The Volokh Conspiracy
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The Logical Consequence of Enforcing Indigenous Treaties
A Canadian judge held a 513-day trial, and ruled that the "indigenous Cowichan Nation holds 'Aboriginal title' over 800 acres of land."
A few weeks ago, the Free Press published a remarkable story about legal developments in Canada. In short, a judge ruled that the indigenous Cowichan Nation holds superior title over an 800 acre plot of land, based on claims from the 19th century. People who previously owned that land in fee simple now hold it subject to a servitude by the Nation.
After an 11-year legal battle and a 513-day trial that is the longest in Canadian history, a judge ruled in August that the indigenous Cowichan Nation holds "Aboriginal title" over 800 acres of land—including a swath along Road No. 6 that includes Batth's house and fields. The decision was a seismic shift in Canadian property law, declaring for the first time that indigenous land rights are greater than the rights held by private owners like Batth. It seemed unimaginable, but it was real.
Let me pause right there. How can a trial possible last 513 days? Here, I will invoke Jeff Brown's Law.
The longer these trials go on, and the more evidence presented, the more the brain's ability to discern reality falters.
Does anyone think a single judge could possible keep nearly two years of evidence in mind? Such a proceeding, at a certain point, is no longer judicial, but instead becomes political. In related news, the NAACP is put on trial the question of whether naming a school after Robert E. Lee is inherently racist.
The trial, in the U.S. District Court for the Western District of Virginia, was ostensibly about whether a school board violated the rights of Black students when it reinstated the names of two schools that once honored the Confederate generals Robert E. Lee and Stonewall Jackson after they'd been replaced in of 2020.
But when arguments ended last week, it was clear that the case, Virginia State Conference N.A.A.C.P. et al. v. County School Board of Shenandoah County, represented something much larger. Hanging over five days of proceedings was the question of how the nation moved from the racial reckoning of 2020, when Confederate memorials were purged from the public square, to 2025, when President Trump led the Confederacy's historical retrenchment — and whether the fight over historical awareness still has life in it.
That's because part of the plaintiffs' strategy for assailing the renamed Stonewall Jackson High School and Ashby-Lee Elementary was to put the Confederacy itself on trial, not on the usual culture war battlefields of social media or television, but in a court of law. (Turner Ashby was also a Confederate commander.)
Does anyone think this case can be decided based on neutral principles of law?
Back to the Free Press Story:
According to the judge, land grants to British settlers by the government about 150 years ago never erased the previous indigenous ownership, and the sections of provincial law that bestow and protect land titles do not apply when Aboriginal title is in force. She ordered British Columbia to spend the next 18 months figuring out what to do about the ownership collision. . . .
The plaintiffs didn't ask the judge, Barbara Young of the Supreme Court of British Columbia, to seize anyone's house or land. But she wound up going far beyond what they did ask for. . . .
As a result, all of this property now has a servitude over it.
David Rosenberg, senior litigation counsel for the Cowichan Nation, tried to assure me that the current owners have nothing to worry about—as long as they don't try to build anything or get a renovation permit, or sell their land. If they do any of those things, Rosenberg said, then the government might have to consult with or even secure consent from the Cowichan Nation, because Aboriginal title now gives the Cowichan a constitutional say over what happens on that land.
Professor Dwight Newman explains:
Dwight Newman, a law professor at the University of Saskatchewan who studies indigenous rights, said the idea that Aboriginal title and private property can "coexist," as the judge put it in her ruling, doesn't really make sense, because both are supposed to be "exclusive" forms of ownership. Each one claims the full right to control the land.
"If you have two owners with exclusive rights, one of them will always have to give way. In practice, that means private homeowners will end up having to defer, at least in part, to Aboriginal title," Newman told me. While the appeals drag on, "uncertainty around mortgage financing, land titles, and investment is likely to grow."
Another expert explains that the judge used 19th century Indian law to rewrite modern property law:
Tom Isaac, a well-known expert in indigenous law who advises businesses and governments, said that the judge's ruling "erased 99 percent of the words" on property titles held by the current owners in the black zone. "It makes us the only jurisdiction in the Western Hemisphere where a supposedly guaranteed and indefeasible land title is defeasible." . . .
"By reaching back to what the Cowichan were doing on the land in 1846, the judge essentially used a 19th-century snapshot to rewrite 21st-century property rights," said Isaac, the lawyer. The ruling triggered the most "profound political and legal reckoning" of his career, he added. Many of the people he speaks to are wondering if Canada's approach to land rights and reconciliation is sustainable at all. . . .
The Free Press article highlights the danger of vapid land acknowledgments. They are not so harmless when activist judges take them to their logical conclusion.
Nothing like this has ever happened in Canada. Because of the judge's ruling, all those land acknowledgments that are only half-listened-to at school assemblies and hockey games actually have extremely complicated consequences, at least in British Columbia—and perhaps all across the country someday.
"I never really gave land acknowledgments much thought, but now I do," Batth told me.
… Many Canadians sleepwalked through every step, never imagining that they could lead to a court ruling that literally shifts the legal ground beneath them. Now, land acknowledgments and broader settler-colonist narratives are starting to encounter more skepticism, at least on the political right. Last month, Dallas Brodie, the leader of breakaway conservative party OneBC, introduced a bill in the Legislative Assembly of British Columbia to eliminate Truth and Reconciliation Day as a provincial holiday.
The logical consequence of enforcing Indigenous treaties is restoring land claims.
I have several responses to this claim. First, the doctrine of adverse possession exists to settle property conflicts. I don't know all of the specifics of adverse possession in Canada, but these sorts of stale claims should be discarded. Property law demands stability in title and ownership. People need to know what their rights are. Even if these claims are meritorious, the costs of unsettling property rights after 150 years, for people who have no connection to Canadian settlers, is untenable. I would apply this doctrine to the concept of appropriated artifacts. Can it really be that the modern governments in Egypt or Greece can assert any actual claim over artifacts moved to museums centuries ago? Adverse possession should kick in. Likewise, I think the passage of time makes the case for reparations for descendants of slaves impossible.
Second, these treaties and agreements should be unenforceable under the doctrine of desuetude. This story made me think of Arizona v. Navajo Nation. Could it really be that agreements reached in the 19th century, that have not been enforced in more than a century, suddenly override property rights?
Justice Kavanaugh made this point in Navajo Nation:
Of course, it is not surprising that a treaty ratified in 1868 did not envision and provide for all of the Navajos' current water needs 155 years later, in 2023. Under the Constitution's separation of powers, Congress and the President may update the law to meet modern policy priorities and needs.
Third, I would propose something like the Rule Against Perpetuities for treaties: A treaty only remains valid for the duration of a measuring life. That is, so long as some beneficiary of the treaty who was alive when the treaty was signed is still alive, the treaty can be enforced. But when all of the beneficiaries who were in existence when the treaty was signed die, the treaty is no longer effective. Of course, if there is a successful treaty that is mutually beneficial to both parties, the treaty can be extended and re-negotiated. But with the indigenous tribe treaties, the benefits only go in one direction. When Manhattan is called Turtle Island, it is not idle chatter.
Johnson v. McIntosh is a very unpopular ruling. Way back in 2016, I mused that this decision would be enough to get Marshall cancelled. But it is useful thought experiment to consider what a contrary decision would have done. What would a map of the United States look like if agreements with native tribes were fairly enforced? What would Tulsa look like today if McGirt is taken to its logical consequences? And if the United States did not extend from sea to shining sea, but instead was made up of a patchwork of different territories, what would world history look like?
Were there injustices in the past? Of course. Lots of things were unfair in world history. But societies need to move on, and not cling to legal rights that no in living memory benefited from.
