🚀 go-pugleaf

Wade Wofford wrote:
> Seppo Renfors <Renfors@not.ollis.com.au> wrote in message news:<3DF724FF.A28B165@not.ollis.com.au>...


Hi Wade,

Whew! I gotta hand it to you...I thought Seppo's argument was so full of 
holes I didn't know where to begin.  But surprisingly, I found a few 
minor points where I disagree with you...more "interesting" than 
"challenging," however.  I'll skip a lot to get to the point(s). I would 
like to comment on a few of Seppo's points also.

> Dear Seppo Renfors,


[Seppo]
>>The government can do whatever it likes with that land, as it owns the
>>land. No other person actually OWNS any land. The Government, at its
>>pleasure, can allow other people, corporations and entities to occupy
>>a piece of land -conditionally. The government may lease it, allow
>>mining on it or sell a freehold title to it -subject to rates and
>>taxes etc. All these other titles sit on top of that radical title -
>>at the pleasure of the Government.

Just to get the terminology right, what you are talking about 
originally, in Roman land tenure, is called "dominium directum" - "the 
ultimate right to the soil." In Rome, the dominium directum was in the 
Emporer.  Today this 'ultimate right' is translated into "eminent 
domain." I don't think it's correct to claim that no person can actually 
own land because of this, simply because that is all land ownership as 
we know it intended. In other words, you are saying that the meaning of 
"to own land" is something other than what it actually is under any 
system of property in land.

[Seppo]
>>Where Native Title comes in, is that when the Government acquired the
>>Radical Title to the land, it sits under all other existing titles -
>>and that includes that of Native Title. Which in turn means all titles
>>remain alive - at the pleasure of the Government, including that of
>>Native Title. 
> 
[Wade]
> A more honest way of phrasing this is that ALL titles, and ALL rights,
> exist at the mercy of the government.  Brute force can subsitute for
> actual legality, all too easily in many cases.

This is where I respectfully disagree with you, Wade.  I actually did 
some research on this...I had spent so much time in courts on Indian 
land claims issues that I began to notice that Indians were saying one 
thing and the courts saying another, when it came down to stating the 
case of ownership.  The two arguments simply weren't lining-up, and I 
wanted to know why.

To begin, "to own" is a very abstract concept.  It has that quality of 
"mana."  Inside of a culture, there's a definite feeling about it that 
can even operate like a taboo.  For example, if you're a Yurok and think 
like a Yurok, you'll feel it if you sing a song that you don't own. 
Black's Law dictionary is handy on this, and it defines "own" as 
abstract, but also provides the one singular concrete sense, and that is 
that you can call upon the powers of the state to regulate other's 
relationship with an object that you "own" (that you exercise this 
strange abstract power over).

Once I got started researching this, I came across a series of 
complaints from anthropologists about the terminology we use to talk 
about property in land.  All the terms come from law books that are 
embedded in Roman tenurial practices that are culture specific and 
unique to the myriad cultures that came to adopt Roman law and its 
variations through history.  The terminology itself distorted the 
anthropologists understanding of tribal land tenure. This led scholars 
such as Imre Sutton (Indian Land Tenure) to use terms like "resource 
allocation" in lieu of "land tenure," I believe.

But I got a real boost in understanding reading Fustel de Coulanges' 
"The Origin of Property in Land."  To make a long story short, Fustel 
describes two ideological systems associated with pre-roman tenure and 
roman tenure.  The older system, expressed in early land holding 
institutions such as the English manor or German mark, was based on an 
ideological concept of an inalienable right each member of the group had 
to land.  In the Roman system, the right to the land was conditional 
through a system of fealty and homage to political superiors.

I personally believe that the concept of each person's inalienable right 
to the soil would also define 'government' in a radically different way 
than we define it under Western law.  Statesmen would be bound by 
culture to fill their primary obligation of providing each citizen with 
access to the soil for their sustenance.  This is where reading Fustel 
is most interesting, as he was arguing against the prevailing view in 
Europe in 1870 that such a situation could be described as "primitive 
communism."  In fact it is the perfect venue for private property - 
indeed much more 'private' than only 'owning' land within a conditional 
system of fealty and homage to one's political superiors.

I have yet to find one example that resembles Roman tenure in 
precolumbian America.  Even in elaborate and regulated systems such as 
the Calpuyec in Tenochitlan, the basic value of each member's 
inalienable right to the soil is upheld - even slaves were provided 
their ejidos.  It is for this reason that I disagree with your statment 
that "ALL titles, and ALL rights, exist at the mercy of the government." 
  By definition, an "inalienable right" would not be so constrained.

[Seppo]
>>Native title, is really a shit of a title, because it can't be sold.
>>Therefor it can't be used as collateral either so economic development
>>becomes a problem. 

"Native title" is a complete fiction.  In the Americas, for example, you 
can find just about every land holding scheme you can imagine, except, 
as I have mentioned above, a scheme resembling the Roman system.  In 
some of these systems, land can in fact be bought and sold, gambled 
away, inherited and so on.  I think you're only talking about "native 
title" as it exists in the minds of a colonial regime- such as was 
manifest in the U.S. Indian Allotment act, which defined Indians as 
"non-compus mentis" and therefore not qualified to be awared Fee Simple 
  title until the U.S. Attorney General found the individual to be 
mentally competent to appreciate the meaning of private property (which 
actually isn't private at all).

[Seppo]
>>It is for this reason the continuous unbroken
>>contact with the land is necessary - so the right people get the
>>Native Title. It is the only proof of the land belonging to a people.

Nonsense, Seppo.  I've mentioned the Yuroks earlier in this post, and 
they have a very rigorous private property system, where individuals own 
land, not villages or tribes.  The Indian Land Claims commission 
determined numerous claims based on ancestral occupation when a group 
was no longer on that land.  There are numerous ways to determine this 
other than continuous contact.  The famous Mixtec "lienzas" is a case in 
point - maps copied on linen from precolumbian sources that stood-up in 
a colonial court of law in Oaxaca to 'prove' aboriginal title.

In the United States, at least, there's a lot of confusion about Indian 
land tenure.  Felix Cohen was exactly wrong in defining "Indian land 
tenure as a "usufructory right," i.e. that you only "owned" the land you 
were occupying at any given time, and if you went away the land reverted 
to some sort of utopian wildness.

>>If people were forced off a land, at gun point, be it by troopers or
>>settlers is now history. You cannot right a wrong, but committing
>>another wrong. You cannot turn around and now dispossess another lot
>>of people of their land either. 

Sorry, kid, that's not the way the law works.  You've already 
acknowledged that the government can build a railroad track through your 
living room if it wants to, dispossesing you and your neighbors from 
your property.  Why the double standard?  A successful Indian claim 
would be no more dramatic than a new highway expansion project in terms 
of dispossession.

Erik Mattila