Aboriginal title

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https://en.wikipedia.org/wiki/Aboriginal_title 

 

Protests against the Foreshore and Seabed Act 2004, which extinguished claims to aboriginal title to the foreshore and seabeds in New Zealand

Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, the content of aboriginal title, the methods of extinguishing aboriginal title, and the availability of compensation in the case of extinguishment vary significantly by jurisdiction. Nearly all jurisdictions are in agreement that aboriginal title is inalienable, and that it may be held either individually or collectively.

Aboriginal title is also referred to as indigenous title, native title (in Australia), original Indian title (in the United States), and customary title (in New Zealand). Aboriginal title jurisprudence is related to indigenous rights, influencing and influenced by non-land issues, such as whether the government owes a fiduciary duty to indigenous peoples. While the judge-made doctrine arises from customary international law, it has been codified nationally by legislation, treaties, and constitutions.

Aboriginal title was first acknowledged in the early 19th century, in decisions in which indigenous peoples were not a party. Significant aboriginal title litigation resulting in victories for indigenous peoples did not arise until recent decades. The majority of court cases have been litigated in Australia, Canada, Malaysia, New Zealand, and the United States. Aboriginal title is an important area of comparative law, with many cases being cited as persuasive authority across jurisdictions. Legislated Indigenous land rights often follow from the recognition of native title.

British colonial legacy

The Mohegan Sun casino commemorates the site of the world's first common-law indigenous land rights case, decided in 1773.

Aboriginal title arose at the intersection of three common law doctrines articulated by the Judicial Committee of the Privy Council: the Act of State doctrine, the Doctrine of Continuity, and the Recognition Doctrine. The Act of State doctrine held that the Crown could confiscate or extinguish real or personal property rights in the process of conquering, without scrutiny from any British court, but could not perpetrate an Act of State against its own subjects. The Doctrine of Continuity presumed that the Crown did not intend to extinguish private property upon acquiring sovereignty, and thus that pre-existing interests were enforceable under British law. Its mirror was the Recognition Doctrine, which held that private property rights were presumed to be extinguished in the absence of explicit recognition.

In 1608, the same year in which the Doctrine of Continuity emerged, Edward Coke delivered a famous dictum in Calvin's Case (1608) that the laws of all non-Christians would be abrogated upon their conquest. Coke's view was not put into practice, but was rejected by Lord Mansfield in 1774. The two doctrines were reconciled, with the Doctrine of Continuity prevailing in nearly all situations (except, for example, public property of the predecessor state) in Oyekan v Adele (1957).

The first Indigenous land rights case under the common law, Mohegan Indians v. Connecticut, was litigated from 1705 to 1773, with the Privy Council affirming without opinion the judgement of a non-judicial tribunal. Other important Privy Council decisions include In re Southern Rhodesia (1919) and Amodu Tijani v. Southern Nigeria (Secretary) (1921).

The former rejected a claim for aboriginal title, noting that:

Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged.

Two years later, Amodu Tijani laid the basis for several elements of the modern aboriginal title doctrine, upholding a customary land claim and urging the need to "study of the history of the particular community and its usages in each case." Subsequently, the Privy Council issued many opinions confirming the existence of aboriginal title, and upholding customary land claims; many of these arose in African colonies. Modern decisions have heaped criticism upon the views expressed in Southern Rhodesia.

Doctrinal overview

Recognition

The requirements for establishing an aboriginal title to the land vary across countries, but generally speaking, the aboriginal claimant must establish (exclusive) occupation (or possession) from a long time ago, generally before the assertion of sovereignty, and continuity to the present day.

Content

Aboriginal title does not constitute allodial title or radical title in any jurisdiction. Instead, its content is generally described as a usufruct, i.e. a right to use, although in practice this may mean anything from a right to use land for specific, enumerated purposes, or a general right to use which approximates fee simple.

It is common ground among the relevant jurisdictions that aboriginal title is inalienable, in the sense that it cannot be transferred except to the general government (known, in many of the relevant jurisdictions, as "the Crown")—although Malaysia allows aboriginal title to be sold between indigenous peoples, unless contrary to customary law. Especially in Australia, the content of aboriginal title varies with the degree to which claimants are able to satisfy the standard of proof for recognition. In particular, the content of aboriginal title may be tied to the traditions and customs of the indigenous peoples, and only accommodate growth and change to a limited extent.

Extinguishment

Aboriginal title can be extinguished by the general government, but again, the requirement to do this varies by country. Some require the legislature to be explicit when it does this, others hold that extinguishment can be inferred from the government's treatment of the land. In Canada, the Crown cannot extinguish aboriginal title without the explicit prior informed consent of the proper aboriginal title holders. New Zealand formerly required consent, but today requires only a justification, akin to a public purpose requirement.

Jurisdictions differ on whether the state is required to pay compensation upon extinguishing aboriginal title. Theories for the payment of compensation include the right to property, as protected by constitutional or common law, and the breach of a fiduciary duty.

Percentage of land

• Native title in Australia - 1,228,373 square kilometres (474,277 sq mi) (16% of the country's land area)
• Indian reserves in Canada - 28,000 square kilometres (11,000 sq mi) (0.2804% of the country's land area)
• Native Community Lands in Bolivia - 168,000 square kilometres (65,000 sq mi) (15% of the country's land area)
• Indigenous territories in Brazil - 1,105,258 square kilometres (426,742 sq mi) (13% of the country's land area)
• Indigenous territories in Colombia - 1,141,748 square kilometres (440,831 sq mi) (31.5% of the country's land area)
• Indian reservations in the United States - 227,000 square kilometres (88,000 sq mi) (2.308% of the country's land area)

History by jurisdiction

Australia

Main article: Native title in Australia

Australia did not experience native title litigation until the 1970s, when Indigenous Australians (both Aboriginal and Torres Strait Islander people) became more politically active, after being included in the Australian citizenry as a result of the 1967 referendum. In 1971, Blackburn J of the Supreme Court of the Northern Territory rejected the concept in Milirrpum v Nabalco Pty Ltd (the "Gove land rights case"). The Aboriginal Land Rights Commission was established in 1973 in the wake of Milirrpum. Paul Coe, in Coe v Commonwealth (1979), attempted (unsuccessfully) to bring a class action on behalf of all Aborigines claiming all of Australia. The Aboriginal Land Rights Act 1976, established a statutory procedure that returned approximately 40% of the Northern Territory to Aboriginal ownership; the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981, had a similar effect in South Australia.

The High Court of Australia, after paving the way in Mabo No 1 by striking down a State statute under the Racial Discrimination Act 1975, overruled Milirrpum in Mabo v Queensland (No 2) (1992). Mabo No 2, rejecting terra nullius, held that native title exists (6–1) and is extinguishable by the sovereign (7–0), without compensation (4–3). In the wake of the decision, the Australian Parliament passed the Native Title Act 1993 (NTA), codifying the doctrine and establishing the National Native Title Tribunal (NNTT). Western Australia v Commonwealth upheld the NTA and struck down a conflicting Western Australia statute.

In 1996, the High Court held that pastoral leases, which cover nearly half of Australia, do not extinguish native title in Wik Peoples v Queensland. In response, Parliament passed the Native Title Amendment Act 1998 (the "Ten Point Plan"), extinguishing a variety of Aboriginal land rights and giving state governments the ability to follow suit.

Western Australia v Ward (2002) held that native title is a bundle of rights, which may be extinguished one by one, for example, by a mining lease. Yorta Yorta v Victoria (2002), an appeal from the first native title claim to go to trial since the Native Title Act, adopted strict requirements of continuity of traditional laws and customs for native title claims to succeed.

Belize

In A-G for British Honduras v Bristowe (1880), the Privy Council held that the property rights of British subjects who had been living in Belize under Spanish rule with limited property rights, were enforceable against the Crown, and had been upgraded to fee simple during the gap between Spanish and British sovereignty. This decision did not involve indigenous peoples, but was an important example of the key doctrines that underlie aboriginal title.

In 1996, the Toledo Maya Cultural Council (TMCC) and the Toledo Alcaldes Association (TAA) filed a claim against the government of Belize in the Belize Supreme Court, but the Court failed to act on the claim. The Maya peoples of the Toledo District filed a complaint with the Inter-American Commission on Human Rights (IACHR), which sided with the Maya in 2004 and stated that the failure of the government of Belize to demarcate and title the Maya cultural lands was a violation of the right to property in Article XXIII of the American Declaration. In 2007, Chief Justice Abdulai Conteh ruled in favor of the Maya communities of Conejo and Santa Cruz, citing the IACHR judgement and key precedents from other common law jurisdictions. The government entered into negotiations with the Maya communities, but ultimately refused to enforce the judgement.

In 2008, The TMCC and TAA, and many individual alcaldes, filed a representative action on behalf of all the Maya communities of the Toledo District, and on 28 June 2010, CJ Conteh ruled in favor of the claimants, declaring that Maya customary land tenure exists in all the Maya villages of the Toledo District, and gives rise to collective and individual property rights under sections 3(d) and 17 of the Belize Constitution.

Botswana

A Botswana High Court recognized aboriginal title in Sesana and Others v Attorney General (2006), a case brought by named plaintiff Roy Sesana, which held that the San have the right to reside in the Central Kalahari Game Reserve (CKGR), which was violated by their 2001 eviction. The decision quoted Mabo and other international case law, and based the right on the San's occupation of their traditional lands from time immemorial. The court described the right as a "right to use and occupy the lands" rather than a right of ownership. The government has interpreted the ruling very narrowly and has allowed only a small number of San to re-enter the CKGR.

Canada

Further information: Canadian Indigenous law and Indigenous land claims in Canada

Aboriginal title has been recognized in Common Law in Canada since the Privy Council, in St. Catharines Milling v. The Queen (1888), characterized it as a personal usufruct at the pleasure of the Queen. This case did not involve indigenous parties, but rather was a lumber dispute between the provincial government of Ontario and the federal government of Canada. St. Catharines was decided in the wake of the Indian Act (1876), which laid out an assimilationist policy towards the Aboriginal peoples in Canada (First Nations, Inuit, and Métis). It allowed provinces to abrogate treaties (until 1951), and, from 1927, made it a federal crime to prosecute First Nation claims in court, raise money, or organize to pursue such claims.

St. Catharines was more or less the prevailing law until Calder v. British Columbia (Attorney General) (1973). All seven of the judges in Calder agreed that the claimed Aboriginal title existed, and did not solely depend upon the Royal Proclamation of 1763. Six of the judges split 3–3 on the question of whether Aboriginal title had been extinguished. The Nisga'a did not prevail because the seventh justice, Pigeon J, found that the Court did not have jurisdiction to make a declaration in favour of the Nisga'a in the absence of a fiat of the Lieutenant-Governor of B.C. permitting suit against the provincial government.

Section 91(24) of the Constitution Act, 1867 ("British North America Act 1867") gives the federal government exclusive jurisdiction over First Nations, and thus the exclusive ability to extinguish Aboriginal title. Section Thirty-five of the Constitution Act, 1982 explicitly recognized and preserved aboriginal rights. R. v. Guerin (1982), the first Supreme Court of Canada decision handed down after the Constitution Act 1982, declared that Aboriginal title was sui generis and that the federal government has a fiduciary duty to preserve it. R. v. Simon (1985) overruled R. v. Syliboy (1929) which had held that Aboriginal peoples had no capacity to enter into treaties, and thus that the Numbered Treaties were void. A variety of non-land rights cases, anchored on the Constitution Act 1982, have also been influential.

Delgamuukw v. British Columbia (1997) laid down the essentials of the current test to prove Aboriginal title: "in order to make out a claim for [A]boriginal title, the [A]boriginal group asserting title must satisfy the following criteria: (i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive."

Subsequent decisions have drawn on the fiduciary duty to limit the ways in which the Crown can extinguish Aboriginal title, and to require prior consultation where the government has knowledge of a credible, but yet unproven, claim to Aboriginal title.

In 2014 the Supreme Court ruled unanimously for the plaintiff in Tsilhqot'in Nation v. British Columbia. Rejecting the government's claim that Aboriginal title applied only to villages and fishing sites, it instead agreed with the First Nation that Aboriginal title extends to the entire traditional territory of an indigenous group, even if that group was semi-nomadic and did not create settlements on that territory. It also stated that governments must have consent from First Nations which hold Aboriginal title in order to approve developments on that land, and governments can override the First Nation's wishes only in exceptional circumstances. The court reaffirmed, however, that areas under Aboriginal title are not outside the jurisdiction of the provinces, and provincial law still applies.

Japan

In 2008, Japan gave partial recognition to the Ainu people. However, land rights were not given for another eleven years.

In 2019, Japan fully recognised the Ainu people as the indigenous people of Japan and gave them some land rights if requested.

Malaysia

Malaysia recognised various statutory rights related to native customary laws (adat) before its courts acknowledged the independent existence of common law aboriginal title. Native Customary Rights (NCR) and Native Customary Land (NCL) are provided for under section 4(2) of the National Land Code 1965, the Sarawak Land Code 1957, the respective provisions of the National Land Code (Penang and Malacca Titles) Act 1963, and the Customary Tenure Enactment (FMS). Rajah's Order IX of 1875 recognized aboriginal title by providing for its extinguishment where cleared land was abandoned. Rajah's Order VIII of 1920 ("Land Order 1920") divided "State Lands" into four categories, one of them being "native holdings", and provided for the registration of customary holdings. The Aboriginal People's Act 1954 creates aboriginal areas and reserves, also providing for state acquisition of land without compensation. Article 160 of the Federal Constitution declares that custom has the force of law.

Malaysian court decisions from the 1950s on have held that customary lands were inalienable. In the 1970s, aboriginal rights were declared to be property rights, as protected by the Federal Constitution. Decisions in the 1970s and 1980s blocked state-sanctioned logging on customary land.

In 1997, Mokhtar Sidin JCA of the Jahore High Court became the first Malaysian judge to acknowledge common law aboriginal title in Adong bin Kuwau v. Kerajaan Negeri Johor. The High Court cited the Federal Constitution and the Aboriginal Peoples Act, as well as decisions from the Privy Council, Australia, Canada, New Zealand, and the United States. That case was the first time where Orang Asli directly and expressly challenged a state taking of their land. The opinion held that: "the aborigines' common law rights include, inter alia, the right to live on their land as their forefathers had lived." The case was upheld on appeal, but the Federal Court did not write an opinion.

Later High Court and Court of Appeal decisions built upon the foundation of Adong bin Kuwau. However, the ability for indigenous peoples to bring such suits was seriously limited by a 2005 ruling that claims must be brought under O. 53 RHC, rather than the representative action provision.

In 2007, the Federal Court of Malaysia wrote an opinion endorsing common law aboriginal title for the first time in Superintendent of Lands v. Madeli bin Salleh. The Federal Court endorsed Mabo and Calder, stating that "the proposition of law as enunciated in these two cases reflected the common law position with regard to native titles throughout the Commonwealth." The High Court of Kuching held in 2010, for the first time, that NCL may be transferred for consideration between members of the same community, as long as such transfers are not contrary to customary law.

New Zealand

The Treaty of Waitangi (1840)

New Zealand was the second jurisdiction in the world to recognize aboriginal title, but a slew of extinguishing legislation (beginning with the New Zealand land confiscations) has left the Māori with little to claim except for river beds, lake beds, and the foreshore and seabed. In 1847, in a decision that was not appealed to the Privy Council, the Supreme Court of the colony of New Zealand recognized aboriginal title in R v Symonds. The decision was based on common law and the Treaty of Waitangi (1840). Chapman J went farther than any judge—before or since—in declaring that aboriginal title "cannot be extinguished (at least in times of peace) otherwise than by the free consent of the Native occupiers".

The New Zealand Parliament responded with the Native Lands Act 1862, the Native Rights Act 1865 and the Native Lands Act 1865 which established the Native Land Court (today the Māori Land Court) to hear aboriginal title claims, and—if proven—convert them into freehold interests that could be sold to Pākehā (New Zealanders of European descent). That court created the "1840 rule", which converted Māori interests into fee simple if they were sufficiently in existence in 1840, or else disregarded them. Symonds remained the guiding principle, until Wi Parata v the Bishop of Wellington (1877). Wi Parata undid Symonds, advocating the doctrine of terra nullius and declaring the Treaty of Waitangi unenforceable.

The Privy Council disagreed in Nireaha Tamaki v Baker, and other rulings, but courts in New Zealand continued to hand down decisions materially similar to Wi Parata. The Coal Mines Amendment Act 1903 and the Native Land Act 1909 declared aboriginal title unenforceable against the Crown. Eventually, the Privy Council acquiesced to the view that the Treaty was non-justiciable.

Land was also lost under other legislation. The Counties Act 1886 s.245 said that tracks, "over any Crown lands or Native lands, and generally used without obstruction as roads, shall, for the purposes of this section, be deemed to be public roads, not exceeding sixty-six feet in width, and under the control of the Council". Opposition to such confiscation was met by force, as at Opuatia in 1894. A series of Acts, beginning a year after the Treaty of Waitangi with the Land Claims Ordinance 1841, allowed the government to take and sell 'Waste Lands'.

Favorable court decisions turned aboriginal title litigation towards the lake beds, but the Māori were unsuccessful in claiming the rivers the beaches, and customary fishing rights on the foreshore. The Limitation Act 1950 established a 12-year statute of limitations for aboriginal title claims (6 years for damages), and the Maori Affairs Act 1953 prevented the enforcement of customary tenure against the Crown. The Treaty of Waitangi Act 1975 created the Waitangi Tribunal to issue non-binding decisions, concerning alleged breaches of the Treaty, and facilitate settlements.

Te Weehi v Regional Fisheries Office (1986) was the first modern case to recognize an aboriginal title claim in a New Zealand court since Wi Parata, granting non-exclusive customary fishing rights. The Court cited the writings of Dr Paul McHugh and indicated that whilst the Treaty of Waitangi confirmed those property rights, their legal foundation was the common law principle of continuity. The Crown did not appeal Te Weehi which was regarded as the motivation for Crown settlement of the sea fisheries claims (1992). Subsequent cases began meanwhile—and apart from the common law doctrine—to rehabilitate the Treaty of Waitangi, declaring it the "fabric of New Zealand society" and thus relevant even to legislation of general applicability. New Zealand Maori Council v Attorney-General held that the government owed a duty analogous to a fiduciary duty toward the Māori. This cleared the way for a variety of Treaty-based non-land Māori customary rights. By this time the Waitangi Tribunal in its Muriwhenua Fishing Report (1988) was describing Treaty-based and common law aboriginal title derived rights as complementary and having an 'aura' of their own.

Circa the Te Ture Whenua Māori Act 1993, less than 5% of New Zealand was held as Māori customary land. In 2002, the Privy Council confirmed that the Maori Land Court, which does not have judicial review jurisdiction, was the exclusive forum for territorial aboriginal title claims (i.e. those equivalent to a customary title claim) In 2003, Ngati Apa v Attorney-General overruled In Re the Ninety-Mile Beach and Wi Parata, declaring that Māori could bring claims to the foreshore in Land Court. The Court also indicated that customary aboriginal title interests (non-territorial) might also remain around the coastline. The Foreshore and Seabed Act 2004 extinguished those rights before any lower court could hear a claim to either territorial customary title (the Maori Land Court) or non-territorial customary rights (the High Court's inherent common law jurisdiction). That legislation has been condemned by the Committee on the Elimination of Racial Discrimination. The 2004 Act was repealed with the passage of the Marine and Coastal Area (Takutai Moana) Act 2011.

Papua New Guinea

The High Court of Australia, which had appellate jurisdiction before 1975, recognized aboriginal title in Papua New Guinea—decades before it did so in Australia—in Geita Sebea v Territory of Papua (1941), Administration of Papua and New Guinea v Daera Guba (1973) (the "Newtown case"), and other cases. The Supreme Court of Papua New Guinea followed suit.

Schedule 2 of the Constitution of Papua New Guinea recognizes customary land tenure, and 97% of the land in the country remains unalienated.

South Africa

The Richtersveld desert

In Alexkor v Richtersveld Community (2003), a suit under the Restitution of Land Rights Act 1994, lawyers gathered case law from settler jurisdictions around the world, and judges of the Constitutional Court of South Africa talked frankly about Aboriginal title. The Land Claims Court had dismissed the complaint of the Richtersveld peoples, whose land was seized by a government owned diamond mining operation. The Supreme Court of Appeal disagreed, citing Mabo and Yorta Yorta, but held that the aboriginal title had been extinguished. Whether the precedent will be the start of further land rights claims by indigenous peoples is an open question, given the cut-off date of 1913 in the Restitution Act.

The case ultimately did not lead to the inclusion of the Aboriginal title in South African doctrine. Legal scholars allege that this is because the application of terms like 'indigenous' and 'Aboriginal' in a South African context would lead to a number of contradictions.

The identity of the indigenous groups in South Africa is not self-evident. The adoption of a strict definition, including only communities descended from San and Khoekhoe people, would entail the exclusion of black African communities, an approach deemed detrimental to the spirit of national unity. The legacy of the Natives Land Act also means that few communities retain relationships with the land of which they held before 1913.

Taiwan

Clickable imagemap of Taiwan showing traditional territories of indigenous highland peoples. Alternate spellings or names: Pazih (Pazeh); Taroko (Truku, Seediq); Yami (Tao).

Taiwanese indigenous peoples are Austronesian peoples, making up a little over 2% of Taiwan's population; the rest of the population is composed of ethnic Chinese who colonised the island from the 17th century onward. In 2017 the Council of Indigenous Peoples declared 18,000 square kilometres (6,900 sq mi), about half of Taiwan's land area (mostly in the east of the island), to be "traditional territory"; about 90 percent is public land that indigenous people can claim, and to whose development they can consent or not; the rest is privately owned.

From 1895 Taiwan was under Japanese rule and indigenous rights to land were extinguished. The Republic of China (ROC) took control of Taiwan from the Japanese Empire in 1945 (the "retrocession"), and in 1949 the Communists won the Chinese Civil War, giving them control of mainland China; a rump Republic of China was established on Taiwan Island. From then, indigenous people's access to traditional lands was limited, as the ROC built cities, railroads, national parks, mines and tourist attractions. In 2005 the Basic Law for Indigenous Peoples was passed.

Tanzania

In 1976, the Barabaig people challenged their eviction from the Hanang District of the Manyara Region, due to the government's decision to grow wheat in the region, funded by the Canadian Food Aid Programme. The wheat program would later become the National Agricultural and Food Corporation (NAFCO). NAFCO would lose a different suit to the Mulbadaw Village Council in 1981, which upheld customary land rights. The Court of Appeal of Tanzania overturned the judgement in 1985, without reversing the doctrine of aboriginal title, holding that the specific claimants had not proved that they were native. The Extinction of Customary Land Right Order 1987, which purported to extinguish Barabaig customary rights, was declared null and void that year.

The Court of Appeal delivered a decision in 1994 that sided with the aboriginal title claimant on nearly all issues, but ultimately ruled against them, holding that the Constitution (Consequential, Transitional and Temporary Provisions) Act, 1984—which rendered the constitutional right to property enforceable in court—was not retroactive. In 1999, the Maasai were awarded monetary compensation and alternative land by the Court of Appeal due to their eviction from the Mkomazi Game Reserve when a foreign investor started a rhino farm. The government has yet to comply with the ruling.

United States

Main article: Aboriginal title in the United States

The United States, under the tenure of Chief Justice John Marshall, became the first jurisdiction in the world to judicially acknowledge (in dicta) the existence of aboriginal title in series of key decisions. Marshall envisioned a usufruct, whose content was limited only by "their own discretion", inalienable except to the federal government, and extinguishable only by the federal government. Early state court decisions also presumed the existence of some form of aboriginal title.

Later cases established that aboriginal title could be terminated only by the "clear and plain intention" of the federal government, a test that has been adopted by most other jurisdictions. The federal government was found to owe a fiduciary duty to the holders of aboriginal title, but such duty did not become enforceable until the late-20th century.

Although the property right itself is not created by statute, sovereign immunity barred the enforcement of aboriginal title until the passage of the Indian Claims Commission Act of 1946, which created the Indian Claims Commission (succeeded by the United States Court of Claims in 1978, and later the United States Court of Federal Claims in 1982). These bodies have no authority to title land, only to pay compensation. United States v. Alcea Band of Tillamooks (1946) was the first ever judicial compensation for a taking of Indian lands unrecognized by a specific treaty obligation. Tee-Hit-Ton Indians v. United States (1955) established that the extinguishment of aboriginal title was not a "taking" within the meaning of the Fifth Amendment. On the strength of this precedent, claimants in the Court of Federal Claims have been denied interest—which otherwise would be payable under Fifth Amendment jurisprudence—totalling billions of dollars ($9 billion alone, as estimated by a footnote in Tee-Hit-Ton, in interest for claims then pending based on existing jurisdictional statutes).

Unlike Australia, Canada, and New Zealand, the United States allows aboriginal title to be created post-sovereignty; rather than existing since pre-sovereignty, aboriginal title need only have existed for a "long time" (as little as 30 years) to be compensable.

Jurisdiction rejecting the doctrine

Some of the Bounty mutineers landed on the Pitcairn Islands and later on Norfolk Island, hundreds of years after archaeologists estimate the original Polynesian inhabitants departed these islands.

There is no possibility for aboriginal title litigation in some Commonwealth jurisdictions; for instance, Barbados and the Pitcairn Islands were uninhabited for hundreds of years prior to colonization, although they had previously been inhabited by the Arawak and Carib, and Polynesian peoples, respectively.

India

Unlike most jurisdictions, the doctrine that aboriginal title is inalienable never took hold in India. Sales of land from indigenous persons to both British subjects and aliens were widely upheld. The Pratt–Yorke opinion (1757), a joint opinion of England's Attorney-General and Solicitor-General, declared that land purchases by the British East India Company from the Princely states were valid even without a Crown patent authorizing the purchase.

In a 1924 appeal from India, the Privy Council issued an opinion that largely corresponded to the Continuity Doctrine: Vaje Singji Jorava Ssingji v Secretary of State for India. This line of reasoning was adopted by the Supreme Court of India in a line of decisions, originating with the proprietary claims of the former rulers of the Princely states, as well as their heirs and assigns. Adivasi land rights litigation has yielded little result. Most Adivasi live in state-owned forests.

Discovery doctrine

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Discovery_doctrine

 

The discovery doctrine, or doctrine of discovery, is a disputed interpretation of international law during the Age of Discovery, introduced into United States municipal law by the US Supreme Court Justice John Marshall in Johnson v. M'Intosh (1823). In Marshall's formulation of the doctrine, discovery of territory previously unknown to Europeans gave the discovering nation title to that territory against all other European nations, and this title could be perfected by possession. A number of legal scholars have criticized Marshall's interpretation of the relevant international law. In recent decades, advocates for Indigenous rights have campaigned against the doctrine. In 2023, the Vatican formally repudiated the doctrine.

Discovery in international law

The means by which a state can acquire territory in international law are conquest, cession by agreement, occupation of land which belongs to no state (terra nullius), and prescription through the continuous exercise of sovereignty. Discovery of a territory creates a mere inchoate title which must be completed within a reasonable period by effective occupation of that territory.

Robert J. Miller states that by 1493, "The idea that the Doctrine [of discovery] granted European monarchs ownership rights in newly discovered lands and sovereign and commercial rights over Indigenous peoples due to first discovery by European Christians was now established international law, at least to Europeans." Kent McNeil, however, states, "it is not apparent that such a rule was ever part of the European law of nations."

Historical background

Miller and others trace the doctrine of discovery back to papal bulls which authorized various European powers to conquer the lands of non-Christians. In 1452, Pope Nicholas V issued the bull Dum Diversas, which authorized King Afonso of Portugal to "subjugate the Saracens and pagans and any other unbelievers and enemies of Christ", and "reduce their persons to perpetual servitude", to take their belongings, including land, "to convert them to you, and your use, and your successors the Kings of Portugal." In 1455, Pope Nicholas V issued Romanus Pontifex, which extended Portugal's authority to conquer the lands of infidels and pagans for "the salvation of all" in order to "pardon ... their souls". The document also granted Portugal a specific right to conquest in West Africa and to trade with Saracens and infidels in designated areas. Charles and Rah argue that these bulls were used to justify the Atlantic slave trade.

In 1493, following a dispute between Portugal and Spain over the discovery of non-Christian lands in the Americas, Pope Alexander VI issued Inter Caetera which drew a north-south line 100 leagues West of the Cape Verde Islands and gave the Spanish Crown exclusive rights to travel and trade west of that line, and to "bring under your sway the said mainland and islands with their residents and inhabitants and to bring them to the Catholic faith." In 1494 Portugal and Spain signed the Treaty of Tordesillas which moved the line separating their spheres of influence to 300 leagues west of the Cape Verde Islands. The treaty was eventually endorsed by Pope Julius II in the 1506 bull Ea quae pro bono pacis.

Throughout the sixteenth century, Spain and Portugal claimed that papal authority had given them exclusive rights of discovery, trade and conquest of non-Christian lands in their respective spheres of influence. These claims were challenged by theorists of natural law such as the Spanish theologians Domingo de Soto and Francisco di Vitoria. In 1539 Vitoria wrote that the Spanish discovery of the Americas provides "no support for possession of these lands, any more than it would if they had discovered us."

France and England also made claims to territories inhabited by non-Christians based on first discovery, but disputed the notion that papal bulls, or discovery by itself, could provide title over lands. In 1541, French plans to establish colonies in Canada drew protests from Spain. In response, France effectively repudiated the papal bulls and claims based on discovery without possession, the French king stating that "Popes hold spiritual jurisdiction, and it does not lie with them to distribute land amongst kings" and that "passing by and discovering with the eye was not taking possession."

Similarly, when in 1580 Spain protested to Elizabeth I about Francis Drake's violation of the Spanish sphere, the English queen replied that popes had no right to grant the world to princes, that she owed no allegiance to the Pope, and that mere symbolic gestures (such as erecting monuments or naming rivers) did not give property rights.

From the sixteenth century, France and England asserted a right to explore and colonize any non-Christian territory not under the actual possession of a Christian sovereign. The stated justifications for this included the spread of Christianity, the duty to bring civilization to barbarian peoples, the natural right to explore and trade freely with other peoples, and the right to settle and cultivate uninhabited or uncultivated land.

Hugo Grotius, writing in 1625, stated that discovery does not give a right to sovereignty over inhabited land, "For discovery applies to those things which belong to no one." Dutch policy was to acquire land in North America by purchase from indigenous peoples.

By the eighteenth century, some leading theorists of international law argued that territorial rights over land could stem from the settlement and cultivation of that land. William Blackstone, in 1756, wrote, "Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother-country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations." Two years after Blackstone, Emer de Vattel, in his Le droit des gents (1758), drew a distinction between land that was effectively occupied and cultivated, and the unsettled and uncultivated land of nomads which was open to colonization.

All imperial European states enacted symbolic rituals to give notice of discovery and possession of lands to other states. These rituals included burying plates, raising flags, erecting signs, and naming territories, rivers or other features. More concrete claims of possession ranged from building forts to establishing settlements. Rituals of a transfer of sovereignty often involved trials, executions and other acts to symbolize that the laws of the colonizing power were in force.

European monarchs often asserted sovereignty over large areas of non-Christian territory based on purported discoveries and symbolic acts of possession. They frequently issued charters and commissions giving the grantees the power to represent the Crown and acquire property. While European states often acknowledged that indigenous peoples inhabiting these lands had property rights which had to be acquired through conquest, treaty or purchase, they sometimes acted as if territories were uninhabited and sovereignty and property rights could be acquired through occupation.

Summarizing the practices European states used to justify their acquisition of territory inhabited by indigenous peoples, McNeil states, "While Spain and Portugal favoured discovery and papal grants because it was generally in their interests to do so, France and Britain relied more on symbolic acts, colonial charters, and occupation." Benton and Strauman argue that European powers often adopted multiple, sometimes contradictory, legal rationales for their acquisition of territory as a deliberate strategy in defending their claims against European rivals.

North American jurisprudence

Chief Justice John Marshall

In 1792, U.S. Secretary of State Thomas Jefferson claimed that the doctrine of discovery was international law which was applicable to the new US government as well.

The discovery doctrine was expounded by the United States Supreme Court in a series of decisions, most notably Johnson v. M'Intosh in 1823. In that case, Chief Justice John Marshall held that under generally accepted principles of international law,

1. Discovery of lands previously unknown to Europeans gave the discovering nation title to that land against all other European nations, and this title could be perfected by possession.
2. The nation discovering that land had "the sole right of acquiring the soil from the natives, and establishing settlements upon it."
3. On discovery, the sovereignty of the indigenous peoples and their rights to sell their land were diminished, but their right of occupancy remained.
4. The discovering nation, having ultimate title to the land, had the right to sell the land of indigenous peoples, subject to the latter's right of occupancy.
5. This ultimate title of the discovering nation (in this case Britain) passed to the individual states after the Declaration of Independence, then to the US in 1789.

Dunbar-Oritz states that the doctrine outlined in this case continues to influence American imperialism and treatment of indigenous peoples.

Johnson v. M'Intosh

Main article: Johnson v. M'Intosh

Banner and Kades argue that the 1823 case was the result of collusive lawsuits where land speculators worked together to make claims to achieve a desired result. The plaintiff, Johnson, had inherited land originally purchased from the Piankeshaw tribes. Defendant McIntosh claimed the same land, having purchased it under a grant from the United States. In 1775, members of the Piankeshaw tribe sold certain land in the Indiana Territory to Lord Dunmore, Royal Governor of Virginia, and others. In 1805, the Piankeshaw conveyed much of the same land to William Henry Harrison, governor of the Indiana Territory, thus giving rise to conflicting claims of title. The court found, on three grounds, that it should not recognize the land titles obtained from Native Americans prior to American independence. A number of academics and Indigenous rights activists have argued that Chief Justice John Marshall had large real estate holdings that would have been affected if the case were decided in favor of Johnson.

Decision

Marshall found that ultimate title to land comes into existence by virtue of discovery and possession of that land, a rule that had been observed by all European countries with settlements in the New World. The United States had ultimate title of the land, as against other European nations, because it inherited that title from Britain and France, the original discoverers.

Marshall noted:

On the discovery of this immense continent, the great nations of Europe ... as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. ... The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles.

Marshall noted the 1455 papal bull Romanus Pontifex approved Portugal's claims to lands discovered along the coast of West Africa, and the 1493 Inter caetera had ratified Spain's right to conquer newly found lands. Marshall stated, however, "Spain did not rest her title solely on the grant of the Pope. Her discussions respecting boundary, with France, with Great Britain, and with the United States, all show that she placed it on the rights given by discovery. Portugal sustained her claim to the Brazils by the same title." Marshall pointed to the exploration charters given to the explorer John Cabot as proof that other nations had accepted the doctrine.

Legal critique

Allison Dussias states that the Piankeshaw were not party to the litigation and therefore, "no Indian voices were heard in a case which had, and continues to have, profound effects on Indian property rights."

McNeil states that the authority for the doctrine of discovery, as formulated by Marshall, was "flimsy". Furthermore, Indigenous nations in North America were factually independent and sovereign prior to the arrival of Europeans and therefore the European powers should not have been able to acquire territorial sovereignty by discovery and settlement, but only by conquest or cession.

Pagden states that Marshall did not sufficiently consider Francisco de Vitoria's critique of the claim that discovery gave a right to possession of inhabited lands. Vitoria, however, stated that the Spanish could claim possession of the Americas by conquest if indigenous populations violated principles of natural law.

Blake Watson states that Marshall overlooked evidence showing that the Dutch and some English settlers acknowledged the right of Indians to their land and favored purchase as a means of acquiring title. Watson and others, such as Robert A. Williams Jr., state that Marshall misinterpreted the "discovery doctrine" as giving exclusive right to lands discovered, rather than the exclusive right to treaty with the inhabitants who owned that land.

Other United States cases

In Cherokee Nation v. Georgia (1831), the US Supreme Court found that the Cherokee Nation was a "domestic dependent nation" with no standing to take action against the state of Georgia.

In Worcester v Georgia (1832), Marshall re-interpreted the doctrine of discovery. He stated that discovery did not give the discovering nation title to land, but only "the sole right of acquiring the soil and making settlements on it." This was a right of preemption which only applied between the colonizing powers and did not diminish the sovereignty of the indigenous inhabitants. "It regulated the right given by discovery among the European discoverers, but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man."

However, in five further cases decided between 1836 and 1842, Mitchel I, Fernandez, Clark, Mitchel II, and Martin, the Supreme Court restored the rule in Johnson that discovery gave the discovering nation ultimate title to land, subject to a right of occupancy held by indigenous peoples.

In Oliphant v. Suquamish Indian Tribe (1979), the Supreme Court held that discovery deprived tribes of the right to prosecute non-Indians. In Duro v. Reina (1990) the court held that tribes could not prosecute Indians who were not a member of the prosecuting tribe. However in November 1990, the Indian Civil Rights Act was amended by Congress to permit inter-tribal prosecutions.

As of March 2023, the most recent time the doctrine was cited by the Supreme Court is in the 2005 case City of Sherrill v. Oneida Indian Nation of New York, by Justice Ruth Bader Ginsburg in the majority decision.

Impact on Canadian law

Further information: Monarchy of Canada and the Indigenous peoples of Canada

Johnson v M'Intosh was extensively discussed in St Catharines Milling and Lumber Co v R (1888), the first Canadian case on Indigenous land title. The judge in first instance stated that Marshall had "concisely stated the same law of the mother country". On appeal, however, the Privy Council departed from Johnson in finding that native land rights were derived from the Royal Proclamation of 1763.

In 1973, Calder v British Columbia (Attorney General), the Supreme Court of Canada found that the Indigenous peoples of Canada held an aboriginal title to their land, which was independent of the Royal Proclamation of 1763 and was derived from the fact that, "when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries".

In Tsilhqot'in Nation v British Columbia (2014), the Supreme Court of Canada confirmed that "the doctrine of terra nullius never applied in Canada". Aboriginal title is a beneficial interest in land, although the Crown retains an underlying title. The court set out a number of conditions which must be met in order for the Crown to extinguish Aboriginal title.

Advocacy against the doctrine

In 2007, the United Nations (UN) adopted the Declaration on the Rights of Indigenous Peoples, which acknowledges the "rights of Indigenous peoples to their land". The only nations to vote against the declaration were the United States, Canada, Australia and New Zealand. All four would later reverse their positions.

The discovery doctrine has been condemned as socially unjust, racist, and in violation of basic and fundamental human rights. The United Nations Permanent Forum on Indigenous Issues (UNPFII) noted the doctrine of discovery "as the foundation of the violation of their (Indigenous people) human rights". The eleventh session of the UNPFII, held at the UN's New York headquarters from 7–18 May 2012, had the special theme of "The Doctrine of Discovery: its enduring impact on Indigenous peoples and the right to redress for past conquests (articles 28 and 37 of the United Nations Declaration on the Rights of Indigenous Peoples)". It called for a mechanism to investigate historical land claims, with speakers observing that "The Doctrine of Discovery had been used for centuries to expropriate Indigenous lands and facilitate their transfer to colonizing or dominating nations".

The General Convention of the US Episcopal Church, conducted on 8–17 August 2009, passed a resolution officially repudiating the discovery doctrine.

During the Ninth Session of the United Nations Permanent Forum on Indigenous Issues in April 2010, the Holy See addressed the doctrine, saying that it had been abrogated as early as 1494 by subsequent papal bulls, encyclicals, and pronouncements. It said that it considered Inter caetera as "a historic remnant with no juridical, moral or doctrinal value".

At the 2012 Unitarian Universalist Association General Assembly in Phoenix, Arizona, delegates passed a resolution repudiating the doctrine of discovery and calling on Unitarian Universalists to study the doctrine and eliminate its presence from the current-day policies, programs, theologies, and structures of Unitarian Universalism.

In 2013, at its 29th General Synod, the United Church of Christ repudiated the doctrine in a near-unanimous vote.

In 2014, Ruth Hopkins, a tribal attorney and former judge, wrote to Pope Francis asking him to formally revoke the Inter caetera papal bull of 1493.

At the 2016 Synod, 10–17 June in Grand Rapids, Michigan, delegates to the annual general assembly of the Christian Reformed Church rejected the doctrine of discovery as heresy in response to a study report on the topic.

At the 222nd General Assembly of the Presbyterian Church (U.S.A.) (2016), commissioners called on members of the church to repudiate the doctrine of discovery. The commissioners directed that a report be written reviewing the history of the doctrine. That report was approved by the 223rd General Assembly (2018), along with recommendations for a variety of additional actions that could be taken by the church at all levels to acknowledge indigenous peoples and to confront racism against them.

In 2016, the Churchwide Assembly of the Evangelical Lutheran Church in America (ELCA) adopted Assembly Action CA16.02.04 titled "Repudiation of the Doctrine of Discovery" by a vote of 912–28, describing the doctrine as "an example of the 'improper mixing of the power of the church and the power of the sword'".

On November 3, 2016, a group of 524 clergy publicly burned copies of Inter caetera, as part of the Dakota Access Pipeline protests near the Standing Rock Indian Reservation. As part of their demonstration, they invited a number of indigenous elders to authorize the burning.

The Royal Commission on Aboriginal Peoples, and the Truth and Reconciliation Commission of Canada have repudiated the doctrine and called on governments to remove it from laws and policies.

During Pope Francis's July 2022 penitential pilgrimage to Canada in light of the abuses of Canadian Indigenous children in residential schools, Canadian bishops requested that the Catholic Church issue a new statement on the doctrine of discovery.

On March 30, 2023, the Vatican repudiated the doctrine of discovery as "not part of the teaching of the Catholic Church." The Vatican pointed to the 1537 papal bull, Sublimis Deus, which affirmed the liberty and property rights of Indigenous peoples and prohibited their enslavement.

The Wretched of the Earth

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https://en.wikipedia.org/wiki/The_Wretched_of_the_Earth 

 

The Wretched of the Earth

Cover of the first edition
Author	Frantz Fanon
Original title	Les Damnés de la Terre
Translator	Constance Farrington (1963) Richard Philcox (2004)
Country	France
Language	French
Subjects	Racism, colonialism, violence, post-colonialism, third-world development, revolution
Publisher	François Maspero
Publication date	1961
Published in English	1963
Media type	Print
Pages	251
ISBN	0-8021-5083-7
OCLC	11787563

The Wretched of the Earth (French: Les Damnés de la Terre) is a 1961 book by the philosopher Frantz Fanon, in which the author provides a psychoanalysis of the dehumanizing effects of colonization upon the individual and the nation, and discusses the broader social, cultural, and political implications of establishing a social movement for the decolonization of a person and of a people. The French-language title derives from the opening lyrics of "The Internationale".

Summary

Through critiques of nationalism and of imperialism, Fanon presents a discussion of personal and societal mental health, a discussion of how the use of language (vocabulary) is applied to the establishment of imperialist identities, such as colonizer and colonized, to teach and psychologically mold the native and the colonist into their respective roles as slave and master and a discussion of the role of the intellectual in a revolution. Fanon proposes that revolutionaries should seek the help of the lumpenproletariat to provide the force required to effect the expulsion of the colonists. In traditional Marxist theory, the lumpenproletariats are the lowest, most degraded stratum of the proletariat—especially criminals, vagrants and the unemployed—people who lack the class consciousness to participate in the anti-colonial revolution.

Fanon applies the term lumpenproletariat to the colonial subjects who are not involved in industrial production, especially the peasantry, because, unlike the urban proletariat (the working class), the lumpenproletariat has sufficient intellectual independence from the dominant ideology of the colonial ruling class, ready to grasp that they can revolt against the colonial status quo and so decolonize their nation. One of the essays included in The Wretched of the Earth is "On National Culture", in which Fanon highlights the necessity for each generation to discover its mission and fight for it.

"On Violence"

The first section is entitled "On Violence". It is a detailed explanation of violence in relation to both the colonial world and the process of decolonization. Fanon begins with the premise that decolonization is, by definition, a violent process without exception. The object of that process is the eventual replacement of one group of humans with another, and that process is only complete when the transition is total. This conception of decolonization is based on Fanon's construction of the colonial world. Through his observations, he concluded that all colonial structures are actually nested societies which are not complementary. He uses Aristotelian logic in that the colony followed the "principle of reciprocal exclusivity". Based on this conclusion, Fanon characterizes the assessment of the native population by the settler class as dehumanizing. The settlers literally do not see the natives as members of the same species. The natives are incapable of ethics and thereby are the embodiment of absolute evil (p. 32) as opposed to the Christian settlers who are forces of good. This is a crucial point for Fanon because it explains two phenomena that occur in the colonial world. The first is the idea that decolonization is the replacement of one population by another, and the second is that since the native knows that they are not animals, they immediately develop a feeling of rebellion against the settler.

One of the temporary consequences of colonization that Fanon talks about is division of the native into three groups. The first is the native worker who is valued by the settler for their labor. The second group is what he calls the "colonized intellectual" (p. 47). These are, by western standards, the more educated members of the native group who are in many ways recruited by the settler to be spokespeople for their views. The settlers had "implanted in the minds of the colonized intellectual that the essential qualities remain eternal in spite of the blunders men may make: the essential qualities of the West, of course" (p. 36); these intellectuals were "ready to defend the Graeco-Latin pedestal" (p. 36) against all foes, settler or native. The third group described by Fanon are the lumpenproletariat. This group is described in Marxism as the poorest class; those who are outside of the system because they have so little. This group is often dismissed by Marxists as unable to assist in the organizing of the workers, but Fanon sees them differently. For him, the lumpenproletariat will be the first to discover violence in the face of the settler (p. 47).

Once the idea of revolution is accepted by the native, Fanon describes the process by which it is debated, adjusted, and finally implemented. According to Fanon, the revolution begins as an idea of total systematic change, and through the actual application to real world situations is watered down until it becomes a small shift of power within the existing system. "[The] pacifists and legalists ... put bluntly enough the demand ... 'Give us more power'" (46), but the "native intellectual has clothed his aggressiveness in his barely veiled desire to assimilate himself to the colonial world" (47). The colonialist bourgeoisie offers non-violence and then compromise as further ways out of the violence of decolonization; these too are mechanisms to blunt and degrade the movement. An example of this is the newly independent Republic of Gabon which gained independence from France in 1960 and afterward, the new president, Léon M'ba said "Gabon is independent, but between Gabon and France nothing has changed; everything goes on as before" (quoted in Wretched of the Earth, p. 52). For Fanon, this is the perfect example of a decolonization movement which has been enfeebled by the tentativeness of its leaders. To fight this, "The newly independent Third World countries are urged not to emulate the decadent societies of the West (or East), but to chart a new path in defining human and international relationship" (Fairchild, 2010, p. 194).

In this essay Fanon describes many aspects of the violence and response to violence necessary for total decolonization. He also offers cautions about several different approaches to that violence.

"On National Culture"

Summary

In the essay "On National Culture" published in The Wretched of the Earth, Fanon sets out to define how a national culture can emerge among the former and, at the time of its release in 1961, still-colonized nations of Africa. Rather than depending on an orientalized, fetishized understanding of precolonial history, Fanon argues a national culture should be built on the material resistance of a people against colonial domination. Fanon narrates the essay with reference to what he calls the 'colonized intellectual'.

The return to precolonial history

For Fanon, colonizers attempt to write the precolonial history of a colonized people as one of "barbarism, degradation, and bestiality" in order to justify the supremacy of Western civilization. To upset the supremacy of the colonial society, writes Fanon, the colonized intellectual feels the need to return to their so-called 'barbaric' culture, to prove its existence and its value in relation to the West.

Fanon suggests colonized intellectuals often fall into the trap of trying to prove the existence of a common African or 'Negro' culture. This is a dead end, according to Fanon, because it was originally the colonists who essentialized all peoples in Africa as 'Negro', without considering distinct national cultures and histories. This points to what Fanon sees as one of the limitations of the Négritude movement. In articulating a continental identity, based on the colonial category of the 'Negro', Fanon argues "the men who set out to embody it realized that every culture is first and foremost national".

An attempt among colonized intellectuals to 'return' to the nation's pre-colonial culture is then ultimately an unfruitful pursuit, according to Fanon. Rather than culture, the intellectual emphasizes traditions, costumes, and clichés, which romanticize history in a similar way as the colonist would. The desire to reconsider the nation's pre-colonial history, even if it results in orientalized clichés, still marks an important turn according to Fanon, since by rejecting the normalized eurocentrism of colonial thought, these intellectuals provide a "radical condemnation" of the larger colonial enterprise. This radical condemnation attains its full meaning when we consider that the "final aim of colonization", according to Fanon, "was to convince the indigenous population that it would save them from darkness". A persistent refusal among Indigenous peoples to admonish national traditions in the face of colonial rule, according to Fanon, is a demonstration of nationhood, but one that holds on to a fixed idea of the nation as something of the past, a corpse.

Struggle as the site of national culture

Ultimately, Fanon argues the colonized intellectual will have to realize that a national culture is not a historical reality waiting to be uncovered in a return to pre-colonial history and tradition, but is already existing in the present national reality. National struggle and national culture then become inextricably linked in Fanon's analysis. To struggle for national liberation is to struggle for the terrain whereby a culture can grow, since Fanon concludes a national culture cannot exist under conditions of colonial domination.

A decisive turn in the development of the colonized intellectual is when they stop addressing the oppressor in their work and begin addressing their own people. This often produces what Fanon calls "combat literature", writing that calls upon the people to undertake the struggle against the colonial oppressor. This change is reflected in all modes of artistic expression among the colonized nation, from literature to pottery, to ceramics, and oral story-telling. Fanon specifically uses the example of Algerian storytellers changing the content and narration of their traditional stories to reflect the present moment of struggle against French colonial rule. He also considers the bebop jazz movement in America as a similar turn, whereby black jazz musicians began to delink themselves from the image imposed on them by a white-Southern imaginary. Whereas the common trope of African-American jazz musicians was, according to Fanon, "an old 'Negro', five whiskeys under his belt, bemoaning his misfortune", bebop was full of energy and dynamism that resisted and undermined the common racist trope.

For Fanon, national culture is then intimately tied to the struggle for the nation itself, the act of living and engaging with the present reality that gives birth to the range of cultural productions. This might be best summarized in Fanon's idea of replacing the 'concept' with the 'muscle'. Fanon is suggesting that the actual practice and exercise of decolonization, rather than decolonization as an academic pursuit, is what forms the basis of national culture.

Towards an international consciousness

In concluding the essay, Fanon is careful to point out that building a national culture is not an end in itself, but a 'stage' toward larger international solidarity. The struggle for national culture induces a break from the inferior status that was imposed on the nation by the process of colonization, which in turn produces a 'national consciousness'. This national consciousness, born of struggle undertaken by the people, represents the highest form of national culture, according to Fanon. Through this process, the liberated nation emerges as an equal player on the international stage, where an international consciousness can discover and advance a set of universalizing values.

Reception

In his preface to the 1961 edition of The Wretched of the Earth, Jean-Paul Sartre supported Frantz Fanon's advocacy of violence by the colonized people against the colonizer, as necessary for their mental health and political liberation; Sartre later applied that introduction in Colonialism and Neocolonialism (1964), a politico–philosophic critique of France's Algerian colonialism. The political focus derives from the first chapter of the book, "On Violence", wherein Fanon indicts colonialism and its post-colonial legacies, for which violence is a means of catharsis and liberation from being a colonial subject.

In the foreword to the 2004 edition of The Wretched of the Earth, Homi K. Bhabha criticized Sartre's introduction, stating that it limits the reader's approach to the book to focus on its promotion of violent resistance to oppression. After 1967, in the wake of Sartre's support for Israel in the Six-Day War, the introduction by Sartre was removed from new editions by Fanon's widow, Josie. Interviewed in 1978 at Howard University, she said, "when Israel declared war on the Arab countries, there was a great pro-Zionist movement in favor of Israel among western (French) intellectuals. Sartre took part in this movement. He signed petitions favoring Israel. I felt that his pro-Zionist attitudes were incompatible with Fanon's work". Anthony Elliott writes that The Wretched of the Earth is a "seminal" work.

Fanon's writing on culture has inspired much of the contemporary postcolonial discussions on the role of the national culture in liberation struggles and decolonization. In particular, Robert J. C. Young partially credits Fanon for inspiring an interest about the way the individual human experience and cultural identity are produced in postcolonial writing. Fanon's theorizing of national culture as first and foremost a struggle to overthrow colonial rule was a radical departure from other considerations of culture that took a more historical and ethnographic view.

Criticism

Some theorists working in postcolonial studies have criticized Fanon's commitment to the nation as reflective of an essentialist and authoritarian tendency in his writing. In response to "On National Culture", Christopher L. Miller, professor of African American studies and French at Yale University, faults Fanon for viewing the nation as the unquestioned site of anti-colonial resistance, since national borders were imposed on African peoples during the Scramble for Africa. According to Miller, the lack of attention to the imposition and artificiality of national borders in Africa overlooks the cultural and linguistic differences of each country that make theorizing a unified national culture, as Fanon does, problematic. Miller also criticizes Fanon for following much of "post-Enlightenment Western thought" by treating particular or local histories as subordinate to the universal or global struggle of the nation.

Neil Lazarus, professor at Warwick University, has suggested that Fanon's "On National Culture" overemphasizes a sense of unified political consciousness onto the peasantry in their struggle to overthrow colonial systems of power. In particular, Lazarus argues that the idea of a 'national consciousness' does not align with the history of the Algerian Revolution, in which Fanon was highly involved, since when the country gained independence in 1962 after an 8-year liberation war, the population was largely demobilized. In Lazarus' view, the peasant militancy in Fanon's analysis becomes the exact justification for his theory, yet does not necessarily exist in the material sense.

In the foreword to the 2004 edition of Wretched of the Earth, Homi K. Bhabha also pointed to some of the dangers of Fanon's analysis in "On National Culture". He wrote that Fanon's dedication to a national consciousness can be read as a "deeply troubling" demand for cultural homogeneity and the collapse of difference. Bhabha, however, suggests Fanon's vision is one of strategy and any focus on the homogeneity of the nation should not be interpreted as "narrow-minded nationalism", but an attempt to break the imposed Cold War era binaries of capitalism vs. socialism or East vs. West.

Strategic essentialism

Some scholars have noted the similarities between Fanon's conception of national culture and strategic essentialism. Strategic essentialism is a popular concept in postcolonial studies, which was coined by Gayatri Chakravorty Spivak in the 1980s. The concept acknowledges the impossibility of defining a set of essential attributes to a group or identity, while also acknowledging the importance of some kind of essentialism in order to mobilize for political action. This resonates with Fanon's argument in 'On National Culture', since any essentialism of national cultural identity was basically a strategic step towards overcoming the assimilation of colonialism, and building an international consciousness where binaries of colonized and colonizer were dissolved.

Relationship to the Négritude movement

"On National Culture" is also a notable reflection on Fanon's complex history with the Négritude movement. Aimé Césaire, Fanon's teacher and an important source of intellectual inspiration throughout his career, was the co-founder of the movement. While Fanon's thinking often intersected with figures associated with Négritude, including a commitment to rid humanism of its racist elements and a general dedication to Pan-Africanism in various forms, "On National Culture" was rather critical of the Négritude movement especially considering its historical context. The last section of the essay was initially drafted as a speech for the Second Congress of Black Writers and Artists in Rome: "The Unity and Responsibilities of African Negro Culture" (1959). The problems and solutions presented by the congress, inspired as they were by the movement, often revolved around the presumption that a unified African Negro culture existed. Alioune Diop, speaking as one of the key figures of the movement at the conference, said Négritude intended to enliven black culture with qualities indigenous to African history, but made no mention of a material struggle or a nationalist dimension. Meanwhile, throughout the essay, Fanon stressed the cultural differences between African nations and the particular struggles black populations were facing, which required material resistance on a national level. In a portion of the essay written after he delivered the speech at the conference, Fanon was especially critical of prominent Négritude writers and politicians Jacques Rabemananjara and Léopold Sédar Senghor, who called for black cultural unity yet opposed Algeria's bid for independence at the United Nations.