In setting out his test in Re: Southern Rhodesia, Lord Sumner relied on secular social theory, re-articulating and re-legitimating the now archaic seeming assumptions of 1722 in the pseudo-scientific language of Social Darwinist evolutionism that had become entrenched by 1919. Social Darwinism was an attempt to apply Charles Darwin’s theories of evolution in the plant and animal worlds to human history. Simply put, some Indigenous peoples could be classified, according to the Privy Council, as belonging to a lower order of human being than the British. On the basis of this abstract act of classification they could be deemed, in law, not to exist. Their lands and resources, and their rights to govern themselves, could be eliminated: through the force of law.
Lord Sumner’s option for those Indigenous peoples deemed more “highly evolved” reflects the second clause in the Privy Council’s Memorandum of 1722. Under the doctrine of conquest, since Indigenous peoples were recognized as existing human beings, British domination had to be achieved through military conquest and/or the negotiation of treaties. Indigenous legal codes could continue to be in force after the assertion of British sovereignty, until they were extinguished by the stroke of a pen, or by the cannons of the British navy. Following Sir Henry Maine, Lord Sumner elaborated evolutionary theory, applying its categories to legal codes and land tenure systems. He identified criteria by which courts could ascertain which Indigenous land tenure systems should be deemed worthy of being honoured by the British Crown. According to Lord Sumner, individual rather than tribal or communal ownership marked the difference between “civilized” and “savage” property law.
Not all judges think alike. In 1921 Lord Sumner’s 1919 decision in Re: Southern Rhodesia was criticized and modified by Viscount Haldane, who issued a ruling in another African case before the Judicial Committee of the Privy Council. In Amodu Tijani v. Southern Nigeria,17 Haldane argued that Indigenous land tenure systems should not be judged by British standards, but rather should be recognized and understood on their own terms: “In interpreting the native title to land, not only in Southern Nigeria, but other parts of the British Empire, much caution is essential,” Haldane wrote. “There is a tendency, operating at times unconsciously, to render that title conceptually in terms which are appropriate only to systems which have grown up under English law. But this tendency has to be held in check closely.”
The similarities and differences between Lord Sumner’s ruling and Viscount Haldane’s can be read as an historic illustration of the interconnections between law, history, anthropology and public opinion that have shaped Indigenous land rights litigation since the early days of British imperial expansion. Legal decisions in these cases, of necessity, rely on and reflect interpretations of history, culture, human nature and morality.
By the early years of the twentieth century, professional anthropologists for the most part had rejected the evolutionary theory of their nineteenth-century founding ancestors like Sir Henry Maine, Lewis Morgan, and Edward Tylor. The leading anthropologists of the 1900s-1930s, including Franz Boas, Bronislaw Malinowski, and H. R. Radcliffe-Brown, all argued for one version or another of positions based in cultural relativism, defined at its most essential level as respect for the fundamental equality of all human cultures, and the right of each culture to be judged on its own terms and not on the basis of another culture’s evaluative criteria. This was not only a moral and a political stance, but reflected conclusions which had emerged as the discipline grew to include more professionally trained observers who spent longer periods of time living with non-European peoples.18 The empirical data collected, and the lived experience of fieldworkers, challenged the abstractions of the “armchair academics,” who, a generation before, had hypothesized the grand theories of universal human evolution from their ivory towers. Theories of scientific racism and Social Darwinist evolutionism could not sustain “on the ground” scrutiny.19 Many Indigenous peoples’ ways of life and histories simply didn’t conform to the evolutionary models. Aboriginal Australians, for example, valued little in the way of technology and material goods, but lived within highly complex social structures governed by intricate kinship relations, led rich spiritual lives guided by complex and sophisticated cosmologies, and produced abstract art. Evolutionary theory had hypothesized incorrectly that they should be completely consumed by satisfying survival needs and be incapable of abstract thought. Northwest Coast peoples in North America were neither agricultural nor industrial, yet they lived in a hierarchical social structure, and accumulated and stored surplus wealth which, evolutionary theory claimed, people classified as hunters and fishers should not be doing. Anthropologist Marshall Sahlins has challenged the notion that non-industrial peoples’ lives were taken up with the daily struggle of wresting subsistence from nature. He argues that industrial capitalism requires the average person to expend more hours of labour per day to meet basic subsistence needs than is demanded of participants in hunting, gathering and fishing economies.20
In his ruling in Amodu Tijani v. Southern Nigeria Viscount Haldane adopted a position of cultural relativism, launching an explicit critique of Lord Sumner’s ethnocentric evolutionism. Haldane argued that Aboriginal title, “may not be that of the individual, as in this country it nearly always is in some form, but may be that of a community…. Such title…must be presumed to have continued to exist unless the contrary is established by the context or the circumstances,” he concluded. While Haldane and Sumner differed on some points, neither questioned the fundamental premises that the British Crown had legitimate claims to sovereignty over the Americas; that the hovering sovereign held underlying title to all the land; and that colonial courts should determine what form of Aboriginal title could be recognized—or created—and by what criteria. The Royal Proclamation of 1763 defined Aboriginal title as communal and not individual. Lord Watson in St. Catherine’s Milling and Lumber in 1888 had declared that Aboriginal title was created by the Crown in whatever image the Crown chose. Lord Sumner had, in 1919, defined legally recognizable Aboriginal title as individual and not communal. Viscount Haldane in 1921 allowed that Aboriginal title could be communal and not individual. Both Sumner’s and Haldane’s rulings endorsed the dictum that legal recognition or non-recognition of Aboriginal title should be determined by the nature of Aboriginal societies and land tenure systems, as these were understood by the court. The microscope was resolutely trained on Aboriginal claimants who would be required to represent their cultures and laws in one or another framework determined by legal adaptations of European social theory. Questions about the moral, political or legal legitimacy of British colonialism were deemed by law to have been resolved and to not require further discussion. These issues were banished: silenced in legal conversations, and evicted from colonial courthouses. Their absence, however, continued to hover, over the sovereign.
In the legal disputes that followed Sumner’s and Haldane’s rulings, twentieth-century Canadian judges would select from any one of these precedents, or others, or some combination thereof, as their rationale of choice in rendering decisions in Aboriginal title and rights litigation. Various courts and judges would employ diverse and often contradictory understandings of a mélange of anthropological and historical theories for analyzing Indigenous societies, It would not be until the closing decades of this century that the simple fact that “when the British arrived, these people were already there, using lands in accordance with their own needs and their own ways of life, as people everywhere do,”21 would figure prominently in debates about the grounds for legal recognition of Aboriginal or Crown sovereignty in Canada.
1. Bell and Asch 1997:39-40. See also Postema 1991.
2. Torres and Milun 1990.
3. See Bell and Asch 1997; Doyle-Bedwell 1993; Macklem 1991; Slattery 1979; Williams R. A. 1990.
4. Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) at 146.
5. Johnson v. M’Intosh 21 U.S. (8 Wheat) 543 (1823) at 573.
6. Macklem 1991: 400.
7. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) at 543.
8. quoted in Kulchyski
