© The Author(s) 2015Rosanna Masiola and Renato TomeiLaw, Language and TranslationSpringerBriefs in Law10.1007/978-3-319-14271-5_6
6. Manipulating Treaties
Social and Human Sciences Department, International University ‘Stranieri’ of Perugia, Piazza Fortebraccio 4, 06124 Perugia, Italy
‘As man disappears from sight, the land remains’
‘Man’s law changes with his understanding of man. Only the laws of the spirit remain always the same’
6.1 Intranational Treaties: Maori and New Zealand
All the treaties forced upon the native populations in North America and South America were the result of manipulations and misunderstandings, intentional or accidental. This arose with written statements and prospective agreements that would be read out aloud and then tentatively summed up by native interpreters, who most of the time weren’t up to the challenge of the text and the complicated legal language, as seen in previous sections. The sacred Indian territories and native soil on the American Continent was lost as a result of the many incorrectly translated treaties, distortions and intentional legal loopholes. The history of Indian Wars and Indian confinement to reservations is a history of a people wronged through peace treaties and the government of Washington. The history of the possession of New Zealand Maori soil by the British Crown is another story of unequal treaties. One interesting case is the Treaty of Waitangi (1840) in New Zealand. Even in the pre-treaty phase there was a whole string of deliberate mistranslations and cultural misunderstandings, which resulted in vast areas of the land being sold by the natives, with purchase deeds drawn up in English (Fenton 2001, pp. 1–17). The New Zealand Colonization Company was formed for the purpose of investing venture capital in the purchase and re-sale of lands in New Zealand in order to promote emigration to that country. This, at least, was the official claim and institutional payoff. It was an investment scheme with the blessings of civilization, religion and education, where land was bought cheaply from natives by wealthy farmers and speculators who would then invest in financing the future emigration of a young labor force from England, relieving it from overpopulation and unemployment (Burns 1989). The interpreter for the transaction was Dicky Barrett, trader, whaler and interpreter (Caughey 1998). However, buying and selling were alien to Maori cultural concepts and patterns of community behavior (cf. Mutu 1992, pp. 57–103). Furthermore, the deeds were laden with legal jargon and concepts as foreign to the interpreter (and whaler) as they were to the Maori. The deeds were concluded and the representative of the New Zealand Company, Edward Wakefield, was ready to buy (and sell) new lands for the company. Wakefield was totally oblivious to the fact that the Colonial Governor of New South Wales, also responsible for New Zealand, had declared that any land sales were null and void. At the time, he was unaware that all ‘private purchase’ and investment had come to an end with the Treaty of Waitangi and that consequently the British Government had finally extended its rule of laws to New Zealand. What followed was an investigation into the legality of such deeds. William Spain, a lawyer, was appointed Land Commissioner of New Zealand by Lord John Russell, Colonial Secretary. This is a brief extract of the deeds that were examined as evidence of the scheme during court hearings. It was no longer a matter of tricking the natives, but of going against the rule of the Crown:
Be it therefore known…have this day sold and parted with all our right, title and interest in all the said lands, tenements, woods, bays, harbours, rivers, streams and creeks, as shall be hereafter described…as a full and just payment for the same…to prevent any dispute and misunderstanding. And to guarantee more strongly …the whole of the bay, harbour and district of the Wanga Nui Atera, commonly called Port Nicholson, situated on the northeastern side of Cook’s Strait in New Zealand (Caughey 1998: 104; in Fenton 2001: 14).
This is the verbatim back-translation Dicky Barrett provided to the court of his Maori version of the deed:
Listen Natives, all the people of Port Nicholson, this is a paper respecting the purchasing of land of yours, this paper has the names of the places of Port Nicholson. Understand this is a good book. Listen the whole of you Natives – to write your names in this Book – and the names of the places – are Tararua continuing on to the other side of Port Nicholson to the name of Parangarahau ….(Ibid.)
The point is that the court wanted to see more clearly how the native chiefs had appended their signatures as they could not have understood anything of the legal language of a document of 1,600 words, which Barrett reduced to 115, and did not understand himself. Apparently Barrett had coaxed the chiefs into signing, explaining that their names might be seen by the Queen and that she would then know they were chiefs. This would give them a certain prestige, and they would possibly be sent gifts. The legality of the deed was questionable, but the reality was that British settlers had been caught in the scheme and had paid for the land. The outcome was a court ruling to the effect that the New Zealand Company had to pay compensation. Dick Barrett, together with his contemporary Henry Williams, the translator of the Treaty of Waitangi played a significant role in the country’s takeover by the British, and yet neither of them was familiar with legal jargon, laws and the Maori language. Land claims going back to 1840 are still being heard in New Zealand’s courts (Fenton 2001, pp. 16–17).
The Treaty of Waitangi was aimed at securing British sovereignty over New Zealand. It aimed at putting an end to decades of war with the Maori, but the result was that it engendered further rebellion and distrust. The first decades of the nineteenth century saw the outbreak of the ‘Musket War’ an inter-tribal war in which some twenty thousand Maoris were killed (1810, 1820, and 1830), using muskets brought over by Europeans. The 1840 Treaty of Waitangi aimed at ending inter-tribal warfare in order to protect the Maori, regulate British subjects and secure commercial interests. Wars between Maoris and Europeans over the possession of territories in the Waikato and Tarakai areas, however, continued from 1860 to 1863 (Orange 1987). The Waikato war started with the invasion by the British Army (July 1863). The most important battle was fought at Rangiriri. Even though Maori continued fighting for some 9 years, with this battle they had lost the war and lost their countries (November 1863). The events took place despite the Waitangi Treaty, signed 20 years before. The Treaty was prepared in a few days (February 1840), and a missionary man, Henry Williams, and his son translated the English draft into Maori overnight. The Maori chieftains (Rangatiratanga) were persuaded to sign with reassurances that they would retain authority. Many supported the agreement, and 540 signed the document which was sent around the country. There were some that refused, while others remained uncertain. The Colonial Office extended and enforced the Treaty to Maori tribes whose chiefs had not signed. The Treaty is not considered part of New Zealand domestic law, with the exception of principles referred to in Acts of New Zealand Parliament. The exclusive right to determine the meaning of the Treaty rests with the Waitangi Tribunal, a commission of inquiry created in 1975 to investigate alleged breaches of the Treaty by the Crown.1 What follows is an English version of some of the articles of the Treaty and the back-translation by Sir Hugh Kawaharu from the ‘original’ Maori version by Henry Williams.
Article the First
The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess over their respective Territories as the sole Sovereigns thereof.
Article the Second
Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates, Forests, Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf.
BACK-TRANSLATION FROM MAORI
The Chiefs of the Confederation and all the Chiefs who have not joined that Confederation give absolutely to the Queen of England forever the complete government over their land.
The Queen of England agrees to protect the chiefs, the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their treasures. But on the other hand the Chiefs of the Confederation and all the Chiefs will sell land to the Queen at a price agreed to by the person owning it and by the person buying it (the latter being) appointed by the Queen as her purchase agent.
The above translation of the Maori text of the Treaty was done by former tribunal member Sir Hugh Kawharu, Maori leader and former university lecturer. In the Maori text of Article 1, the Maori gave the British a right of governance, kawanatanga, whereas in the English text, Maori ceded ‘sovereignty’. One of the problems that faced the original translators of the English draft of the Treaty was that the British understanding of the word ‘sovereignty’ had no direct translation in the context of Maori society. Rangatira (chiefs) held the autonomy and authority, rangatiratanga, over their domains, but there was no supreme ruler of the whole country. In the Maori version, the translators used the inadequate term kawanatanga, a transliteration of the word ‘governance’, which is very different from ‘sovereignty’. In Article 2, the Maori version uses the word rangatiratanga in promising to uphold the authority that tribes had always had over their lands, emphasizing status and authority. In the English text, the Queen guaranteed the Maori the undisturbed possession of their properties, including their lands, forests, and fisheries for as long as they wished to retain them, with an emphasis on property and ownership rights. The time reference ‘forever’ has been added in the Maori version. Needless to say, legal expertise is required to define and understand the right of ‘preemption’ in terms of British common law. The Oxford Dictionary of Law links it to ‘option to purchase’ and in updated versions records that:
The right of first refusal to purchase land in the event that the grantor of the right should decide to sell. For example, if A makes a covenant that for 5 years he will not sell his land other than to B at £ 5000, A cannot be forced to sell but B’s right of pre-emption prevents him from selling to other than on the stated terms for 5 years. A right of pre-empion is valid only if it is sufficiently precise. A right of pre-emption created in registered land after 13 October 2003 is registrable as a restriction on the proprietorship register of the affected land.
The Maori believed they had ceded to the Queen a right of governance in return for the promise of protection, while retaining the authority they had always had to manage their own affairs. The facts, however, proved to be far from their belief and trust.2 Land claims and legal actions totaled almost two thousand.3 The Crown signed a Deed of Settlement with the Waikato-Tainui community in 1995. This included a formal apology for the actions taken in the wars of the 1860s and their legacy.
6.2 The Trail of Broken Treaties and North-American Indians
As seen in the first and second section of chap. 5, in colonization and expansion there is a recurrent manipulation of key concepts like possession, sovereignty, boundaries and territory in the sequel of manifestoes, agreements, and treaties. The history of the North American Indians is very similar to that of other colonies with the same problems related to culture, concepts, land and possessions (Prucha 1994). The metaphor of the ‘Trail of Tears’ for Indian deportation from native land has parallels with the ‘Trail of Broken Treaties’. The number of broken treaties, however, is staggering: 500 treaties broken, nullified, and changed in the course of the infamous history of the reservation system, the Appropriation Acts (1871) and the Removal Act (1830), a law passed during the presidency of Andrew Jackson. This law authorized the president to ‘negotiate’ the removal of the major Indian tribes from their homeland in the southern states to federal territories west of the Mississippi river. It was a transplantation of the Indian Nation, supported by the whites, who were eager to access and exploit those lands. Tribes and families were subsequently deported from one territory to another and from one reservation to another. Unfair laws were passed, unequal treaties were signed, and most of them were broken. Many tribes, moreover, did not benefit from these ‘broken treaties’ and never received recognition from the federal government. They thus remained outside the ‘reservation trust-land’ and federal programs.
Over time, some key terms related to space and geography became loaded with new meanings, particularly in the context of the colonial legal terms. The concept of boundaries, frontiers, prairies and plains, for example, as determined by the natural morphology of the American continent is recurrent in such treaties and has different denotations and significance (Carlson 1998; Hurt 2002). With the Westward Expansion, these terms have become key concepts in the history of language and geography, and in the history of colonization through treaties (Lazarus 1991; Nabokov 1999; West 2009; Zinn 2003). If there is a loss of connotative meaning in translating these terms into European languages, the semantic loss of ‘legal’ meaning is irreparable and irretrievable. It was impossible for the American Indians to understand all the legal implications, and as a result they lost their lands. The meaning of /boundary /here, for example, is totally different from that in the context of the London Memorandum previously analyzed.
The current definition of the term boundary is: ‘something that indicates the farthest limit, as of area; border’ (CED 2000). In British English, it coexists with the more literary form of /bourne, bourn/ (ca 1600; from the Old French borne).4 The term /frontier /often collocated with ‘wild’, features a new landscape and is currently defined as: ‘the region of a country bordering on another or a line, barrier, etc., marking such a boundary’ (CED 2000).
In the context of the American expansion to the west and the plains, the two terms overlap and define an extreme limit, the farthest limit. Boundaries, however, had to be set by government surveyors according to the needs of white settlers, pioneers, colonists, hunters and miners, and along the new railways. The case of the Mason-Dixon Line is significant for its metaphoric meaning of the cultural division of slavery and non-slavery states.5 The original intent was to settle a demarcation dispute between the states of Pennsylvania and Maryland (1738).
The Wild West was the Wild Frontier. In American English, the term used for the Great Plains is the French word prairie (ca 1800; Old French from Latin pratum grass field, meadow). The following definition in the American legal dictionary (Osborn 2013 ) is in stark contrast to the apportionment of land and the extortion of ancestral Indian territories:
An imaginary line, natural or artificial, marking the division of contiguous parcels of land. Boundaries are determined by acts of the owners, by statutes or orders or legal presumption. It is important to determine boundaries in many types of legal actions including the recovery of land, trespass and nuisance.
The concept of space is rich in symbolic national values clashing with the spiritual beliefs and cosmic harmony of ‘heaven-and-earth’ tribal and ancestral Indian narrative. It is often used with the concept of ‘prairie’, borrowed from the French prairie meaning ‘open meadow’. New frontiers and territories, native resistance to massive encroachment on their land and environmental exploitation created a new vision of the American space and place as a cultural ideal (Brown 1970) on both sides. The conceptualization of space and place and subsequent narrative and representation take place within the framework of time. Regarding maps and descriptions of the territory in treaties, temporal signposts, deadlines and expiration were determinant in the application of the law. In this context, American-Indian interpreters were faced with an almost impossible task when they acted as mediators in treaties, negotiations and, eventually, reconciliation (Kawashima 1989; Karttunen 1994; Roland 1999).
The history of reconciliation, redress, compensation had one prophetic voice in Helen Hunt Jackson (1830–1885). In 1881 she highlighted the plight of native Americans to Congress, sending each member a copy of her A Century of Dishonor at her own expense: ‘to redeem the name of the United States from the stain of a century of dishonour’. Helen Jackson’s survey features the histories of seven different tribes, emphasizing aspects of justice and law following the disastrous effects of the 1871 ‘Indian Appropriations Act’. This work was not reprinted until 1964. The author also presented a bill aimed at creating Indian reservations and Indian schools, but it was rejected. The 1960s and 70s were the decades of Indian political movements and civil rights protests and saw the centenary anniversary of the treaties and the abolition of slavery.
One important episode in the civil rights movements at that time is the ‘Trail of Broken Treaties Caravan’ also known as the ‘Pan-American Native Quest for Justice’, when in November 1971 the American Indians Movement (AIM) took over the Bureau of Indian Affairs in Washington for several days. This came after President Richard Nixon had signed the ‘Termination Act’, another law detrimental to the American Indian nation. Under the ‘Termination Act’, former federal supervision and subsidies were to be administered by the individual states where the tribes had settled, leaving them virtually without social benefits. In 1924, Native Americans were granted citizenship, but they weren’t granted voting rights until 1948 after their contribution to the Allied Forces victory. In the fifties (1954–1960), some sixty tribes suffered forced ‘relocation’, in compliance with a social program aimed at transforming them into either cheap land laborers or proletarian ‘urban’ dwellers. Ten years later in 1971, the American Indian Movement (AIM) organized the protest march known as the ‘Trail of Broken Treaties Caravan’. This was a cross-country protest march (wagons, buses, trucks, etc.) to Washington, to present a ‘20-Point Position Paper’ against President Nixon’s Termination Act. The march was also a demonstration of support for the occupation of the ‘little island of Alcatraz’, where Indians were shot by the FBI.6 The following is the Preamble to Trail of Broken Treaties with 20-Point Position Paper, significantly subtitled An Indian Manifesto. Restitution, Reparations, Restoration of Lands for a Reconstruction of an Indian Future in America. 7
We need not give another recitation of past complaints nor engage in redundant dialogue of discontent. Our conditions and their cause for being should perhaps be best known by those who have written the record of America’s action against Indian people. In 1832, Black Hawk correctly observed: You know the cause of our making war. It is known to all white men. They ought to be ashamed of it.
The government of the United States knows the reason for our going to its capital city. Unfortunately, they don’t know how to greet us. We go because America has been only too ready to express shame, and suffer none from the expression – while remaining wholly unwilling to change to allow life for Indian people.
There are some points that are particularly interesting from a legal perspective, such as the link with civil rights and constitutional, federal and state laws. The real challenge seems to be agreeing on new treaties after 500 broken ones in 200 years. Some of the 20 points listed below highlight the need to be exempted from state jurisdiction:
Restoration of Constitutional Treaty-Making Authority;
Establishment of Treaty Commission to Make New Treaties;
Commission to Review Treaty Commitments and Violations,
Resubmission of Unratified Treaties to the Senate;
All Indians to be Governed by Treaty Relations;
Mandatory Relief against Treaty Rights Violations;
Land Reform and Restoration of a 110-Million Acre Native Land Base
Revision of 25 U.S. Code §163 on the Role of Indians
Restoration of Rights to Indians Terminated by Enrolment and Revocation of Prohibition against ‘Dual Benefits’ of the Laws enacted under Public Law 280 (1953)
Resume Federal Protective Jurisdiction for Offenses against Indians
Creation of an ‘Office of Federal Indian Relations and Community Reconstruction’
National referendums, Local Options and Forms of Indian Organization
What emerges here is the call for new treaties, federal laws and referendums empowering the Indian nation. The clearly articulated point on ‘Judicial Recognition of Indian Right to Interpret Treaties’ epitomizes the need for correct interpretation of the treaties as a legal right. The request is aimed at preventing manipulation and distortion in the interpretation of applicative measures and treaty enforcement.
Judicial Recognition of Indian Right to Interpret Treaties: