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WE ARE HERE
WE ARE HERE

Politics of Aboriginal Land Tenure

Edited by
E D W I N N. WILMSEN

UNIVERSITY OF CALIFORNIA PRESS

Berkeley Los Angeles London
University of California Press
Berkeley and Los Angeles, California
University of California Press, Ltd.
London, England
Copyright © 1989 by The Regents of the University of California
LIBRARY OF CONGRESS
Library of Congress Cataloging-in-Publication Data

We are here: politics of aboriginal land tenure/edited by Edwin N. Wilmsen.

p. cm.
Bibliography: p.
Includes index.
ISBN 0 - 5 2 0 - 0 6 3 0 0 - 7
1. Native races. 2. Land tenure. 3. Land tenure (Primitive law)
I. Wilmsen, Edwin N.
GN449.3.W4 1989
333.3'089011—dcl9 88-17500 CIP
Printed in the United States of America

1 2 3 4 5 6 7 8 9
 Contents

Preface vii

1. Introduction—Edwin N. Wilmsen 1

2. Burning the Truck and Holding the Country: Pintupi

Forms of Property and Identity—Fred Myers 15

3. Those Who Have Each Other: San Relations to Land—

Edwin N. Wilmsen 43

4. James Bay Cree Self-Governance and Land

Management—Harvey A. Feit 68

5. Aboriginal Land Tenure and Contemporary Claims in

Australia—L.R. Hiatt 99

6. To Negotiate into Confederation: Canadian Aboriginal

Views on Their Political Rights—Michael Asch 118

7. Can Namibian San Stop Dispossession of Their Land?—

Robert Gordon 138

8. Involved Anthropologists—Kenneth Maddock 155

References 177
Contributors 199
Index 203
 Preface

The adjective 'aboriginal' that appears in the title of this volume and
in the essays within is used in its original meaning as found in the
Oxford English Dictionary (OED): "1. First or earliest as far as history
or science gives record . . . 3B. An original inhabitant of any land,
now usually as distinguished from subsequent European colonists."
This word is enshrined as a proper noun, Aborigine, applied to the
indigenous peoples of Australia; as a result, it has come to be iden-
tified restrictively by the public, as well as by anthropologists, with
those peoples and that continent. But, as the OED indicates, the term
has a far wider reference. Indeed, that wider reference has a venerable
philosophical and legal history in Europe. Furthermore, certain terms
that are indigenous to regions examined in this book and that have
become entrenched in anthropological literature have a similar fun-
damental meaning. San is derived from the Nama root 'sa'; the various
Sotho-Tswana/Nguni forms of Basarwa, applied to "Bushmen," share
the Proto-Bantu root '*-rwa'. Both roots have as one of their glosses
"aboriginal, those who came before." We use 'aboriginal' in this wider
sense.
That the peoples to whom we apply this term were, or were called,
foragers (hunter-gatherers) when first encountered by Europeans
(who most often thought of and referred to them as savages) is no
accident. Peoples who foraged for all or a substantial part of their
livelihood were conceived to be the dregs of humankind in the Age
of Expansion and its colonial consolidation. Subsequently, after a
period of agreement with this assessment, anthropologists found
them to be not the dregs but the distillation of human essence. In
both metaphors, however, they are sediment—at the bottom of the
viii Preface
barrel. (One never hears of Japanese (who have their own, Ainu,
aborigines) or Aztec or Ashanti aboriginals, although they, too, were
first and earliest in their lands as far as history and science gave record
at the time Europeans arrived.) Such an assessment of forager status—
whether as dreg or distillate—has nothing to do, philosophically, with
ways of making a living but is a categorization of peoples thought of
as being in a different state of nature. This has had profound reper-
cussions for the way in which the thus stigmatized peoples were
integrated—rather, dis-integrated—into colonial enclaves and, later,
their nation-state successors. Those repercussions and current efforts
to rectify them are the subject of this book.
Claims by aboriginal peoples to land and its products in former
colonies that are now developed industrial nations governed by peo-
ples of predominantly European origin (e.g., Australia and Canada)
are, of necessity, argued in terms of legal systems introduced by
Europeans and subsequently institutionalized in those nations. In
such claims, evidence from the recent prehistory of these aboriginal
peoples, and from the history of their colonial encounters, may be
admissible as evidence but not as structural components of arguments
for inherent aboriginal land rights. Until very recently in these cases,
aboriginal property relations and their adjudication in precolonial—
as well as in colonial and even current—times were of only secondary
consequence at best. It is this fact, perhaps, that has conditioned many
anthropologists from Western countries to view aboriginal relations
to land in normative, rule-centered, functionally specific terms anal-
ogous to those of European-American law.
As long ago as 1957, Bohannan argued that it is inappropriate to
transfer in this manner conceptual and institutional categories of
Western law to non-Western societies (he was speaking specifically
of West African agricultural societies; see also Bohannan 1965). In that
same year, V. Turner (1957), following on Colson's (1953) earlier study,
demonstrated that in at least some African societies cooperation in
and competition for such assets as land are constrained by a prevailing
structure of relations that can be understood only in the context of
extended social processes. Gluckman, beginning in 1955, elaborated
these insights.
Moreover, in former colonies, like Botswana, that are populated
and governed by predominantly indigenous peoples, native institu-
tions continue to provide—as they did in the colonial and precolonial
past—the first avenue of redress, as well as the lower levels of appeal,
for all common law, most civil law, and some criminal law cases.
Traditional Tswana courts (dikgotla), presided over by a hierarchy of
 Preface ix

chiefs, local chiefs, and headmen (dikgosi, dikgosana, and basimane),

hear disputes not only of Tswana litigants but also those of all sub-
ordinate groups within the country, including aboriginal San-speak-
ing peoples who are belatedly gaining access to them. Only at the
higher levels of state jurisdiction does introduced European law come
into prominence. Land, and rights to its use, is allocated at one of
these higher levels—through land boards operating under the aegis
of the Ministry of Local Government and Lands. Again, only very
recently have aboriginal institutions of tenure begun to be accepted
as legitimate elements in the allocation process.
It thus becomes crucial to understand aboriginal relations to land,
not only as coherent systems in themselves but also as legitimate
vehicles for assertions by aboriginal peoples that they retain—or, as
in most cases, ought to regain—undiminished rights in their native
lands. The forms these assertions take and the legal processes by
which they may be realized as actualities in the face of counterclaims
are determined by the specific nature of each aboriginal and national
system, by the history of their intersection, and by the current state
of public opinion in the nation-state in which the aboriginal society
is now situated.
With increasing frequency, anthropologists have played active roles
in each of these facets of aboriginal land adjudications. The contrib-
utors to this volume address these roles critically, with an awareness
of the uncertainties inherent in each. Running through the chapters—
each with its separate focus—is a common theme, the commensur-
ability of tenurality (as distinct from specific tenure systems) in what
have heretofore been seen as separated stages of social development
and complexity. The importance of this understanding to current and
future negotiations of aboriginal land claims can hardly be exagger-
ated. Those peoples who have been classified as aboriginal, as fora-
gers, face an obstacle uniquely applied to that classificatory status—
the claim that they, alone among the peoples of the earth, have no
institutions of tenure in land.
Other peoples, those who practice some form of domestic husban-
dry, even if they are still sometimes referred to as "primitive," are at
least recognized as having some inherent form of land tenure that
must be reckoned with in some fashion, both in academic and ad-
ministrative arenas. There is a substantial literature on the tenure
systems of these peoples and the rights to claims adhering in those
systems. True enough, that literature contains innumerable instances
of the dispossession of colonized agricultural peoples (pastoral peo-
ples are often lumped with foragers in this regard), even from king-
X Preface
doms and empires; one need not search far to find arguments by
Europeans to the effect that some flaw rendered invalid and void the
native tenure institutions of those who have been dispossessed. But
these arguments centered on the validity of institutions, not on their
existence, and in postcolonial times, agricultural peoples have
generally had to argue for redress not in terms of law (i.e., whether
they have legitimate tenurial relations) but in terms of fact (i.e., the
force of their claim to a particular tract of land).
Aboriginal peoples, those who were formerly foragers, before they
could proceed to terms of fact, have had to establish that their insti-
tutions of tenure were, in law, commensurate with other systems.
The essays presented here illuminate that commensurability. Myers
(chap. 2) unfolds the internal logic of Pintupi relations to property
and land and describes how individuals assert and realize claims on
each other. Similarly, Wilmsen (chap. 3) presents the internal logic
of Zhu relations to land and shows how it is extended to encompass
recognition of and by other systems indigenous to southern Africa.
Feit and Hiatt (chaps. 4 and 5) document processes by which such
recognition has been projected by Cree and Aboriginal peoples into
the compass of English Common Law as interpreted in Canada and
Australia. Asch (chap. 6) discusses proposals by the Dene to expand
the scope of this projection to embrace a notion of local sovereignty
within the Canadian state, a process requiring modifications in both
systems while retaining crucial elements of each. Gordon (chap. 7)
traces the sources in international law that are still called on in Namibia
to withhold any recognition of rights in tenure from San-speaking
peoples and demonstrates that this is a regression from earlier German
recognition of San sovereignty over their land. Maddock (chap. 8)
assesses the roles assumed by Australian anthropologists in helping
to establish commensurability of Aboriginal tenure systems and finds
them to be generally laudable at the same time that individual in-
volvement in particular interpretations is often problematic; his con-
clusions can be extended to all similar situations in which anthro-
pologists may find themselves and, in a sense, may be seen as a
reflection on the offerings in this book.
A subsidiary theme runs through these essays. This theme posits
that the operational dichotomy perceived to exist between forager and
husbandman relations to land lies in European intellectual history in
conjunction with the colonial experience as interpreted through that
intellectual lens. That is, the dichotomy was constructed in European
minds to serve European needs. To the extent that professional and
public, anthropological and administrative, perception has been al-
 Preface xi
tered—perhaps enlightened—by the activities and actions of anthro-
pologists as recorded here, to that extent we have all gained in our
ability to recognize inherent integrity in diverse attempts to come to
terms with the conditions of social life.
This is not to claim that all such attempts are viable under contin-
ually transformed or radically altered political circumstances. Clearly,
aboriginal forms of tenure cannot, and do not, function in modern
nation-states as they did in the precolonial past. And national-state
forms have had to bend to accommodate awakened aboriginal de-
mands. This raises the final theme addressed here: questioning of the
ultimate ability of current institutions in liberal-democratic states to
address adequately issues of equitable rights to land. Read in this
way, these essays as a unit constitute a critique of the idea of "rights
to land" as interpreted in capitalist terms.
The genesis of this volume was a symposium I organized for the
Third International Conference on Hunting-Gathering Societies held
at Bad Holmburg, Federal Republic of Germany, in 1983. The theme
of the conference was the sociology of land use among hunter-gath-
erers. Papers bearing family resemblances to, but of different content
from, those included here were presented by Asch, Hiatt, and Wilm-
sen. The three of us wish to express our appreciation to the Werner
Reimers Stiftung for their gracious, salubrious, and most attentive
hospitality during the conference. I wish to extend my grateful thanks
to Prof. Dr. Irenàus Eibl-Eibesfeldt for his organization of the confer-
ence and his untiring efforts to ensure its success, for his encourage-
ment to pursue its results despite doubts about some of the directions
in which I have taken the issues, and for his continued friendship.
Polly Wiessner and Carmel Schrire assisted in organizing the confer-
ence and the symposia held in conjunction with it; without their skill
and spirit neither the sessions nor this book would have materialized.
Support for the conference was also provided by the Fritz Thyssen
Stiftung, the Max-Planck-Institut fur Verhaltensphysiologie, and the
Maison de l'Homme.
My editorial task was lightened immeasurably by staff members of
the African Studies Center at Boston University who transformed the
contributions, most of which were submitted as typescripts in various
idiosyncratic styles, into word-processed documents of uniform for-
mat. All of the authors, accordingly, owe a debt to Joanne Hart, Jenny
Hochstadt, and Sonia Watterson as well as to the Center, which as-
sumed the costs of this endeavor. Finally, I wish to express my thanks
to Sara Berry, John Comaroff, Karen Harbeck, Allen Hoben, Paul
Mattick, Jr., Pnina Motzafi-Haller, Johanna Schoss, and Eric Wolf, who
xii Preface

read different parts of the manuscript and offered critical advice on

its construction, and to two anonymous readers, whose comments
pointed me toward improving its presentation.
1
Introduction

Edwin N. Wilmsen

The notion of legitimate tenure rights in land for peoples once clas-
sified as hunter-gatherers or foragers has only recently gained legal
status, with severe restrictions and in a few countries only. In 1977,
the Aboriginal Land Rights (Northern Territory) Act, the first of its
kind anywhere, became law in Australia. In Canada, the Constitution
Act of 1982 for the first time "recognized and affirmed" the rights of
aboriginal peoples, thereby opening the possibility of significant land
adjudication in that country.
Hiatt reminds us, however, that just six years before the signing of
the Northern Territory Act, a group of native Australians in that very
same administrative district lost a challenge to the government's right
to dispose of their land at will. The court's ruling that "Aborigines
have no legal tenure of tribal lands" merely reiterated a view that had
prevailed since the settling of the continent by Europeans some 200
years earlier. Asch cites legal opinion as late as 1971 that Canadian
"aboriginal peoples had no aboriginal rights in law." And Feit em-
phasizes that although three years later the Cree gained extensive
usufruct and bargaining rights over a significant part of northern
Quebec, the provincial and federal governments retained ultimate
rights of disposition to all but a small reserved fraction of that land.
In Botswana, in that same decade, San-speaking peoples were found
by government council to have no rights in land other than to hunt
on certain portions of it.
The doctrine on which those earlier opinions were based is iden-
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