Since we (the Christian part of the nation) have abandoned our past customs and ceremonies, should we not enact our own laws to give character and stability to our leaders and give them the means to negotiate with the government under which we live so that they can from time to time make all our grievances, and other things about it? [8] (Italics is the summary of the source). This article discusses the challenges of the ongoing struggle for competing versions of U.S. history for our understanding of the law, with a particular focus on property rights. To the extent that case law has examined U.S. law in the historical context in which it arose, it has largely overlooked the role that laws and legal institutions played in facilitating the production of the two exceptional market goods in the colonial periods and early in the republic: expropriated countries and enslaved peoples. Although conquest and slavery have been the key to the production of property for centuries, property law scholars have constructed the field of property rights in such a way that it is largely free of these stories and without a strong idea of the formative role of race. As a result, recent movements to reintegrate these issues into the field in general reflect a broader tendency in the law academy to treat race as an elective issue rather than a fundamental one. This article shows that these stories contain ideas that are crucial to understanding their legacy in our current legal system. It reflects the evolution of current notions in the field of property rights and what we learn from suppressed histories. It shows that the history of conquest and slavery explains aspects of the system – for example, the construction of jurisdictions, real estate value, institutions on the ground, and the organization of violence – that belong to the core of the program and domain. With this analysis, the article aims to open a general examination of the impact of historical extinction on our understanding of property law and broader areas of law.7 It also models a method for conducting such an investigation in the hope of inviting future work to dialogue. Perhaps more importantly, this suggests that one of the consequences of eradicating historical contexts of property rights has been a reduced understanding of the dynamics of the property system as a whole. The field as it is currently conceived is fragmented into a loosely related bundle of teachings.
In fact, before I taught property rights, several people told me that designing the course is like assembling a train. You choose themes such as cars, which you line up at will. As a result, for generations of first-year law students, the course has tended to look like a bag full of subjects. As I describe below, materials about conquest, slavery, and race have entered the canon relatively recently, but with the effect that these themes become optional extra cars on the property trait that are different from units on physical characteristics, unfavorable possessions, or harassment, and are less essential. But the history of conquest and slavery is more than a complement to traditional teachings and offers more than an opportunity to apologize or condemn an unfortunate chapter in the past. They encompass the train track and are essential to explaining what U.S. property is and how it was built by law. Recent changes to some provincial alcohol laws have slowed the increase in the growing number of Aboriginal people incarcerated.
However, in provinces such as Alberta and Manitoba, Indians are still detained overnight, although authorities no longer have to charge the person. Evidence suggests that those imprisoned without charge are largely Aboriginal. [10] These detentions are not reported in official statistics. The relationship between the Indian nations and their European allies was determined by the timing and circumstances of the contact. This also determined the degree of compliance and enforcement of European laws. The debate between the French state and the church over ways to curb the destructive effects of alcohol led to an early encroachment on the right of Indians to solve their own problems. The state and church invoked various proclamations and laws regarding alcohol in the 1600s and 1700s, paving the way for special “Indian crimes.” In 1636, the following regulations were promulgated in New France: The European invasion of the east coast of North America lasted 250 years before the occupation was over. The forces of European expansion in the New World were explorers, traders, missionaries, soldiers and agents of monarchies.
The moment they wrested control of the East Coast from their indigenous owners, the tribes were decimated by disease, war, alcohol, and outright genocide. The authority of Indian chiefs and councils has been usurped.