Fisking the Treaty Principles debate

Cartoon by Nick Kim

Remember "fisking"?

It's what you feel you have to do sometimes -- not so much to refute idiocies, as to reveal the bad thinking that causes them. Especially if that bad thinking is shared so widely.

Here below is some bad thinking that's shared widely, so I thought I'd do some fisking. Here's the context:

Last week Rawiri Waititi leaked a Ministry of Justice report said to prefigure the Coalition Government's proposed Treaty Principles Bill, which he, the report's author, and TV1 News all say "are at odds with what the Treaty of Waitangi" actually says."

Here's what the relevant bit of the leaked Treaty Principles Bill says:

And here then is a "lecturer in Te Tiriti o Waitangi" who agrees the principles in the leaked Bill have got it all wrong:

So let's follow his arguments and see if he's right.

But first, some history: why does so much law reference "Treaty Principles" rather than the Treaty/Te Tiriti? Simple answer: because from the time of the Fourth Labour Government, governments have been adding at the head of most important legislation words like "must have regard to the principles the Treaty of Waitangi." And because no government then or since have been buying a fight, and also because then Attorney-General Geoffrey Palmer thought that law needed to be vague so that it could be flexible, no bastard ever bothered to define in law what those principles are. So the courts tried to do the job instead, making a complete fustercluck of it, adding nonsense like "partnership," and "participation." (Long story here, if you're interested.) And so, ever since then, embedded at the head of most of the country's important legislation, are weasel words that remain essentially undefined. (Here it is for instance embedded as part of the Purposes and Principles of the RMA.)

Now, as any good lawyer should understand, embedding undefined weasel words into the head of legislation goes against the principle of good objective law. To remind you, good objective law is clear, precise, predictable, contextual, and rights-based. This is none of the above.

So the Coalition Government's proposed Treaty Bill -- alright, let's be honest, David Seymour's bill -- seeks to change all that, change it at least by adding precision to principles that, at the moment, have none. NOTE: the Bill does not seek to change The Treaty/Te Tiriti; it aims instead to change these undefined principles written into so much of New Zealand's law.

That's what Section 8, above, is referring to. It says that the aim of this Treaty Principles Bill is to give to existing legislation both certainty and clarity, so that the written law means what it is intended to mean, not what it could be taken to mean.

Got that? Alright then.

So let's see what our Tiriti lecturer has to say about this, and answer his claims one by one. (His claims in purple; my responses in italics.)

He says that the leaked document "confirms that the government's intention here is not to define the principles of the Treaty of Waitangi but to erase them."

If you've followed what I said above, you'll already see that's not the case. As long as those "principles of Te Tiriti o Waitangi" remain embedded in so much law, they need to be properly and objectively defined. Which is Seymour's aim.

He says "the intention is to replace the existing principles with three new ones, which are supposedly based on the three articles of the Treaty."

See. Even he doesn't think they're going to be "erased." That was just him jacking up his argument for effect.

"The problem," he says, "is that the 'new' principles don't remotely resemble what Te Tiriti (or even the Treaty) actually says."

Two claims there: that neither English Treaty nor Māori Tiriti "remotely resemble" what the principles in the proposed Bill say. Do you get the sense already he's jacking up the argument again ... ?

See, the Treaty/Te Tiriti has three Articles. They've very short -- which doesn't make them clear -- and they're in two different languages -- but there is at least general agreement on the subject of each clause.

Subject of the First Article is governance, or sovereignty. Subject of the Second is land and resources. Subject of the Third is rights. (As with all good law, the earlier Articles take precedence.)

So let's see what his argument is for the Bill's principles not "remotely" resembling the Treaty's/Tiriti's ...

First off, he says, "the paper uses the term kāwanatanga to say that the govt have the right to govern all New Zealanders. This is a complete fabrication - as scholars like Margaret Mutu have repeatedly said the term kāwanatanga in Te Tiriti gave the Crown a limited power to govern its own people."

He agrees at least that kāwanatanga means governance. And so does Margaret Mutu. Mutu says however, "That kāwanatanga was for Pākehā," She says, "It was never intended for us." And she does say it repeatedly. But saying it does not argue for it.

The Treaty (English text) say that chiefs "give absolutely ... the complete government over their land." Tiriti says "tuku rawa atu" (literally: relinquish; very; away) "ake tonu atu" (from below upwards; permanent; away) "kāwanatanga katoa o o ratou wenua" (governorship; completely, without exception; they/them; land). 

That's fairly clear. The only thing undefined there really is that word "kāwanatanga," a missionary neologism (governorship) which Māori would have understood from the power of Roman governors displayed in 'Te Kawenata Hou' ('The New Testament') and from having visited New South Wales and seeing the power there that governor exercised. That this was well understood is evidenced from the discussions at the Treaty signing, where rangatira showed they understood that agreement would mean the Kāwana having police power over them, for example -- "If thou stayest as Governor, then," said Te Kemara, then, "perhaps, [I] will be judged and condemned. Yes, indeed, and more than that--even hung by the neck." This would be puzzling if signatories understood things the way Mutu says they did. 

Because kāwanatanga exercised only over Pākeha would not give the kāwana this power. So Margaret Mutu and others will need to explain how governorship that clearly gives coercive power over everyone, including rangatira if necessary -- which is what signatories understood kāwanatanga to mean -- means instead that it gives limited power and only over Pākeha. She doesn't, and can't.

 Next, our Tiriti lecturer says, "The paper then uses 'tino rangatiratanga' to say that all NZers can exercise chieftainship of their land and property. This is just incoherent. That's not what the term means in tikanga or in state law. Tino rangatiratanga is a power of collective self-determination for Māori."

Two claims there: First, that "tino rangatiratanga" is only for Māori. And on that, in 1840, he's exactly right. (Should it stay that way? Read on.)

Second, that both "tikanga" and "state law" say that "tino rangatiratanga" means "collective self-determination." Well, not quite. "State law" and practice does sometimes suggest it as "a framework from which Māori have continued to challenge governments for recognition of our individual and collective self-determination," so it's certainly an aspirational meaning. And that's sometimes how the courts have decided to interpret this. But that doesn't mean that it did say that at the time, or that it has to say it now. (State law is nothing if not mutable.) 

Translating it however even back in 1989, Hugh Kawharu rendered it simply as "unqualified chieftainship." Far from being incoherent, the Bill retains that idea.

But in what way should that chieftainship be directed? For a start, Article Two is about land and resources. (It comes in a natural order from Article One, explaining what sovereignty is for; in this case, to protect land and resources). This is most clear in Article Two (Part Two), which is about how land and resources will be sold, if owners want to. (This part was most important to the colonising government.) And Article Two (Part One) says that government will protect that land and those resources if they don't desire to sell. 

Importantly, it also promises this not just to chiefs, but also to "families and individuals [original English text]/"the subtribes and all the people of New Zealand" [Kawharu translation]. This was pretty neat, at the time. (And, yes, at the time "all the people of New Zealand" only referenced tangata māori. And that's because that's who was being asked to sign.)

So that sets the context for what "chieftainship" means in Article Two. Because it can mean many things, based on the agency and power chiefs then had: power, ownership, independence, autonomy, liberty even. But in this Article, Article Two, the context is clearly land and resources. So in this context "unqualified chieftainship" means, as per the English text, that possession of lands and resources would continue "full exclusive and undisturbed," with all the independence and autonomy therefrom, just as long as owners (chiefs, families, individual NZers) didn't want to sell them to the government.

And that's what the Bill attempts to specify as the principle behind this Article Two: that it is about government promising to protect the property rights of all signatories. (And now, by extension, all New Zealanders.) And since no-one now would to enforce a law allowing land to only be sold to the government, it wisely ignores Article Two (Part Two). (As does our lecturer.) And it takes the liberty of extending this protection to all NZers (since, as a principle, it's a good one.)

Mind you, it doesn't specify it as an individual right, which is a pity. But neither does it specify it to be a collective right, since it can't be. Why? Well we're all aware by now (or should be) that both Treaty/Tiriti and contemporary activists confuse and fudge the difference between individual rights (which governments are properly set up to protect) and so-called "collective rights," which only make sense as individual rights voluntarily delegated. (Q: Why do they fudge? A: Because it grants tribal leaders semi-feudal privileges.)

But we do know that the Treaty's framers were unfortunately equally confused. Translator Henry Williams told signatories at Waitangi that Article Two (Part One) "confirms and guarantees to the chiefs and the tribes, and to each individual native, their full rights as chiefs, their rights of possession of their lands, and all their other property of very kind or degree." You can see the confusion right away. The actual drafting is just as confused. But that doesn't make it right.

Williams's explanation however is helpful, because it makes clear that despite the confusion, an individual property right is still being offered. And that's essentially what the leaked Bill is offering to make clear now.

Our Tiriti lecturer continues: "The 'new' article 3 then says all NZers are equal under the law with the same rights and duties. A nice idea (it'd be cool if my Māori whānau had the same life expectancy as my non-Māori whānau but heoi ano), but that's not what Te Tiriti says. Article 3 is a right of equity."

Several confusions here.  

First, this is not at all a "new" Article Three. As above, it's intended to clarify law in places in which "the principles of the Treaty/Tiriti" has been inserted. 

Second, ensuring to all individuals "the same rights and duties" is not at all the same as ensuring to them all the same outcomes. Much could and has been written on the difference between equality before the law, and equality of outcome, and this isn't the place to replicate it.

But it is the place to make clear that what Article Three offers in the English text is equality before the law ("all the rights and privileges of British subjects"), in the Williams explanation it is also equality before the law ("all the rights and privileges of British subjects") and in the Kawharu translation it is still and remains equality before the law ("the same rights and duties of citizenship as the people of England"). 

It's true that Kawharu argues that the discussion at the Treaty signing about Hobson being a "father" to signatories suggests a focus on outcomes, or on "equity." But I argue that the repeated use of the “father” figure there is used less in the sense of someone to care over their every need, but more in the sense of either stern judge and a peacemaker, echoing the words of Tamati Waka Nene (harking back perhaps to the need for a mediator after recent wars) and also in the sense of being a teacher or wise adult from the outer world to allow them to learn and grow. Pumuka, for example, chief of the Roroa Tribe, has this sense when he says: "I wish to have two fathers - thou and Busby, and the missionaries." From the latter two he and his colleagues have already learned “Christianity and the Law,” he says (a major theme later at the Kohimarama conference) and they've seen and embraced the cultural change therefrom. 

The astute reader will also notice there is a difference between "duties" (per Kawharu) and "privileges" (per Williams and the English text), and it's the former that the Bill plumps for. Which is a shame, since "duties" suggests that government can make us behave in ways of its own choosing. It's a particular shame the word used wasn't "responsibilities," which would make clear who's responsible for outcomes over one's own life. In the formulation of one Ian Fraser several years ago,

"individuals are the rightful owners of their own lives and therefore have inherent rights and responsibilities; and ... the proper purpose of government is to protect such rights and not to assume such responsibilities."

That would make things plainer, perhaps. But that's not what Te Tiriti says. More's the pity.

Our Tiriti lecturer continues: "As this [TV One] article says, the govt's own officials have said the Bill is in breach of both the spirit and the text of the Treaty. That's a fairly direct statement but it's completely warranted. In my opinion this is the most direct attack on Māori by the govt in a generation." 

Government officials say all sorts of things. And these government officials are leaking, so clearly they don't agree with it. But, frankly, we're all entitled to form our own personal view of whether or not the Bill is in breach of either or both the spirit and text or, if indeed, it affirms them. After all, we all have agency, right?

Is it an attack on Māori? I can see that some individuals in Māoridom would see it that way -- especially those who have been granted legal privileges under the court's present principles. (To paraphrase Thomas Sowell, those granted extra-legal privileges are apt to howl when they're taken away.) 

But if it is an attack, I would characterise it instead as an attack on bad law-making, and an attempt to correct it before extra-legal privileges become cemented in -- if they haven't already. 

Continuing... "The great shame is that rangatiratanga can be good for everyone. The exercise of rangatiranga in the lockdowns kept people safe. Kaupapa Māori orgs led the vaccination effort. Our rivers and lakes are always healthier when Māori share decisions. There are so many examples."

I agree, rangatiratanga can be good for everyone, if and only if the meaning of  rangatiratanga can be agreed upon. Rangatiranga as liberty is very agreeable, and good for all. Rangatiranga as rights of ownership is also good for all. Folk exercising agency individually and voluntarily did help reduce the spread of COVID. Organisations everywhere, from iwi agencies to pharmacies, vaccinated thousands -- and were paid to do so -- and good on them. Our rivers and lakes are healthier when property rights are protected -- as this proposed clarification of the principles of Article Two might help to do. And more affordable homes can be built when rights to one's own land are recognised in law ... As he says, there are so many examples.

He concludes by saying "Te Tiriti" can be good for us all. 

That is possible. But it might first take some clarification.

Here's the Swell Maps:

NB: I've taken both the English text of The Treaty and Williams's explanation of Te Tiriti from Ned Fletcher's book The English Text of the Treaty of Waitangi (reviewed here). Hugh Kawharu's semi-official translation of Te Tiriti appears at the Waitangi Tribunal site.

It's the chieftainship that's still the problem

  

THE NEW PRIME MINISTER heads up to Waitangi this week with all his hangers-on expecting, I daresay, to see his brief honeymoon period challenged by tribalists still angling to be bridesmaids in ongoing "co-governance" nuptials between Crown and tribal "leaders." Whatever that unfortunate phrase might mean.

Ever wondered why, in a world that's said to be about individuals and individual achievement, we still seem to have government support of a tribal system? Any challenge to which, even in the name of simple individualism, is branded "racist."

What happened? How come these putative leaders see no future for their own various hangers on except through government handouts? What happened to genuine independence?

THOUSANDS OF YEARS AGO, while European sailors were timidly tipping about the shores of the Mediterranean, terrified to leave sight of land for fear of who-knows-what beyond the horizon, intrepid Polynesian voyagers set out across the vast blue Pacific Ocean, half a hemisphere wide, to explore and occupy its many uncharted islands. Centuries later, as the world warmed, several of the most intrepid eventually discovered and settled in New Zealand. And then for just over five-hundred years, isolated from the rest of the world, they developed their own culture. They became Māori.

So in that great migration "out of Africa," these islands down here were the world's last great land-mass to be settled by human beings. And then, after half-a-century of autarchic ingenuity, they were almost the last to be brought back into the worldwide division-of-labour.

This sort of conquest and survival should be something to celebrate, no? The tale once proudly told of the Vikings of the Sunrise. Yet if the headlines are to be believed, the descendants of these former adventurers, the so-called tribal "leaders" of the day, see their own great conquest as creeping tribal capture of the government chequebook.

What a bunch of schmucks.

Tribal life

THESE SOUTH PACIFIC 'VIKINGS,' who were these islands' first settlers, were welcomed into the worldwide division-of-labour 250 years ago by explorers, whalers, sealers, timber-traders, and assorted beachcombers, wanderers and adventurers, who offered Māori things for their labour they'd never seen before. And in return for tools, technology and new foods they offered and sold them, Māori in return sold them trees and flax and kumara, and crewed ships, built houses and travelled the world.

But life down here was still mostly tribal -- serfs, and sometimes slaves, overseen by an aristocratic caste of mostly hereditary bossyboots.

However: The treaty signed at Waitangi by tribal chiefs and a recently-arrived Royal Naval captain promised all these New Zealanders their own Emancipation Proclamation, and held out hope of liberating tribal serfs from tribalism. Instead, 180 years later, we are barrelling down a path back to tribalism. Something Elizabeth Rata has called "neo-tribalism": the intentional production of a neo-tribal elite who are busily "marching through the institutions," in which they play "a decisive and self-interested role in controlling shifts in the interpretation of the treaty of Waitangi." [1]

The result: the empowerment of a neo-tribal elite, in which tribal leaders have the upper hand again. And instead of the hope and optimism of those early adventurers, the predominant emotions now are shame and guilt -- shame as a necessary precursor to this tribal shakedown.

Something clearly went wrong.

One reason is the way that treaty was written: hastily. It was written in just a few days by folk wholly unqualified to write a thing that some erroneously call the country's "founding document." It's not that, and never has been. And nor does it contain enough to merit that description.

But what it does have is the material which the neotribalists have been able to exploit. One of which is the problem of 'chieftainship.'

The problem of chieftainship

THE PROBLEM IS THIS: that instead of the treaty being written to protect individual Māori, it promised instead to placate tribal chiefs. It's right there in the wording and in all the arguments today about rangatiratanga. It's understandable. After all, it was their signatures the British Colonial Office was after before allowing colonisation here to receive their imprimatur. "Alive to the record of native extinction that had come with settlement in Tasmania and the Caribbean, and was threatened in Australia," the treaty's aim was to "recognise the rights of the Māori as subject in the agreement, with rights and interests to protect." [2] But in placating those chiefs of the 1840s, instead of promoting individualism and recognising real individual rights, the document has helped promote the neotribalism of today.

It's been argued -- and I've been one of those doing the arguing -- that the Treaty of Waitangi liberates individual Māori. It should have done -- it surely should have treated all Māori as individuals instead of as members of a tribe. But it really does nothing of the sort except by implication.

Instead, as written, it cemented in and buttressed the tribal leadership and communal structures that already existed here -- encouraging the survival of this wreck of a system until morphing, as it has done today, into this mongrelised sub-group of pseudo-aristocracy: of Neotribal Cronyism.

The problem was there from the start. One of the trade goods most sought after in these years of first contact was the musket. And Māori were devastated by the "musket wars" so eagerly embarked up on by every tribe -- eagerly, that is, until the corpses piling up became too much even their hardy stomachs. At which stage most simply hoped for some kind of peace.

But it wasn't individual Māori who had been trading for those muskets, it was the tribal leaders; and it was their own slaves and tribal "serfs" they put to work to cut and process the flax that bought the muskets (one ton of flax was said to buy one musket). And it was their own slaves they sometimes tattooed to "process" the slave into a shrunken head or mokomokai that could also be traded for muskets. (One mokomokai/one musket was said to be the going rate.) This first contact, and the Musket Wars that followed, only served to reinforce rather than diminish the tribal control -- and when a Treaty with Queen Victoria was offered, one primary motivation of trial chiefs to sign was to have the post-war peace enforced by these pakeha outsiders. Another was to preserve their own power, their rangatiratanga as tribal leaders.

Once they recognised what was on offer, the single sheet of parchment written up by William Hobson, James Freeman, James Busby, and Henry and Edward Williams, came as a boon to most of them.

The Offer

MĀORI IN 1840 GENERALLY paid more attention to oral discussion than to written documents, and there's enough evidence to suggest those wily old chiefs knew precisely what they were being offered at Waitangi: the protection of their own power.

As I'll explain here, in three short clauses and a preamble, what they discussed and what was read to them in 1840 was this [3]:

PREAMBLE

The treaty's preamble states the "concern to protect the chiefs and the subtribes of New Zealand" and the "desire to preserve their chieftainship." Nothing in that to promote or protect individualism. Everything to preserve "chieftainship" and to protect the chiefs in their rule.

CLAUSE 1

In Clause 1 the chiefs grant the Queen complete governorship -- kawanatanga katoa-- over these islands. Non-chiefs, i.e., individual Māori, are neither asked about this nor recognised. Because they are not part of this agreement. 

CLAUSE 2

In Clause 2 the same theme is there again: ignoring the rights of individual Māori and protecting the chiefs in their land, forests and fisheries. Specifically, protecting "the chiefs, the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship [their tino rangatiratanga]" over all their various treasures -- while prohibiting their sale to anyone but the government. 

Yes, there's a mention there of "all the people of New Zealand" (tangata katoa o Nu Tirani). But unless you're a rangatira yourself, your own personal rangatiratanga was pretty close to zero. You didn't have any. 

So the effect of this clause (unless you're a rangatira yourself) is neither protection nor recognition of full ownership nor real property rights, except perhaps by implication. After all, Māori of 1840 had no such concept of rights, except perhaps for small personal possessions; and no words for "owner," so difficult for a translator to find one. Yes, they could express ownership for these small things at least -- the preposition na for example (or sometimes no), meaning 'belonging to.' [4] But the Williamses did not use these words. Instead, their agreement promised to protect only the unqualified exercise of chieftainship -- something not available to "all the people of New Zealand," even if they do get a mention, but only to those of that status. Only chiefs. 

So this promise of "rangatiratanga" undercuts everything else, as the chiefs themselves understood.

CLAUSE 3

Clause 3, however, appears to have something for everyone. Here we read the promise to "protect all the ordinary people of New Zealand," and to "give them" the "same rights and duties of citizenship as the people of England." (Ka tiakina e te Kuini o Ingarani nga tangata maori katoa o Nu Tirani ka tukua ki a ratou nga tikanga katoa rite tahi ki ana mea ki nga tangata o Ingarani.) Not to recognise rights, which is how it should have been written, but to give them, which makes them a political gift -- the gift of those who do exercise sovereignty by this treaty: the governor and the chiefs. 

And the translation (rendered above) is even worse. Lacking a word for "rights" -- the concept itself being only two centuries old, by then, and poorly understood even by those writing up these words -- the offer essentially reads as being to "protect all the natives of New Zealand" and to "grant them all the same conditions as she has for the people of England."

This is thin gruel indeed. 

And as any student of law or the history of feudalism or the welfare state might tell you, it's a very different thing for a government to promise to protect rights, than it is to promise to protect people. The former leads to a robust individualism; the latter to a wet mollycoddling paternalism.

And by then, with only one page of parchment, any hope of  an individualist interpretation of this Treaty is gone -- and those with "a decisive and self-interested role in controlling shifts in the interpretation of the Treaty of Waitangi" are now able to interpret this not as a promise of individual rights (since earlier clauses and the preamble take precedence), but instead as the chiefs essentially holding the rights of their people in trust, with the governor "being or becoming a 'father' for the Māori people." 

No surprise then that "this attitude has been held towards the person of the Crown down to the present day, shaping (according to the self-interested neotribalists who now interpret these things) "the continued expectations and commitments entailed in the Treaty." [2] 

It's evident from documents of the time that the Colonial Office in London had not intended to lock Māori up into that pre-existing tribal structure. Their intention was, as that last clause almost says, to recognise the same rights in every Māori as were enjoyed by all British citizens. 

But the treaty's wording and practice has essentially limited those rights while elevating chiefly status. It's the chieftainship, stupid. In other words: the problem is failing to properly recognise and to protect individual rights -- and instead to protect and nurture the status of those tribal leaders.

Is it any wonder today's tribal leaders favour the perpetuation of the tribal structure? Any surprise that the feudal structure continues? Or that today's neotribalists wish to continue benefiting from their feudal privileges of the past? With the government as "father" and taxpayer as today's serf ...

Poor drafting, poor treatment

WITHOUT A DOUBT, GOVERNMENT and the mostly-British settlers often treated Māori poorly in those early days. But the biggest structural harm was the failure to properly recognise them as individuals instead of as part of a tribe. By treating all Māori as part of a collective, there were few chances offered to change this trajectory -- and when they were tried, they were poorly done. The poor draftsmanship of this treaty is reflected in the poor treatment of Māori in those early days.

As a rights-respecting commentator says of the treatment of native Americans in the United States of America, "it could have been done in a more rational way, a much more rights-respecting way, and in a way that would have led to a lot less violence at the end of the day." (Later quotes are from this same source.) It could have been done here in a way that recognised Māori as individuals, with individual lives, rights and choices. But for the most part, it didn't.

Yes, colonisation here was far less violent here than in Australia, or in the Americas. And thank goodness for that. It was still not entirely peaceful here, but in the Americas and Australia it was savage -- particularly if you think of how the British treated the Aboriginals in Tasmania, or the Spaniards treated the natives of South America. And in the case of the US of A itself, "the American government made treaties with the Indians and then reneged on them whenever it was convenient to do so." [5]

Not so much here, at least. The treaty signed here was offered with the best of intentions, but the poorest of drafting. It barely lived up to the intention, and the neotribalists now exploit the drafting.

Individuals possess rights (not collectives)

But the biggest mistake, and the biggest ongoing tragedy -- there, as here -- is that the respective governments did not treat either Indians or Māori as individuals possessing rights. They treated them instead just as members of a tribe. Of a collective. Not as individuals with their own individual rights demanding recognition and protection, but as members of a tribe whose chief no longer held the power of life and death, but still held the power of property, and of making choices for them all.

And therefore [in the United States] all the deals, all the negotiations, were between the U.S. Government and a tribe -- a tribe who was fundamentally a collectivistic unit that was oppressing its individual members. And what the American government in my view should have done was in a sense annex the Indians into America, recognised their innate individual rights (the fact that every Indian like every human being on the planet has individual rights), protected those individual rights under the law, divvied up the property of the tribe among individuals (let American Indians own their own land, not just give it and have the tribes own reservations; the whole idea of reservations was a horrific idea).  They should have basically integrated Indians into American society: by treating them as individuals, by endorsing individualism among the Indians. And then, if the Indians then wanted to get together and live in a commune, then so be it.  But the American government's position should have been: "We are dealing with you as individuals. Here is your land; here is John Smith's land; here is somebody else's land... If you want to now unite those lands and do some collective-type stuff then that's your problem. But here's the benchmark: 'We're a country of individuals. That's the principle'."  And instead, they didn't do that. There was a lot of racism and there was a lot of just treating them as a collective and, as a consequence, slaughtering whole villages and so on.  Now, that is not to say that there weren't a lot of American Indians (and a lot of indigenous people around the Americas) who were very violent and needed to be dealt with violently. I'm not criticising violence when it was motivated by self-defence.      I am however criticising violence when it was not necessary for the defence of the European immigrants or settlers, and there was basically an attempt just to annihilate certain indigenous peoples.  And again that happened more in Latin America than it did in the United States of America. But it happened [in the US] as well. So, you know, it's a tragic part of history and to some extent inevitable because it seems to happen whenever a kind of a civilisation encounters barbaric tribes, barbaric peoples, that inevitably lands up in a physical violent struggle.      I think that particularly in the United States of America it could have been done in a more rational way, a much more rights-respecting way, and in a way that would have led to a lot less violence at the end of the day. [5]

Could it have been different here? Less violent? More rational? More rights-respecting? Yes. Yes, of course it could. But reinforcing tribalism today will not fix a single historic tragedy. And in any case, the guilt-ridden politics of today -- shaming today's New Zealanders by the actions of people in the past -- is not primarily about history anyway. 

The shaming of New Zealanders today is intended simply to precede and encourage their ongoing shakedown tomorrow. That's the effect of today's neotribalism: to put taxpayers on the hook for the perpetuation of this chiefly privilege.

Because, you see, in this new postmodern neo-tribal age of identity politics and cancel culture, history doesn't so much provide lessons from the past as an arsenal full of ideological weapons. The neotribalists, and their enablers, are happy to pick them up and use them. You should be ready to counter them.

* * * * * 

NOTES: 
1. Elizabeth Rata, '‘Marching through the Institutions’: The Neotribal Elite and the Treaty of Waitangi,' Sites (December 2005)
2. James Heartfield, The Aborigines' Protection Society: Humanitarian Imperialism in Australia, New Zealand, Fiji, Canada, South Africa, and the Congo, 1836-1909 (London, 2011) p. 126
3. Te Tiriti: Translation of the te reo Māori text by Hugh Kawharu
4. Raymond Firth, Economics of the New Zealand Maori (Wellington 1972), pp. 338-366 passim
5. Yaron Brook, 'Q: To what extent was the European treatment of the indigenous peoples of America immoral?' www. Peikoff.Com (3 August 2015)

NOTE:
Peter Winsley, for one has a different view, arguing that "Article Two transfers Magna Carta and English common law property rights to Māori. "

These tino rangitaranga rights over land and other properties (taonga) were given explicitly to individuals and whanau as well as chiefs and tribes...
Treaty of Waitangi settlements have so far focused on iwi or hapu on the assumption that these collectives will act for all their members. What is lost sight of is that individuals are specifically mentioned in Treaty Article Two, yet Treaty settlements have not been made to 
individuals. In a future post, this issue will be discussed...

By contrast, Ned Fletcher's recent book, The English Text of the Treaty of Waitangi, argues along similar line to those I've argued above (but, of course, in infinitely more detail -- his book is a fine piece of work). The difference between us, apart from his elevated scholarly stature, is that he evaluates the tribalism as positive and the promises made to reinforce tribalism by treaty to be good ones. I don't.

The case for ‘co-governance’ ...

"The case for ‘co-governance’ between the government and iwi is justified according to cultural recognition and social justice beliefs. However, that is to make a fundamental error, one that ignores the dangers of including ethnicity into the political arrangements of a democratic nation... there is a fundamental incompatibility between the two sociopolitical systems...
    "From the 1980s, the rather benign idea of recognising Maori culture in the wider society became a political biculturalism that has enabled a small but extremely influential group of retribalists to capture the moral high ground of social justice advocacy – but in their own interests.
    "(It shouldn’t be forgotten that the numbers of Maori in poverty has actually grown during the bicultural decades.) ...
    "Throughout these four decades of biculturalism the retribalists sit easily, even smugly, on the side of the righteous. They use a history, written by the Waitangi Tribunal in the interests of the submitters, to claim the inheritance of the past. The Treaty is the document of that inheritance.
    "The justification for this elite’s power is its claim to represent a tribal people – so such a people must be created and maintained – hence the aggressive retribalisation that we have seen in recent years ... It is no longer enough to be Maori; one must be tribal Maori...
    "One of the benefits of colonisation, and there are a number, is the destruction of tribalism. For slaves and lower caste people it was liberation. Of course the chiefly caste did not agree and today we see the resurgence of those who would be their inheritors. The new elite is a self-proclaimed aristocracy justifying their ambition in romantic appeals to an Arcadian past.
    "Tribalism must be destroyed for democracy to exist... The history of progress in the world is the history of detribalisation and the race or ethnic politics that goes with tribalised societies...
    "So the question for us is not why is the iwi elite using retribal strategies to gain increasing political power and economic wealth – any emerging elite that chances upon a direct and easy means to get its way will take it. The intriguing question is how has a population with 161 years of democracy under its belt allowed this to happen."
    ~ Dr. Elizabeth Rata, from her 2013 op-ed 'Democracy and Tribalism'
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