Right of Conquest

[Elixir]

You can't differentiate right of conquest from result of conquest, but in the case of North America, "they" (Europeans) did (and do) spell out rights in laws that they can cite without meaningful contradiction and enforce without significant hindrance. That, as a result (aka a right) of conquest.

So your argument is contingent on proving that the enforcing the Constitution of the United States faced no contradiction or hindrance in its execution? Hoo boy do you ever have some reading to do. No, "uncontroversial" is not a term anyone would ever have thought to apply to American law.

Did I use that term? I think I said "without meaningful contradiction". When contradiction arose that WAS meaningful (oft recalled as The War of Northern Aggression even today), further violent conquest was required to re-impose "the law".

the Haudenosaunee, Cherokee Nation, Sioux Confederacy etc recognize its [the US Government's] authority over the United States, but not over their own internal affairs,

Those entities were conquered, and opted for the limited self-rule offered, as the only alternative to complete annihilation.

Nor have any conceded the legality of US seizure of their former places of habitation.

Yet the vast majority of (white) Americans are blissfully unaware of that fact. Some even wonder why "we gave" the indians all that land.

if trying to impose something causes a war, I do not think a reasonable person would describe that as "without meaningful contradiction."

I guess it's "meaningful" in some way if a repeat of the first genocidal violence is required for the conquerors to maintain supremacy. But if the uprising is quelled, its meaning to the conquering population is minimal as soon as the dust settles. That it remains meaningful to the conquered population is only incidental trivia to the conquerors.
I don't think many white Americans give a shit whether the Lakota Sioux get all upset about their land being desecrated by oil pipelines, or if they get shot, starved or poisoned for protecting it. As long as white people don't fear getting scalped by a raiding party in the middle of the night, it's not "meaningful" to them.

I don't mean to downplay or ignore the seriousness with which First Nations people take the destruction of their culture, the theft of their land and the genocide visited upon their populations, of course. But they are not (at least not yet) the victors in the story of conquest.

 

[Harry Bosch]

Post WWII the US has been a violent bully disrupting nation after nation.

Not for any good purpose.

So corporations can plunder and profit.

The US is far from perfect. But currently we're doing a decent job preventing Russian expansion into Eastern Europe. But the big issue is Taiwan. If it weren't for the US, there would be a very bloody battle over Taiwan right now. And China would eventually conquer Taiwan (although it would be devestating to both sides).

 

[steve_bank]

Post WWII the USA did something n9t seen in history.

At the end of WWII we had nuclear wepons and an untouched economy. Europe and Asia was in shambles. We did not enslave or exact tribute. We rebuilt Japan and helped Europe rebuild. Europe while allies went their own way. Japn today is free and independent.

The Soviets on the other hand conquered and dominated with force.

That difference above all our failings is what we represent. Which way the compass points.

One of our problems is that congress has ceded war making powers to the president. That has led to the military adventurism we are mired in.

 

[bilby]

Explain this "law of the land" part a little bit more. Do you feel that any living nation states actually recognize, in their imposed legal system, military conquest alone as a legal transfer of ownership? If so, which ones, and on what legal basis can this be claimed?

Under English law, all the land in England belongs to the Duke of Normandy, aka Elizabeth Lancaster, because she's the heir by primogeniture of an earlier Duke of Normandy, William the Bastard, who owned all the land in England by right of conquest.

It's actually a fair bit more complicated than that, as I assume you know. But are you voicing agreement with this principle?

I would suggest that it's not so much 'more complicated', and more that Bomb#20 has got pretty much everything wrong in that post.

The current Queen of England, Elizabeth Windsor (whose surname was formerly Saxe-Coburg Gotha) doesn't own all of the land in England, nor even a majority of it, though she does own quite a lot. She is the current Duke of Lancaster; But the title Duke of Normandy (which she also holds, amongst others) is recognised only in the Channel Islands.

She's also not a descendant of William the Bastard, who conquered England in 1066, as the line of descent is broken in several ways: The 'Anarchy' of the 1180s; The Wars of the Roses; The accession of James VI of Scotland to the English throne after Elizabeth I died childless; The invasion of William of Orange as part of an anti-Catholic coup against James II; And the abdication of Edward VIII in favour of Elizabeth's father.

And English law doesn't recognise anything that happened before July 6th, 1189 as having any legal standing. By the provisions of the 1275 Statute of Westminster, any event prior to the accession of Richard I on 6/7/89 cannot be used in English law. The status quo at that date is known legally as "since time immemorial", so whoever owned a plot of land on that date was the legal owner, free to bequeath, sell or trade the land in accordance with English law. This was a mechanism to finally end the long running disputes over land ownership that resulted from the Anarchy, during which several claimants to the English crown funded their wars with each other by granting land to various people in return for supplies, soldiers, and support, leading to the same piece of land having up to three different "legitimate owners" simultaneously.

So no, English law doesn't recognise the ownership of land by William the Bastard at all, and the English monarch only owned those parts of England not held by someone else (mostly various aristocrats or church officials, but also some committees of burghers in major towns and cities) on July 6th 1189, as far as could be resolved by the courts in 1275. The monarch's land ownership today consists of those parts of that land, less any sold or granted, plus some bought or acquired, in the succeeding eight centuries or so. The duchy of Lancaster is mostly land that wasn't owned by the monarch until the Wars of the Roses, as this was the personal holding of the Duke of Lancaster, who wasn't (until his victory at Bosworth Field) the same person as the monarch.

Of course, some of that land has since changed hands via legal shenanigans of dubious merit, perhaps most notably the vast transfer of church lands to the monarch made by Henry VIII when he established the Church of England. But it's not the result of military conquest. Henry didn't raise an army to disposess the Church of Rome, he just signed some papers.

 

[bilby]

I am having a hard time separating legal and practical. I'd answer no to your question abut ownership of parts of Seattle. The "rightful" owner(s) ceded use of that property temporarily but never gave title to the protesters, and the protesters never (afaik) made an effort to gin up a title and represent it as legal to the former (and actual) owners. So there was no transfer.
It seems to come down to what the legal definition of legal is.
And that always comes down to who can enforce what they say is law.

See, I've always thought that the definition of legal should come down to what's in the fucking law. If you want to talk about other philosophical justifications and so forth, you can, but if the question is "what is legal?" I sort of expect a legal justification to be forthcoming. Law is not arbitrary in a modern nation-state, there's a process for creating new laws and process for undoing old ones. I note that despite all the anger people feel toward the question being raised, no one has yet cited any real evidence that the Right of Conquest is a recognized legal principle in any currently living nation. The closest thing to this was citation of medieval England, a country that no longer exists and whose modern incarnation has repudiated this notion very specifically ever since the end of the Napeolonic Wars.

It's a popular myth, but typically conquest is not the way ownership is established in law.

What tends to happen is conflict resulting in chaos, followed by a legal process that seeks to resolve the chaos by arbitrarily picking a date in the past to declare as the basis for future ownership claims.

As described above, the first Statute of Westminster in 1275 did this by arbitrarily picking July 6, 1189 as the start date - if you had evidence of land ownership on or after that date, it couldn't be countered by earlier evidence. It's notable that the date chosen is sufficiently far back in time that nobody alive in 1275 would be able to personally recall any transactions or agreements (or even battles) prior to the cutoff.

 

[bilby]

US influence has never been anything but might and claims of the right to use it. The US is not an example to anyone except criminals.

Well, duh. Just like the Gulf War. The US threatens to use force if another country attempts conquest of another. When the US fades, and it certainly is fading now, that threat goes away. Pax Americana will come to end soon.

Good.

It has only been around for about seventy years, and it hasn't noticeably done better than the Pax Britannica that preceded it (and which the rest of the world also hated).

 

[J842P]

US influence has never been anything but might and claims of the right to use it. The US is not an example to anyone except criminals.

Well, duh. Just like the Gulf War. The US threatens to use force if another country attempts conquest of another. When the US fades, and it certainly is fading now, that threat goes away. Pax Americana will come to end soon.

Good.

It has only been around for about seventy years, and it hasn't noticeably done better than the Pax Britannica that preceded it (and which the rest of the world also hated).

Well, we'll see how much better it has done when it ends.

 

[Politesse]

I am having a hard time separating legal and practical. I'd answer no to your question abut ownership of parts of Seattle. The "rightful" owner(s) ceded use of that property temporarily but never gave title to the protesters, and the protesters never (afaik) made an effort to gin up a title and represent it as legal to the former (and actual) owners. So there was no transfer.
It seems to come down to what the legal definition of legal is.
And that always comes down to who can enforce what they say is law.

See, I've always thought that the definition of legal should come down to what's in the fucking law. If you want to talk about other philosophical justifications and so forth, you can, but if the question is "what is legal?" I sort of expect a legal justification to be forthcoming. Law is not arbitrary in a modern nation-state, there's a process for creating new laws and process for undoing old ones. I note that despite all the anger people feel toward the question being raised, no one has yet cited any real evidence that the Right of Conquest is a recognized legal principle in any currently living nation. The closest thing to this was citation of medieval England, a country that no longer exists and whose modern incarnation has repudiated this notion very specifically ever since the end of the Napeolonic Wars.

It's a popular myth, but typically conquest is not the way ownership is established in law.

What tends to happen is conflict resulting in chaos, followed by a legal process that seeks to resolve the chaos by arbitrarily picking a date in the past to declare as the basis for future ownership claims.

As described above, the first Statute of Westminster in 1275 did this by arbitrarily picking July 6, 1189 as the start date - if you had evidence of land ownership on or after that date, it couldn't be countered by earlier evidence. It's notable that the date chosen is sufficiently far back in time that nobody alive in 1275 would be able to personally recall any transactions or agreements (or even battles) prior to the cutoff.

I think you could make the case that it was once recognized in the "international law" as understood and promoted in Europe. But even so, it was treaty and statute, not battle, that ultimately resolved conflicts and established offical boundaries. And after the World War, land theft through violence was explicitly condemned by all parties, a situation which for the most part persists to this day.

 

[Politesse]

You misunderstand. I didn't offer an opinion on what Chochenyo people recognize.

Well, first and foremost, if you're talking international law, then it matters what the nations involved do or do not recognize. Do you have some particular reason, other than sympathy with one side over another, to disregard the absence of mutual recognition out of hand?

When I said people who allude to the idea of "recognizing" "indigenous" title are endorsing Right of Conquest, I wasn't referring* to Chochenyo people; I was referring to you. You effectively endorsed Right of Conquest, when you called (I presume) Alameda County "Chochenyo Territory", and when you implied they have a "title" to that land, a title the rest of us can "recognize" or not -- as opposed to having a title the rest of us grant to them. I'm arguing with you, not with them.

Dwelling in a place is not the same thing as owning it, certainly not from a Chochenyo perspective. I don't consider "Alameda County" to be Chochenyo territory, but the patch of it that I live on is, and long has been.

The reason claiming Alameda County is Chochenyo Territory constitutes endorsing Right of Conquest is that Alameda County used to be occupied by the Esselen tribe. About 1500 years ago the Chochenyo's ancestors drove them out and seized the land. The Esselen now mostly live down in Monterey County.

Another very fanciful retelling of history. You, of course, have no evidence whatsoever to support your notion that this was an instance of conquest in the first place (no one knows anything about the circumstances), let alone that this conquest was used as legal pretext for ownership of land (it definitely was not).

(* Of course, if any of the Chochenyo also claim they have "indigenous" title, then those specific individuals are endorsing Right of Conquest too. But if as you say land ownership wasn't recognized in the first place then that doesn't sound like they're claiming "indigenous" title.)

"Indigenous title" is actually a precept within British Law, not Chochenyo custom. Do you want to have a conversation about what indigenous title is, and to what it applies? Because I should warn you, it does not favor your point of view.

Sounds like somebody's culture wasn't static for 1200-odd years.

This is a really bizarre comment. Who said that it was? If society and politics were agelessly stable, there would be no need for law or custom to maintain it. Obviously, it is not.

I think it would be fair to describe the area as Esselen territory as well, with the caveat that we don't know what anyone involved called themselves at that time. It also means less from a legal standpoint, as there are no Esslen communities currently living around Coyote Creek, unlike the Chochenyo nation, which is still there. If there were to be Esselen people moving up into Fremont/Milpitas, they would be welcomed with open arms by their Chochenyo relations, because right by conquest isn't how they do things, especially now. The only arguments I've ever heard of between the two have been about archeological sites, and the issue there was degree of relation, not right of conquest. If everyone involved recgnized right of conquest as a valid legal principle, the US federal government would possess sole ownership to every archaeological site and its contents. But that has yet to be proven as a true legal principle even within the US' own laws, which leaves you making a very strange argument.

What the heck are you on about? No, counterfactual mythic history is not a good, sound basis for making any kind of claim. Where do you see me using that sort of justification? England? I already told you straight up "Not how I'd set up a system of government". I was reporting what English law is, not claiming it was justified.

No, you retold a very inaccurate rendition of a propogandistic fantasy concerning the foundation of England, and invited me to assume with you that this constituted "Law".

I'm not even going to try and tackle the racist nonsense in the rest of your post, as I don't see how it relates to the topic in the slightest.

 

[TomC]

"Indigenous title" is actually a precept within British Law, not Chochenyo custom. Do you want to have a conversation about what indigenous title is, and to what it applies? Because I should warn you, it does not favor your point of view.

This raises another thorny problem, at least here in the USA, concerning legality.

The current government of the USA signed multiple contractual treaties with various indigenous nations and tribes. Contracts that deeded permanent control of huge chunks of U.S. real estate to the indigenous peoples. Over time, the government simply ignored them. In some cases, the descendents of the original signers still have the original, physical, documents.

It's been awhile, so I don't remember the details. But, IIRC, the Iroquois have a deed from the Federal Government giving them ownership of most of Ohio.

Imagine if some indigenous peoples took their claims, in writing, to the U.N. and demanded that the U.S. government honored the agreements. The ones that the U.S. government wrote and enforced, when it suited them. Think that they could get the UN to recognize the Iroquois as a sovereign nation covering most of Ohio?

Something similar happened when the U.N. recognized Israel. And all the Zionists had to support their claims to the real estate was ancient writings and folklore and massive military support from western powers.
Tom

 

[Politesse]

Imagine if some indigenous peoples took their claims, in writing, to the U.N. and demanded that the U.S. government honored the agreements. The ones that the U.S. government wrote and enforced, when it suited them. Think that they could get the UN to recognize the Iroquois as a sovereign nation covering most of Ohio?

We are, in fact, currently under a decade-long review by the UN for violations of the Declaration on the Rights of Indigenous Peoples. But there is a problem when it comes to actually enforcing anything the UN decides, even if we are supposedly now signatories to said document.

But the situation with some nations is a touch more complicated even than this. So for instance the Chochenyo, as part of a larger body then known as the Costanoan Tribe, do not in fact have a treaty. They were told that a treaty had been signed, and were never informed when the Congress refused to actually ratify said treaty. The result of the vote was "sealed", and no Chochenyo person was informed about the outcome until the 1960s. So their removal was overtly illegal under US law, to say nothing of the United Nations. No reasonable body could ever review the case and conclude that depriving someone of their home on the basis of a fictional contract that one party refused to actually sign, but demanded conditions from, is a legal act. So the usual response is to try to avoid having such situations ever see judicial review. When they do, you get things like United States v. Santa Fe Pac. R (1940) and McGirt v Oklahoma (2019), legal outcomes that make everyone uncomfortable and future rulings complicated. At the moment the Chochenyo can't even bring such a case, as they aren't and won't be recognized as a legal entity. In order to claim rights as a Tribe, they have to first be recongized as a Tribe, and the US has thus far inconsistently refused to do anything of the sort.

In Canada, you have a different kind of complication. Almost all land area in Canada sits under suppposed treaty obligations, outside a few narrow urban bands in the south. In theory, any decision made about indigenous title in Canada has the possiblity of affecting nearly all of its land area. But as in the United States, the Canadian response to this is usually to just ignore treaty obligations and dare anyone who can to contradict them.

 

[TomC]

We are, in fact, currently under a decade-long review by the UN for violations of the Declaration on the Rights of Indigenous Peoples. But there is a problem when it comes to actually enforcing anything the UN decides, even if we are supposedly now signatories to said document.

Please describe the problem you're referring to.
Our veto power? Our massive military? Our willingness to abrogate agreements made in the past when the current elite prefer that?
What?
Tom

 

[Politesse]

We are, in fact, currently under a decade-long review by the UN for violations of the Declaration on the Rights of Indigenous Peoples. But there is a problem when it comes to actually enforcing anything the UN decides, even if we are supposedly now signatories to said document.

Please describe the problem you're referring to.
Our veto power? Our massive military? Our willingness to abrogate agreements made in the past when the current elite prefer that?
What?
Tom

For the most part, we simply refuse to pay the UN any attention whatsoever if its conclusions contradict our domestic policy in any way. We and our closest political allies are its miltiary arm, for the most part. So who's going to force the US government to do anything it doesn't feel like? It's not just our treaties with indigenous nations whose stipulations we causally ignore... since at least the end of the Cold War, the US does not consider any treaty or agreement she sign to hold any true legal weight in practice.

 

[TomC]

We are, in fact, currently under a decade-long review by the UN for violations of the Declaration on the Rights of Indigenous Peoples. But there is a problem when it comes to actually enforcing anything the UN decides, even if we are supposedly now signatories to said document.

Please describe the problem you're referring to.
Our veto power? Our massive military? Our willingness to abrogate agreements made in the past when the current elite prefer that?
What?
Tom

For the most part, we simply refuse to pay the UN any attention whatsoever if its conclusions contradict our domestic policy in any way. We and our closest political allies are its miltiary arm, for the most part. So who's going to force the US government to do anything it doesn't feel like? It's not just our treaties with indigenous nations whose stipulations we causally ignore... since at least the end of the Cold War, the US does not consider any treaty or agreement she sign to hold any true legal weight in practice.

So.
All of the above.

Yeah, I get it.


It's a hoot when certain people insist that the USA is the foundation of morality in the modern world, Pax Americana, isn't it?
Tom

 

[Politesse]

It's a hoot when certain people insist that the USA is the foundation of morality in the modern world, Pax Americana, isn't it?

If that's an intentional Tacitus reference, I fear I must agree!

 

[TomC]

It's a hoot when certain people insist that the USA is the foundation of morality in the modern world, Pax Americana, isn't it?

If that's an intentional Tacitus reference, I fear I must agree!

It was actually a direct reference to [MENTION=230]Trausti[/MENTION]; in post #77.

But, yeah, 12 years of Catholic Academy, I had a clue.
Tom

 

[steve_bank]

Yet another America bashing thread.

We live in a real world of finicky emotional temperamental ethno centric people. Conflict has been and always will be the norm.

Before the Europeans arrived the Americas had its share of empire and conquest.

It is always easy to bash our history. The inference is that at any point in time there are a set of decisions that can be made that lead to a tranquil happy world. Fantasy.

Freedom as in liberal democracy has grown, anchored by the post war USA. Inclusive of Japan, SK, Australia, New Zealand, westerns Europe. The idea of global human rights did not exist prior to WWII. The growth of the idea required economic and military's stability.

Military stability was NATO, designed to prevent WWIII in Europe. Freedom of navigation around the world without fear of military's intervention heled growth of global economies. China is threatening freedom of navigation on important maritime routes. Without our military counterbalance it is back to pre WWII naval trade conflicts.

I am not suggesting we dismiss our historical mistakes. Before you judge get rid of your ignorance of how we got the freedoms we use on the forum and how they are maintained.

 

[WAB]

Yet another America bashing thread.

We live in a real world of finicky emotional temperamental ethno centric people. Conflict has been and always will be the norm.

Before the Europeans arrived the Americas had its share of empire and conquest.

It is always easy to bash our history. The inference is that at any point in time there are a set of decisions that can be made that lead to a tranquil happy world. Fantasy.

Freedom as in liberal democracy has grown, anchored by the post war USA. Inclusive of Japan, SK, Australia, New Zealand, westerns Europe. The idea of global human rights did not exist prior to WWII. The growth of the idea required economic and military's stability.

Military stability was NATO, designed to prevent WWIII in Europe. Freedom of navigation around the world without fear of military's intervention heled growth of global economies. China is threatening freedom of navigation on important maritime routes. Without our military counterbalance it is back to pre WWII naval trade conflicts.

I am not suggesting we dismiss our historical mistakes. Before you judge get rid of your ignorance of how we got the freedoms we use on the forum and how they are maintained.

Seconded.

 

[untermensche]

Yet another America bashing thread.

We live in a real world of finicky emotional temperamental ethno centric people. Conflict has been and always will be the norm.

Before the Europeans arrived the Americas had its share of empire and conquest.

It is always easy to bash our history. The inference is that at any point in time there are a set of decisions that can be made that lead to a tranquil happy world. Fantasy.

Freedom as in liberal democracy has grown, anchored by the post war USA. Inclusive of Japan, SK, Australia, New Zealand, westerns Europe. The idea of global human rights did not exist prior to WWII. The growth of the idea required economic and military's stability.

Military stability was NATO, designed to prevent WWIII in Europe. Freedom of navigation around the world without fear of military's intervention heled growth of global economies. China is threatening freedom of navigation on important maritime routes. Without our military counterbalance it is back to pre WWII naval trade conflicts.

I am not suggesting we dismiss our historical mistakes. Before you judge get rid of your ignorance of how we got the freedoms we use on the forum and how they are maintained.

Just because others have been immoral is no reason to ignore clear immorality.

It is a lie to say government leaders could not behave morally.

People have to care about that though.

 

[Politesse]

Yet another America bashing thread.

We live in a real world of finicky emotional temperamental ethno centric people. Conflict has been and always will be the norm.

Before the Europeans arrived the Americas had its share of empire and conquest.

It is always easy to bash our history. The inference is that at any point in time there are a set of decisions that can be made that lead to a tranquil happy world. Fantasy.

Freedom as in liberal democracy has grown, anchored by the post war USA. Inclusive of Japan, SK, Australia, New Zealand, westerns Europe. The idea of global human rights did not exist prior to WWII. The growth of the idea required economic and military's stability.

Military stability was NATO, designed to prevent WWIII in Europe. Freedom of navigation around the world without fear of military's intervention heled growth of global economies. China is threatening freedom of navigation on important maritime routes. Without our military counterbalance it is back to pre WWII naval trade conflicts.

I am not suggesting we dismiss our historical mistakes. Before you judge get rid of your ignorance of how we got the freedoms we use on the forum and how they are maintained.

Asking critical questions about the standards of law that govern our society is not "America-bashing". If you feel that there is a coherent response to these questions that portrays the United States in a more positive light, you should provide that response, rather than complaining that someone asked the question.

I actually don't think that American law supports this idea of a "Right of Conquest", and nothing that has transpired in this thread has changed my mind on that point. So I do not see critiquing the legality of this supposed "Right" as bashing the US or Canada. They are obviously not free of guilt for their actions, but demolishing those nation-states would not singlehandedly solve the problem of human violence, nor have I claimed that they alone hoold guilt when it comes to the wrongs of the past. I actually believe quite firmly that equitably applying Constitutional protections would be an excellent first step in healing the rift between nations.

But don't tell me not to ask questions. I could think of no rule fundamentally more anti-American than "don't ask questions", especially if it is the vestiges of European colonialism that are being questioned. We started a Revolution whose purpose was, at least at its best, to free the world of those shackles. If we failed to follow through and make those freedoms universal in round 1, that's indeed to our shame, but that isn't the whole story, nor does it have to be the end of the story. We can make different choices, and we should make different choices.