in which he was developing his ideas was not as aggressively expansionist in character.[48] This is reflected in Pufendorf’s formulation of natural law. Although he also begins by describing a state of nature he does not use the example of America. Pufendorf’s state of nature is something which existed only in the earliest stages of human development. In contrast to Locke, he does not see the peoples of America as constituting a contemporary example of the state of nature. According to Arneil, Pufendorf:
makes clear that he believes the inhabitants of the Americas are not atomized individuals within one great natural state, as Locke and Grotius seem to believe, but members of nations who must be treated with the same respect as those of European states.[49]
Like Grotius and Locke, Pufendorf
views natural law as a universal
concept which provides the basis for
all human social orders. But property is not
derived by Pufendorf in the same way as the other two theorists and it does not
play the same role. Pufendorf agrees that the world was given to all in common,
but he does not see this original grant as conferring a positive right
upon mankind; that is, the world is not owned by everyone, rather
the world “while owned by nobody, is open for use by everyone.”[50] This distinction is an
important one because, as Barbara Arneil
notes, it means that ownership is detached from appropriation.[51] Pufendorf concludes that
property ownership exists by convention, and is legitimate only so long as it
is agreed to.
The idea that ownership of property requires the consent of others is
the main point of attack for Locke in the works of Grotius and Pufendorf. He was greatly concerned to provide a theory
of property which did not rest on the idea of consent.
Locke was intent on basing his doctrine of the right to property on a notion of property-for-survival, a version of a labor theory of value. He eschewed the positions taken by both Grotius and Pufendorf - whose analyses of the origins of property he knew well - for they based the right of property on the concurrence of the rest of mankind. And throughout the Second Treatise he held fast to his refusal to rest the right of exclusive ownership on the consent of one’s fellows.[52]
It is interesting to
note that on the one hand, Locke makes a vigorous defense of property as a
“natural right” and not simply something which exists by convention. Yet, on the other hand, he admits that
money, the advent of which allows one to accumulate disproportionate amounts of
property, exists only by the agreement of men.[53] Apparent inconsistencies such as this one in Locke’s doctrine of
property become easier to understand when one examines his theory against the background of the economic interests of his nation.
Locke’s point of departure for his discussion of property is also to be found in God’s original grant
of the world to mankind. Like Grotius, Locke sees this as a conferring a
positive right of ownership to mankind; that is, everyone has a right to everything. The advantage of
this idea of positive ownership as it relates to the acquisition of colonial
territories, is aptly summed up by Arneil:
Nothing could reflect more clearly the aggressive colonialism of the Dutch and English than the assumption that we actually possess everything on earth and it is up to each individual person or nation to grab its claim before anyone else can.[54]
But it remained for
Locke to decide how this could legitimately be accomplished, without
constituting an infringement of the rights of others. Locke’s response to this problem
was the idea of labour.
An individual’s property in their own person mixed with some item of
nature through the labour which is expended on it, is sufficient to confer a
right of property in that item. Men
must preserve themselves; this is manifest not only in God’s directives as
stated in the Bible, but also in the nature of man’s physical existence. To subsist men must, according to Locke, be able to privately
appropriate items of nature.
Having thus justified private appropriation of lands originally given
to all, Locke must next provide a justification for unequal division of
property. He must conceive of a way in
which the natural limits to property of sufficiency, spoilage and labour, may
be overcome. Locke’s main concern was
to liberate the individual right to property from the difficulties inherent in
natural law. This he did by describing
the advent of a money economy. By consenting to use money, to attach value to
gold, silver or diamonds and to accept those things in return for commodities,
Locke argues that men tacitly agree to an unequal division of property. This is so for the simple reason that money
cannot spoil, and may thus be acquired in unlimited amounts.
The implications of Locke’s introduction of money into his theory,
what Herman Lebovics refers to as Locke’s “coin trick”[55], have been dealt with most effectively by C.B. Macpherson in his influential work: The Political Theory of
Possessive Individualism: Hobbes to Locke.
Macpherson was one of the first modern political theorists to note the
way in which Locke was able to justify unlimited private accumulation of
property.
The chapter on property, in which Locke shows how the natural right to property can be derived from the natural right to one’s life and labour, is usually read as if it were simply the supporting argument for the bare assertion offered at the beginning of the Treatise that every man had a natural right to property `within the bounds of the Law of Nature’. But in fact the chapter on property does something much more important: it removes `the bounds of the Law of Nature’ from the natural property right of the individual. Locke’s astonishing achievement was to base the property right on natural right and natural law, and then to remove all the natural law limits from the property right.[56]
Macpherson argued that
Locke was first and foremost an apologist for the rising bourgeoisie, a
mercantalist, concerned with justifying the accumulation of capital.
Yet many modern political analysts have disagreed vigorously with
this conception of Locke. They point
to references in the First
Treatise, in which Locke indicates that no one has a right “to retain
control over resources which are superfluous to his own needs” if those
resources could be used by someone else who is in extreme want.[57] Kristen Shrader-Frechette
argues, in explicit contrast to Macpherson’s thesis, that the limits which
Locke placed on property continue to apply even after the introduction of
money.[58] In presenting her case, however, she at times distinguishes between what may be deduced or
inferred from the text of the Two
Treatises, and what the historical Locke actually intended.[59] It is necessary for her to
make this distinction because it is quite clear that the historical Locke
certainly envisaged unequal division of property and capital, not only among
individuals, but among nations.[60]
One of the most influential defences of Locke against the charge of
being a spokesman for the rising bourgeoisie, is James Tully’s A Discourse on Property: John Locke and His
Adversaries.[61] Tully also points to Locke’s
references to the duty of charity, but goes further in arguing that Locke’s
philosophy is underwritten by religious doctrines in which the public good is
the primary consideration.[62] He locates Locke’s theory,
not in the social and economic context of his day, but rather in the natural
law discourse of the era which was influenced largely by religious teachings.
Like others who defend Locke against his capitalist leanings however,
Tully ignores the evidence of Locke’s own values and outlook, as he himself
expressed them. How, Wood asks, can
Tully’s Locke be reconciled with the Locke:
who justified slavery and invested in the slave trade, approved of indentured servants and the apprentice system, charged interest on loans to close friends and was always tightfisted and demanding in money transactions, recommended a most inhumane - even for his times - reform of the poor laws, and bequeathed only a minute proportion of a total cash legacy of over 12,000 pounds to charity?[63]
In addition, it is
quite clear that Locke saw nothing wrong with the social hierarchy of his
society, or with the effects of the enclosure movement, which eliminated the
means of subsistence of a large proportion of the population, leaving them to
either starve or lead a hand-to-mouth existence. Wood concludes that “on the basis of what we know of Locke and
his age, Tully’s argument that Locke was a social and political egalitarian
...simply transcends the bounds of common sense and empirical evidence.”[64]
Wood characterizes Locke not as a spokesman for mercantilist
interests, but rather as an advocate of agrarian capitalism. Wood draws attention to the fact that Locke basically distrusted men of commerce; such as, for example the founders of the Bank of England. In addition, Locke expressed a profound
interest in the science of husbandry.
This is reflected in Locke’s doctrine of property acquisition. He bases the right of property on the labour
which is mixed with nature, but he places emphasis on a particular type of
labour, the enclosure, tillage and cultivation of land. Locke expends a good deal of energy
defending this type of labour as contributing to the increase of the “common
stock of mankind.”
There is some empirical evidence which would support this characterization. One can look, for example, at the constitution which he and his mentor, the Earl of Shaftesbury drafted for the Carolinas, in 1669. In framing this constitution, Locke and Shaftesbury were able, in effect, to `start from scratch’, without being concerned with any pre-existing social structures.
The society they envisioned was to be a landed not a mercantile society. Commercial development, while it was to be encouraged, was to be strictly tied to the needs and interests of the landed proprietors.[65]
The conceptualization of Locke as a defender of property acquisition
by agrarian labour, is particularly relevant to the discussion of the
dispossession of Native peoples.
Locke’s view of property as being those lands which are cultivated,
tilled and otherwise `improved’ by human labour, was a powerful colonial
tool. The view of Native land use as
`wasteful’, which Locke expressed in the Second
Treatise, was extremely influential in colonial dealings with Aboriginal
peoples. It remains to be seen how this
influence was felt by groups such as the Passamaquoddy.
One of the purposes of Locke’s chapter on property was undoubtedly to
provide a justification for the appropriation of lands in North America already
occupied by Aboriginal peoples. The
well-known Locke scholar, James Tully, has recently turned his attention to the
role played by Locke’s doctrine of property in the dispossession of Aboriginal
peoples during the period of European colonial expansion in North America.[66] Tully argues that Locke
purposely contructed his idea of property in contrast to Aboriginal
forms of property, to negate the latter and to justify
appropriation of Native lands in America by English settlers. This Locke was able to do by depicting
America as a state of nature, and then contrasting it with Western
`civilization’. By comparing the state
of Aboriginal peoples to a state of nature, a pre-civil society, in which laws
and government (as defined by Europeans), and property are effectively absent,
Locke is able to argue that European appropriation of lands without the consent
of Native peoples is justified.[67]
As has already been noted, Locke begins his chapter on property with
the assertion that whether one appeals to Biblical teachings or to natural
reason, it is clear that God has given the world to all men in common. This is an important element of Locke’s
argument. Tully notes that Locke
characteristically presents more than one line of argument, usually theistic
and nontheistic, to defend his views from attack on either side. This, according to Tully, “offers the
attractive promise of gaining the agreement of people with a plurality of
philosophical starting points.”[68] Others have pointed out, however, that Locke had no choice but to base his arguments on
ostensibly secular ideas such as natural law and reason because he was using
the example of Aboriginal peoples, who obviously would not have had access to
Scripture, to illustrate his argument.
Locke, who took the old Testament as history, interpreted Genesis I, 28 (which tells of God’s injunction to Adam to subdue the land and have dominion over the creatures) as giving Adam and his descendants land ownership in common. In the Second Treatise, Chapter V, Locke states that Reason as well as Revelation tells humanity this. This point is of course normatively important with respect to indigenous non-Christians peoples who lacked the Scriptures before the arrival of Anglo-Europeans.[69]
An important element in Locke’s characterization of America as a
state of nature is his distinction between industrious and rational use of land
as contrasted with the “waste” and lack of cultivation found among Aboriginal
peoples. The effect of this distinction
is to undercut what is, in actual fact, extremely rational and industrious land
use by Native North Americans.
The planning, coordination, skills and activities involved in native hunting, gathering, trapping, fishing and non-sedentary agriculture which took thousands of years to develop and take a lifetime for each generation to acquire and pass on, are not counted as labour at all, except for the very last individual step (such as picking or killing) but are glossed as `unassisted nature’ and `spontaneous provisions’ when Locke makes his comparison.[70]
The idea that land not
improved by human labour is `waste’, would, as Tully notes, have been
sacreligious to Native peoples who saw nature as “alive and of infinite value
independent of human labour.”[71] Moreover, it is arguable that in the long
term, Western land use is actually less rational and certainly less
ecologically sound than that of Native peoples. It is the `ethic of improvement’ which forms
the basis for an exploitative view of nature,
which in the present era has led to worldwide environmental degradation.
The distinction between the industrious, rational land use of
Europeans and the wastefulness of Aboriginal peoples, not only serves to
vindicate the appropriation of Native lands, it also
underwrites the destruction of Native peoples themselves, should they resist
encroachment by European settlers.[72] Those who did not follow the
laws of nature in subduing and improving lands, as dictated by Genesis and the
laws of reason, were declaring themselves to live by “another Rule than that of
reason and common Equity.”[73] It was the responsibility, then, of Europeans as upholders of the law of nature, to punish the
offenders.
Marilyn Holly argues, however, that Locke’s
use of natural law in this case is “ill-suited to bear the normative weight he places on it.” She notes that in his Essay Concerning Human Understanding, Locke had argued that social
and political phenomena could be classified as man-made ideas. He is thus effectively
advocating the destruction of those who transgress what are not universal
natural laws, but are, in fact precepts which are “speculative, probable,
uncertain and corrigible.” She
concludes that
Locke’s censure of Indians for `wasting’ land and his rather more than implied rationale in the Second Treatise for settler appropriation of allegedly wasted land really has no secure or certain basis in reason.[74]
The effect of Locke’s
rationale was to place `right’ squarely on the side of settlers in defending
the property they acquired by labour, while Native peoples defending their
homelands, were relegated to the role of aggressors.[75]
A remarkable contemporary instance of the use of Locke’s theory
of property acquisition to justify the dispossession of Aboriginal peoples can be found in a recent article by Thomas Flanagan, published in the Canadian Journal of Political Science.[76] He defends the private appropriation of Native lands using Locke’s arguments about the increase in productivity which results from a private property regime. In addition, he points to the benefits of superior technology which are made available to Aboriginal peoples as a byproduct of European colonization. Flanagan concerns himself with defending Locke’s theory from attack on the basis that if it is extrapolated to include all societies, it would allow for the appropriation of territories in any society by any other group possessing superior technology or more efficient land use techniques. Flanagan’s response to this criticism is to argue that once original appropriation has taken place and land is brought under a private property regime, the market will provide for the efficient allocation of resources.
Flanagan goes further in his argument than simply examining the utilitarian considerations which he believes justify European appropriation of Aboriginal lands. He also delves into the moral questions surrounding the dispossession of Aboriginal peoples. In responding to the criticism that Locke’s doctrine serves merely to rationalize the asymmetrical acquisition of Native lands by Europeans, Flanagan argues that because Native peoples did not recognize each other’s territorial rights in any “lasting way,” Europeans were justified in appropriating Aboriginal lands.
By what moral principle can one claim today that the
Europeans could not appropriate lands in the same way
way as the Indians of the day were accustomed to do for
themselves? This not just to say that, since the Indians
treated each other badly, the Europeans were justified in
doing likewise. The point is rather the reappearance of
symmetry in the equal right of appropriation by Indians
and Europeans.
Despite the huge body of scholarship which has developed around the political theory of John Locke, it is only in the last decade that research has emerged examining the nexus between his theory of property and the Aboriginal peoples of North America.[77] Those who have recently shed light on the connection between Locke’s conception of property acquisition and the dispossession of Native peoples have demonstrated that his theory did, in fact, play a role in justifying the appropriation of lands occupied by various Native groups in the Thirteen Colonies. Locke’s theory of property was frankly quoted in discussions concerning the legitimacy of European territorial claims. [78] But the role of the Lockean conception of property in the Maine-Maritime region is somewhat more complex, owing to the fact that the struggle between French and English, and between English and American colonial regimes, influenced the way in which Native lands in the region were acquired by non-Native settlers.
CHAPTER TWO: THE FAMILY HUNTING TERRITORY DEBATE
The so-called `family hunting territory’ debate arose early this century, when anthropologists discovered what they believed was an Aboriginal form of property ownership. After more than two centuries of colonial presence in North America, the land-base of most Aboriginal groups had been drastically reduced. Without the means of gaining subsistence, Native peoples were left mostly destitute. No longer posing a threat to expanding North American empires, Native peoples became instead the subject of anthropological study. The mode of perception with respect to Native peoples had changed, but the underlying rationale - the affirmation of supposedly universal institutions such as property - remained the same.
The debate surrounding Aboriginal “property” ownership began in 1915 with the work of Frank Gouldsmith Speck, a pioneer ethnographer who was the first to describe what he termed the “family-owned hunting territory.” Following the tradition of his mentor, the German ethnologist Franz Boas, Speck adopted an orientation to ethnology which was a departure from the “armchair theorizing of nineteenth century Cultural Evolutionists.”[79] Speck’s approach to ethnology involved first-hand observation and description of Native cultures, often obtained from close contact with Native groups.[80] He described the family hunting system as a fundamental institution among all the Algonkian peoples, and indeed his studies included Algonkian groups ranging from Newfoundland to Northern Ontario.[81] The debate surrounding the discovery of family hunting territories reveals much about Western notions of property. More importantly, however, it reveals a great deal about the Aboriginal understanding of and relationship to the land.
At a very early stage in their studies of Aboriginal cultures, anthropologists noted that among most Native
groups in North America, spirituality was animistic in nature. J.R. Miller
explains the significance of such a spiritual belief system:
Animistic religions place humans in the physical environment without drawing any distinction or barrier between them and the physical world. Creation myths could vary from one nation to another, but the underlying understanding of what constituted being was the same for all Indians. All people, animals, fish, and physical aspects of nature were animate; all had souls or spirits.[82]
All spirits required
respect, which was demonstrated in various ceremonies. This aspect of Native culture was also
noted by Diamond Jenness, who argued
that it was impossible to understand the culture of Northeastern Algonkians
without some understanding of their interpretation of what they saw around
them.
They lived much nearer to nature than most white men, and they looked with a different eye on the trees and the rocks, the water and the sky. One is almost tempted to say that they were less materialistic, more spiritually-minded, than Europeans, for the did not picture any great chasm separating mankind from the rest of creation, but interpreted everything around them in much the same terms as they interpreted their own selves.[83]
Frank Speck also saw this in Native culture. He characterized the Micmacs as “harmonic
extensions of nature”, as conservationists, in tune with their surroundings.[84] Such an understanding of nature as “a continuum”, in which humans
hold no special place, is incompatible with the idea of private ownership of
property, as understood by Western societies.[85] Land was viewed as a gift
from the Creator, which furnished the means of subsistence for his people. In many cases, Native peoples saw the earth
as their “Mother”, and thus as regarded it as being sacred. The burning of tobacco and sweetgrass, were
intended as a means of conveying thanks to the Creator for this gift. In an essay describing land ownership among
the Iroquois and their allies, George Snyderman quotes the native leader Black
Hawk:
My reason teaches me that land cannot be sold. The Great Spirit gave it to his children to live upon, and cultivate as far as necessary for their subsistence; and so long as they occupy and cultivate it, they have the right to the soil - but if they voluntarily leave it, then any other people have the right to settle upon it.[86]
Amongst many Native groups, there was an attitude of stewardship
towards the land, “the belief that the land belonged not only to the present
generation, but to all future generations.” Thus, no one generation would have the
right to sell the land, thereby disinheriting those who would follow.
Snyderman’s essay supports this view asserting that, among the
Iroquois and their allies at least, there was a communal view of land
ownership. Specifically, there was the
pervasive view among many Native groups that the land belonged to all those who
inhabited it and no one individual could have, (or would have) made a personal
claim to some part of it.[87] This view is further
supported in an early essay by
George Bird Grinnell, who speaks of the Aboriginal people of North America in
general.
In the past the old people occupied this land, hunted over it, gathered fruits from it, or cultivated it; and as they passed away the same operations were performed by one generation after another; and after those now occupying it shall have passed from life, their children and their children’s children for all succeeding generations shall have in it the same rights that the people of the past have had and those of the present possess, but no others. This land cannot be sold by the individual or the tribe.[88]
When Native peoples did pass rights of occupancy to white people,
what they were usually doing was lending them the use of the land. Leacock touches on this in the opening pages
of her account of the Montagnais-Naskapi.
She notes significantly that:
There is no material advantage to an individual hunter in claiming more territory than he can personally exploit. Nor is there any prestige attached to holding a sizeable territory, or emphasis on building up and preserving the paternal inheritance. Nor can land be bought or sold. In other words, land has no value as “real estate” apart from its products. What is involved is more properly a form of usufruct than “true” ownership.[89]
Her use of the term
usufruct is significant. Usufruct, is
defined, in Western legal tradition, as
“the right of using and enjoying the property of another, usually for life, without
right to change the character of the property.”[90]
In his article dealing with Maine-Maritime Native groups, Ray details
the period between 1625 and 1675, when Native peoples signed deeds “conveying
most of coastal Maine... from Kittery to Pemaquid to the English colonists.”[91] He argues that when deeds
were signed by local tribes, there is evidence to suggest that they did not
believe they would be giving up occupancy of the land forever. On the contrary, in fact, most Native groups
tended to remain on the lands in question, and in some cases this fact was
reflected in the deeds themselves.
The Maine Indian deeds of this period frequently contain rights these Indians reserved for themselves, while allowing the buyers to also enjoy the fruits of the land. The deeds with the rights reserved show that the Indians intended to live right where they had previously lived.[92]
Ray argues that most
Native peoples could only have signed deeds of purchase, if they believed that
they and their ancestors would continue to be able to use the land as before.
It seems clear that the Maine Indian deeds meant one thing to the Maine Indians and quite a different thing to the English/Massachusetts land buyers. It also seems clear that the land buyers knew that the Indians intended to continue to draw upon the bounty of the land they conveyed in these deeds and to continue their accustomed habitation locations.[93]
However, the fact that Native peoples in Maine reserved their right
to use the lands even after sale, is interpreted by Emerson Baker to signify that they did, in fact, understand
the concept of exclusive ownership. He
argues, referring to the Kennebecs of seventeenth century Maine that:
Although it is possible that the Indians did not completely comprehend the English concept of exclusive ownership, these clauses in deeds guaranteeing continued native use of land argue otherwise. If the Indians did not understand the concept of exclusive ownership, why did they demand clauses stipulating the rights they would retain after sale? The Indians must have demanded these rights, for it is doubtful that the English grantees would have unilaterally surrendered them.[94]
But Ray’s opinion that Native peoples believed they were exchanging only usufruct rights, is supported by others, including William Cronon. In speaking of Aboriginal groups in colonial New England, he explains that when Native peoples exchanged rights to a particular piece of land, it was in fact “usufruct rights” which were being exchanged. Such rights lasted only as long as the land was in use and did not include many of the concepts which in the European mind are subsumed under the idea of property. Again, the notion of exclusive use comes into play, as Cronon explains, “...a user could not (and saw no need to) prevent other village members from trespassing or gathering nonagricultural food on such lands, and had no conception of deriving rent from them.”[95]
In reading the discussions regarding family hunting territories, one
is struck by the ethnocentricism of various theories, by the total absence of
any consideration of the views of Native peoples themselves regarding their
relationship to the land. It is clear
that Aboriginal land tenure cannot be understood in isolation from the culture
of which it forms an integral part.
Those involved in the hunting territory debate could only have concluded
it represented an Aboriginal form of private property, by completely ignoring
the Aboriginal interpretation and understanding of man and nature.
The family hunting ground system was thought to be an early form of
Aboriginal property ownership because it represented a
systematized distribution of specific areas of land
occupied by a band or tribe.
The territories were divided into “distinct and permanent
tracts for more or less exclusive use by hunting groups of two to four related
nuclear families.”[96] These tracts of land were
supposed to have been owned “from time immemorial by the same families and
handed down from generation to generation.”[97] Because the territories were
controlled exclusively by a family or families, rather than a band or tribe,
and because this control was passed from generation to generation, this system
of land tenure was regarded as a form of private property.
The rationale for family hunting territories was based in part upon an ecological interpretation of Aboriginal subsistence patterns. The territories were thought to exist because of the reliance by some Aboriginal peoples upon furbearing animals such as the beaver, for subsistence. Because they are small, relatively sedentary and solitary animals, beaver could more easily be hunted by an individual, rather than a group. Where Native peoples depended for subsistence upon larger, migratory, herd animals such as buffalo or caribou, hunting was more easily undertaken in groups, and therefore land would be “owned” by groups as well.[98]
Following Speck’s lead, ethnographers like John M. Cooper, A.
Irving Hallowell and others began to look for evidence of the family hunting
ground in different Algonkian groups.
Cooper found that the family hunting ground system existed over a wide
range, “among the Algonquian-speaking Montagnais-Naskapi, Cree and Ojibwa,
north of the St. Lawrence and Great Lakes from Labrador to the Lake Winnipeg
region, and among the Algonquians of Maine and the Maritime Provinces.”[99] In an article published in
1968, Dean Snow also made a case for the family hunting territory system among
the Wabanaki peoples, including the Micmac, Maliseet, Penobscot, Pennacook,
Abenaki and the Passamaquoddy peoples. Based upon the work of Speck and
Hadlock,[100] Snow argued that Wabanaki family hunting territories were
distributed along river drainage systems, as for example in the case of the
Maliseet territory, which was situated along the drainage basin of the St. John
River.[101] It was Snow’s contention
that the fur trade resulted in the “crystalization” of pre-existing patterns of
subsistence among these groups. He thus
makes a case for the aboriginality of the family hunting ground system, which
merely intensified among the Wabanaki peoples following the establishment of
the fur trade in the region.
The discovery of the family hunting ground system led many social scientists to argue for property as a universal human institution. An example of this view is found in an essay by A.I. Hallowell, “The Nature and Function of Property as a Social Institution”, published in 1943. Hallowell makes a case for property as one of the most fundamental institutions of any human society.[102] It is his contention that “man as a species, faced with certain persistent problems of environmental and social adaptation, solved them in terms of basically similar modes of adjustment.”[103]
Hallowell notes at the outset that there are certain difficulties
involved in discussing property in different cultures, since our understanding
of it is derived principally from concepts and terms which are unique to
institutions of western civilization.
He concedes this point, but nevertheless falls back on western legal and
economic thought to frame his discussion, arguing that:
it is lawyers and economists, rather than sociologists or anthropologists, who, in dealing with the institution of property in western culture from a practical and theoretical point of view, have contributed most to our understanding of it.[104]
He makes the important distinction between property and simple possession, explaining that property implies a relationship not between a person and some object, but rather between individuals. This is best explained in terms of a triad, in which A owns B against C, where A is the owner of property, B is the property itself, and C is all other individuals.[105] For Hallowell, there are essentially four variables to take into account when determining the nature of property as a social institution. They are: the nature and kinds of rights which are exercised over a thing; the individuals or groups in whom rights, privileges, powers or duties are invested; the kinds of things or objects over which the rights extend; and the legal or non-legal instruments which serve to reinforce behaviour with respect to ownership.[106] Thus the term “ownership” actually implies a “bundle” of rights which may (or may not) include the right to use, the right to exclude others from the use of, the right to alienate or the right to bequeath.[107]
In his discussion of property Hallowell notes the
variations which can occur with respect to property ownership in various
societies. One example of this is his
discussion of laws which govern property.
He describes the Western legal tradition, as captured by Jeremy
Bentham’s statement that without laws, there can be no property. In Hallowell’s opinion, this leaves out other
types of sanctions, such as customs and traditions, which may govern behaviour
as it relates to property. This would
then include societies in which there are no positive laws regarding property,
but where property can nevertheless be said to exist. There may, in his view, be other non-legal institutions, which
serve to secure property interests, operating in the same way as laws.[108]
Hallowell concludes that property is a ubiquitous, uniquely human
institution.
...human society, by definition, implies the existence of ordered relations and ordered relations mean that individuals do enjoy the security of socially sanctioned rights and obligations of various kinds.[109]
In any society,
according to Hallowell, “we inevitably find socially recognized and sanctioned
interests in valuable objects.” It is
his view that the social relationships which govern property offer individuals
protection against “the necessity of being constantly on the alert to defend
such objects from others by physical force alone...”[110] This, for Hallowell, is the
primary contribution of the institution of property to human social orders.
Because Speck’s discovery seemed to provide concrete evidence
supporting the views of those, such as Hallowell, who asserted that property
was an inescapable fact of human society, it represented a profound challenge
to the accepted view among ethnologists and anthropologists, that “at the
hunter-gatherer stage, land and the basic resources used in production did not
exist as `private property’ but were held `communally’.”[111] It thus also represented a
challenge to Marxist evolutionary theory, as described in works such as
Frederick Engels’, The Origin of Family,
Private Property and the State.
The Origin of
Family, Private Property and the State was based on the work
of Lewis Henry Morgan, a nineteenth century lawyer and anthropologist. In 1877, Morgan published Ancient Society, in which he attempted
to answer questions related to the development of successive social
organizations. He did this by analyzing
entire cultures, including those of the Iroquois, Aztecs, Australians and
others.[112] He established a series of
stages, based on productive technology, through which different societies were
supposed to have passed. Maurice Bloch
explains that Morgan’s work differed from other evolutionary studies;
because of the high quality of the scholarly work on which it was based, because of the sympathy of the writer for primitives, and because it not only defined stages but in many cases suggested mechanisms which explained why one stage should change to another.[113]
Engels expanded upon the comparisons which Morgan made between
different “stages” of development, drawing out the political implications, one
of which concerned the development of property. Engels argued the Marxist
theory of the origin of property, which is that in pre-capitalist societies,
where production occurs not for exchange but for the subsistence of the
producer, there is no private appropriation of resources.[114] The historical introduction
of commodity production however, is marked by the introduction of private
ownership of the means of production.[115]
Engels and Marx found anthropological studies such as those of
Morgan, useful in supporting their attack on capitalism, because they helped to
demonstrate the historical development of the capitalist system. The laws of capitalism, which were held by
economists to be as natural and inevitable as the laws of physics, were shown
by Marx to be the product of a particular moment in human evolution. By comparing the capitalist system with
systems which had existed in other societies, Marx was able to show that social
relations of production were themselves a product of the social system in which
they occur.[116] Marx’s theories, including
his view of human social evolution, obviously occupied a large place in Soviet
anthropology, and predictably, Speck’s discovery was not well-received by
social scientists in the Soviet Union.[117] In fact, there were those
who regarded Speck’s theory as a direct attack on Morgan and by extension, on
Marx and Engels.
From the beginning Speck’s theories were challenged by those who did
not believe that the hunting grounds pre-dated European contact.[118] Definitive support for this
position came in the early 1950’s, when Eleanor Burke Leacock published an
account of her work among the Montagnais-Naskapi of Labrador. She challenged the view that family hunting
grounds were aboriginal, arguing instead that “such private ownership of
specific resources as exists has developed in response to the introduction of
sale and exchange into Indian economy which accompanied the fur trade.”[119]
Using both field observation and ethnohistorical data, Leacock was
able to refute some of the assumptions underlying Speck’s theory. She contended that there was actually less
reliance upon beaver and other furbearers prior to the advent of the fur trade,
than was previously thought by Speck and others. It was Leacock’s assertion that, as the fur trade took hold among
Algonkian peoples like the Montagnais, the imperative of hunting and trapping
for food was replaced by an economic imperative: the acquisition of furs for
exchange, causing a greater emphasis on the trapping of beaver. This in turn changed what had formerly been
cooperative relationships between band members, into competitive ones, and
communal “ownership” of land, into individual (family) ownership. Where families had once depended on and
helped one another in the hunt, they were now in competition for limited
resources.[120] She cited, as part of the
evidence to support her argument, the fact that the individualized land holding
pattern decreased in strength as one moved away from the “center of the
earliest and most intensive fur trade.”[121]
In support of his belief in the aboriginality of family hunting
grounds, Speck had argued that there was evidence of the existence of the
territories dating from the early 18th century, which
according to him, was only half a century (at most) after the fur trade had
become important. This, in his view, meant
that the fur trade could not have influenced the formation of hunting
territories. Leacock pointed out
however, that Speck and others had mistakenly dated the advent of the fur trade
from the establishment of the Hudson’s Bay Company in 1670, ignoring a history
of trade by European fishermen dating back to the early 1500’s.[122] Leacock’s refutation of
these and other points in Speck’s theory essentially ended the debate over the
aboriginality of family hunting territories.
The debate serves as forceful illustration of the implicit
ideological assumptions underlying Western notions of property. The fact that so much effort was expended by
anthropologists in searching for signs of property among Aboriginal peoples, in
North America and elsewhere[123], and so much discussion devoted to the forms of property ownership,
can only lead one to conclude that in Western societies, it is an institution
which is of singular identity.
When Europeans first arrived in what is now New Brunswick,
they found it inhabited by two principal Native groups, the Micmac or Souriquois, who occupied an area from Nova Scotia to the Gaspe, and the Maliseet-Passamaquoddies or Etchemins, who inhabited the valley of the St. John River and the Passamaquoddy region.[124] The Passamaquoddy people are closely related to the Maliseets, the two groups differing essentially in the territories they inhabited. It is clear that both the Maliseets and the Passamaquoddies are descended from the Etchemins, whom Champlain first encountered in 1604, as evidenced by the fact that he named the St. Croix River, “Riviere des Etchemins.”[125] Together with the Micmacs, Penobscots and Eastern and Western Abenakis, the Passamaquoddies and the Maliseets formed the Wabanaki Confederacy.
In an article dealing with tribal
boundaries of the Maliseets, Frank Speck delineated the Passamaquoddy territory
as follows:
The division line between Malecite and Passamaquoddy habitats began at Lepreau river and Mace Bay on Bay of Fundy, striking northwest some fifty miles to Magaguadavic Lake, then bearing northward to near Pokiok river, keeping about fifteen miles south of St. John river until it reaches the present border of Maine on the sources of the Mattawamkeag river.[126]
This differs slightly
however, from Passamaquoddy boundaries as described by Louis Mitchell, himself
a member of the Passamquoddies, who in 1887, defined the Passamquoddy territory
as extending “from the Preaux River in New Brunswick to the Cherryfield or
Narraguagas River near Machias and north to the heads of the Machias and St.
Croix Rivers.”[127] Thus, the ancestral
Passamquoddy territory is today bisected by the U.S.-Canadian border.
The close links between the Micmac, Maliseet, Passamaquodddy and
Penobscot peoples are attested to by Andrea Jeanne Bear. She describes political, cultural, and
linguistic similarities between these groups, noting that the closest ties were
those which existed between the Maliseets and Passamaquoddies.[128] This close relationship is
perhaps what has led many twentieth-century ethnohistorians to speculate that
the Passamaquoddy are of recent origin, only developing as a distinct group in
the mid-eighteenth century, as a result of European influences. However, this view is not supported by early
historical accounts such as those which Fannie Hardy Eckstorm relates in her
work on the history of Maine. Eckstorm
cites the Jesuit Relation of 1677, in which “Pessemonquote (Passamaquoddy) is
mentioned as a river on which the Indians were settled.”[129] She also notes evidence of
the antiquity of the Passamaquoddy people contained in official correspondence
of French administrators.
In 1694 Villebon wrote that the Maliseets live on the St. John and along the sea-shore, occupying “Pesmonquadis, Majais (Machias), les Monts Deserts and Pentagoet” (Castine). In addition to this is a letter, dated Feb. 10, 1638 (old style), from Louis XIII to the Sieur D’Aunay de Chantsay, “commandant of the forts of La Heve, Port Royal, Pentagoet and the coasts of the Etchemins,” establishing the boundary between D’Aulnay and De la Tour, shows clearly that the Etchemins occupied not only the St. Croix valley, but the whole southeastern coast of Maine, including the eastern coast of Penobscot Bay.[130]
“After this”, according
to Eckstorm, “the identity of the Etchemins with the modern Maliseets and the
antiquity of the Passamaquoddy tribe can hardly be denied.”[131]
The principal settlement of the Passamquoddy people was
Kun-as-kwam-kuk, meaning “at the gravel beach of the pointed top.”[132] Kun-as-kwam-kuk is today surrounded by the town of St. Andrews, New
Brunswick but the point of land which the Passamaquoddies called
Kun-as-kwam-kuk is still known locally as “Indian Point.” In his monograph on historic sites of New
Brunswick, William Francis Ganong explained that certain factors influenced the
selection of camping sites by Native peoples.
Among these were the site’s nearness to a river, which would have
provided a travel route and an abundance of game, “particularly of game
occupying a fixed position, as shell-fish do.”[133] Kun-as-kwam-kuk is such a
site. Located on Passamaquoddy Bay,
where the St. Croix River empties into the Bay of Fundy, Kun-as-kwam-kuk would
have provided a site from which the sea’s products could be easily
harvested. The name Passamaquoddy is
itself a reference to pollock, a species of fish which were found in abundance
in Passamaquoddy Bay.[134] Kun-as-kwam-kuk is also
referred to as the site of an important Passamaquoddy burial ground.[135]
The importance of Kun-as-kwam-kuk to the Passamaquoddy people is
obvious. It figures prominently in
Passamaquoddy legend, an example of which, is the story told by Passamaquoddy
elders of the last fight between the Passamaquoddies and their ancient foes,
the Mohawks. A version of this story is
related by Vincent Erickson, in his essay entitled, “The Mohawks are Coming!
Elijah Kellogg’s Observation.”[136] Erickson recounts the story
as told by Passamaquoddy elders, which ethnohistorians believe dates from the
mid-eighteenth century. The
Passamaquoddy people are gathered at Kun-as-kwam-kuk, where a Mohawk chief has
come to visit. The Mohawks are
well-received by the Passamaquoddies, since the two groups are not currently at
war with one another. The sons of the
Passamaquoddy and Mohawk chiefs go hunting together and manage to kill a white
sable. The two boys subsquently fight
over who will take credit for the kill and in the course of the struggle the
Mohawk boy is killed. The two groups are
thus once again at war. To settle the
dispute, the Passamaquoddies offer the Mohawks a contest between the two best
warriors in each group. The
Passamaquoddy warrior wins out over the Mohawk, and a battle is averted. Although there are different versions of
this legend, one of the constant elements is that the two groups are gathered
at Kun-as-kwam-kuk.[137]
The name St. Andrews is believed to originate from the Acadian
period, when a French priest erected a cross at the site.[138] Ganong notes that in the
documents of the commission established to determine the boundary between
Canada and the U.S. following the Revolutionary War, there is a statement by a
Passamaquoddy witness, Nicholas Awawas, that a cross was put up at St. Andrews
Point by a priest called St. Andre, and that the cross was there until sometime
between 1772 and 1773.[139] Although there seems to be
little historical evidence available about the naming of the site, Ganong
speculates that the Kun-as-kwam-kuk was named St. Andrews after a mission was
established there, “some time subsequent to Church’s raid in 1704.”
In addition to Kun-as-kwam-kuk, there were other important sites in
the Passamaquoddy Bay area, such as the burial ground at Schoodic Falls. In his work on the St. Croix River, Guy
Murchie notes that the main street of what is now Milltown, New Brunswick,
probably transects a Passamaquoddy burial ground.
There they had their sacred fire (connected with mystic ceremonies of the tribe) which is said to have been kept burning continuously during each seasonal catch of fish at the Schoodic Falls.[140]
Murchie quotes James
Vroom, who noted that Schoodic was a word meaning “where it burns.”[141]
Much in the way that modern ethnohistorians criticized Speck and
others for neglecting historical documentation in deriving their theories about
Aboriginal peoples, Bruce Trigger
argues that archaeology has been a neglected element of ethnohistory until
relatively recently.[142] He argues that at the time
that early historical records were being made, Native peoples had already been
in contact with Europeans for possibly as long as 150 years. Trigger argues that “in most instances the
description of native cultures prior to being altered as a result of European
influence must be based entirely or principally upon archaeological data.”[143]
Archaeological investigations in the area around Passamaquoddy Bay
present an interesting case in point.
Beginning in the late nineteenth century archaeological studies of the
Passamaquoddy Bay area have yielded evidence of human occupation dating as far
back as 1060 B.P. (before present).[144] Archaeological remnants
found in the immediate vicinity of St. Andrews date from 70 A.D.[145] These findings enable
researchers to reconstruct subsistence patterns among the inhabitants of the
area, which greatly contradict previous theories regarding Aboriginal
subsistence strategies.
Based on the historical accounts of early French missionaries in the
Maine-Maritime region, ethnohistorians reconstructed aboriginal pre-contact subsistence
strategies which involved a round of inland hunting and trapping in the winter
and early spring followed by summers and falls spent harvesting coastal food
sources.[146] The historic accounts
however, do not accord with archaeological evidence found at various sites, nor
do they represent a subsistence strategy which would have allowed a large
pre-historic population to survive and flourish for millennia.
David Burley, in discussing the Micmac of Northeastern New Brunswick,
argues that food sources which were subject to varying availability, or were
unpredictable, would have been less important pre-historically in influencing
seasonal migration patterns amongst Aboriginal peoples.[147] Burley reconstructs pre-and
proto-historic subsistence strategies for the Micmac people based on ecological
considerations. An important anomaly in
the historical records is the winter hunt, which is portrayed in missionary
accounts as a time of great hardship, a time when Native peoples often
experienced periods of starvation.
He argues that prior to contact with Europeans the winter hunt, as
described by Jesuit missionaries, was probably not the major factor influencing
Native subsistence strategies that it later became. He draws attention to the fact that at the time that the Jesuits
were making their observations, in the early seventeenth century, the Micmac
population, like many other Native groups in North America had been decimated
by diseases and alcohol brought by traders and missionaries. By the beginning of the seventeenth century,
the Micmac population was likely half of what it had been prior to the arrival
of Europeans.[148] He astutely asks:
It is his view that
prior to contact with Europeans, the Micmac possessed a stable hunting and
gathering system which was well adapted to its environment. He theorizes that this hunting and gathering
system involved permanent settlements.
He concludes that:
the most adaptive strategy is nucleation, to at least some degree, in areas where both hunting could be undertaken and preserved surpluses could be maintained. Although highly speculative, those areas in the vicinity of summer and fall fishing stations are most aptly suited.[150]
He attributes the
periods of precarious subsistence and in some cases starvation, to the
disruption of subsistence patterns which resulted from the introduction of the
European fur trade.
Burley warns that his theory of Micmac adaptive strategy cannot be generalized to include all Native groups in the Maine-Maritime region, owing to considerable regional variation in food sources. However, ethnohistorians studying Native peoples of coastal Maine, including the Passamaquoddy, have also noted the conflicting historical and archaeological evidence.[151] Specifically, studies by Bruce J. Bourque, David Sanger and others since the early 1970’s, have concluded that the patterns of coastal versus inland habitation among the inhabitants of the Maine coast, were in some cases, actually the reverse of those which ethnohistorians had derived based on historical documents. David Sanger summarizes the implications of these studies:
As Bourque noted, the evidence for winter occupation on the
coast ran counter to expectations based on traditional
ethnographic reconstruction, which placed the native people inland, hunting and trapping in the winter and then fishing and
trading with Europeans on the coast during the summer.[152]
Again, the discrepancy between the historical
accounts of Aboriginal subsistence patterns and the archaeological findings,
was thought to have resulted from European contact.
Of several possible explanations for this apparent shift in seasonal settlement, the most favoured was a reaction to the European contact, whose summer sailing schedule made it mandatory for the native people to be on the coast during that season if they wished to participated in trade. As the former had mostly furs to exchange, it made sense to travel inland during the cold weather months to trap fur bearers when the pelts were prime.[153]
It is the introduction
of fur trading activities into the area, which is thought to have resulted in
changed subsistence patterns in pre- and post-contact Aboriginal societies.
Sanger points out
however, that ethnohistorians continue to make assumptions based on the
ethnohistorical record. They assume,
for example, that a “transhumance” pattern existed before contact with
Europeans; that is, it is assumed that Aboriginal peoples always moved about in
search of game, and that their patterns of movement simply changed when they
came into contact with Europeans.
Sanger notes however, referring specifically to excavations he conducted
of shell midden sites around Passamaquoddy Bay, “that year-round residence
could not be denied, neither could it be demonstrated. What is clear is that a cold-season
occupancy definitely existed in Passamaquoddy Bay.”[154] In his view, “choice of
settlement is not wholly dependent on subsistence” and in choosing a particular
site for settlement, the inhabitants of the Passamaquoddy Bay area, “partook of
a wide range of options in a flexible fashion.”[155]
Some tentative conclusions with respect to Kun-as-kwam-kuk may be arrived at from the preceding discussion. The first, is that in the prehistoric period, sites such as the one at Kun-as-kwam-kuk probably represented more permanent settlements for ancestral Maliseet-Passamaquoddies than has previously been described by ethnohistorians. Secondly, the picture which has developed over time of Aboriginal “nomadism”, with its connotations of continual aimless movement in search of game, is not an accurate representation of Native subsistence patterns prior to contact with Europeans. This is an extremely important point because, as Wilcomb Washburn explains, in the eighteenth and nineteenth centuries, one of the most popular justifications for the dispossession of Aboriginal peoples was the view that “they were wandering hunters with no settled habitations.”[156] The subsistence strategies which had sustained Native peoples for thousands of years were, to Europeans, “too wasteful in a world in which other countries faced (or thought they faced) problems of overpopulation.”[157] In one of the many ironies of Aboriginal-European contact, it is likely that the intensive fur trade which Europeans introduced into Aboriginal societies was the cause of a change in subsistence patterns whereby Native people became more unsettled than they had been prior to contact. Thus the “nomadism” for which Europeans berated Native peoples, was actually caused by the European prosecution of the fur trade. Nevertheless, the prevailing view that “hunters might justly be forced to alter their economy by a pastoral or agricultural people was voiced by many, humble and great, in the colonies and in England.”[158]
From the beginning of the historic period, the Passamaquoddy people
and the area they inhabited, figured prominently in Aboriginal-European
relations. The first European
settlement in Acadia, as well as the scene of the first conflicts between
French and English in the region, was the Isle of St. Croix, (now Dochet
Island) in the Passamaquoddy region.
Champlain and his party of explorers were the first Europeans to record
their experiences in the Passamaquoddy region, in 1604. With Champlain was Pierre de Gua, Sieur de
Monts, a Huguenot merchant. In 1603, de
Monts had been granted title to all the lands between the Restigouche River and
what is now New Jersey by the French Crown. De Monts was instructed to settle
these lands, and Christianize the Aboriginal population in the region, in
return for which, he received a monopoly of trade.
The English made claims
to the area as well, based on Cabot’s exploration and `discovery’ of the
Newfoundland area.[159] In 1613, Captain Samuel
Argall of Virginia attacked French
settlements in the area, “seized whatever he could lay hands on, burned
buildings and erased all marks of French dominion, in accordance with orders
received from the Virginia government.”
In 1621, the Scottish monarch James, I, made a grant of the lands
between the Gaspe and the St. Croix River to Sir William Alexander, naming the
area Nova Scotia.[160] The St. Croix River was to
be renamed the Tweed, “since it would separate New Scotland from New England.”[161] The settlement at
Passamaquoddy was reestablished by the French but was subsequently retaken by
the English. Finally, in 1632, at the
close of a five-year war between England and France, all of Acadia was ceded to
the French, under the terms of the Treaty of Germaine.
Soon after, the Compagnie
de la Nouvelle-France began making grants in “New France.” The first important grant was made at
Passamaquoddy on the St. Croix River, to Isaac de Razilly, consisting of a
piece of land twelve leagues by twenty.
The grant conveyed to Razilly, “the river and bay Sainte-Croix, the
islands therein contained and the adjacent lands on each side in New France, to
the extent of twelve leagues in width.”
Another grant was made
in June 1684, by the Governor General of Canada, M. de la Barre, to Jean
Sarreau de St. Aubin. He received a
grant “of five leagues in from on the sea
shore and five leagues in depth at a place called Pascomady and its environs
with the isles and islets of rocks about six leagues off for seal
fishery.” The next year a grant was
made by Governor Denis to the ecclesiastics fo the Episcopal Seminary of
Foreign Missions at Quebec. They
received a tract of land on the River St. Croix.[162] A grant was also made of the Island of Grand Manan, to
Paul Dailleboust, Sieur de Perigny, in 1691.
Other grants in the area include one at Schoodic and at St. Stephen in
1695, to Sieur Michel Chartier and another at Magaguadavic, to Jean Meusnier in
1691.[163]
Seigneurial grants were made throughout the rest of the province of
New Brunswick, up until the year 1700.
The seigneur was usually a man who had attained a high social position
in French society, by virtue of his birth and education. He recieved his seigneurial grant from the
French Crown, which retained the right to make use of oaks for the royal navy,
of lands required for fortifications and highways and of all mines and
minerals. In addition, it was necessary
for the seigneur to either to reside on his land himself or to ensure that a
certain number of tenants were residing there.
Lastly, he was required to clear and improve a portion of his lands
within a certain time, or the grant would be forfeit.[164] Most of these grants of
lands were never taken up and settled upon, although Ganong states that there
is evidence from censuses and other sources to indicate that grantees at
Passamaquoddy did settle upon their lands.[165]
Throughout the seventeenth century, there was a nearly constant
struggle between the French in Acadia and the English of Massachusetts. The English had established Plymouth in 1620
and thereafter maintained that the eastern border of Massachusetts was the
Kennebec River in Maine. The French
hold in Acadia was tenuous, the territory occasionally falling under English
and even Dutch control. In 1654, Acadia
was captured by Major Robert Sedgewick, and remained in English possession
until it was restored once again to France in 1667, by the Treaty of
Breda. So weak was the French hold on the territory, that gaining control
of it during this period seems to have entailed the taking of only a few forts,
at St. John, Jemseg and at Pentagoet, on the western border of Acadia.
The English were anxious to gain a foothold in Acadia. Their motivation, in part, stemmed from a
desire to tap into the lucrative fur trade and fishery in Acadia, to which they
had been denied access by the French.[166] William Roberts argues that
a decline in the influx of immigrants to New England in the 1640’s, had meant a
decrease in the amounts of money coming into the colonies, which in turn caused
a greater demand for furs as a source of revenue.[167] This led New Englanders to
range farther afield, into French and Dutch territories, bringing them into
conflict with both groups.
In 1688, Massachusetts governor Andros pillaged the trading post at
Pentagoet, inhabited by the Baron de St. Castine, a French noble who had
married the daughter of Madockawando, a Maliseet chief. This incident led to the outbreak of King
William’s War, the first of several major conflicts which became known as the
“French and Indian Wars.” These
conflicts raged over a period of seventy years, during which time, the fate of
settlements in the Passamaquoddy Bay area were uncertain. King William’s War itself lasted ten
years. However, by 1703, France and
England were once again at war, in a conflict named for the British sovereign
at the time, Queen Anne. At the same
time that Queen Anne’s War was being fought in North America, the War of
Spanish Succession was taking place in Europe, between France and Spain on the
one hand, and England, Holland and Austria, on the other.[168] In 1704, a New Englander,
Colonel Benjamin Church was sent to attack settlements in Acadia. He succeeded in razing French settlements at
Port Royal, Penobscot, Chignecto, Minas and Passamaquoddy.[169] Ganong states that after
Church’s attack at Passamaquoddy, the seigneurs were never heard of again in
the region.
At the close of Queen Anne’s War, in 1713, the famous Treaty of
Utrecht was signed, a document which ostensibly handed permanent control of
Acadia to the British. In actual fact
however, the Maine-Maritime region remained in dispute for the next fifty
years, owing to the French assertion that Acadia included only the peninsula
south of the Bay of Fundy. This claim,
as W.O. Raymond notes, was “strangely at variance with their former contention
that the western boundary of Acadia was the River Kennebec.”[170] Almost immediately after the
signing of the Treaty of Utrecht, the French began building the Fort at
Louisbourg, an ambitious structure, “designed to serve as a Gibralter for the
St. Lawrence.”[171] The building of the fort is
a good indication that the French did not regard the settlement as permanent.[172]
British authorities saw the Treaty of Utrecht as giving them
sovereignty over Acadia, “on the grounds that since it had been recognized as a
French possession, France must have extinguished aboriginal title.” The French for their part, did not trouble
to recognize Native ownership of the lands they occupied until those lands
threatened to fall under English jurisdiction.
In fact, it is clear that the French were never troubled at all by the
fact that they lands they claimed for the French Crown were already occupied.
Like the English, the French did not admit legally that the
Amerindians had “sovereign rights” in the land or that
they possessed “absolute ownership.” Although the
French wrote about Amerindian
kingdoms and made kings of chiefs and priests of sachems, they never recognized the native tribes as sovereign powers and they never accorded them any diplomatic
recognition because they did not belong to the accepted “family of nations.”[173]
In the period following the signing of the Treaty of Utrecht, French officials instructed their representatives not to interfere with lands occupied or used by Native peoples.[175] In addition, officials encouraged the Native inhabitants of the St. John River area to regard the region as their own.[176] It is evident however, that the French were intentionally duplicitous in their dealings with the Wabanaki peoples, hoping to increase anti-English feeling among them.
In his report to French authorities in 1722, the missionary Jean
Baptiste Loyard, who had been in Canada since 1706, berated French
administrators for the way in which they dealt with Native peoples. He noted that France was only interested in
“the savages”, when she needed their help.[177] The Jesuit historian
Charlevoix, was anxious that French officials should settle the question of the
boundaries of Acadia, in such a way that Wabanaki peoples would be guaranteed
possession of their lands.
Charlevoix’s statements are revealing, pointing out to the need for a
Native bulkhead against British incursions, “for if the English were allowed to
occupy the country and to secure themselves in possession by building strong forts the result would be that they
would become masters of all of New France south of Quebec.”[178] Later, after the signing of
a treaty in 1749 between British officials at Halifax and delegates from the
St. John River, including the Passamaquoddies, French officials denied any
responsibility for the actions of their Native allies. French authorities admitted that Native
peoples in the region, “had never been subjects of the king of France, but
merely allies.”[179]
Because of the precariousness of British settlements in Nova Scotia
in the period between 1713 and 1763, government officials realized that it was
necessary to make peace with Native peoples.
They signed treaties of Peace and Friendship, which usually contained
promises that Native peoples would be able to hunt, fish and fowl as
before. One of the most important
treaties of this era was signed in 1725, at the close of what was known
variously as Dummer’s, Lovewell’s or Rasles’ War. The conflict had erupted in 1722, after unsuccessful negotiations
between the Wabanaki tribes and government of Nova Scotia. In 1721, eastern Wabanaki peoples sent a
message to the government of Massachusetts, asserting their sovereignty over
lands east of Connecticut. The Wabanaki
peoples agreed to allow those settlers already there to remain, but protested
further English encroachments on their lands.[180] Olive Dickason writes that
“rather than seeing this as an effort at compromise, the English regarded it as
insolence that had been encouraged by French missionaries...”[181] The response of the
Massachusetts government to this message was to declare war in 1722.[182]
The treaties signed at the close of Dummer’s war were to be extremely
important to the Wabanaki peoples, because they served as the basis for other treaties which followed in 1749
and 1760. In addition, the treaties of
1725 were believed by the Maliseet and Passamaquoddy peoples to contain the
most recent recognition by the British Crown of their aboriginal hunting and
fishing rights. However, in an article published
in 1986, Andrea Bear Nicholas describes new controversies and questions arising
from her discovery that documents bearing different terms were drafted during the Boston conferences.[183]
In her essay, Bear Nicholas explains that Dummer’s Treaty was signed
at Boston on December 15th, 1725, by four Penobscots who claimed to be delegates of the other
three Nations (Maliseets,
Passamaquoddies and Micmacs). However,
this treaty was not known to have been ratifies by representatives of any of
the other groups. Moreover, it was
negotiated and signed between the Massachusetts government and the Penobscots,
and not the government of Nova Scotia, under whose jurisdiction, the other
three groups would have fallen.[184]
In the course of researching Dummer’s Treaty, Bear Nicholas
discovered that another treaty had also been drafted in December of 1725 at
Boston, by Paul Mascarene, a representative of the Nova Scotia government. This treaty was apparently ratifies by the
“St. John River Indians”, at Annapolis Royal, in June of 1726. However, this second treaty contained none
of the recognition of aboriginal hunting and fishing rights contained in
Dummer’s Treaty. Moreover, it demands
that Native peoples acknowledge King George as the possessor of all of Nova
Scotia, which would have included Maliseet, Passamaquoddy and Micmac lands.[185]
Bear Nicholas argues that the Wabanaki peoples would not have signed
such a treaty without some assurances of their continued right to hunt and fish
as they had always done. Her theory
proved to be correct. She discovered, in documents
pertaining to the ratification of peace at Annapolis Royal in 1726, a separate
document signed by Mascarene containing evidence of official English
recognition of Aboriginal rights in lands occupied by Micmac, Maliseet and
Passamaquoddy peoples.[186]
Mascarene’s Treaty with
its set of promises backing it was signed by seventy-seven delegates of each of
the Micmac, Maliseet, Penobscot and Passamaquoddy Nations. She argues that Mascarene’s promises must also have been understood by Native peoples to have been part of the
agreement in each of the later ratifications of treaties.[187]
At the same time that British colonial administrations were signing
treaties promising to recognize Wabanaki rights, their main goal was to
encourage expansion of settlement in the area.
This fact, combined with the continuing influence of French missionaries
in the area who encouraged Native peoples to believe that British treaties
could not be relied upon, led to continued outbreaks of hostilities.[188] The Wabanaki tribes were
able, to a certain extent, to stem the tide of English settlement on their
lands although some encroachment on Native lands did occur in Maine and in Nova Scotia in the period following the Treaty of
Utrecht. Native groups who were not
directly affected by the encroachments became involved in the struggle on the
side of the French, because they knew that those Native groups in New England
who had lost their lands “had been ultimately
annihilated or at best, dispersed.”[189]
With the Acadian expulsion in 1755 and the fall of Quebec in 1759,
the settlement of the region by the English and the displacement of Aboriginal
peoples could proceed without further impediment. Added to the English belief that their defeat of France
automatically gave them title to Aboriginal lands, even though they had never
been ceded to the French government, was the “popular colonial view that the
Acadian natives, as hunters and gatherers, did not have as strong a claim to
the land as did farmers.”[190]
In 1758, the governor of Nova Scotia issued a proclamation stating
that with the defeat of France in Acadia, the fear of attack had been removed
and opportunities for settlement were
available.[191] The proclamation was
essentially an advertisement designed to attract settlers to lands left vacant
by the expulsion. A second proclamation
issued the following year set out conditions under which lands would be granted
to prospective settlers, one of which was that a third of the total land grant
had to be `improved’ within ten years, otherwise the grant would be forfeit.[192] This attempt by the Nova
Scotia government to attract settlers succeeded, and by 1760, New England
settlers were beginning to arrive.[193]
Although the first Europeans to settle in Passamaquoddy territory were the French, the dispossession of the Passamaquoddies and other Native peoples in the Maine-Maritime region did not occur under French administrations. This is one of the reasons that historians describing the period of contact between French colonizers and Native peoples have held that relations between the two groups were generally friendly. However, Andrea Bear Nicholas offers a caveat against accepting without question, “the myth of the benevolent French embrace.”[194] She notes that in many respects the world views of the two groups were incompatible, that French attitudes towards Native peoples were undeniably racist, and that the French, believing their culture to be superior to that of Aboriginal peoples, intended to “civilize” them by force if necessary.[195] Her arguments are supported by Cornelius Jaenen, author of Friend and Foe: Aspects of French-Amerindian Cultural Contact in the Sixteenth and Seventeenth Centuries. He describes the French attitude towards Native peoples as one of “minimal racism” and argues that the French viewed Aboriginal peoples as less evolved than Europeans.[196]
But it is important to understand as well, that the colonial
practices of the French were shaped at least in part by the land holding
patterns which prevailed in France at the time of colonial expansion. This is reflected in the ongoing ambivalence
which French monarchs and their advisors expressed towards their colonial possessions
and is also reflected in the practices of French colonial administrations. During this particular
period of French history, the main method of national aggrandizement was
conquest of populated territories.[197] In this way, a French monarch could acquire a population which was
already settled and productive and which would thus provide a source of revenue through feudal levies. Territories in the North America, by
contrast, required some expenditure of time and money in order to provide at some future
date, a productive population and a source of taxation.[198]
To lessen the financial burden on the Crown of establishing colonies, the administration of French colonies was initially ceded to companies of entrepreneurs, usually Huguenot merchants.[199] This strategy proved unsuccessful, however, mainly because these merchants actually resisted attempts to settle the colonies, since this would have interfered with “the relatively uncomplicated plundering of a new land and its resources.”[200] Once officials in France realized that their representatives in the colonies were concerned with anything but settlement, the colonial administrative responsibility passed to the Church.
Their representatives took up the challenge, becoming among the first
seigneurs of the colony. Roberta
Hamilton argues that in the early years of the French colonial enterprise
development and expansion was mainly the result of Church undertakings.[201] As long as the French government
remained ambivalent about settlement in its colonies Native lands were not in
jeopardy. In fact, so long as the fur
trade remained an important source of revenue for the French, it was necessary
for Native peoples to have continued possession of, and access to, their lands to be able
to trap furs. The
development of family hunting territories resulting from an intensified trade
altered the landholding patterns of Native peoples in a fundamental way, but
Aboriginal people maintained possession of their ancestral lands during the
period of French colonialism in the Maine-Maritime region.
There is little substantive research available on the connection, if any, between Lockean views of property and French colonial practice. However, on the basis of what is known about colonial practices of the French, as well as the differing landholding patterns prevailing in France and England during this period, one is able to cautiously hypothesize about the relationship between the two. Paschal Larkin discusses Locke in the French context, in his work on property in the eighteenth century. He notes that although Locke’s Second Treatise was published in French before the end of the seventeenth century, it was not until the period leading up to the French Revolution that his theory of property became important in France.[202] Prior to that time the main authority on the subject of property was the Church, whose teachings held that property was a natural right, but emphasized as well “the social character of wealth; the right of the poor to succour from the rich; and the unlawfulness of excessive wealth accumulation.”[203] Larkin notes, for example, that the difference of opinion as to the practice of charging interest, “even amongst writers who, in the main, believed that the unhampered pursuit of individual self-interest involved in some mysterious way the realisation of justice for all”, serves to illustrate the grip which the traditional theory of property had on the French mind.[204] It seems reasonable to suppose that if a Lockean view of property had been prevalent in France, it would have provided ideological support for the agrarian capitalism which was so important in influencing British economic history. Enclosure on a scale similar to that which had taken place and was still taking place in England would have undoubtedly produced comparable numbers of potential immigrants for the colonies. Roberta Hamilton highlights the striking differences between English and French populations in the colonies, noting that after 150 years of colonial presence, there were only 70,000 French in Canada, compared with some 1,000,000 English citizens who had become established in the same amount of time. It is her view that historians have emphasized the failure of French colonies without taking into account the fact that England was able to export such large numbers of her citizens to America because English landlords had been much more successful than their French counterparts in separating peasants from their land through the enclosure movement and the destruction of feudal tenure.[205] At the close of seventeenth century, English landlords controlled 70-5 per cent of arable land, whereas in France, 40-5 per cent of available land remained in the possession of peasants.[206]
The policy of French colonial administrators was one of assimilation,
through conversion to Christianity and what Cornelius Jaenen refers to as
“frenchification.” This goal remained beyond
the reach of French administrators due to the fact that they were unable to bring
large numbers of their people to settle in Acadia as the English had done with
their displaced population.
This is not to say, however, that the success or failure of colonialism depended simply on numbers of immigrants. It is
important to understand that English colonialism, as advanced by those who,
like Locke, were familiar with the colonies and who advocated their
development, was unique. Locke
expressed the view among colonial administrators that the best means of
colonization was to appropriate land by industry, not by conquest. The limits of colonial settlement were to be
governed by the extent of industry available to cultivate lands. Barbara Arneil explains that Locke was
concerned that more land was being claimed by European powers than could
actually be cultivated, and would therefore lying `waste.’[207]
Events of the
Revolutionary era in many ways mirrored the struggle between the French and
English for control of North America.
Native peoples were once again caught between two alien cultures vying
for supremacy. Once again, they were
sought out by both sides as allies in the struggle. One of the most important events of the era
with respect to Native peoples, was the Royal Proclamation of October 1763.
Jack M. Sosin argues that the Proclamation was a direct result of the
experiences of successive British administrations in fighting the colonial wars
against Native peoples and their French allies. Officials at Whitehall concluded that in order to maintain the security of the colonies in North America, they would
need to win the confidence of the Indian tribes. “As a consequence”, Sosin asserts, “England emerged from the
struggle with certain pledges to the natives.”[208] He argues that the primary
purpose of the Royal Proclamation was to discourage settlement by non-Natives
west of the Appalachian mountains. Thus
the Proclamation drew a line:
down the backs of the colonies from Canada to East Florida and proclaimed territories to the west to be
under native sovereignty.[209]
The Proclamation explicitly stated that no governor or other
authority in any of the English possessions in North America was:
until Our further Pleasure be known, to grant Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantick Ocean from the West and North West, or upon any Lands whatever, which, not having been ceded to, or purchased by us as aforesaid are reserved to the said Indians, or any of them.[210]
The Proclamation thus
effectively reserved to the Crown, “the exclusive right to deal with Indians
for the surrender of their lands.”[211] Sosin’s argument that the
purpose of the Proclamation was to provide for the security of the existing
colonies, is evident in the language used.
It states plainly that:
...it is just and reasonable and essential to our Interests, and the Security of our Colonies, that the several Nations or Tribes of Indians...who live under our Protection, should not be molested or disturbed in Possession of such Parts of our dominions and territories, as not having been ceded to Us, are reserved to them as their Hunting Grounds.
The Royal Proclamation has been described as marking the start of the Revolutionary era.[212] In constraining the ability of American colonists to expand their settlements westward, it served as an irritant to the increasingly independence-minded colonists.[213] The ideology of laissez-faire individualism and free trade was gaining ground among colonists who saw the Proclamation as an unjustified limitation of their freedom to settle and trade where they wished.
Despite the fact that the Proclamation has been described as an
“Indian Bill of Rights”, Andrea Bear Nicholas argues that for the Maliseet
people and neighbouring groups such as the Passamaquoddy, the Proclamation
provided the impetus for settlement of their lands by English colonists from
the New England states. The effect of
limiting settlement to the west of the established colonies however, was to
encourage migration to territories occupied by colonists, such as Nova
Scotia. This proved to be disastrous
for Native peoples in the Maine-Maritime region, as settlers began to flood
into the area. The Proclamation also
opened up free trade with Native peoples in the colonies, a move which Bear
Nicholas argues led to the granting of Native lands to traders.
Almost instantly the opening of trade became the excuse for authorities to begin granting away small chunks of our land for trading establishments.[214]
The Royal Proclamation’s directives respecting Native lands including those in the colony of Nova Scotia were completely ignored by local colonial governments. The Proclamation was motivated by the strategic concerns of the Imperial government to maintain good relations with Native peoples to provide for the security of English settlements. Local colonial governments, by contrast, were more concerned with providing incoming settlers with lands. John Hurley explains that this divergence between imperial and local colonial policies resulted in the granting away of reserved lands. The distances separating the two levels of government and the slowness of communications between them made enforcement of imperial policy difficult.[215]
The initial step in the process of granting away Wabanaki lands, was
the surveying and mapping of the area concerned. She notes that this was an
important element of colonial expansion, and it was also heavily influenced by the distinction, so preeminent in
Locke’s writings, between cultivated and `waste’ lands.
Bear Nicholas explains that:
To the colonial mind a land was empty if it was not cultivated. It did not matter if it was occupied by a people. If they were non-agricultural peoples their lands would show up on maps as empty and therefore free for the taking.[216]
The surveying and
mapping of their lands however, was guaranteed to arouse suspicion and
hostility amongst the Wabanaki people, who at times were forced to physically
prevent surveyors from completing their task.[217]
A survey of the Passamaquoddy region, the “earliest account of the
region in the modern period of history” was made in 1764, by John Mitchel.[218] Mitchel, a New Hampshire
surveyor, was sent to Passamaquoddy in 1764 by the Massachusetts government to
settle the question of the identity of the St. Croix River, which was
considered the boundary between Massachusetts and Nova Scotia.[219] Although it was generally
agreed that the boundary was the St. Croix River there was a dispute as to
which river was, in fact, the St. Croix since the name was applied to each of
three rivers; the Scoodic, the
Cobscook and the Magaguadavic. In the
aftermath of the Treaty of Paris Massachusetts and Nova Scotia argued over the
border between the two jurisdictions, just as the French and English colonial
regimes had done.
A telling example of the treatment accorded the Passamaquoddy people
as local settlers moved in, is contained in the Journal of William Owen.[220] Owen kept a
record of events which occurred during his residence at
Campobello, in the years 1770 and 1771.
In an entry dated the 16th, 1770 at Port Owen, he
records that at:
about 10 o’clock, the Priest and almost the whole tribe of Indians came over to pay their compliments to Lord Wm Campbell... A Congress was held at my house, the Governor settled some complaints relative to the encroachments on their hunting ground, the fishermen destroying the Seafowl’s eggs and some English people (James Brown and Jeremiah Frost) taking possession of a tract of land at St. Andrews which had been the burial place of their ancestors. He recommended agriculture and particularly the planting of potatoes to them, a civil deportment towards their brethren and a due obedience of the laws.[221]
This passage illustrates the importance of St. Andrews as an ancient burial ground of the Passamaquoddy. It also provides an example of the emphasis placed by European settlers on agrarian labour and the general disdain for traditional Aboriginal subsistence activities.[222]
In the light of such disregard by English settlers for the
Passamaquoddy people, it is hardly surprising that the Passamaquoddy should
choose to align themselves with the Americans at the outbreak of the American
Revolution in 1776. However, even if the Passamaquoddies had
wished to avoid choosing sides in this conflict it would not have been a simple
matter because, as Colin Calloway notes, “the Revolution tolerated few
neutrals.”[223] In speaking of the Abenakis,
he notes that they
at all times shared the goal of preserving their community
and keeping the war at arm’s length.
All that they disagreed upon
was the means to that end.[224]
The difficulty in attempting to remain neutral was that
Native groups were likely to be regarded by both the British and the Americans
as hostile. Calloway argues that both the Americans and the British subscribed to
the view that if Aboriginal peoples were not fighting as allies they were aiding the enemy. Thus, instead of neutrality,
most Abenakis “opted instead for limited and sometimes equivocal involvement in
the conflict.”[225]
During the course of the war the Passamquoddy and Maliseet peoples
signed treaties with the Americans, who persuaded them to relinquish most of their lands in return for promises
that some of their ancient hunting grounds would be left to them. As the conflict progressed British officials eventually realized that
the loyalty, or at least neutrality, of the Natives along the border between
Massachusetts and Nova Scotia could make the difference in its eventual
location. The two powers thus vied for
the support of the Native inhabitants, again, exactly as the French and English
regimes had done.
As many as one third of the total population of the Thirteen Colonies were opposed to the American Revolution. As the Revolution progressed it became necessary for British officials to find a haven for these loyalists. William Knox, a Georgia loyalist working for the British government in London, devised a plan to create a new province, “New Ireland”, which would encompass the region between the St. Croix and Penobscot Rivers in what is now the state of Maine. Thus, in 1778, English officials ordered the establishment of a military post at Castine which had been known to Native people and their French allies as Pentagoet. In 1780, a constitution for the new province was approved by the British Parliament and officials were named to its government. At the close of the Revolution however, American negotiators in Paris succeeded in persuading British officials to relinquish claims to territories west of the St. Croix River. English administrators were thus forced to seek a new location for the loyalists at Castine. It was decided that they should be relocated to St. Andrews, the first convenient harbour east of the Anglo-American border. The move was made between October 1783 and January 1784.[226]
The fate of the settlement at St. Andrews remained in question, however, owing to the unresolved question of the exact location of
the border between Nova Scotia and Massachusetts. Carl Winter notes that although the U.S.-Canadian border from
Passamaquoddy Bay to the St. Lawrence River is “only a small portion of the
line which extends almost four thousand miles, to the Pacific,... this portion
has caused more difficulties than all the rest combined.”[227] In 1783, a group of settlers from Machias, Maine had moved onto lands
between the St. Croix and the Magaguadavic Rivers, under the assumption that these lands were within the
boundaries of Massachusetts. In October
1783, when Loyalists began arriving at St. Andrews, John Allen the agent of the
Massachusetts government went to St. Andrews to warn the settlers off. In addition, he directed the Indians at St.
Andrews not to permit surveyors in the area.
Grants of shore and river land were made to the Penobscot Associated
Loyalists in 1784. These grants
extended “from Bocabec on the inner bay of Passamaquoddy to Sprague’s Falls on
the St. Croix River”, and formed the basis for the parishes of St. Patrick, St.
Andrews, St. Croix, St. David, Dufferin and St. Stephen. From that point onward, the Passamaquoddy
faced gradual encroachments on their land, as the town of St. Andrews became
established. Testimony before the boundary commission which was established at
the close of the Revolutionary War, provides an account of “the famous old
Indian cross at St. Andrews Point [that] was pulled down by drunken
revelers.” Finally, in 1794, ten years after the Revolutionary War had ended, a formal treaty was signed between the Passamaquoddy
people and the Commonwealth of Massachusetts, setting aside 30,000 acres of
land for the Passamaquoddies. Their
contribution on behalf of the Americans was noted, but not rewarded. As Susan MacCulloch Stevens notes, the treaty signed by the Passamaquoddies:
...was as notable for imposing restrictions as it was for fulfilling promises. The land reserved for Indians was somehow seen to be a benevolent gift of the state, rather than a miserly scrap of what was really their own territory.[228]
The history of the American Indian in Western legal
thought reveals that a will to empire proceeds most
effectively under a rule of law.[229]
In 1820, the treaty obligations of the Massachusetts government were transferred to the newly-created state of Maine. Almost
immediately, the state began selling and leasing the rich timberlands which had
been reserved for the Passamaquoddies and the neighbouring Penobscots. Susan
MacCulloch Stevens points to a “dreary recital of abuses of
Passamaquoddy and Penobscot welfare”, throughout the 1800’s.[230] Not coincidentally, it was during this same
era that the land rights of Aboriginal peoples became the subject of judicial
scrutiny. In five influential decisions
respecting Native claims to the territories they occupied, the United States
Supreme Court under the leadership of Chief Justice John Marshall “established
the fundamental principles of aboriginal rights by which courts in many
jurisdictions have guided themselves ever since.”[231] It is significant that Aboriginal rights as they are
articulated in American and Canadian common law developed almost entirely out
of the struggle between the state and Aboriginal peoples for control of land.[232]
The first of the Supreme Court decisions respecting Aboriginal title to land was Fletcher v. Peck. The case involved the ability of the State of Georgia to grant a fee simple title to lands within its borders which were still subject to Aboriginal title. Counsel for the state of Georgia presented the argument that Native people as hunters and gatherers had no legitimate title to the lands they occupied. The court upheld the Georgia statute enabling it to grant lands within its borders regardless of whether they were subject to Aboriginal title. No exact description of what precisely was meant by Aboriginal title was provided by the Marshall court. This was to follow in the next decision with respect to Aboriginal land rights, Johnson and Graham’s Lessee v. M’Intosh (1832).
The question in Johnson was whether Aboriginal peoples could alienate their lands without the approbation of either the British crown or its successor, the U.S. government. Like many nineteenth century cases involving the question of Aboriginal title, no Native people were actually involved in the dispute. The conflict had arisen between two non-Natives, one of whom had received title to certain lands as part of a private transaction between colonists and Natives in the late eighteenth century.
Counsel for the plaintiff, in asserting the validity of the title acquired through purchase from Native peoples, argued that Aboriginal people as the original proprietors of the soil had an absolute right to alienate their lands. Since they were not subjects of the British government they were not bound by its edicts, including the Royal Proclamation to which the lands in question would have been subject. In finding against this argument, Marshall offered an extensive discussion of the history of settlement and colonization in North America. He did so to derive what became known as the Doctrine of Discovery. Marshall rationalized the ability of Europeans to acquire lands already occupied by peoples organized into nations by asserting that “discovery gave exclusive title to those who made it.” This right of the original “discoverers” passed to the government of the United States after the Revolution.
Robert A. Williams, Jr., notes “the disenchanted nature” of the Chief Justice’s discussion of Aboriginal title, pointing to the manner in which he distances himself from “abstract” principles of justice and morality. It is evident in Marshall’s discussion that he realizes the specious nature of his attempts to legitimize European appropriation of territories held by Aboriginal peoples, but he is nevertheless willing to compromise principles of justice and of morality in the name of political expediency. This is particularly evident in the following passage from Johnson:
However extravagant the pretension of converting the
discovery of an inhabited country into conquest may
appear, if the principle has been asserted in the
first instance, and afterwards sustained; if a
country has been acquired and held under it; if the
property of the great mass of the community originates
in it, it becomes the law of the land and cannot be
questioned.
Interestingly, the Chief Justice refuses to entertain the argument presented by counsel for the defense, that Aboriginal peoples, as hunters and gatherers had no valid title to the lands they inhabited.
We will not enter into the controversy, whether
agriculturalists, merchants and manufacturers, have a
right, on abstract principles, to expel hunters from the
territory they possess, or to contract their limits.
This has been held by some analysts to be a repudiation by Marshall of the Lockean view of acquisition of property through agrarian labour. Barbara Arneil asserts that Marshall’s justification of European appropriation based on discovery and conquest rather than on the Lockean doctrine of property is an indication that the Chief Justice did not subscribe to Locke’s view of Native peoples. Arneil contends that:
Marshall’s judgments were important, not least because
they became the foundation for all subsequent decisions on
Indian land claims, but also, for the purposes of this
thesis, because they completely undercut the Lockean view
of Indians…[233]
However, on closer examination of Marshall’s jurisprudence in general and his judgment in Johnson, this proves to be an incorrect assessment. There are, in fact, important strains of Locke’s argument which can be detected in the Chief Justice’s jurisprudence. One can only speculate that he chose not to follow the Lockean line of argument not because he believed to be false, but again, for reasons of political expediency.
Marshall was heavily influenced by Locke’s Second Treatise and believed strongly in the right to property, which he felt was a “sacred” right, second only to the right to life.[234] It was not solely the right to possess, however, but the right to possess the fruits of one’s labour, which Marshall believed to be of fundamental importance.
The right of property was not so much the right to
possess as the right to possess what one has worked for.
This was the premise, developed in Chapter V of Locke’s
Second Treatise, which Marshall took to be “generally
admitted,” and from which his arguments on property in
general, and on vested contractual rights in particular,
took their beginning.[235]
Like Locke, Marshall viewed the individual’s right to acquire property through labour as a force which would lead, in the end, to public good. In his view, the object of government was to protect the ability of individuals to acquire property in unequal amounts.[236]
While Marshall appears on the surface to reject the view that it is agrarian labour, the “improvement” and cultivation of lands which creates property, a closer look at the judgment in Johnson reveals that this is, in fact, an underlying assumption.
In a revealing passage in Johnson, the Chief Justice asserts that Native peoples inhabiting North America were “fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest.” He goes on to state that to leave them in possession of their lands, would have been to leave the country “a wilderness.”
Francis Jennings draws out the implicit Lockean rationale in Marshall’s judgment. He argues that in international law, to invade and dispossess a “civilized” nation would be impermissible. Therefore, to rationalize the dispossession of Native peoples it was necessary to characterize them as savages outside the boundaries of moral and civil law. The key element in developing this characterization was the fact that Aboriginal people relied on hunting and gathering for their subsistence.
For Justice Marshall the fundamental criteria of legal
savagery were two: subsistence “from the forest” and
the “occupation” of war. Since it could hardly be
argued that civilized societies eschewed war or withheld
honor from professional soldiers, the critical factor in
being savage reduced to a mode of subsistence…Insofar as
the difference between civilized and uncivilized men is
concerned, the theorists of international law, whom Marshall
followed, have held consistently that civilized people stay
in place and thus acquire such right in their inhabited
lands as uncivilized wanderers cannot rightfully claim.[237]
It is likely that Marshall framed his discussion in terms of discovery and conquest, rather than on agrarian labour, in order to bolster the authority of the sovereign government in opposition to individual property rights. Robert Faulkner notes that Marshall subscribed to the belief that “although the American nation’s success depended above all upon the restless application of private energies, their calculated coordination could be secured only by a public force, government.”
The decisions of the Marshall court became the starting point for judicial analysis of Aboriginal rights in other jurisdictions. Because they included a discussion of the treatment of Aboriginal peoples in British colonies, the decisions provided a basis for judicial consideration of Aboriginal title other common law jurisdictions, including Canada. The Supreme Court of Canada explicitly adopted the Marshall Court’s reasoning in 1887, in St. Catherine’s Milling and Lumber Co. v. The Queen.[238]
Despite the fact that lands were ostensibly reserved for them in
Maine the Passamaquoddies retained their ancient
attachment to Kun-as-kwam-kuk and the surrounding area. There is evidence, contained in
correspondence between the New Brunswick Indian Agents and the Provincial
Secretary, that members of the Passamaquoddy Nation attempted to reestablish
settlements in the St. Andrews area. In
addition, the correspondence indicates that the New Brunswick government was
concerned to at least some degree, with the state of the Passamaquoddies in
Charlotte County.
Beginning in 1840’s, Passamaquoddies as well as various people
concerned with Native affairs, appealed to government officials to make
provision for some kind of relief for the Native inhabitants of the area. Attempts were also made to secure money for
a `camping ground’ for Passamquoddies residing in Charlotte County. In March of 1846, Moses Perley wrote to the
Provincial Secretary in response to a request by the latter for details
concerning the “real state of certain Indians near St. Andrews, represented as
being in a destitute situation.”[239] It is clear in this
correspondence, that the Provincial government
considered providing relief for the Passamaquoddies. Perley remarks at the close of his
communication that:
any relief now extended to these Indians should be stated to them as being only temporary, and not to be expected in future - as otherwise, the whole of the destitute Indians from Pleasant Point, in the State of Maine, would be very likely to take up their abode permanently in this Province.[240]
This passage is
interesting in several respects.
Firstly, it is clear that the Natives concerned are, in fact,
Passamaquoddies from Pleasant Point.
Secondly, it is evident, at least in Perley’s view, that conditions
among the Passamaquoddies in Maine were such that they would easily consider a
move to St. Andrews. Two years
later, Harris Hatch, the Indian Commissioner for the area also corresponded with the Provincial Secretary concerning the Passamaquoddies at St.
Andrews. This letter is particularly
illuminating in its discussion of the attempts by Passamaquoddies to establish
a settlement near St. Andrews. It is
dated August 2nd, 1848, at St. Andrews and is transcribed, as nearly as possible, as
follows:
I have the honor of receiving your letter of the 19th (?), requesting me to furnish for the information of His Excellency, a list _____?, of all the Indians in the
District. In
reply, I beg to say that the Indians in this quarter have made frequent applications to Government for a
piece of land in this County, where they might make a
permanent establishment. They were led
to believe, at one time, they would
succeed in their wishes, but, I believe nothing has been done, and the Government of the United
States have given them land at Pleasant Point, near
Eastport, where within a few years, they have erected frame houses and a chapel, in which they have been aided by the same
government, giving a salary to a Priest to attend the Indians. The winter before last, from ten to fifteen
families wintered at Chamcook, near this place. The Indians do not ? having acquired all the
vices incident to civilization with very few of its virtues. They are well disposed to the British government, but having had no encouragement
in the allotment of land, they were compelled to succumb to circumstances.
If a strip of land with the beach in front could be granted at the
northern head of Grand Manan, their favorite dealing station, and a piece of land on the Waweig River,
where their families could remove (?) in the winter
season, the men would be enabled to go a hunting,
leaving the women and children to make
baskets - the particular kind of wood for this pupose being at hand.
This would be doing an act of justice to these poor creatures, and giving back a part,
of which their forefathers possessed by occupancy, the
origin of all possession of property.
If his Excelllency would be pleased to entertain the foregoing suggestions, I should be happy, on the ? of humanity, to go
into further details, if necessary, for His Excellency’s further information -
to donate ? this land for the Indians in
the different places I have determined as best
suited to observe their interests.
I am not able to give you a particular detail of the number of men, women and children but the aggregate number
living on both sides of the Saint Croix are about five
hundred souls.
Your most obedient humble
servant,
Later in the same month, Hatch writes to the Provincial Treasurer
requesting information about a grant of 50 pounds, made by the Provincial
Legislature in 1841. He notes that the
money was to be used for the purchase of a camping ground for the “Saint Croix
Indians”, but the money had never been drawn out for this purpose.[242] Hatch was apparently unsuccessful in determining the fate of this money, for
he wrote two more letters in 1849, requesting
information about the grant, from the Indian Agent R.L. Hazen.[243] No further communication on
this matter appears to have taken place.
In April of 1864 however, a petition is made by Edward Jack of Saint
Andrews, in the County of Charlotte to the Lieutenant Governor of New
Brunswick, the Legislative Council and the House of Assembly, stating:
that there are now thirty Indians, men women and children of the Passamaquoddy tribe living about one mile from the town of
Magaguadavic in the said County on lands the property of private individuals to whom they are forced to pay rent, that they
are forbidden by the owners of these lands to cut any green trees for firewood and only allowed to use such
as may be dead or decaying, that the Indians have from
time immemorial resided near the spot where their
huts now stand, that owing to the
scarcity of game in their neighbourhood a considerable portion of their living is denied...? porpoise
shooting during the summer months, that they are
desirous of obtaining a lot of land
whereon to live free of rent contiguous to the shores of Passamaquoddy Bay
which it will
be necessary for them to purchase as all suitable lands are granted that they are desirous of obtaining a grant of 800 acres of Crown land in the County of Charlotte whose (?) vacant, the title to be vested in the Justices of Charlotte with power to sell and apply the proceeds to the pruchase of a small lot at or near the sea there upon which they can reside and which they may cultivate, such purchase to be subject to the approbation of the justices aforesaid...[244]
A final petition is made by several residents of Charlotte County on
behalf of the Passamaquoddies in April of 1868, who are “in a comparatively
destitute and suffering condition, and who are sustained to a great degree by
the charities of the white population of the County...” The petition states that there are
approximately 50 Passamaquoddies living in the area and requests that some
provision for their support be made by the Province “from the public reserves.”[245]
Even if the Provincial government had undertaken to acknowledge the
cause of the Passamaquoddies at St. Andrews it is unlikely that it would have
set aside lands for them since Legislative authorities during this period were
rapidly disposing of lands already reserved for Native peoples in the
Province. As Loyalists moved into Nova
Scotia and New Brunswick following the American Revolution government officials
had set aside lands for the Wabanaki peoples on the basis of treaties which had
recognized them as occupying particular territories.[246] The boundaries of these
territories, however, were not
clearly indicated in the treaties.
Between 1783 and 1810, government representatives granted licenses of
occupation to Native peoples, which detailed the boundaries of their
territories. These licenses did not
grant ownership; they merely allowed
for occupancy and possession of the lands in question, the ultimate title being
vested in the crown.[247] Only 100,000 acres, or one
half of one per cent of the land area of New Brunswick was included in these
licenses.[248] By 1838, when the first
survey of reserve lands was completed, only 61,000 acres of the land originally set aside for Native people in New Brunswick remained.[249]
In 1838, when control of Native affairs was transferred from the
British government to the New Brunswick government, a period of further
reduction of reserve lands commenced.[250] The beginning of the
nineteenth century brought with it a huge and rapid influx of Scottish and
Irish immigrants to New Brunswick and Nova Scotia. Between 1800 and 1825, the population of New Brunswick had more
than doubled.[251] The new settlers generally
cared little for the struggles of Native people to retain their lands and their
way of life. In fact,
...they despised the wandering nature of Indian existence as vagrancy; the proceeded to occupy attractive Indian lands, regarding the Indians’ failure to cultivate land as a conclusive argument for dispossession.[252]
A significant threat to reserve lands during this era were squatters.[253] They settled on Native land, sometimes in ignorance of the boundary lines, but at other times knowing full well that the lands were reserved to
Native peoples and could not be sold. They then commenced erecting buildings, clearing land and otherwise `improving’ the lands they were unlawfully occupying. After a
certain amount of time, they petitioned the
government for title to the land, usually citing the `improvements’ which had been made to the lands in question.
L.F.S. Upton points out that the squatters were
“without the shadow of a title to their holdings”, and the government was thus
fully within its rights to eject them from Wabanaki lands.[254] But he argues that government officials were basically sympathetic to
squatters on reserves, who they felt:
had contributed greatly to the progress of New Brunswick by improving waste lands that otherwise lay as barriers to the extension of thriving settlements.[255]
In addition, it was the generally-held view of legislative
authorities that since many Native people persisted in traditional hunting and
gathering activities, rather than taking up farming, the reserve lands were of
no use to them. An Act passed in 1844,
explicitly stated as much. Officially
titled An Act to Regulate the Management
and Disposal of Indian Reserves in this Province [New Brunswick], it
confirmed the government’s view that:
...the extensive tracts of valuable Land reserved for the Indians in various parts of this Province tend greatly to retard the settlement of the Country, while large portions of them are not, in their present neglected state, productive of any benefit to the people, for whose use they were reserved...[256]
This Act laid out the government’s solution to both the problem of squatters and the continuing problem of providing relief for the destitute Micmac and Maliseet peoples, whose livelihood had been all but destroyed. This solution was to sell off the unused portions of reserved lands and apply the proceeds to a relief fund. In the concluding paragraph of his essay on this era of New Brunswick history, Upton states frankly that “everything considered, it is remarkable that the native peoples of New Brunswick survived at all.” He asserts that if the New Brunswick government’s strategy for Aboriginal peoples had been applied to all of Canada, it would have proven to be a “final solution” for Native peoples in this country.[257]
The dominant theme in the New Brunswick’s governmental policy toward Native people was the attempt to change their subsistence habits.
So much of the reserved land in the state of Maine was sold or leased, that by the 1960’s, only 200 of the original 30,000 acres of reserved lands remained.[258] In the late 1960’s, a movement began among the Passamaquoddies to force the State of Maine to acknowledge the theft of their lands. The movement ended successfully in 1970, when the
Since 1986, descendents of the Passamaquodddies still residing at St. Andrews have attempted to gain some recognition of the Passamaquoddy interest in Kun-as-kwam-kuk. This struggle has taken the form of court battles and more recently, peaceful protests by the Passamaquoddy in the Town of St. Andrews. To date, no recognition from the Town has been forthcoming.
CONCLUSION
For Native people time is not linear. Rather it is like a circle. For them what has gone before is not simply the past. It is thus extremely important for non-Natives to re-examine the history of colonization in order to fully understand the Aboriginal experience in the present.
The struggle of the Passamaquoddy people to retain their connection to Kun-as-kwam-kuk is a very real example of the way in which colonialism proceeds. Since the time of first contact, the relationship between Aboriginal peoples and the land has been intolerable to Europeans. It has been an obstacle to the expansion of settlements on this continent. The solution to this “problem” has been either to deny the legitimacy of a society based on such a relationship, or alternatively to make it into something which resembles European land ownership. In the early stages of colonization, the doctrine of property which Locke developed served the first purpose perfectly. In the later stages of colonization, when it became important to justify existing property arrangements, anthropologists and ethnologists searched for evidence that property had existed aboriginally.
The connection of Aboriginal groups such as the Passamaquoddy has endured colonialism in all its facets. In the present era, it is clear that the time has come for Western societies to accept the relationship that has always existed and to simply acknowledge that it is unlike that which exists in Western societies.
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[1] Bernard McGrane, Beyond Anthropology: Society and the Other. (New York: Columbia University Press, 1989), p. 1
[4] Calvin Martin, “The Metaphysics of Writing Indian-White History”, in The American Indian and the Problem of History (New York: Oxford University Press, 1987), pp 27-34.
[7] Noam Chomsky and Harry Bracken have argued that there is a connection between the philosophy of empiricism and the expression of racist doctrines. Specifically, they argue that empiricism, an approach to philosophy which Locke helped to develop, provides a methodology "within which theories of political control have been successfully advanced." They trace the link between racism and empiricism to Locke's account of essence and concept acquisition in the development of human intellect. Bracken and Chomsky argue that Locke’s view of humans as blank slates who are therefore malleable, opens the door for theories of social control. In defense of Locke, K. Squadrito argues that there is no logical connection between the empiricist view of concept acquisition and racism, and "although theories of human malleability might be put to the service of a totalitarian doctrine, it is in fact true that they might not." See K. Squadrito, "Racism and Empiricism", Behaviorism, 7:1 (Spring 1979): 105-115 See also H.M. Bracken, “Essence, Accident and Race,” Hermathena, CXVI, Winter 1973 and Noam Chomsky, Reflections on Language (New York: Pantheon Books, 1975).
[8] David McNally, "Locke, Levellers and Liberty: Property and Democracy in the Thought of the First Whigs" History of Political Thought, 10:1 (Spring 1989): 17-40. McNally argues that Locke's Two Treatises were greatly influenced by the politics of his mentor, the First Earl of Shaftesbury. Shaftesbury is portrayed as an earnest opponent of absolute monarchy, and thus of Charles II. At the same time, Shaftesbury is depicted as a supporter of the idea of a constitution comprised of the three elements of monarchy, aristocracy and democracy in balance with one another.(p.25) Peter Laslett regards Locke's work as "a deliberate and polemically effective refutation of the writings of Sir Robert Filmer, intellectually and historically important because of that fact and not in spite of it..." "Introduction", John Locke: Two Treatises of Government. Edited by Peter Laslett. (Cambridge: Cambridge University Press, 1960) p. 89.
[9] Peter Laslett, John Locke: Two Treatises of Government. Edited by Peter Laslett. (Cambridge: Cambridge University Press, 1960) n.,p.306.
[10] John Locke, "The Second Treatise of Government." In John Locke Two Treatises of Government. op. cit., II, 1. (Numbers used in this paper refer to Second Treatise, followed by the paragraph number).
[12] Ibid., II, 5. Note: the absence of gender neutral language here reflects the context in which the Two Treatises were written and the audience for which they were intended.
[13] Ibid., II, 6. This is the first mention Locke makes of the idea of property, and its connection with labour. It foreshadows some of the points he will make in his chapter on property.
[14] Ibid., II, 6. Locke does not use the word property here, but says "what tends to the Preservation of the Life, Liberty, Health Limb or Goods of another."
[19] Thomas Hobbes, Leviathan. Edited by Francis Randall. (New York: Washington Square Press, 1964) p. 85.
[21] Ibid., II, 25. Tully, op. cit., p. 109, describes the question as follows: "Specifically, the problem consists of two parts: how is the commons appropriated by individuals in such a way that they come to have property rights in parts of it, and how is it done legitimately without the consent or agreement of others." Locke scholars have debated the exact meaning of this phrase in Locke. The debate centers around the question of whether for Locke, common ownership is intended to mean that men have a positive right to the world (ie: everyone owns everything) or a negative right (no one owns anything).
[33] Ibid., II, 46. Aristotle, in his discussion of the household and its importance, also made this distinction. He presents a view, held by some people, that currency exists entirely by convention: "Naturally and inherently (the supporters of this view argue) a currency is a nonentity; for if those who use a currency give it up in favour of another, that currency is worthless, and useless for any of the necessary purposes of life. A man rich in currency (they proceed to urge) will often be at a loss to procure the necessities of subsistence; and surely it is absurd that a thing should be counted as wealth which a man may possess in abundance, and yet none the less die of starvation - like Midas in the fable, when everything set before him was turned at once to gold through the granting of his own avaricious prayer." The Politics of Aristotle. Translated and introduced by Ernest Barker. (Oxford: Oxford University Press, 1958) p. 25.
[37] Olive Patricia Dickason, "Renaissance Europe's View of Amerindian Sovereignty and Territoriality", Plural Societies, 8:3-4 (Autumn-Winter 1977): 97-107, p. 97
[38] Olive Dickason, op. cit., 97. In 1493, the year after Columbus' landing in the Americas, Pope Alexander VI issued the famous bulls, which divided the world between Spain and Portugal. See Wilcomb E. Washburn, "The Moral and Legal Justifications for Dispossessing the Indians", in Seventeenth Century America. Essays in Colonial History. (Chapel Hill, NC: University of North Carolina Press, 1959), pp. 15-32, p. 15.
[39] Leonard Krieger, The Politics of Discretion: Pufendorf and the Acceptance of Natural Law. (Chicago: University of Chicago Press, 1965) p. 103.
[40] Barbara Arneil, "John Locke, Natural Law and Colonialism", History of Political Thought 13:4 (Winter 1992): 587-603, p. 587
[44] Roger Scruton. A Dictionary of Political Thought. (London: Macmillan, 1982) p. 192-93. It is ironic, in the context of the dispossession of Aboriginal peoples, that, as Scruton notes, Grotius developed the important principle of international law: pacta sunt servanda: promises and treaties are to be adhered to.
[45] Erik Wolf, "Samuel von Pufendorf", Encyclopedia of Philosophy, Volume 7. Paul Edwards, Editor-in-Chief. (New York: Macmillan Company and Free Press, 1967), pp. 27-29. He is described by Wolf as being one of the first philosophers of the era to understand the connection between sociological theory on the one hand and law and politics on the other. Wolf notes that he "saw the social realities of human life as a whole." p. 28
[52] Herman Lebovics, "The Uses of America in Locke's Second Treatise of Government", Journal of the History of Ideas, 47:4 (Oct-Dec 1986): 567-581
[53] Locke, II, 37. Locke asserts that before "[Men] had agreed, that a little piece of yellow Metal, which would keep without wasting or decay, should be worth a great piece of Flesh, or a whole heap of Corn; though Men had a Right to appropriate, by their Labour, each one to himself, as much of the things of Nature, as he could use: Yet this could not be much, nor to the Prejudice of others, where the same plenty was still left, to those who would use the same Industry."
[55] Herman Lebovics, "The Uses of America in Locke's Second Treatise of Government", Journal of the History of Ideas, 47:4 (Oct-Dec 1986): 567-581, p.573
[56] C.B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford: Clarendon Press, 1962). p. 199.
[57] Jeremy Waldron, "Locke, Tully and the Regulation of Property", Political Studies, 32 (1984): 98-106. See also Ramon M. Lemos, Hobbes and Locke: Power and Consent (Athens: University of Georgia Press, 1978) p. 150. Lemos asserts that Locke's theory can actually be used as a justification for the development of social welfare policies. They refer to paragraph 42, in the First Treatise: "But we know God hath not left one Man so to the Mercy of another, that he may starve him if he please: God the Lord and Father of all, has given no one of his children such a Property, in his peculiar Portion of the things of this World, but that he has given his needy Brother a Right to the Surplusage of his Goods" But Locke attributes this right to charity: "As Justice gives every Man a Title to the product of his honest Industry, and the fair Acquisitions of his Ancestors descended to him; so Charity gives every Man a Title to so much out of another's Plenty, as will keep him from extream want, where he has no means to subsist otherwise."
[58] Kristin Shrader-Frechette, "Locke and Limits on Land Ownership", Journal of the History of Ideas, 54:2 (April 1993): 201-219
[60] J.E. Parsons, Jr., "Locke's Doctrine of Property", Social Research, 36 (1969): 389-411 He notes at p. 407: "it is not, as sometimes supposed, Locke's doctrine that the mere protection of wealth is the chief objective of civil society: the protection of a differential capacity to acquire wealth becomes that objective."
[61] James Tully, A Discourse on Property. John Locke and His Adversaries, (Cambridge: Cambridge University Press, 1980).
[62] Neal Wood, John Locke and Agrarian Capitalism. (Berkeley: University of California Press, 1984), p. 74.
[66] James Tully, "Rediscovering America: The Two Treatises and Aboriginal Rights" In An Approach to Political Philosophy. Locke in Contexts (Cambridge: Cambridge University Press, 1993). pp.137-176
[67] James Tully, "Rediscovering America: The Two Treatises and Aboriginal Rights", in An Approach to Political Philosophy. Locke in Contexts, (Cambridge: Cambridge University Press, 1993), p. 146.
[68] James Tully, "Property, Self Government and Consent, a review of John A. Simmons' The Lockean Theory of Rights", Canadian Journal of Political Science, 28:1 (March 1995): 105-132, p. 106.
[69] Marilyn Holly, "The Persons of Nature versus the Power Pyramid: Locke, Land and American Indians", International Studies in Philosophy, 26:1 (1994): 14-31, p. 20.
[72] Marilyn Holly, "The Persons of Nature versus the Power Pyramid: Locke, Land and American Indians", International Studies in Philosophy, 26:1 (1994): 14-31, p. 20.
[75] Francisco Castilla Urbano, "El Indio Americano en la Filosofia Politica de John Locke", Revista de Indias, XLVI:178 (1986): 589-602, 437.
[76] Thomas Flanagan, “The Agricultural Argument and Original Appropriation: Indian Lands and Political Philosophy” Canadian Journal of Political Science 22:3 (1989): 589-602. His essay is, in part, a reaction to a discussion resulting from a book review by David Gauthier. In his discussion of a chapter on Aboriginal rights, Gauthier argued that Locke’s theory of property acquisition could serve to legitimate appropriation of Native lands “by any group which could leave the original inhabitants better off than they were under their initial appropriation.” Gauthier was taken to task on this point in a response by Nicholas Griffin. Griffin points out that if Gauthier’s principle were applied universally, it would allow “wide-ranging redistribution of property within European society.” See David Gauthier, “Book reviews: Contemporary Issues in Political Philsophy”, Dialogue 18 (1979): 432-440 and Nicholas Griffin, “Aboriginal Rights: Gauthier’s Arguments for Despoilation,” Dialogue 20 (1981): 690-696.
[77] See for example, Roland Hall, Eighty Years of Locke Scholarship (Edinburgh: University Press, 1983).
[78] An essay entitled “An Inquiry into the Right of the Aboriginal Natives to the Lands in America,” has been cited as an example of the utilization of Locke’s doctrine of property in justifying appropriation of Native lands. It is found in the Collections of the Massachusetts Historical Society, Series I, Volume 4 (1795), 159-181.
[79] Alvin H. Morrison, "Frank G. Speck and Maine Ethnohistory," In Papers of the Eleventh Algonquian Conference. Edited by William Cowan. (Ottawa: Carleton University, 1980). p. 8-9. The cultural evolutionist theory developed out of, but transcended the frame of reference provided by studies in biological evolution. Inherent in the cultural evolutionist position, was the idea that societies develop in a linear fashion, from small to large, simple to complex, informal to formal social orders. Modern anthropologists criticized the nineteenth century evolutionists as being "unilinear", meaning that the latter believed all societies must necessarily progress through the same stages (p. 223). Elman R. Service, "Evolution: Cultural Evolution" International Encyclopedia of the Social Sciences. Volume 5. Edited by David L. Sills. (New York: Macmillan and Co., 1968) p. 223.
[80] Morrison, op. cit., 8. Morrison is critical of Speck's approach to ethnohistory. He argues that Speck emphasized field work at the expense of library research using historical documentation, which could sometimes result in a distorted or inaccurate study. Morrison cites criticisms made by some of Speck's peers, who suggest that Speck's orientation toward the study of Aboriginal peoples was more that of natural historian than ethnohistorian.