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Book Review
| P. G. McHugh, Aboriginal Societies and the Common Law: A History of Sovereignty, Status, and Self-Determination, Oxford: Oxford University Press, 2004. Pp. ix + 661. $150 (ISBN 0-19-825248-X).
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| This book is big in every way—length, price, scope, complexity, and, I think, success and importance. It is an account of the status of indigenous polities within Anglo legal systems from the onset of colonization to the present day. Paul McHugh focuses primarily on the United States, Canada, Australia, and New Zealand, and their British colonial predecessors. These are all places where the nature of the sovereignty of indigenous tribes has been a hotly contested political and legal issue for some time. Much has been written about this topic, but this work has virtually all been specific to particular jurisdictions (or indeed to small parts of particular jurisdictions) over short periods of time, and much of it has been written either by lawyers lacking a sense of historical nuance or by historians lacking a firm grasp of the legal issues. McHugh is the first to pull off a comprehensive long-run comparative synthesis of the subject. That alone is a considerable achievement. The book contains so much information arranged in such a sensible way that it should become the standard reference for historians, lawyers, and anyone else interested in the field. |
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McHugh structures his narrative around the argument that shifts in the legal treatment of indigenous polities were driven in large part by broad changes in Anglo conceptions of their own governments' sovereignty. Very roughly speaking, in the seventeenth and early eighteenth centuries, when sovereignty was generally understood as a personal relationship between ruler and ruled, there was nothing anomalous about sovereign tribes located within the Anglo colonial state, and tribes were able to exercise a high degree of self-governance. It was only in the late eighteenth and especially the nineteenth century, when sovereignty was reconceived along Austinian positivist lines as consisting of a unitary power within a geographic area, that Anglos began to perceive something anomalous about indigenous sovereignty. In all the colonies this was the era of the strongest drives toward assimilating indigenous people within a unitary state. This is an argument that can be carried too far if one ignores power relations on the ground, but McHugh does not carry it so far. He recognizes that it takes a certain degree of brute power before one can think of forcing others to assimilate and that settler governments lacked that power in the early years. Nevertheless I think he is persuasive that there was an important link between Anglo conceptions of sovereignty generally and the recognized capacities of indigenous polities. The more unitary the former, the less space left for the latter. |
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McHugh rightly places less emphasis on this link in the second half of the book, when he documents the resurgence in tribal sovereignty in each of the four countries since the 1970s, because this expansion in tribal power does not seem to have been accompanied by any weakening of the unitary conception of sovereignty. Many Anglophone lawyers may have become cultural pluralists in the past half century, but they seem just as positivist as ever. Although indigenous tribes today have greater powers of governance and more immunities from settler-state law than they did fifty years ago, the tribes are not understood to be outside the sovereignty of the settler state in the same way as McHugh shows they were before the late eighteenth century. |
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Any book covering so much ground will involve difficult questions of exposition. At times McHugh packs so much detail into so short a space that the narrative degenerates into a barrage of statutes and cases. There are long stretches where one loses the forest for the trees—we encounter this development, then that, then another, and so on, without much explanation of how they all relate to the broader themes laid out at the beginning of each chapter, some of which run for nearly a hundred pages. Coverage expands exponentially as the story approaches the present. The entire second half of the book is about events since the 1960s, and the last third of the book is a two-hundred-page account of the 1990s. Land claims have been a major issue recently, so the second half has a lot to say about land claims, but land acquisition by settlers and their governments is a topic McHugh has by and large deliberately left out of the first half. The result is a book that sometimes feels like two separate books stuck together. If these are faults, however, they are faults attributable to the author's prodigious learning. One's overall impression after reading Aboriginal Societies and the Common Law is astonishment that a single person could know so much. The book is a tremendous achievement that ought to be read by anyone interested in the sovereignty of indigenous people past or present anywhere in the world. |
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