Reparations,Social Reconciliation,and the Significance of Place: A Legal and Philosophical Examination of Indigenous Cases in the United States and Their Global Implications

Abstract

During genocide, populations are frequently displaced from their homelands. In the process of reparations, displacement is often viewed as a problem of shelter, food, and safety. In this framework, land is treated as an economic commodity—any given piece of land is interchangeable with another or for money. This approach is a product of Enlightenment thinking, which emphasizes the rights of the individual over communal rights to land, and conceptualizes land and social identity as strongly separated. This Enlightenment framework of rights, and the accompanying de-emphasis of place, is particularly strong in the United States. Because American legal principles have played a substantial role in the development of human rights laws internationally, there are global implications for how American courts understand land and displacement. By examining Native American claims for land and sovereignty, this essay explores the philosophical and legal understandings of land and culture that are endorsed by American courts. The themes found in American litigation of indigenous land claims are likely to permeate American foreign policy and our involvement in reparations issues internationally. If the American de-emphasis of land continues internationally, effective reparations are unlikely. Homelands are not an interchangeable economic commodity precisely because social identity is not separate from land, but rather rooted firmly in a particular place. When victims of genocide are able to reclaim homelands, there is the possibility of truly effective reparations, particularly achieving the goal of stabilizing and repairing social identity.