A legacy of plunder

 

We must not make a scarecrow of the law, setting it up to fear the birds of prey, and let it keep one shape till custom make it their perch and not their terror.

Measure for Measure, Act two, Scene one.

 

The current edition of The New York Review of Books includes a short and incisive book review titled A Legacy of Plunder by Francisco Cantú (link here):  

The institutional lineage of indigenous dispossession is at the centre   of Michael John Witgen’s ‘Seeing Red’, which was a finalist for last year’s Pulitzer Prize in history. It is neither a popular history nor a polemic, offering instead a deeply researched look at the ideological and legal foundations of the systems that have despoiled Native nations. Witgen’s subtitle, ‘Indigenous Land, American Expansion, and the Political Economy of Plunder in North America,’ reveals the scope of his history, which examines the ways, both sweeping and quotidian, that early American settlers, traders, diplomats, and politicians stole and expropriated land.

What struck me however were the very first two sentences of Cantú’s review article:

Growing up in the southwestern United States, I often heard stories from my stepfather about people who enriched themselves by stealing from Natives. These were not tales from the past, but ongoing stories taking place on the reservation lands where he was employed and later lived (emphasis added).

It is not a new story, and while situated within a different context than that which applies in Australia, the resonances if not the parallels are clear.

While I am generally inclined to frame policy opportunities from the standpoint of the extant institutional frameworks, Cantú reminds us that the past is of continuing and current relevance and the shortcomings of past policies, and indeed, changes in our broader political system can facilitate ongoing dispossession into the present, albeit utilising new forms of political economy.

I have long held the view that institutional frameworks are crucial determinants in the allocation of societal benefits, resources and financial flows, including to First Nations people though mechanisms such as legislation, and embedded social processes such as our systems of justice, welfare, and taxation. For First Nations citizens, these institutions include land rights legislation, the Native Title Act, national agreements such as the National Agreement on Closing the Gap, and numerous organisations and structures such as the Indigenous Land and Sea Corporation and Indigenous Business Australia. Yet none of these mechanisms and frameworks operate perfectly, and moreover, over time their efficacy and effectiveness can degrade and diminish. Yet progressive mainstream and First Nations advocates too often assume them to be in effect permanent and uncontested givens.

Yet the reality is that powerful mainstream interests are continuously looking to extract leverage and benefits from across the institutional domain. Existing institutional frameworks which allocate benefits to First Nations interests are not immune from this attention, and over the past five decades most have experienced gradual and incremental degradation or the absence of reform momentum. One need only look at the failure of governments to replicate the structure of the NT Land Rights Act in subsequent state legislation, or the failure to address the quotidian shortcomings that have emerged over time with the Native Title Act. The 2015 ALRC review of the Native Title Act has been effectively ignored; yet now we have another review to report in December 2025 (link here and link here). In relation to the NT Land Rights Act, over the past decade or so, the quality of regulatory oversight appears to have fallen off a cliff (link here).

My point is that the gradual and incremental deterioration of what were once reforming and pathbreaking institutional frameworks can, in worst case scenarios, facilitate the continuation (often in new guises and incremental steps) of economic and social dispossession.

Effective and visionary policy development is not just about creating new institutional frameworks. It is also about ensuring existing institutional frameworks continue to deliver social and economic benefits and remain fit for purpose.

 

13 June 2024