Indigeneity and the Settler Contract today

Jeremy Waldron and contemporary contract theory

Waldron’s argument begins by posing the unapologetically abstract question: ¹³ what is ‘indigeneity’ and why is it important (or, phrased slightly differently, what does it add to a claim to call it indigenous)? While acknowledging that there is a wide diversity and complexity to the actual, existing use of the terms ‘indigenous’, ‘aboriginal’ and their cognates, Waldron proposes that this complexity can be reduced, for the sake of analytic precision, to two primary senses of the term ‘indigeneity’, each with a corresponding form of normative justification which presumptively make it a morally relevant category. The two possible definitions are:

A: indigenous peoples are the descendants of the first human inhabitants of a land; and

Although Waldron claims his main aim here is really to help us clarify the definition and moral justification of indigeneity through recourse to his disambiguation of terms, in fact, he ultimately concludes that neither of these styles of argumentation work to defend the distinctiveness of ‘indigenous claims’. Rather, he suggests, insofar as either claim functions, it does so in virtue of being a subset of a more general claim to justice, which can be derived from the more abstract formulation given by, for instance, Rawls’ Theory of Justice. Why, in Waldron’s estimation, do both styles of argumentation from indigeneity ultimately fail (or, at least, are reducible)?

Let us start with what Waldron calls the ‘style A’ argument (definition A, defence 1, above). As is probably already quite clear, this definition designates as ‘indigenous’ those peoples who can trace their descendancy on a specific piece of land back to ‘time immemorial’. Here indigeneity is morally relevant because, unlike all other newcomers to this piece of land, the original inhabitants did not have to displace anyone else in order to gain land title. Thus, it is not in virtue of any particular understanding of occupancy ¹⁸ but rather the mere priority of the inhabitants on a piece of land that is morally relevant. This does not mean, of course, that original title cannot be transferred. It merely means that all subsequent occupants must obtain consent for the acquisition of property in a way the original claimants did not.

The problem with defining indigeneity as first or original occupancy is twofold according to Waldron. First, defining indigeneity this way ‘is tremendously demanding on the resources of historical inquiry. … [It] is an unforgiving theory, and there is no point using it unless you are prepared to embark on literal historical inquiry.’ ¹⁹ Although it is not in principle impossible to establish a historical lineage going back to original occupancy and use this as a basis for indigenous claims to land and rights, this is practically impossible in most actual cases. There are two reasons for this. First, in most places the historical record does not exist that could satisfy the uninterrupted descendancy requirement and, second, there is a constant problem of intra-indigenous conflict. In almost all (if not literally all) cases where indigenous peoples claim a right to land, what we refer to as a single indigenous nation today is, in fact, a recent gloss on what was previously a series of different, competing nations. Waldron refers here to the case of the Maori:

These issues – particularly inter-iwi conflict, conquest, and expropriation – may be glossed over for various purposes – and probably they should – but they cannot be glossed over if we persist in relying on a notion of indigeneity that is supposed to hook up with the Principle of First Occupancy. Because of course First Occupancy is intensely interested in the history of territorial warfare; it is intensely interested in whether the titles for which vindication is currently sought were established peacefully or by violence. If they were established by war and violence, then First Occupancy has no application. ²⁰

This leads to Waldron’s second definition in his typology of indigeneity – ‘style B’. Under this rubric, indigeneity is not indexed to original occupancy. Rather, it is defined in relation to prior occupancy, where the ‘prior’ refers to some specific, relevant historical event – in most cases, colonization by European powers. In this definition, we bracket the question of how the indigenous community in question came to take possession of the land at stake before European contact. Thus, the messy historical research detailing the long history of intra-indigenous conflict can be circumvented. This also means, however, that the moral relevance of indigeneity here is not related to the morality of occupation. Rather, it can be derived from a generally conservative principle that states any particular group of people exercising sovereign control over a piece of land should be given ‘prima facie right to be respected and left undisturbed or allowed to develop’. ²² This Principle of Prior Occupancy (which Waldron traces back to Grotius, rather than Locke ²³ ), gains its moral force from ‘the human interest in stability, security, certainty, and peace, and for the sake of those values it prohibits overturning existing arrangements irrespective of how they were arrived at’. ²⁴ Although this doctrine is also subject to several provisos and cannot be absolute, ²⁵ it does seem to provide a more promising basis for the establishment of indigenous rights.

The problem with the Principle of Prior Occupancy is that it may also be used to deny indigenous rights, depending upon the length of time that has passed since the original event of colonization. As Waldron writes,

… precisely because it is a conservative principle, Prior Occupancy has the characteristic that while it condemns injustice at one particular point in time, it can equally work to vindicate established patterns of settlement that are founded upon that injustice. … So: though this principle can be appealed to condemn the European incursions, it cannot easily be appealed to some hundreds of years later in order to upset existing patterns of settlement founded on those incursions. ²⁶

In summary, although Waldron offers his thoughts on this issue ostensibly as a means of clarifying the debate, he has left indigenous claims hung up on the horns of a dilemma:

Either we accept that a First Occupancy inquiry will have to sort through various indigenous claims, putting aside those that rest ultimately on war or conquest. Or we close that line of inquiry down, but only at the cost of also precluding an equivalent inquiry into more recent war, invasion, conquest, and seizure, figuring that if the conservative Principle of Prior Occupancy functions to protect violently established arrangements in 1839, it also functions to protect violently established arrangements in 1939, or 2002. ²⁹

Putting the liberal contract theory of occupancy into perspective

At this point, I would like to resituate (rather than directly repudiate) Waldron’s argument – to turn it around so to speak and look at it from a different angle, such that we may be better equipped to grasp it as a perspective, and a contestable one at that. I am particularly interested in situating his argument within a larger genealogy of contract theory in such a way that shows not only the connection between this mode of argumentation and its long history of demonizing, displacing and dominating non-western peoples, but also how part of the operation of that connection is maintained precisely through contract theory’s capacity to mask itself as a perspective. This last element is most important because it is in virtue of this that social contract theory can continue to serve as an important justificatory discourse for the ongoing colonial relationship between indigenous peoples and settler-societies, while at the same time avoiding the overtly racist and demeaning characterization of indigenous peoples that typified the 19^th-century developmental anthropologies (and even appearing to be directly opposed to such earlier discourse). Let me return then to Waldron’s formulation.

When Waldron, or those working within this intellectual tradition more generally, analyse ‘indigeneity’ and the kinds of normative claims that might flow from it, they do not begin from a description of actually existing claims and struggles of indigenous peoples themselves, advanced as they are in relation to specific settler-colonial states, in specific legal, political and cultural contexts. Rather, they work deductively from an ideal concept of indigeneity that functions as an explanatory concept (akin perhaps to ‘class’ in Marxist analysis). Thus, insofar as specific claims are referenced (e.g. those of the Maori in relation to the New Zealand government), these are interrogated as to their approximation of this ideal, rather than engaged with to inductively produce the norms under question. In order to generate the normative content of the general claim, therefore, one need not have recourse to the specific formulations given by, for instance, the Maori or the Cree. Instead, one can generate and comprehend the general claim through recourse to the heuristic device of the ‘social contract’, whereby a counter-factual scenario is imagined in which abstract individuals encounter each other and contract together to form the basis of a society. Under such conditions, Waldron suggests (drawing largely from Nozick), individuals would agree to respect property right based on either First or Prior Occupancy, because it is in the rational self-interest of each to respect such an arrangement under conditions of ignorance regarding the actual history of the society in question. In this way, Waldron reactivates the social contract device and finds indigenous claims reducible to the general principles generated by it.

Although this kind of work can offer a perhaps clearer and more concise typology of indigenous claims than, say, a general survey of actually existing claims, the price of this reformulation is to translate the complexity of indigenous struggles into the reified idiom of social contract theory. This act of translation is rarely acknowledged, let alone explained or justified, and it affects the outcome of any attempt to think through the normative implications of ‘indigeneity’. In his disambiguation of indigeneity, Waldron first reformulates the panoply of indigenous claims into two prevailing European discourses – the Lockean discourse of First Occupancy and the Grotian discourse of Prior Occupancy. He asserts that, even in cases where indigenous peoples themselves do not advance their claims in this language, they are in effect appealing to either the framework provided by Locke or the one provided by Grotius. Furthermore, although Waldron claims that these two basic frameworks ‘have been adopted opportunistically and carelessly by First Peoples movements’, he provides little evidence (apart from citing a few other non-indigenous political theorists) for this or for the subsequent claim that indigenous claims are best characterized as ‘Nozickian’ or ‘Lockean’ and that they are ultimately about entitlement and ownership. ³⁰

This first ‘translation move’ has several effects, the first and most obvious implication being that actual dialogue with indigenous peoples is secondary and, ultimately unnecessary to comprehend and adjudicate such claims. By tacitly asserting that all such claims are reducible to more concise formulations generated by the thought experiment of the social contract, such work effectively renders silent and moot the rich diversity of indigenous self-understandings and justifications for their rightful occupancy of, and/or relationship to, the land in question.

Second, this move facilitates the limitation of indigenous struggles to movements aimed at the acquisition of property and/or rights as they are formulated by social contract theory itself. Although it is undoubtedly true that indigeneity is important in part because of ‘the challenge that it poses to current patterns of sovereignty and property rights’, this is not the same as saying that indigeneity can be fully captured within the current, Euro-American logic of sovereignty or property rights, at least not without significant revision. And yet this is precisely what Waldron does, though without explicitly saying so. By translating indigenous claims into claims to sovereignty and property, not about the very nature of sovereignty and property, he implicitly establishes that whatever indigenous claims are (and whatever the validity or invalidity of any particular claim), they can be adjudicated within an unmodified philosophico-juridical discourse established by European thinkers such as Locke and Grotius (even while shyly admitting that Locke and Grotius developed these theories in full knowledge of their negative implications for indigenous peoples and, in some cases, were specifically designed by them in order to give justificatory weight to the displacement of indigenous peoples from their lands and deny their rights of self-determination ³¹ ).

An example of how a claim to property may differ from one about property can be clarified by making a clearer distinction than Waldron does between questions of imperium and questions of dominium, or, in more common language, the question of the relationship of rule (or sovereignty) and that of property. ³² By bracketing the question of sovereignty and focusing almost entirely on that of property, Waldron performs an odd manoeuvre, whereby the question of the property right of indigenous peoples is presented as though it may be adjudicated within the already assumed prevalence of European legal and philosophical imperium. This is strange because, although Waldron draws from European thinkers such as Grotius, he does not note that even for such thinkers a distinction between these two questions is to be made. ³³

To understand the difference between a dispute over dominium vs one over imperium, we need only to think of the case in which, for instance, someone moves into my home, forcibly removes me and takes my possessions. In such a scenario, we may very well have a dispute over dominium while sharing a common understanding of imperium (assuming we both think that the law of the particular state we are in should preside over our dispute). By making the question of indigeneity one of property and occupation alone, Waldron makes it appear as though this question can be appropriately determined within the context of a single imperium. But it may be the case (and I think very often it is) that indigenous peoples do not merely claim ownership of a piece of land, but rather they claim sovereignty over the legal, political and, indeed (to stretch the terminology slightly), philosophical area of adjudication. Or, at the very least, they claim that the issue of imperium cannot be taken for granted and indigenous peoples have some right to be included as full and equal participants in the exchange shaping the terms of the debate itself. The logic of a claim to self-government in a more robust sense than Waldron allows is that one has the right to give oneself laws (to be a legislator), not merely to have the proper application of law to one’s particular case (to be recognized as a subject of the law). Waldron might respond here that an indigenous claim to full and equal participation in such a dialogue would itself be premised upon a claim regarding either First or Prior Occupancy. But even if this were the case, then at best we would have a situation in which occupancy and sovereignty would be mutually supporting claims, rather than one presupposing the other.

This leads us back to the historical implication of social contract theory with settler-colonialism. Historically, the philosophical and legal traditions of European societies and their settler-colonies have not merely understood indigenous peoples to lack land entitlement. Rather, they failed to accept that indigenous peoples had sufficiently civilized forms of social and political association to possess a form of rule or imperium that needed to be respected at all. Hobbes claimed, for instance, that the peoples of the America ‘have no government at all’ and Locke and Grotius, while recognizing indigenous peoples had some form of political association, concluded that this rule was little more than that of generals over armies and, thus, they could be said to exercise only ‘a very moderate sovereignty’. ³⁴ It was this prior absence of civil society that meant, ipso facto, property right did not exist. Arguments flowing from the denial of political organization on the part of indigenous peoples are different then from those denying indigenous title based upon inadequate or inappropriate land use, a distinction Waldron glosses over. ³⁵ In the case of Australia, for example, since the doctrine of terra nullius effectively erased the very existence of indigenous peoples as self-organizing social and political societies, the Crown did not even accept that the Aboriginals might dispute its land title. ³⁶ In other cases, such as in Canada, the granting of limited rights of land use (e.g. usufructuary rights to hunt and fish on Crown land) could proceed without upsetting the non-recognition of indigenous sovereignty because in a case where the land entitlement was granted by the colonial power, this was viewed not as a reversal of its relationship of rule over indigenous peoples but as an extension of this rule.

To add a further complication, even before the question of whether or not any particular indigenous nation has actually consented to the transfer of land title or, in the event that it has explicitly not consented, and independent of whether its claims to the land may be curtailed due to other considerations (i.e. other principles of justice such as those flowing from scarcity of resources), the framing of the entire issue in terms of contract and consent has a set of specific consequences which are, at best, contestable. Namely, in order for the whole argument to get off the ground, we have to take it as axiomatic that indigenous struggles do not call into question the very ‘contractualism’ of the relationship between human communities and the land under description. It may be that certain indigenous claims conform to the logic of a Lockean property claim, and the nature of their dispute with the settler-colonial society at large can be framed as a contest over the extinguishment of this property right. But even if this were the case in some situations, it would need to be demonstrated rather than assumed. Furthermore, it is not self-evidently the case in all particular examples. ³⁷

The translation and limitation of indigenous claims perform a third function: they serve to tacitly place the burden of proof on indigenous peoples in any dispute over property or rights. By taking as his point of departure the question ‘What is indigeneity and why is it morally relevant?’, Waldron assumes (rather than demonstrates) that the burden of proof should be on indigenous peoples to establish what it is that is intrinsic to their communities that makes them fundamentally different from any other people and why this ‘mysterious’ inner property has moral relevance. In the absence of an argument that satisfies the requirements as set out by European philosophico-juridical discourse – and Waldron establishes that almost no argument could satisfy this requirement – the status quo of settler-colonial occupation should prevail. Furthermore, what is not considered here is whether settler-colonial states could satisfy the same requirement.

One aspect of the ‘burden of proof’ argument (or, rather, the lack thereof) is the subtle threat of violence that lies in the background. Waldron hints at the violence that would come about if indigenous peoples were to be permitted to deploy their claims indiscriminately. In a rather shocking historical revisionism, he warns that indigenous peoples, and their ‘simple slogans like “first come, first served” and “we were here first” … have often been associated with righteous indifference to others’ interests [and] indifference to others’ needs’. ³⁸ Contrary to all historical evidence then, it is indigenous peoples who must be reminded that:

Refusing to share resources with others is also a form of injustice; refusing to modify a hold based on First Occupancy in response to demographic or other changes in circumstances is an injustice. Taking more than you need, or occupying so much that subsequent arrivals have nothing to occupy, is an injustice. ³⁹

It is important to note the way in which violence and danger are being construed here: the real danger facing us in this issue is that indigenous peoples will not share their land and resources justly, that indigenous peoples will open up messy – and even ‘creepy’ – investigations into the ‘arcane details of recondite historical and prehistorical inquiry’. ⁴¹ And, as we have already seen (quoted above), it is places in the world such as India, Bosnia and ‘various places in Africa’, that pose the threat of violence, making analytic clarity on this issue all the more urgent, so that we might be ‘better aware of the volatile substance we are playing with’. ⁴² Here we can see the contemporary reactivation of a very old relationship between submission to sovereign authority and the threat of anarchic violence, one extending back to Hobbes himself. The underlying logic of this form of analysis is that one must submit to the sovereign power of the state – even a state established by force of conquest – because resistance threatens to unravel the foundations of order and security, leading to a war of ‘all against all’. Of course, just as we may note that these various so-called ‘nativist’ and ‘indigenist’ groups are constituted here as the sources of real violence, we must also note what does not count as violent in Waldron’s analysis: the centuries-long (and ongoing) genocidal campaigns by various European powers against indigenous peoples; the military occupancy of their lands; the disproportionately high levels of incarceration and criminalization of their peoples through the prison industrial complex; the sexualized and gendered forms of everyday violence against, in particular, indigenous women, sexual minorities and gender non-conforming members; their forced assimilation into ‘education’ systems through residential schools; the degrading and racist depictions of them in cultural production of white settler-societies; the lack of adequate basic infrastructure such as housing and clean water; the disproportionately high levels of disease and illness among their communities – and unfortunately, the list could go on.

I am not, of course, claiming that Waldron or those working within his intellectual tradition are not aware of these phenomena, nor that they would find them as anything other than totally abhorrent. What I am suggesting is that even in a form of argument in which the aim is merely to establish some ‘analytic clarity’ about the terminology of ‘indigeous’ and its corresponding moral force – or perhaps even especially so – political choices are made as to what are relevant and immediate threats, and the ostensibly neutral philosophico-juridical discourse deployed has the effect (even if not the intent) of shaping the space of possible responses to these presumed threats. In other words, it may very well be the case that an undiluted application of the Principle of First Occupancy could lead to a ‘righteous indifference to others’ interests’. I do not seek to refute this claim – at least not at the highly hypothetical, abstract level at which it is stated. Rather, I want to ask what the function of this claim is, given the historical and political context from which it derives. In its present formulation, the function of this (non-)argument is to passively render the moral legitimacy of settler-colonial societies as the background presupposition for the contestation itself and to shield the settler-colonial legal and political apparatuses from the same reciprocal form of critical examination as is exercised over indigenous peoples and their claims. ⁴³ The only explanations given for this asymmetry in the onus of argumentation are (1) the supposed threat of violence stemming from ‘nativism’ and (2) the subordinate status of indigenous peoples itself.

By translating indigenous claims into the (unmodified) Lockean and Grotian terminology of ‘private property rights’ as flowing from occupancy, Waldron further isolates the indigenous claim from the historical context in which the claim arises in the first place. For it is not only the ‘event’ of occupancy (in the case of the Principle of First Occupancy), nor the ‘event’ of colonization (in the case of the Principle of Prior Occupancy), but the ongoing asymmetrical relationship of power between indigenous peoples and settler-colonial societies that occasions the conflict of interpretations we call an indigenous claim in the first place. What is missing from the heuristic device of the social contract is the political context in which the theoretical question is raised – in this case, the massive asymmetry between indigenous peoples and the settler-colonial states that govern them. Moreover, the absence of this political context is not coincidental to, but rather constitutive of, social contract theory as a discourse (a point to which I will return). This speaks as well to why I think it is important not (merely) to repudiate Waldron – to assert, for instance, that indigenous peoples do indeed have the rights to land occupancy he would deny. This reversal would remain within the hegemony of the contract theory form of argumentation. By producing the terms of its own contestation, such work continues to formulate contestation of its basic parameters in terms of rights which individuals either do or don’t possess. Abstraction from the specifics of any particular indigenous claim, and the continued presumption that indigenous claims are ‘reducible’ to the formulation given in social contract theory, establishes the European legal and philosophical apparatus as the appropriate forum for the adjudication of claims to land and sovereignty. In so doing, it presumes precisely what is contested.

Conclusion: Conquest, contract and the ‘ratchet effect’

In a word, what Hobbes wants to eliminate is the Conquest, and also the use that was being made, in both historical discourse and political practice, of the problem of Conquest. Leviathan’s invisible adversary is the Conquest.

(Michel Foucault) ⁴⁴

What are the ‘origins’ of social contract theory? I think by investigating the moment of contract theory’s activation (i.e. when and where it is deployed) we can see that it has its origins – both in historical time and as an event repeated in contemporaneous time – at the moment in which the burden of the historical inheritance of conquest threatens to undermine the stability of sovereign power. If we examine the historical origins of social contract theory in the 17^th century, we see, for instance, that it emerges as a strategic intervention aimed at effectively erasing the actual historical event of conquest from the normative theory of sovereignty. When Hobbes states that ‘there is scarce a Common-wealth in the world, whose beginning can in conscience be justified’, ⁴⁵ he appears to damn the English monarchy just as much as the anti-monarchical revolutionaries to whom his work is addressed. And yet, the origins of this argument are revealing. Because, for Hobbes, the actual historical origins of any particular sovereign power are irrelevant to its normative justification, the question of the historical reality of war or the historical genesis of sovereignty is removed from the actual theoretical defence of sovereign power. When, for instance, Hobbes suggests that recourse to the heuristic device of an imaginative ‘state of nature’ is the proper manner to arrive at a normative theory of sovereignty, he is in effect arguing against those interlocutors who would base their claims to right upon historical facts, rather than abstract principles, as thinkers as diverse as Michel Foucault and Quentin Skinner have pointed out. Most importantly, however, Hobbes’ work undermines those (such as the Parliamentarians) who contend that ‘the people’ exist as an entity prior to the formation and establishment by them of a government or sovereign. Against this, Hobbes presents the contractual argument that ‘the people’ have no rights against the sovereign (they alienate all their powers to him or her) because ‘the people’ as a collectivity with the power to act does not exist until after the sovereign is set up and represents it. Prior to this the people are just a multitude of disconnected individuals with the right of self-preservation. This undermines the whole popular sovereignty tradition, not by direct refutation of any particular populist claims, but through a shift in the register of argumentation.

What this points to is the use of such theory in those moments in which the relationship between conquest and sovereignty, as it is currently formulated, must be erased. Historically, contract theory’s ‘strategic opposite’ has been the whole discourse of right that developed through reference to certain specific historical events, such as wars, invasions, dispossessions, etc. It originates as a means to target this historico-political discourse by attacking not merely the content of specific claims, but rather the whole rhetorical structure of its arguments. ⁴⁶

Today, contract theory continues to be activated in those moments when the historico-political discourse of indigenous struggles threatens to undermine the universality of the sovereign (settler-colonial) state. We are again cautioned that historical inquiry is ‘tremendously demanding’ and ‘unforgiving’, and that ahistorical, counter-factual philosophical reflection is sufficient to generate a normative theory of right fair to all. The threat of anarchic violence again looms in the background, warning us against playing with that ‘volatile substance’: history.

So if contract theory continues to be activated to relieve the pressures of colonialism’s legacy – the fact that indigenous peoples, by their very existence, threaten the myth of the Settler Contract – then what is the effect of this strategic reactivation? I think we can characterize this as contract theory’s ‘ratchet effect’. By this, I am referring to a surprising, and I think perverse, logic internal to the application of contract theory to indigenous claims whereby the more successful European colonization of indigenous peoples has been, and continues to be, the less recourse to a distinct and independent package of political and social forms of association, sovereignty and rights that indigenous peoples can appeal to legitimately from the standpoint of liberal settler-societies. Historically, this effect has had several distinct but related manifestations, only two of which I will discuss here. ⁴⁷ Both are at work in the contemporary revival of contract theory as applied to indigenous claims.

In the first strand, the fact that indigenous peoples constitute a relatively small population compared with the settler-colonial society at large is used as a justification for the further limitation of indigenous rights. For example, in recent work by liberal theorists it has often been suggested that the rights of indigenous peoples to support and funding for language preservation must be balanced by the need to improve the social mobility of indigenous children. Joseph Carens reminds us that because, in Canada, there are no indigenous linguistic communities whose populations number in the millions, ‘no aboriginal person can routinely expect to communicate with doctors, lawyers, dentists, bureaucrats, television technicians, and so on in her native language, much less to find employment in that language in the economy outside the reserve’. ⁴⁸ Consequently, the rights of indigenous parents to raise their children in the language of their choice must be balanced against the interests of the child to social mobility. ⁴⁹ What is missing from this discussion, of course, is the reason why there are relatively few speakers of indigenous languages. The rapid decline in indigenous populations relative to European settlers due to war, famine and disease over the past several centuries is silently employed here to reinforce the case for a further hollowing-out of indigenous peoples’ rights to a distinct and independent form of life on their own lands.

The second way in which the ratchet effect manifests itself references the passage of time. As we saw above, Waldron and other contract theorists seek to avoid the obvious unseemliness of an argument that appears to permit supersession of historical injustice only because of the passage of time. Therefore, property title claimed on the basis of Prior Occupancy is said to be superseded not merely because of the passage of time, but rather because the passage of time creates a secondary proviso: the expectation of stability and order, itself a morally relevant issue. And this logic is not only endemic to contract theory; it is central to the legal reasoning used to adjudicate actually existing indigenous claims. A clear example of this can be seen in a recent US Supreme Court decision, The City of Sherrill, New York v. Oneida Indian Nation of New York. ⁵⁰ There, the court determined that Oneida attempts to reassert sovereignty over recently purchased land – to the exclusion of the City of Sherrill and its competing claims – were best characterized as efforts to ‘rekindl[e] embers of sovereignty that long ago grew cold’. ⁵¹ In determining that the Oneida claim to sovereignty had ‘grown cold’ – rather than having been formally extinguished – the Supreme Court invoked the doctrine of laches. The Oxford English Dictionary defines ‘laches’ as:

1. Slackness, remissness, negligence; also, an act or habit of neglect. Obs.

2. Law. Negligence in the performance of a legal duty; delay in asserting a right, claiming a privilege, or making application for redress.

b. transf. Culpable negligence in general.

What is not countenanced in this formulation (either in contract theory generally, or in the legal reasoning it supports), however, is that the passage of time might itself be a perpetuation of ongoing injustice. Because for Waldron, as for the Supreme Court, the ‘injustice’ in question is limited to the original acquisition of land from indigenous peoples, the greater the passage of time from this original event, the more provisos to the Principle of Prior Occupancy come into effect, slowly eroding indigenous claims. But if we open up the question of imperium and consider the asymmetrical relationship of governance by settler-colonial states over indigenous peoples to be itself a feature of the contestation, then the injustice in question is not superseded in historical time as it is renewed in each generation until such time that the relationship of governance itself is corrected to the satisfaction of both parties. In short, it is not about acquisition but occupation, and the latter is ongoing. By failing to open up the nature of this ongoing relationship between indigenous peoples and settler-colonial societies, Waldron effectively builds a negative incentive into the theory, whereby the retention of land by a colonial power is rewarded the more absolute it is. The combined effect of these two lines of argumentation – from demographics and land seizure – is that indigenous rights are formulated in an inverse ratio to the strength, severity and duration of the colonial occupation. Hence, settler-colonial control over indigenous peoples and their land can only increase, or ‘ratchet up’, as a result of the passage of time.

Philosophers and political theorists in settler societies who are genuinely concerned with this phenomenon – those who wish to avoid further attributing normative legitimacy to conquest and colonization, and seek a more just relationship between indigenous peoples and settler-colonial societies – should, I think, begin by abandoning the presupposition that the just principles of such a post-colonial relationship can be arrived at deductively from a ideal theory of justice or a general definition of ‘indigeneity’ as provided by contract theory (or any other European intellectual tradition on its own). This is in part because such principles and claims are not uniform across all ‘indigenous’ peoples, and because such claims may very well derive from other sources – other ontologies, philosophies, world-views, etc., which are not prima facie reducible to already existing principles internal to European thought. This does not mean that indigenous peoples cannot and should not attempt to give an account of their claims in such a way that makes them more comprehensible to others with whom they are in already existing political and social relations. But it also does not mean that the burden of proof should necessarily be with them in the first place, especially now that many non-indigenous thinkers in settler-colonial societies such as Canada and the United States recognize that the original colonization of these lands was not legitimate even by the standards we set ourselves. Shifting the gaze around and abandoning ‘indigeneity’ as the primary object of critical analysis may, then, ironically be the first step in a more just relationship between settler-colonial societies and the specific indigenous peoples with whom we live.