Land Claims

BIBLIOGRAPHY

A land claim is the pursuit of recognized territorial ownership by a group or individual. In modern nation-states, the vast majority of such claims have been advanced by indigenous peoples who have been dispossessed of land and resources in the course of imperial expansion and nation building. In the context of a worldwide rise in aboriginal political power since the 1970s, aboriginal leaders have initiated land claims in an effort to reverse the marginalization of Native societies in countries dominated by non-Native peoples and to provide a means of wealth and security. While indigenous peoples have pursued land claims across much of the globe since at least the early 1980s (see Fondahl et al. for Russian examples), they have become particularly well developed in the countries that have emerged out of the former British settler colonies: Canada, the United States, Australia, and New Zealand. As with so many other struggles for the acknowledgement of minority rights, land claims are often marked by protest and conflict between, on one side, sets of property owners, corporations, and governments that stand to benefit from the maintenance of the status quo and, on the other side, aboriginal peoples who hope to regain control of territory and resources. In the context of social science research and study, understanding land claims requires consideration of the intersection of geography, politics, economics, and social pluralism.

At the root of the pursuit of modern land claims is the assertion of title by aboriginal peoples. Claimants argue that they hold ownership of land and resources based upon long-term occupation and use of particular territories. Thus, for a land claim to proceed, title must be ascertained and recognized by a country’s legal institutions. In different jurisdictions, recognition of Native title has varied greatly. In Canada, for example, aboriginal claims of ownership are backed by the Royal Proclamation of 1763, in which the British Crown affirmed Native ownership of land and resources in Britain’s North American colonies where obvious occupation and use was in evidence. Under this law, British settlers were obliged to negotiate in good faith with Native peoples for the transfer of land and resources (Usher 2003, p. 377). Since the early 1990s, land and resource claims advanced by a number of Native groups in British Columbia have been based on the historical fact that the requirements of the Proclamation have not been met in the province (Rossiter and Wood 2005, pp. 358–359). The United States, another outgrowth of British colonization, also recognized the existence of aboriginal title through the negotiation of historic treaties between the federal government and individual Native groups (Hendrix 2005, p. 765). Modern land claims in the United States, such as those advanced in the 1980s and 1990s by the Western Shoshone Nation in Nevada (see Luebben and Nelson 2002) have resulted from failures of governments to live up to the terms of these treaties. By contrast, in Australia the recognition of the existence of aboriginal title prior to settlement by British colonists only emerged in 1992 with a High Court ruling that entrenched the principle in the country’s body of common law (Davies 2003, p. 28). Whatever the case, however, once the general principle of prior indigenous title has been accepted by a state, land claims by Native groups may then be pursued in order to regain or affirm clear ownership in cases where such ownership has not been superseded through recognized legal means, yet practical control of territory has been lost to either government or private interests.

When countries’ legal institutions recognize the existence of Native title in relation to territory where aboriginal control has been superseded, they place demands on governments and other property holders to either extinguish Native title through accepted channels or return control over land and resources to claimants. As with the acknowledgement of Native title, the means of extinguishment has varied greatly between countries. In Canada (Usher 2003, p. 366) and the United States (Hendrix 2005, p. 764), negotiated agreements (treaties) between governments and aboriginal groups have been the typical means of title extinguishment. However, in Australia the existence of freehold property resulting from government land alienation schemes developed in the late nineteenth and early twentieth centuries is recognized in that country’s body of law as an adequate means of extinguishment (Davies 2003, p. 28). As uneven as the approaches are, once title is said to be extinguished, governments consider claims to be settled and no further action can be pursued by claimants in relation to questions of ownership.

The principal means of modern title extinguishment, and thus the main outcome of modern land claims negotiations, has been the negotiation of durable and comprehensive treaties. While often focused on the return of land and resources to aboriginal control, treaties are not marked by this feature alone. As land claims launched by aboriginal peoples against modern nation-states often involve territory that is occupied by cities or other intensive and permanent land use, the return of land can be extremely problematic. In such cases, or in cases where two or more groups launch overlapping claims, negotiated settlements between Native groups and governments often include monetary compensation in lieu of returned territory. Further, issues of tax status, education and health provision, and linkage (social, political, economic) with non-Native territories are also frequently addressed in the negotiation of treaties. As Usher notes (2003, p. 379), in Canada treaty negotiations are increasingly marked by a concern with providing claimants with the opportunity to build governance and management capacity through education and partnership. Thus, far from simply serving to settle land and resource disputes between indigenous and settler populations, the treaties that result from land claim negotiations are often required to address the social, political, and economic marginalization of Native populations that has arisen out of colonial situations.

While land claims hold out the possibility of transforming the material (and therefore social) conditions of life for aboriginal peoples in the former settler colonies of the world, they also, as Hendrix argues, provide a possible means through which the historical and geographical memories of settler populations might be reworked. The dominant narratives of American and Australian settlement treat the period prior to European contact as prehistoric; the lands were empty and awaiting improvement by industrious hands, so goes the story. By successfully reclaiming land and resources through resort to the institutions put in place by colonial societies, however, Native peoples across the world are taking back ownership of more than territory. Insisting upon official recognition of precontact occupancy and title, marginalized cultures are writing themselves back into history and, therefore, into the fabric of modern nation-states.

SEE ALSO Annexation; Colonialism; Decolonization; Indigenismo; Indigenous Rights; Native Americans; Natives

BIBLIOGRAPHY

Davies, Jocelyn. 2003. Contemporary Geographies of Indigenous Rights and Interests in Rural Australia. Australian Geographer 34(1): 19–45.

Fondahl, Gail, Olga Lazebnik, Greg Poelzer, and Vasily Robbek. 2001. Native “Land Claims,” Russian Style. The Canadian Geographer/Le Géographe Canadien 45 (4): 545–561.

Hendrix, Burke A. 2005. Memory in Native American Land Claims. Political Theory 33 (6): 763–785.

Luebben, Thomas E., and Cathy Nelson. 2002. The Indian Wars: Efforts to Resolve Western Shoshone Land and Treaty Issues and to Distribute the Indian Claims Commission Judgment Fund. Natural Resources Journal 42 (4): 801–833.

Rossiter, David, and Patricia K. Wood. 2005. Fantastic Topographies: Neo-Liberal Responses to Aboriginal Land Claims in British Columbia. The Canadian Geographer/Le Géographe Canadien 49 (4): 352–366.

Usher, Peter J. 2003. Environment, Race, and Nation Reconsidered: Reflections on Aboriginal Land Claims in Canada. The Canadian Geographer/Le Géographe Canadien 47 (4): 365–382.

David A. Rossiter

LAND CLAIMS

LAND CLAIMS. In 1783, Great Britain ceded to the new republic sovereignty over about one-fourth of the land area of the present-day United States. For the next seventy years, the foremost national project was to extend U.S. sovereignty across the continent to the Pacific Ocean. The 1783 territory of the new nation was augmented by seven separate land acquisitions between 1803 and 1853. All of these territorial acquisitions brought real people with real claims to the land. The process of honoring preexisting private land claims was sufficiently complicated to keep Congress and the courts busy for more than a century. By 1904, the United States had recognized the rights of more than 20,000 claimants to approximately 34 million acres of land.

The first conflict between American sovereignty and prior claims of ownership came in the lands of the Old Northwest Territory, which would become the states of Ohio, Indiana, Michigan, Illinois, and Wisconsin. In that region, French settlers had established trading posts with modest agricultural hinterlands at key sites on the Great Lakes and Ohio and Mississippi valleys. They demanded that the new United States recognize their ownership rights to the lands of their villages. In the 1794 Jay's Treaty with Great Britain, the United States agreed to uphold the claims of the French in the Northwest, and over the next thirty years almost 3,000 French settlers had their claims validated with clear title recognized by American courts.

The 1803 Louisiana Purchase resulted in a doubling of the American nation. It also produced many thousands of new private claims to lands around St. Louis and New Orleans on the basis of prior grants from the Spanish and French authorities. The U.S. Congress authorized a special board of commissioners to examine private land claims in the new territory of Missouri and state of Louisiana. The board heard more than 3,000 claims from Missouri but rejected most because of inadequate documentation or because the American commissioners thought the claims conflicted with prior Spanish laws. The rejected claimants turned to Congress for special relief, and they kept the private claims before that body until the late 1870s. In Louisiana, more than 9,000 claimants eventually won title to more than 4 million acres of land.

The purchase of Florida by the United States in 1819 predictably brought a new set of private claims, extending to more than 2.7 million acres. The Florida claims, though large in acreage, were small in number. The confirmation of some of these grants allowed some Florida families to build large estates at key sites around Florida, including around Tampa Bay.

The largest volume of private claims concerned lands acquired by the United States after the annexation of Texas in 1845 and the conquest of Mexico and the resulting Mexican Cession of 1848. In newly acquired California, for example, prior claims were filed for as much as 27 million acres of land. In New Mexico, Colorado, and Arizona, a comparable amount was claimed under prior grants made during Mexican rule, and for this region Congress established a special Court of Private Land Claims in 1891 to hear appeals. That court was kept busy hearing cases through 1904.

The significance of the private land claims in American history is that the United States did not acquire an empty continent. Dealings with American Indians over land were one matter. Dealings with alien residents who claimed private property from a foreign government's grant was another, and the United States set the pattern early on of attempting to deal fairly with the claimants. A title search on property in some of the most valuable real estate in America today, including Los Angeles, San Diego, Tampa, St. Louis, New Orleans, and Detroit, shows the relevance of the private land claims. Their recognition was the result of the accommodation of the new United States to an older, foreign past.

BIBLIOGRAPHY

Gates, Paul W. "Private Land Claims." In History of Public Land Law Development. Washington, D.C.: Government Printing Office, 1968.

Keleher, William A. Maxwell Land Grant: A New Mexico Item. New York: Argosy-Antiquarian, 1964. Reprint, Albuquerque: University of New Mexico Press, 1983.

JamesOberly

See alsoLand Acts ; Land Grants ; Land Patents ; Land Policy .