The Rights and Wrongs of Land Restitution

'Restoring What Was Ours'

Derick Fay, Deborah James

• Publisher: Routledge-Cavendish
• Year: 2008
• Print ISBN: 9780415461085
• eBook ISBN: 9781134044207
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The Rights and Wrongs of Land Restitution: 'Restoring What Was Ours'

offers a critical, comparative ethnographic, examination of land restitution programs. Drawing on memories and histories of past dispossession, governments, NGOs, informal movements and individual claimants worldwide have attempted to restore and reclaim rights in land. Land restitution programs link the past and the present, and may allow former landholders to reclaim lands which provided the basis of earlier identities and livelihoods. Restitution also has a moral weight that holds broad appeal; it is represented as righting injustice and healing the injuries of colonialism. Restitution may have unofficial purposes, like establishing the legitimacy of a new regime, quelling popular discontent, or attracting donor funds. It may produce unintended consequences, transforming notions of property and ownership, entrenching local bureaucracies, or replicating segregated patterns of land use. It may also constitute new relations between states and their subjects. Land-claiming communities may make new claims on the state, but they may also find the state making unexpected claims on their land and livelihoods. Restitution may be a route to citizenship, but it may engender new or neo-traditional forms of subjection. This volume explores these possibilities and pitfalls by examining cases from the Americas, Eastern Europe, Australia and South Africa. Addressing the practical and theoretical questions that arise, The Rights and Wrongs of Land Restitution thereby offers a critical rethinking of the links between land restitution and property, social transition, injustice, citizenship, the state and the market.

Chapter 1
‘Restoring what was ours’

An introduction

Derick Fay and Deborah James

Land dispossession is seen by some as the central political-economic issue of colonialism and as central to the creation of modern capitalism. It has rested not only on force but also on new forms of property and discipline; it has instantiated and affirmed Lockean notions of property and civilization and constructions of racial and ethnic difference. If land bridges material and symbolic concerns, as both a factor of production and a site of belonging and identity (Shipton 1994), then the loss of land is likewise simultaneously material and symbolic. Land restitution promises the redress of such loss. It is aimed at enabling former landholders to reclaim spaces and territories which formed the basis of earlier identities and livelihoods. Drawing on memories and histories of past loss, individual claimants and informal movements—and governments or non-governmental organizations (NGOs) working on their behalf—have attempted to restore and reclaim their rights. Land restitution thus brings the past into the present.

They have aimed, in the process, to set right associated injustices and violations. Land restitution thus forces the moral principles of restoration and justice to confront the difficult practices of determining ownership, defining legitimate claimants and establishing evidence for claims. It is an arena for state formation and nation-building, but also one where alternative forms of governance and counter-national identities may emerge. Particularly, in practice, restitution may draw both on modernity’s romantic aspect, a nostalgia for the lost rootedness of landed identity and gemeinschaft, and on its technicist aspect, as restitution is implemented through state bureaucracies and often tied to plans for ‘development’.

Land restitution may also have unofficial purposes: establishing the legitimacy of a new regime, quelling popular discontent, or attracting donor funds. Likewise, it may produce unintended consequences. Notions of property and ownership may be transformed, local bureaucracies may be entrenched, spatial patterns of land use that replicate older patterns of racial and economic segregation may be reinstated or consolidated. Moral discourses about righting past injustice through restitution may obscure its exclusionary aspects or its tendency to reinforce existing forms of social differentiation.

Land restitution arises from and relies upon key social relationships. Community belonging, often framed in terms of ethnicity or autochthony, may enhance the claims of certain dispossessed people but can also exclude others. Restitution frequently involves brokerage, as NGO representatives and others mediate between land claimants, landowners and the state. It also creates new relationships between states and their subjects: land-claiming communities may make new demands on the state, but they may also find the state attempting unexpectedly to control their land and livelihoods. It may be a route to full citizenship, or lead to new or neo-traditional forms of subjection. Thus land restitution contradictorily invokes the two visions of nationhood and political order: ‘one based on a liberal ethos of universal human rights, of free, autonomous citizenship, of individual entitlement; the other assertive of group rights, of ethnic sovereignty, or primordial cultural connection’ (Comaroff 1998:346; cf. Mamdani 1996). These take many forms, ranging from debates over the acceptability of sub-national sovereignties to those about whether restitution and neo-liberal notions of property are compatible.

The paragraphs above, adapted from a call for papers for a panel of the 2005 conference of the American Anthropological Association, highlight some key issues relating to land restitution. The papers delivered at that panel (with two additions) and now published in this book examine cases of land restitution worldwide. They aim, through ethnographic detail and with analytical precision, to illuminate theoretical questions and address some policy implications. In the process they intend to establish land restitution as a legitimate and fertile topic for investigation.

The anthropology of restitution

How can land restitution—in all of its national and local variations—be considered a coherent object of social or anthropological analysis sui generis? A study of restitution arises out of, and contributes to, a series of recent theoretical debates. But rather than simply elaborating upon established fields of enquiry, restitution brings these together in a unique and unexpected way. It requires us to think about property, social transition, injustice and redress, citizenship and community, the state and the market. In finding points of convergence between these diverse topics, the study of restitution prompts us to rethink each of them in turn.

A key topic of recent interest among anthropologists, and scholars of law and society, is that of property. Given recent bold attempts to take studies of property beyond their earlier limitations and, in particular, to question its ‘thingness’ or materiality (Verdery and Humphrey 2004; F and K von Benda Beckman and Wiber 2006; Strathern 2005), our focus on land might appear restrictive. Such studies show that it is not only land but many other things—water, wild game, ideas, intellectual contributions, cultural products and processes—that can be ‘owned’. Indeed, in settings of late industrial capitalism with transnational labour flows, land might be considered of little material importance. It can even be a liability rather than a productive resource (Verdery 2004). But it is precisely land on which restitution, as conceptualized in the present book, is centred. By emphasizing the restoring of land, we investigate how the return of territory at once promises the freedom of autonomy and self-governance, but may accompany this with the disadvantages of paternalism and even a second-class status in society, or may deny it by reinstating existing power inequalities and property relations. Landed property is the site where the promise of citizenship in the modern state is held out. In cases of restitution, such enjoyment is promised, but its realization may be fiercely contested and endlessly delayed. Citizenship in a specific territorial setting is thus both a poignant possibility and a frustratingly unachievable dream.

Looking at the restoration of landed property to its former owners thus allows us to examine the character of specific socio-legal and political contexts within which this is deemed possible, or desirable. Doing so enables us to make fruitful and instructive comparisons between such contexts, beyond merely showing how far they may have progressed in institutionalizing Western-style concepts of ownership, or mapping where the societies in question may be placed on the onward march towards the commodified relationships of global capitalism.

The political and legal contexts of restitution are those of disjuncture. Typically, restitution occurs to set right some earlier breaking apart of the social fabric. Equally, it may be at a present moment of social rupture that such redress is deemed possible. This may be the hiatus of a rapid transition between an old regime and a new, not-yet-established social order. Societies emerging after the end of the Cold War and the fall of the iron curtain, such as those of post-apartheid and post-socialism, are the most obvious examples here (see Burawoy and Verdery 1999; Comaroff and Comaroff 2000): both are represented in this book (see Chapters 2, Fay; 9, Leynseele and Hebinck; 8, Beyers; 3, Dorondel, in this book).

The rupture may, however, be less total, less far-reaching. Restitution also appears at moments of generalized social turmoil, as in North America in the context of the civil rights movement and anti-Vietnam protest. The late 1960s and early 1970s saw the rise of the American Indian Movement in the US, highlighted by the seizure of Alcatraz in 1971 and the protest at Wounded Knee in 1973. In Canada, around the same time, the Trudeau government’s proposal to repeal the Indian Act was met with a range of critical counter-proposals by Native activist groups. In this context, by 1974, both the US and Canadian governments had established land restitution policies for native peoples. Such policies walk a cautious line, promising to set right the past injustice of land loss without positing any major transformation to or reform of the social fabric as a whole (see Chapters 4, Plaice; 12, Blancke, in this book).

Other settings of more gradual transition may also provide the setting for restitution as states roll out new policies on land and its ownership and use, often as solutions to earlier failures which were themselves originally conceptualized as ‘solutions’ (see Crush 1995). In much of Latin America, especially in countries with long histories of land reform, new policies concerning indigenous rights and multiculturalism have emerged in the wake of the rise of human rights discourse, ‘[coinciding] with the 500-year anniversary of the European “discovery” of America, peace processes in several countries, the decline of the socialist alternative, and significant indigenous uprisings’ (Speed and Sierra 2005:3). In the Brazilian Northeast, new opportunities to self-identify as ‘indigenous’ or as ‘African-descended’ provided a means for groups to frame their desire to get land back (see Chapter 7, French, in this book).

But these ‘solutions’, although concerned with changes to land tenure, have not necessarily favoured its restitution. In the early twentieth century, Mexico had set in place restitution and redistribution policies in which land was allocated to communal groups, but in the 1990s, the state began bringing an ‘end to restitution’ by allocating land to individuals in an attempt to integrate its landholders into market-based relationships, despite considerable resistance (see Chapter 11, Tiedje, in this book). In the Peruvian example, the language of ‘indigeneity’ had currency in the early twentieth century, but restitution came in the 1960s to be linked to a language of ‘peasants’ or ‘campesinos’.¹ From the late nineteenth century to the present, landholders have engaged with power-holders, whether the recognized government or the revolutionary Shining Path, in attempts to procure independent ownership of the lands they work (see Chapter 10, Nuijten and Lorenzo, in this book).

In all these contexts, however varied, it is the experience of social disjuncture which gives restitution its promise of a liberatory, more equitable future. It is, in many cases, a keenly felt past injustice which leads to claims for redress. Those who once suffered the loss of a material, territorial basis of identity and livelihood demand that past wrongs are set right. Deriving from the experience of being wronged and from the gravity of things long past, restitution claims acquire a moral weight. The right to have the land restored is claimed on the basis both of grievance and of a shared memory of that grievance (Rowlands 2004; Feuchtwang 2000, 2003). Injustice, grievance, shared memory and community are thus closely linked ingredients in the restitution package.

In addition to the matter of social disjuncture, a further definitive feature concerns the role of the state. Restitution contexts are often those in which the state is a key actor, often ‘both playing the game and making the rules’ (Verdery 2003:81). It intervenes, in part, to protect the beneficiaries of the process—at least temporarily—from the ravages of the market. But state sovereignty in the ‘transnational’ contexts of global capitalism is on the wane (Hansen and Stepputat 2001; Trouillot 2001). State-planned economies are dwindling, ‘state capitalism’ (Hart 2001) is a thing of the past, and the market has been deemed a more effective midwife for development than the state. Returning land to its former owners, however, is often deemed to be a matter which cannot be left to the market. The state is required to act as nursemaid, although it may be preparing eventually to set its charges loose in the world.

A further peculiarity of restitution contexts is that they bring the state into relation with its citizens in something rather different from the classic interaction between ‘people and the state’ (Robertson 1984). Here the study of restitution makes a definitive contribution to our understanding of citizenship. The state as part-protagonist of, and part-participant in, restitution does not so much attempt to turn an ‘unreliable citizenry’ with its multiple views ‘into a structured, readily accessible public’, by laying out a single path to progress and thus creating homogeneity (Robertson 1984). Instead, restitution establishes the ground for a distinct kind of citizenship by constituting people as members of communities or groups, often in response to these groups’ own insistence that they be seen in this way. Such communities may be coterminous with those thought of as native, indigenous or autochthonous (see Chapters 12, Blancke; 7, French; 10, Nuijten and Lorenzo; 6, Morphy; 11, Tiedje, in this book).

Restitution thus promises to restore land to specific groups within the broader fabric of society which are understood as having earlier been unfairly dispossessed. It often represents a stage—but not necessarily the final stage—in a long-term set of struggles waged by such groups. When we study restitution it becomes clear that property, rights and underlying conceptualizations of law are understood in sharply different ways (see Chapter 6, Morphy, in this book): not only cross-culturally or across different societies but also within particular social settings. The very fact that restitution is feasible in a specific setting reveals that a part of this intra-social struggle has already been ‘won’. But this may be only the first step on a long road, with the nature of property relations—and indeed of the entire social fabric—being contested at every point along that road. By promising to make concrete the past, to make viable what had become mere ‘history’, by reinstating whole social orders from a past era, restitution represents a poignant prospect: a new set of ownership rights might be installed, predicated upon those which are said to have existed at some point in the past. As one of our authors puts it elsewhere, restitution is a ‘particular socio-legal context’ within which unusually boundless possibilities for social and political agency may crystallize (Beyers 2005:10). In making such promises it may also pose threats to those with a stake in the dominant order of property relations. Even if th...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Preface
• Acknowledgements
• List of contributors
• List of Tables and Figures
• List of abbreviations
• 1 ‘Restoring what was ours’: An introduction
• 2 Property, subjection and protected areas: The ‘restitution’ of Dwesa-Cwebe Nature Reserve, South Africa
• 3 ‘They should be killed’: Forest restitution, ethnic groups and patronage in post-socialist Romania
• 4 The lie of the land: Identity politics and the Canadian land claims process in Labrador
• 5 The antithesis of restitution? A note on the dynamics of land negotiations in the Yukon, Canada
• 6 Enacting sovereignty in a colonized space: The Yolngu of Blue Mud Bay meet the native title process
• 7 Ethnoracial land restitution: Finding Indians and fugitive slave descendants in the Brazilian Northeast
• 8 The will-to-community: Between loss and reclamation in Cape Town
• 9 Through the prism: Local reworking of land restitution settlements in South Africa
• 10 ¡Dueños de todo y de nada! (Owners of all and nothing): Restitution of Indian territories in the Central Andes of Peru
• 11 Que sucede con PROCEDE? (What is happening with PROCEDE?): The end of land restitution in rural Mexico
• 12 ‘We’ll never give in to the Indians’: Opposition to restitution in New York State