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ABSTRACT
In several essays, Jeremy Waldron has suggested that changed circumstances may have superseded the rights of Native peoples to their ancestral lands. I contend that his argument is problematic and propose a Kant-inspired framework to assess the property and territorial claims of Native peoples. My conclusion is that, while in many cases they must share their country with the descendants of their colonizers and later arrivals, their prior property and territorial entitlements can leave a strong normative residue that should be addressed. My argument has general implications, but I focus on the Qom people in Argentina.
Acknowledgments
I thank all participants in the conference on “The Temporal Orientation of Justice” for an illuminating discussion. I also thank the reviewers and guest editors for their comments. In particular, Tim Waligore provided extremely challenging and detailed feedback to my manuscript, which enormously helped me clarify my views.
Disclosure statement
In accordance with Taylor & Francis policy and my ethical obligation as a researcher, I am reporting that as Chair of Amnesty International Argentina (2008-2011), I was involved in the Qom case reported in the paper and subsequent events. The views expressed here are my own and do not represent the views of Amnesty International Argentina.
Notes
1. Amnesty International Argentina (Amnesty International, Citation2013); Wikipedia (Citationn.d.).
2. This claim was partially supported by the 1994 Constitution. However, the exact lands the Qom claimed were not completely specified. Cardin (Citation2018) provides an analysis of the Qom’s land claims.
3. As then-Chair of Amnesty Argentina, I was involved in the preparation of that meeting.
4. I focus only on Waldron’s ‘restoration’ or ‘remission of injustice’ approach and not his ‘counterfactual’ analysis. I also do not consider his argument on how attachment to specific objects may fade and its normative implications, as it is irrelevant to my own view, which is grounded on rights and equal status rather than expectations. See, Waldron (Citation2002, p. 157).
5. But see, Stilz’s (Citation2019) recent book.
6. See also, Patton (Citation2005, p. 259) and Hendrix (Citation2008, p. 37).
7. Waldron (Citation1992b, p. 26) admits that whether supersession has occurred depends on empirical facts, but suggests that the changes that took place are exactly the sorts of facts that would make a difference.
8. See, Hendrix (Citation2008, pp. 42-50) and Lyons (Citation1977).
9. For Kant’s views on colonialism, see, Flikschuh and Ypi (Citation2014).
10. See, Byrd and Hrushcka (Citation2010, Chapter 5); Ripstein (Citation2009, Chapters 2, 4, 6); Ypi (Citation2014).
11. The references in brackets correspond to the Akademie edition.
12. Kant (Citation1996, pp. 411-412 [6:258]).
13. He discusses them under the rubric of ‘international’ and ‘cosmopolitan’ law.
14. For Kant’s duty of hospitality, see, Kant (Citation1996, p. 489 [6:353]). For more minimalistic interpretations, see, Klausen (Citation2014) and Waligore (Citation2009).
15. Hasan (2018) provides a good survey of different interpretations. Cf., Byrd and Hrushcka (Citation2010, pp. 100ff.).
16. See, Hasan (Citation2018, pp. 865-874) and Stilz (Citation2014, pp. 213-219).
17. For more minimalistic interpretations of membership, see, Klausen (Citation2014, p. 46) and Waligore (Citation2009).
18. For an academic analysis of the colonization process in Gran Chaco and its general impact on the Natives, see, Wright (Citation2003).
19. See Ministerio de Justicia y Derechos Humanos (Citationn.d.).
20. See, Waligore (Citation2018) on structural injustice.
21. Cf., Waligore (Citation2018).
22. In my overall argument, the role of provisional rights is just to explain how the Natives may have acquired legitimate property and territorial rights acting unilaterally, not to justify their re-allocation. Instead, Minimal Justice justifies reallocation.
23. Note that this argument is not about expectations but about rights or fundamental interests. However, there might be a higher bar for re-allocation of Native rights, if Argentines are not acting innocently towards them and Minimal Justice for the Qom is not fulfilled.
24. From the ‘materialistic’ viewpoint I am assuming, this includes only the lands they could effectively use or control, not all the lands they claim as their own.
25. See, Waligore (Citation2018) on structural injustice.
26. On ‘control’ and ‘seasonal occupation’, see, Sanderson (Citation2011, pp. 173-176).
27. See, Nichols (Citation2013, p. 172) and Sanderson (Citation2011, pp. 165-172).
Additional information
Notes on contributors
Julio Montero
Julio Montero is Associate Professor at University of Buenos Aires (Argentina) and member of the National Research Council (Argentina).