Transcript

Terra Nullius with Daniel Richter

Professor Daniel RichterProfessor Daniel Richtor
drichter@history.upenn.edu

You can also listen to the interview (MP3 16.5 MB).

Matt:

This is the La Trobe University podcast, I'd be your host Matt Smith. Good morning, good afternoon, and good evening, it does all depend on where you're standing! Joining me today is Professor Daniel Richter. He's a professor from the University of Pennsylvania, he teaches early American history and native American history, and he's the director of the McNeal Centre for Early American Studies. Thankyou for joining me today, Daniel.

Daniel:

Thankyou, it's a pleasure.

Matt:

So you're here today at La Trobe to talk about the concept of terra nullius, and how it applies in America. Did you want to start us off?

Daniel:

Well it's a term that has always puzzled me as a historian of North America because it has great importance, perhaps because of its non-importance, in Australian history. But is a term that is seldom used by North American historians to describe the colonial experience there. And it's always struck me as interesting that the British colonial experience which begins almost immediately after seems to rely so much on this concept of terra nullius or 'empty land', land that is either not occupied or not governed by civilised people, and that concept, if it has any relevance in North America worked out in a very very different way in the two centuries before.

Matt:

What you had in North America was a very similar situation to what you had here. You had people who were not technologically advanced when the lands were colonised, so it was assumed that they don't own the land at all.

Daniel:

Well you think it would be a very different situation. I'm not sure about the outcome being different, in fact that's one of my points. But in fact on the ground in North America, from very early on in the 1600s, most European colonisers and most settler colonisers in fact recognised fully the right of Native Americans to own the land. In a very paradoxical and I would say totally Euro-centric way. The earliest European and English fantasies about North America envisioned an empty continent. The great early English proponent of colonisation Samuel Purchas had a wonderful phrase. He talked about people who ranged rather than inhabit the land. So this was a very important part of European ideology before colonisation began in North America. The idea that land was there for the taking, that native peoples were quote 'uncivilised', did not recognise property, and in all sorts of other ways did not use the land and it was all there for the Europeans to both take and put to good use and also to subordinate to appropriate forms of government which were presumed to not be there beforehand. And as it turns out and as Australian historians like Henry Reynolds have pointed out, this concept of terra nullius or 'empty land' actually had two meanings which are often confused but really not quite the same.

Matt:

Two meaning just in Australia?

Daniel:

In Australia and what Europeans called 'International Law' which was usually made up much later than the events it was purported to describe. One meaning is a quite literal one, that is interchangeable with another Latin term 'vacuum domicilium'.

Matt:

Empty house?

Daniel:

Empty of inhabitants, yes. It literally means land which is not being used by anybody. One frequent assertion of people like Purchas who talked about native people who range rather than inhabit, they really don't inhabit the land they just sort of hunt on it, so the idea there is that literally the land is empty and anyone is allowed to take it. This is a concept that's well developed in European philosophy but more often I think in the 17th century and even down through people like John Locke who's usually evoked as the great proponent of this idea, what they're really talking about is an imagined human past back before private property was invented and sort of trying to understand where property came from. And so, I don't know, sometime shortly after the Garden of Eden the whole world was uninhabited and people took what they needed and then it became theirs. Well that was one meaning of the term, and that is one that actually can't survive very well once you arrive in a fairly densely populated place like North America where people are farming the land all over the place and clearly owning it and…

Matt:

It wouldn't hold up very well!

Daniel:

It doesn't hold up very well, and it's not surprising it didn't last very long or stick very well, but I want to get back to that idea in a minute! The second meaning is a more abstract one that that has to do with the alleged right of Christian princes or civilised people, that whether or not people actually live on the land and own the property there is a certain lack of legitimate government there.

Matt:

Because God didn't say that they could that land?

Daniel:

God didn't say that they could have it, or they don't appear to have kings and princes as we understand that term. As time moves on and by the time you get to the 19th century it becomes racialised and evolutionary almost in more advanced races. That is what I call terra nullius proper and it focuses on sovereignty more than on property rights. Vacuum domocilium has to do with who owns property, terra nullius sovereignty.

Matt:

So with the sovereignty one it's you're on this land, we can see you're on this land, but we didn't say you could be on that land.

Daniel:

But I have the right to govern you somehow because of my authority from the pope, my authority as a civilised European, or as the English like to say it, it's not the authority from the pope for the protestant English, it's more my duty to save you from the pope!

Matt:

Insert relevant view here!

Daniel:

There are lots of twisted ways. And so these two things become conflated very often because of course in European legal theory the right to own property comes from the sovereign. And so the two things go together, but are not identical. And so those two ideas are both in play as Europeans begin to colonise North America in the 16th and 17th century.

But my argument is that neither one of them holds up at all in practice on the ground in North America very well. The idea of vacuum domicilium that no one owns the land clearly is just… you can't sustain that except perhaps on some tiny little plot of ground where literally no one is living! In New England it has some relevance because there were these devastating epidemics before most of the European colonists arrived and there literally are abandoned towns in different places and that sort of thing. But pretty early on people in practise start purchasing land from Indians, which utterly refutes the idea that no one owns the land if you purchase it from Americans you're obviously acknowledging that they own it. And quite apart from the question of whether they're purchasing it fairly or not, quite apart from the question of whether native people fully understood what was happening, it is a complete refutation of the idea that no one owns the land if you find it important to buy it.

The other concept is a little more tricky but it turns out, at least as I read the evidence, that the Spanish, the French, the Dutch, the English, all the various colonisers of the Americas, all in practise find the best way of demonstrating their assertion of sovereignty under terra nullius is to get native leaders to acknowledge that sovereignty. So the Spanish had this practice called 'reading the requerimiento', which is a document read to people who were about to be conquered explaining to them that they were in fact already subjects of the pope and the king of Spain.

Matt:

It's a bit like reading them their rights.

Daniel:

It was, and it was reading them their rights, it was writing the rights totally for an audience back in Spain, because if you didn't do this and you didn't get the proper notarised document you were in fact just invading and conquering. But if you read to the native people ahead of time… but implied in that is that there is an audience there to hear it.

Matt:

So it's getting a warrant?

Daniel:

It's getting a warrant. But implied in that is that there's an audience there ready to hear it who can in fact respond and say 'yes, I am your subject'. Which seems to be a logical absurdity if there is no organised government there to begin with. And everywhere you go you find that colonisers rely on this basic idea. The French are masters of this, they conduct elaborate ceremonies, they collect all the native people around to watch a French flag being raised, to hear a great speech about how now they are subjects of the Sun King, and all of this is rhetorically designed to persuade an audience back home that you have in fact got the allegiance of native people on the ground. In this sense it really doesn't matter what the native people are doing, it's being able to write about it, being able to make this assertion. But the best way to establish your sovereignty you have to get sovereign native Americans to acknowledge that sovereignty on paper. And so I would argue that that sort of notion of Terra Nullius becomes incredibly twisted at least in its trans-Atlantic journey to North America.

But what makes both of these things particularly interesting in North America is that of course North America is, unlike Australia, from the beginning an uncontested zone of European colonisation. And you've got first Spanish and then the French and the English almost simultaneously, and then the Dutch, and the occasional Swede and a few others attempting to assert this doctrine of a) vacuum domicilium and b) terra nullius.

So you believe Christian Europeans have the right to rule the world. But which Christian Europeans on this particular plot of ground? And how do you sort out whether it's the Dutch or the English or the Spanish? The Dutch and the English would agree it can't be the Spanish, they're papists, we're protestants. But who's to determine between the Dutch and the English? And so in practice what happens is that for both of those doctrines, the best way to prove the validity of your claim against some other European is to prove that you have acknowledgements from the native people who actually own and govern the land. And so therefore getting deeds from native Americans for a particular plot of ground provides proof positive that this belongs to Connecticut not New Netherland. If you can, as the French like to do, write about these great ceremonies where native chiefs from hundreds of miles around come around and acknowledge the French king as their father, they are providing the justification you need to prove that you are in fact the sovereign there. So in all of these ways the doctrines really wind up twisting in on themselves to ratify both the property rights of native Americans and the fact if not the philosophical acknowledgement of native American government. All for the purpose not of recognising native rights but justifying European property rights to particular patches of ground.

Matt:

It really is just to satisfy your government and the people back home that you are doing this the right way, as opposed to, well they could have just gone in there with guns blazing. There would have been little to stop them from doing that and then fighting over the land amongst themselves.

Daniel:

And it's actually to prevent or resolve fights amongst Europeans. Both between the different imperial powers who of course need to claim the moral high ground… going in with guns blazing does not provide you with any moral high ground against your European rivals! But also just as importantly, and this becomes particularly important for English and later British colonies to resolve disputes within the colony itself and among the various English colonies because of course there was the famous thirteen plus several other English colonies along the Atlantic seaboard, many of them with vague royal charters that give them half the continent of the south sea, and they overlap. And so how in resolving disputes between colonies, how do we decide what's Pennsylvania and what's Maryland, and who has control over that land. Well it turns out the best way to do that is to get a treaty signed by a native chief that says 'I've sold this land to Pennsylvania, not to Maryland' and also to resolve the whole question as to how the settlers themselves, the European settlers, gain clear title to a particular tract of ground. Which has to actually trace back ultimately to a legitimately European recognised treaty with native people who signed that land over.

Matt:

Are those documents still referred to? Are they still around?

Daniel:

Well the archives of North America are full of Indian deeds, I actually traced these, I did an online search of these words, terra nullius and vacuum domilicium which surprisingly seldom come up. But when they did come up they were in very revealing ways and point out the evolution of the use of these terms over time. And point out that ultimately there's a huge struggle that goes on within the English colonies over exactly how far to go with these acknowledgements of native land rights, because it's one thing to say the best way for Europeans to get clear title to native land is have it sold to them by native Americans. It's another thing to resolve the question of who exactly has the right to engage in those negotiations to purchase that land. But what's important is getting the piece of paper that can be used in English courts to prove that you own land. But precisely because native people are so savvy about this and partly because they perhaps don't understand the notion of land sales, I would argue more it's that they fully understand land sales. They're perfectly capable of selling the land to several people at once and who's to mediate between whether my deed I have here is better than your deed you have here, particularly when the deed describes, I don't know, a line that goes fifty paces back from the river and goes to a certain tree. And so what becomes an article of policy really by the late 1600s in the English colonies is that only the chartered royal and propriety government officials can engage in negotiations with Native Americans to purchase land. Private people can't. You can't just go out and buy land from the local chief, only the government can do this. Which I argue is how the idea of sovereign terra nullius survives. That comes from sovereign authority and ultimately the only agency that can buy land is the sovereign European government.

Matt:

So it still continues now.

Daniel:

Which still continues now, and leads ultimately after U.S. independence to the concept famously articulated by chief justice John Marshall, who described the situation of native people in North America as 'domestic dependant nations'. Which begins in Marshall's formulations of this with an apparently ringing endorsement of native property rights. And he says they have a right to the soil, it's absolutely unquestioned. He completely repudiates what we were told was the argument of Australia, that Aboriginals had no right to the land to begin with. We are told by people who would like to believe that in Australia, to get that straight. Which is completely opposite enshrining in federal law the idea that native people own the soil, there's no question about that, there is no legitimate way to get land from native Americans except to purchase it. But on the other hand only the federal government has the right to purchase it. Which of course puts native people in a terrible bind because they have no choice over negotiating with different people, negotiating the best price for themselves, of really enjoying what appears to be this ringing endorsement of their property rights of the land. This is a different system than in Australia, but I would not necessarily describe it as better or morally superior. It is a fundamentally different constitutional principal of the United States which down through the century has been honoured more than in breach than in practise. Ever since the colonial period there has been this idea that native people are, as William Penn said, the true lords of the soil. And that's a convenient thing for the settler population because it does lead to this whole chain of paperwork and real-estate transactions and clear title for the land that we talked about, but it is fundamentally enshrined in the U.S. legal tradition that the land does belong to Native Americans and that's quite apart from whether it should belong to them and what one does to extract it from them. But it's a fundamental principal that it is and was their land and the debate then becomes what are the legitimate ways to transfer that land to the white settler population, but enshrined in that is the basic principal that it was their land to begin with. And that is a weird twist on the idea of terra nullius that I think works out very differently in North America.

Matt:

Professor Daniel Richter, thankyou for your time.

Daniel:

Thank you.