Given the Supreme Court’s apparent denial of the federal and Oneida cert petitions relating to Indian land claims, we want to highlight important recent scholarship on “ancient” Indian claims. We previously posted it here, but it is worth another look.

Douglas Sanderson has posted his response to Jeremy Waldon’s papers suggesting that the claims of Indigenous peoples should be dismissed generally, or superceded. Professor Sanderson’s paper is titled, Against Supersession. It is forthcoming in the Canadian Journal of Law and Jurisprudence, Vol. XXIV, No. 1, 2011.

Here is the Abstract:

The availability of redress for historic wrongs committed against Indigenous people turns on a number of morally complex and politically charged issues. From the standpoint of moral theory, the problems of redress have been given articulate voice in the work of Jeremy Waldron whose writings have come to take the shape of conventional wisdom. Waldron’s arguments are three-fold: 1) counterfactuals are impossible to verify, and so it is impossible to know how we are to put injured parties into the position they would have been had there been no injustice; 2) entitlements fade over time, and so whatever right to redress may have once existed, the basis for those entitlements is now eroded; and 3) injustices can be overtaken by circumstances, such that what was once unjust become just. In this article I argue that each of these objections to redressing of historic wrongs fails of their own accord, and they fail in part because of Waldron’s failure to recognize that the injustices are not only historic, they are also contemporary and on-going wrongs committed against modern-day Indigenous people. There is no denying that circumstances have changed, but that does not eliminate the need to face up to the problems of injustice in the circumstances in which they occur: the present day, and we must face these challenges despite the fact that they present difficult choices and the probability of sacrifice.