October 13 this year is Columbus Day (observed) in the United States, a day referred to by some as “Indigenous Peoples’ Day.” Right on schedule, we’re seeing all the usual media posts—in both social media and old media—about “stolen land” and the idea that the so-called indigenous populations have a moral right to all the land in North America because, as the activists say, “we were here first”—and are therefore “indigenous.”
This raises the question of what it means to be “indigenous”—a status generally premised on the we-were-here-first claim—which implies a right of ownership. That implied right to ownership, in turn, is premised on a presumption that the indigenous group homesteaded the land in question. Or, put in more colloquial terms, ownership is premised on the moral theory known as “finders keepers.”
But, there are some problems and ambiguities with the we-were-here-first claim as it is usually made. Indeed, the problems are found in the phrase itself and in the lack of specifics that is usually presented in the argument. That is, when we encounter the phrase “we were here first” we have to be very specific about at least three of the terms contained the in phrase. For example, what is the precise meaning of “we” and of “here” and of “first”?
Once we look at this problem in detail, we find that no group is ever truly indigenous. On the other hand, if we prefer peace to utter lawlessness and war, it becomes necessary to recognize that just because a population in a certain place is not indigenous, and had displaced some other population in the past, this is not a license for new arrivals to displace or conquer the current residents in turn.
Who Is Indigenous?
In engaging the problem of indigeneity, we might turn to a helpful fictionalized account of a conversation between Chief Sitting Bull and Colonel Nelson Miles in the 2007 film Bury My Heart at Wounded Knee. This scene from the film is often posted by users in social media whenever the claim of tribal indigeneity makes the rounds in media. The conversation surely did not happen this way—if it happened at all—but the scene itself helps illustrate how difficulties arise when a group of people claims to be indigenous.
Sitting Bull: Take your soldiers out of here they scare the game away.
Miles: Very well, sir, tell me then, how far away should I take my men?
Sitting Bull: You must take them out of our lands.
Miles: What precisely are your lands?
Sitting Bull: These are the lands where my people lived before you whites first came.
Miles: I don’t understand. We whites were not your first enemies. Why don’t you demand back the land in Minnesota where the Chippewa and others forced you from years before...
Sitting Bull: The Black Hills are sacred land Given to my people by Wakan Tanka.
Miles: Very convenient to cloak your claims in spiritualism. ...No matter what your legends say, you didn’t sprout from the plains like the spring grasses and you didn’t coalesce out of the ether. You came out of the Minnesota Woodlands armed to the teeth and set upon your fellow man. You massacred the Kiowa, the Omaha , the Ponca, the Otoe, and the Pawnee without mercy ...and yet you claim the Black Hills is a private preserve bequeathed to you by the great spirit. ... You conquered those tribes, lusting for their game and their lands, just as we have now conquered you for no less noble a call.
The conversation is fictionalized and dramatized, but the facts laid out are broadly correct. Virtually no one disputes, for example, that the Lakota had lived in Minnesota during the eighteenth century, and had likely lived somewhere else—perhaps the Ohio River valley—before that. The Lakota only emigrated to the northern plains of what is now the United Sates in the late eighteenth century, claiming the Black Hills as their own. Other tribes had lived in these places before the Lakota showed up and drove the residents of each area out.
The Problem of “Where”
The above exchange could be had, with the names changed, in countless contexts over time and across the globe. If we go back far enough in history, virtually no group of people is indigenous to where they are now. The Arabs are not indigenous to northern Africa. The Hungarians are not indigenous to Hungary. The Japanese are not indigenous to Japan. And so on.
As with Eurasia, the history of North America is filled with countless migrations as climate and demographic realities changed. This happened both before and after the Europeans arrived. For example, the so-called Ancestral Puebloans expanded and migrated well before the Europeans arrived, displacing other tribes in the place where the Pueblo tribes now reside. The Comanches moved to the southern plains in the sixteenth century. The list of similar migrations is long. So, the first question that must be answered whenever there are claims of indigeneity is “indigenous to where exactly?”
Specificity is required, and clearly a claim of “we are indigenous to North America” has all the specificity of “we are indigenous to Europe.” The Irish, for example, are not indigenous to Bulgaria, even though both groups are in Europe. Thus, being indigenous to Europe does not denote a right to just anywhere in Europe. Similarly, the Arapahoe are not Indigenous to the lands of the Muscogee, even if both are in North America.
The Problem of “Who”
This brings us to the second challenge in establishing indigeneity: who exactly are we talking about? The very idea that all tribal groups in North America can be lumped together as “Indians” is a purely modern invention that only began to take root in the 1920s. Before then, few members of, say, the Navajo tribe would regard themselves as being part of the same group, as members of the Iroquois tribe. It is similarly absurd to claim that an Englishman in the eighteenth century considered himself to be French because England and France are both in Europe.
On the other hand, at least the English and the French share some common history in terms of Roman institutions, earlier cultural bonds in Christendom, and language. This type of loose cultural unity and exchange was far more rare among North American tribal groups that were not in close proximity with each other. In pre-Columbian times there certainly was nothing like the international Church in North America that could provide a loose cultural unity among many cultural groups. Languages were numerous and varied. Nor was there any widely known written language that could facilitate communication across time and space as with Latin in Europe.
So, any reference to “Indians” as a generic group is of little value in determining indigeneity in any specific place. It is unhelpful to say that “Indians” are indigenous to, say, Texas. The proper question is “which Indians?” (And, for that matter, where in Texas?) Without answering this question very specifically, we’re not even getting close to establishing anything we might call a claim to indigenous status.
The Problem of “First”
Finally, we have to address the problem of what is meant by “first.” When the phrase of “we were here first” is invoked, does “first” mean “original inhabitants” or does it just mean “here before you.”
In practice, this virtually always means “here before you“ because it is impossible to establish any clear claim to a specific piece of land based on claims about ownership derived from claims about the distant past. This is why many who claim indigeneity, as the Miles character notes in the exchange above, “cloak [their] claims in spiritualism.” If all else fails, simply say “our god gave us this land.”
As shown in the dramatization above, it was clear that the Lakota were not the first people to live in the Black Hill region. They had come from somewhere else. But, they could rightly claim to have been in the area before the European settlers started claiming the area.
But, for the reasons listed by Miles in his retort to Sitting Bull, simply being present before the other guy doesn’t actually establish a moral right to ownership. After all, someone else had been there before the Lakota and had been forced to give up their ownership.
Does This Mean Might Makes Right?
This puts the Lakota and the Americans in the same category: they are conquerors who showed up and expropriated land from the people who were there before. When the Americans came, they did the same to the Lakota that the Lakota had done to their victims before. Miles, in the dramatization, apparently recognizes that neither group can make a moral claim to the land. The American conquest is on the same moral plane as the Lakota conquest. At no point does Miles actually establish a moral justification for the US government’s conquest of the region. That is, in both cases, the victor wins by no virtue other than being militarily victorious. The only law at work in both cases was the law of the jungle.
So, if no one is truly indigenous, does that mean that all land is up for grabs everywhere? The answer is “no” if we’d like to live in a world where lawless conquest and butchery is not accepted as the answer to all land disputes.
As a practical matter, the concept of indigeneity is of little value in any case. Actually proving true indigeneity is impossible so it is not practicable to base every property claim on who had lived in a place, say, 2,000 years ago. Over time, legal records disappear, are burned, or otherwise destroyed. Migrations take place, and even local, living memory fails to suffice as a record for who lived where. This, of course, is why some resort to the “our god gave us this land” claim. It’s a last-ditch effort to assert ownership when no legal record remains.
The hopelessness of the task of establishing any true moral claim to land based on indigeneity means we’re left with the moral imperative to employ pragmatism and prudence in pursuit of peace. Thus, the best we can usually do is to look at who lives in a place right now or in the recent past. The group that fulfills these requirement should be considered as the de facto indigenous population. To do otherwise is to embrace conquest, displacement, and wars of attrition.
This is not a new problem, of course. Everywhere, conquest and migration and displacement are woven into the fabric of local history. This, of course, is what the Church and the ruling classes of Europe spent centuries trying to fix in the Middle Ages. With movements like the Peace and Truce of God, the medievals tried to put into place legal institutions that would protect property rights and mediate conflicts over land claims. The idea was to replace war with negotiation and legal arbitration. Wars, after all, were known to bring famines and massacres. Few would describe such outcomes as “just.” For the same reasons, nobles and kings were expected to act as arbitrators and judges who could “keep the peace” by preventing land disputes from spiraling out of control.
In these cases, it was rarely the goal to find out who had a right to land, based on some ancient claim from 1,000 years earlier. Everyone knew that to mediate based on such grandiose claims would do little to protect peace in the here and now. What mattered was to maintain some semblance of order and peace. The goal was pragmatic: to deal with current realities as they are, in a way designed to avoid widespread theft and murder.
These early attempts to substitute law for open warfare continue to influence modern international law and the recognition that, at least in theory and on a moral level, might does not make right. In many ways, progress has been made, if for no other reason than it is now rare to see population impelled by famine to desperately migrate to neighboring lands and forcibly displace the natives. Moreover, the growth and spread of the concept of private property has helped to institutionalize claims to ownership that are more precise, specific, and not founded on ancient, unprovable history.
Unfortunately, these principle are still often ignored, even today. In many places, the reality still looks like that of when the US Cavalry fought the Lakota.