The Legal Reasoning and Methods of Assimilation Employed in the Colonization of Indigenous Peoples: The Australian Aboriginal and Native American Example

When the Western industrial powers began colonizing areas outside of Europe, they not only encountered new lands, but also groups of indigenous peoples for the first time. These indigenous peoples, who practiced a different lifeway and had a different epistemology, were completely foreign or “exotic” to the colonizing Westerners. Because the local indigenous peoples did not speak the Westerner’s language, nor did they follow the Western system of law and order, the colonizers were able to self-justify their colonial practices.

The Colonial Ideology

The justification of the West’s colonial processes towards indigenous peoples has largely been grounded in a basic ideological assumption. This assumption has been clearly articulated by Craig Trocino in Civilizing the Savages: A Comparison of Assimilation Laws and Policies in the United States and Australia (1995):

The assumption that European culture is superior to all others, especially indigenous cultures, and the necessity for European culture to subjugate and assimilate indigenous cultures to the European world view has pervaded Euroamerican legal thought for centuries. Western thought has viewed indigenous people as inferior. This thinking led to the assumption that the indigenous people needed to be “saved” from their own social structures and cultures and taught how to live the “correct” Western lifestyle. Western thinking could not comprehend or accommodate the nomadic and communal cultures of most indigenous peoples. Western culture viewed indigenous peoples as infantile and in need of enlightenment. Therefore, the Western ethnocentrically conceived “Law of Nations” would require indigenous peoples to comply with Western norms. (p. 34)

In particular, the Western legal thought and doctrine used to rationalize and legitimize the historic, and in some cases present, process of imperialization and colonization of indigenous peoples has its basis in the implementation of what is known as the Law of Nations and the Doctrine of Discovery. The implementation of these two Western ideological laws has been particularly destructive to the indigenous peoples of present-day Australia and the United States – indigenous Aboriginal and Native American peoples.

Implicit in this Western legal thought has been the Western “colonizing discourse,” which historically embodied two basic themes: that indigenous peoples were in constant violation of natural law and that the Law of Nations was the supreme law. (Williams 1992: 221). Since natural law was historically based upon Western ideals and a singular conception of God and divine purpose, and the Law of Nations was based upon the Western concept of civilization, the indigenous Aboriginal and Native American peoples of Australia and North America had no chance of fitting into the Western mold put upon them. Furthermore, this ideology argued that indigenous peoples were inherent violators of natural law and the Law of Nations, and that the indigenous inhabitants of Australia and the U.S. “possessed no rights that civilized English monarchs or subjects were bound to recognize” (Williams 1992: 221). That is, because the indigenous Aboriginal and Native American populations had no recognized rights within the Western worldview – they practiced their own culture and lifeway – their land and property could be dispossessed.

Although Western legal thought has changed dramatically since Australia and the U.S. were colonized, one constant that has not changed is the manner in which Western legal thought “steadfastly adhered to a highly systemized mythological structure in confronting its experience of normatively divergent peoples” (Trocino 1995: 35). This systematic structure is derived from a Western world view that ardently believes in the omnipotence of its cause and the necessity of subjugating non-Western cultures. In essence, the Western world view coupled with the Western colonizing discourse created an effective tool for colonizing, controlling, and assimilating indigenous Aboriginal and Native American cultures that is still present today.

Methods of Assimilation

In implementing this colonizing discourse, the colonists in Australia and the United States employed four general methods to achieve their goal of assimilation and colonization. These methods, which acted more to isolate rather than assimilate the indigenous Aboriginal and Native American people, were justified in the context of the Western legal thought and ideology. The first colonial method was to acquire land, primarily through the Western Doctrine of Discovery. The Doctrine of Discovery justified colonists taking indigenous Aboriginal and Native American peoples’ lands because the colonists “discovered” the land. The land was deemed “discovered” because, it was argued, the indigenous people living on the land were not Christian and did not have a system of government that resembled the Western model. Without Christianity and a Western-style government, the local indigenous people were declared to have no rights. Since the indigenous people had no rights in the Western legal sense, the colonizers were free to take or “discover” their lands.

The second method of assimilation that was implemented was the reserve and reservation system. The Western colonists viewed the land as a commodity to be owned, while the indigenous Aboriginal and Native American people’s view regarding land was often diametrically opposed to the Western view. Indigenous Australian and North American people often view(ed) the land as an integral part of their life, religion, and culture. So integral, in fact, that it could not be owned by a single individual or group. In order to “help” the indigenous people become “civilized,” the second Western assimilation policy was to teach them how to properly respect the “value” of land through ownership. Therefore, land allotments, called reservations in the United States and reserves in Australia, were divided between tribes or bands for their use. History has demonstrated, however, that the reservation policy did not necessarily change the indigenous peoples’ concept of land, but it did dispossess many indigenous people from their traditional lands.

The third method of assimilation was aimed at denying indigenous people self-determination, meaning the ability to control their future. Indigenous Aboriginal and Native American people, after being dispossessed of their land, found themselves under the control of newly created supervisory authorities. These authorities, usually central boards of bureaus created by Western legislators, were given the responsibility of administrating and implementing the Western laws created to bring about assimilation. Eventually, these supervisory authorities assumed almost complete control over every aspect of the indigenous peoples’ lives. The net result of dispossessing the indigenous Native American and Aboriginal people of their lands, along with controlling their lives, was a loss of self-determination, identity, and culture.

The fourth method of assimilation was directed toward educating the indigenous children. In order for the natives to be assimilated into the Western culture, it was thought that they had to be educated in the Western way. Implicit in this method of education was the notion that the indigenous peoples were completely incapable of educating their own children. Furthermore, this Western educational scheme required the complete renunciation of the indigenous culture. Indigenous children, in both the U.S. and Australia, were forcibly and involuntarily taken from their natural parents to “schools” which “taught” them to act in a civilized manner. Sadly, many of these children never saw their natural parents again and never learned the ways their ancestors had lived for thousands of years.

The history of these four general assimilation practices, along with the West’s general colonizing discourse and ideology still haunt indigenous peoples today. Indigenous Aboriginal and Native American peoples have only recently begun to be recognized as sovereign peoples deserving of equal rights and social justice. In fact, it was not until 2008 that Australia formally apologized for its forced education program. Today indigenous peoples around the world, including Australian Aboriginals and Native Americans, continue to fight for their rights and identity. Through numerous efforts on various fronts, indigenous peoples are gaining grounds. We can contribute to this effort. Make a difference. Know the history. Change the future.

References

Ragsdale, John W. 1991. Indian Reservations and the Preservation of Tribal Culture: Beyond Wardship to Stewardship. University of Missouri-Kansas City Law Review, 59:498-511.

Trocino, Craig J. 1995. Civilizing the Savages: A Comparison of Assimilation Laws and Policies in the United States and Australia. Glendale Law Review, 14(1-2):33-72.

Williams, Rober C. 1992. The American Indian in Western Legal Thought: The Discourses of Conquest. Oxford, UK: Oxford University Press.

Further Reading