In Kind or Monetary Restitution? Historic Wrongs and Indigenous Land Claims

Scott Morrison

doi:10.5539/jpl.v7n2p50

Abstract

Native peoples in North America, Australia and New Zealand have (sometimes successfully) demanded compensation for seizures of their ancestral lands. This article sets out the arguments against restitution in these and other cases. It then offers up a defense of “in kind” restitution, that is, the return of lands or other property misappropriated. As a pertinent case study this article narrates the story of the Sioux tribes of the mid-western United States. They have sought to recover lands in and around the Black Hills of South Dakota. Offering a view of the historical and contemporary collective cultural and spiritual significance of the Black Hills and the history of dispossession therefrom, this article traces the Sioux’s individual and tribal efforts both through the legal system and the courts and into the US federal government where a bill was unsuccessfully put forward in an effort to resolve their claims.

Highlights

Aboriginal peoples in Canada, the US, Australia and New Zealand have -- throughout this century and with some success in recent years -- demanded reparation for historic injustices, such as unfair purchases and seizures of land
I would argue that these present disadvantages do not constitute injustices if restitution is practiced subject to the prohibition of forced land sales or transfers
The majority of Sioux tribes, living primarily on reservations in North and South Dakota and Nebraska, have attempted to gain compensation, or in kind restitution, for lands which were taken by the United States beginning in 1877

Summary

Introduction

Aboriginal peoples in Canada, the US, Australia and New Zealand have -- throughout this century and with some success in recent years -- demanded reparation for historic injustices, such as unfair purchases and seizures of land. If the descendants of the past perpetrators have the present property right, as the account Waldron puts forward suggests, this entitlement need not be sacrificed in order to provide monetary compensation Such compensation is not, strictly speaking, rectification; it does not change the present to an alternative present which would have come about had the wrong not occurred. I have differentiated present compensation from Nozick's scheme in that it does not rely on counterfactual reasoning about what occurred or might have occurred after the historic injustice occurred, arguing that we do not need a conception of entitlement which endures over time, because the existence of the past harm is sufficient to warrant compensation. The sensitivity of moral obligations to present circumstances does not amount to a rejection of the need for, and the validity of, compensation

Perfect and Universal Justice?

The Struggle for the Black Hills

The Black Hills and in Kind Restitution

Findings

Conclusion