Constructing Law, Space, and their Subjects:
European Conceptions of Aboriginal People,
their Governance and Law

In the case of First Nations people who lived in the areas adjacent to the St. Lawrence River Valley and the Great Lakes, British military strategy in their quest for colonial mastery in North America, first against the French and later the Americans meant taking on some Aboriginal nations as allies and comrades in arms. As treaties of alliance were forged, there was inevitably recognition of those peoples' systems of government and law. The British government was also concerned about settlers unlawfully or deceitfully appropriating Indian land, and stressed the necessity of the Crown making treaties with First Nations communities as a condition of the cession and surrender of their territory. The prime example is provided by the Indian lands clause in the Royal Proclamation of 1763. The fact that later, as economic and military cooperation faded into memory, the relationship was replaced by one of legal subservience and the enforced tutelage of aboriginal people across Canada has not erased this earlier reality. First Nations people have often remembered that they had their own distinctive and vibrant political and legal cultures, and that these were accorded recognition by the European newcomers in earlier periods.

From early days in Australia, and in Canada, once settlement by Europeans began to take place in earnest, negative constructions of Aboriginal peoples and their political, legal and social structures began to appear. They were, in tune with speculation on their ultimate fate in a supposedly progressive, civilized world, portrayed as the "noble savage" or as embodying the retarded marks of primitive culture and shiftlessness. Whichever the representation, the message was clear: they could not last in the modern world - disappearance or assimilation was their inevitable fate. From the latter half of the nineteenth century, well into the present, these views were buttressed by the "survival of the fittest claims" of social Darwinism.

For an evocative graphic example, see the following.

Click for image

"The Last of His Race" sketch by Charles M. Russell, 1899.

The view that Aboriginals had no future was easily converted into the idea that they were dispensible. Especially in Australia, this mindset was used as a rationalization by settlers and some military and police officers for the extermination of Aboriginals particularly when they resisted their dispossession from their traditional lands and the destruction of their culture.

Consider the following sketches by European-Australian artists.

Click for image	"A Deadly Encounter" (1870s)
Click for image	"Mounted Police and Blacks: A Re-encounter"

READING

Andrew Markus, "Australian Race Relations" (1994), pp.36-49 excerpted from Heather McRae, Garth Nettheim, Laura Beacroft, Indigenous Legal Issues:Commentary and Materials, 2nd Ed. (Sydney: L.B.C., 1997) p.33 FTP ~ HTML

A somewhat different representation of indigenous folk which reflected the assimilation theory and sought to work it through in practice was that of missionaries. These people, convinced of the malleability of the Aboriginals, who were thus, they believed, open to conversion to Christian precepts and sound secular education, attempted to recast the Aboriginals in the European mold. This process often involved attempts to destroy traditional culture and notions of spiritulity as marks of "savagery" and incompatible with Christian teaching. Sacred and secular education in the European mode and the adoption of European dress and social mores were thought to be important in these strategies of reculturation.

These colonial attitudes were to affect the way in which legal obligations were interpreted by the colonizers. In Canada, official policy remained that Indian lands could only be surrendered through treaties. However, the objective of these treaties on the European side was by the mid-19th century less alliance and common cause, and more the cession of large tracts of land for settlement and exploitation and the removal of the aboriginal peoples to reserves in which they could be controlled and regulated. The so-called Robinson treaties from 1850 provide a model which was followed thereafter across the Prairie west.