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Land, Sovereignty, and Indigeneity in South Africa

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Land, Sovereignty, and Indigeneity in South Africa Notes Endnote Abbreviations CA Western Cape Archives and Records Services, Cape Town CRLR Commission on Restitution of Land Rights CWMA Council for World Mission Archive GM The Griqua Mission at Philippolis, 1822–1837 (Pretoria: Protea Book House, 2005), sources compiled by Karel Schoeman GR Griqua Records: The Philippolis Captaincy, 1825–1861 (Cape Town: Van Riebeeck Society, 1996), sources compiled by Karel Schoeman HCPP House of Commons Parliamentary Papers, Great Britain ODA Orania Dorpsraad Archives, Orania Introduction: Land, Sovereignty, and Indigeneity in South Africa 1. See, for instance, D. J. Jooste, Afrikaner Claims to Self-Determination: Reasons, Validity, and Feasibility (Pretoria: Technikon Pretoria/Freedom Front, 2002). My copy comes with a proud sticker on the cover testify- ing that it was ‘Gekoop in Orania’; the author and his wife formerly lived in the dorp. 2. ‘You can claim that something is yours until you are blue in the face’, relates property expert Carol Rose, ‘but unless others recognize your claims, it does you little good’. See Carol M. Rose, ‘Economic Claims and the Challenges of New Property’, in Katherine Verdery and Caroline Humphrey (eds), Property in Question: Value Transformation in the Global Economy (Oxford: Berg, 2004), p. 279. 3. See especially Carol M. Rose, Property and Persuasion: Essays on History, Theory and Rhetoric of Ownership (Boulder: Westview Press, 2004). 4. Robert C. Ellickson, ‘Property in Land’, Yale Law Journal 102 (1992–93), p. 1319. 5. See, for an introduction to some of these debates: Harold Demsetz, ‘Toward a Theory of Property Rights’, American Economic Review 57, 2 (1967), pp. 347–59; Richard A. Epstein (ed.), Economics of Property Law (Cheltenham and Massachusetts: Edward Elgar Publishers, 2007); Peter Garnsey, Thinking about Property: From Antiquity to the Age of Rev- olution (Cambridge: Cambridge University Press, 2008); Garrett Hardin, ‘The Tragedy of the Commons’, Science 162 (1968), pp. 1243–8; Richard Schlatter, Private Property: The History of an Idea (New Brunswick, NJ: Rutgers University Press, 1951); J. Roland Pennock and John W. Chapman 119 120 Notes to Pages 4–8 (eds), Ethics, Economics, and the Law, NOMOS series 24 (New York: New York University Press, 1982). See also notes 2, 3 and 4 above. 6. See especially Morris Cohen’s famous claim that modern property is a form of sovereignty, in ‘Property and Sovereignty’, Cornell Law Quar- terly 13 (1927–28), pp. 8–30. Otherwise for a useful review see Jacob Metzer and Stanley L. Engerman, ‘Some Considerations of Ethno- Nationality (and Other Distinctions), Property Rights in Land, and Ter- ritorial Sovereignty’, in Stanley L. Engerman and Jacob Metzer (eds), Land Rights, Ethno-Nationality and Sovereignty in History (London and New York: Routledge, 2004), pp. 7–28. 7. Francis Jennings, The Invasion of America: Indians, Colonialism and the Cant of Conquest (Chapel Hill: University of North Carolina Press, 1975), p. 128. See also Francis Jennings, ‘Virgin Land and Savage People’, American Quarterly 23, 4 (1971), pp. 519–41. 8. Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (Cambridge, Mass.: Harvard University Press, 2005), pp. 6–7. 9. Banner, How the Indians Lost Their Land,p.9. 10. See also Henry Reynolds, The Law of the Land (Ringwood: Penguin Books, 1987); Stuart Banner, Possessing the Pacific: Land, Settlers, and Indigenous People from Australia to Alaska (Cambridge, Mass.: Harvard University Press, 2007). 11. John C. Weaver, The Great Land Rush and the Making of the Modern World, 1650–1900 (Montreal and Kingston: McGill-Queens University Press, 2003), p. 139. Emphasis in original. 12. Weaver, Great Land Rush, p. 140. 13. Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (Cambridge: Cambridge University Press, 2010), esp. pp. 30–2. 14. John L. and Jean Comaroff, Of Revelation and Revolution: Volume Two, The Dialectics of Modernity on a South African Frontier (Chicago: University of Chicago Press, 1997), pp. 365–404; John L. Comaroff, ‘Images of Empire, Contests of Conscience: Models of Colonial Domination in South Africa’, American Ethnologist 16, 4 (1989), pp. 661–85. 15. Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836 (Cambridge, Mass.: Harvard University Press, 2010). 16. See especially Scott D. Krasner, Sovereignty: Organized Hypocrisy (Princeton, NJ: Princeton University Press, 1999). See also Janice E. Thomson, ‘State Sovereignty in International Relations: Bridging the Gap between The- ory and Empirical Research’, International Studies Quarterly 39, 2 (1995), pp. 213–33; Janice E. Thomson, Mercenaries, Pirates, and Sovereigns: State- Building and Extraterritorial Violence in Early Modern Europe (Princeton: Princeton University Press, 1994). 17. Two recent attempts to problematise the singularity of sovereignty by analysing the politics of custom include Clifton Crais, ‘Custom and the Politics of Sovereignty in South Africa’, Journal of Social History 39, 3 (2006), pp. 721–40; Sean Redding, Sorcery and Sovereignty: Taxation, Power, Notes to Pages 9–14 121 and Rebellion in South Africa, 1880–1963 (Athens, Ohio: Ohio University Press, 2006). 18. This is not to deny the possibility of acquiring sovereignty through prop- erty in modern, world geopolitics. For a description of the Zionist process of acquiring sovereignty by purchasing land from Arab nationals, con- sult Engerman and Metzer, ‘Some Considerations’ (see note 6 above), pp. 10–11. 19. The archaeological reality of staggered human occupation in South Africa is elaborated in Chapter 2 of this book. An interesting comparison may be made to Canada and the USA here. Despite recent archaeological and genetic evidence that the Americas were settled in three waves between 14,000 BPD and the voyage of Columbus, ‘indigeneity’ as a construct is far less fragile in North America than it is in South Africa, due to the different ratios between minority and majority in sub-Saharan Africa. This differ- ence probably also extends from a greater prevalence of ethnic cleavages that can be seen today between African polities vis-à-vis those that can be seen in indigenous North America, and the differences between the two continents with respect to the popular acceptance of scientific theories of human origins. For the ‘three waves’ thesis, see: Dennis L. Jenkins et al., ‘Clovis Age Western Stemmed Projectile Points and Human Coprolites at the Paisley Caves’, Science 337 (2012), pp. 223–8; David Reich et al., ‘Reconstructing Native American Population History’, Nature 488 (2012), pp. 370–74. For an entertaining indigenist argument that this kind of sci- ence is just a great big ‘white lie’, see Vine Deloria Jr, Red Earth, White Lies: Native Americans and the Myth of Scientific Fact (New York: Scribner’s, 1995). 20. Colin Bundy, The Rise and Fall of the South African Peasantry (Berkeley: University of California Press, 1979). See also the interesting but outdated W. M. Macmillan, Complex South Africa: An Economic Footnote to History (London: Faber & Faber, 1930). 21. For an introduction to these issues in a wider African context, see Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton: Princeton University Press, 1996), esp. pp. 138–79. For South Africa specifically, see Martin Chanock, The Making of a South African Legal Culture, 1902–1936: Fear, Favour and Prejudice (Cambridge: Cambridge University Press, 2001). 22. Though the nominal bestowments of settlers unto indigenous peoples have ever proven impermanent constructions, the term ‘Bantu’ seems to have disappeared especially quickly from South African discourse – a fate that we could only attribute to a distance from the apartheid classificatory regime if the term ‘coloured’ were no longer popular either. Whatever the reasons for this shift in the language, it is appropriate now to explore new terminology. The word ‘Briqua’, recorded a few times in the seventeenth century, according to Landau, ‘apparently meant not only highveld chief- doms but also the ornamented, elaborate chiefships associated with seventeenth-century Zimbabwean-related sites. Essentially, briqua were 122 Notes to Pages 14–15 “populous settled farmers”, so far unseen’. See Paul S. Landau, Popular Pol- itics in the History of South Africa, 1400–1948 (Cambridge and New York: Cambridge University Press, 2010), p. 4. One of Landau’s main arguments in this book – that there are difficulties associated with the transposition of modern identities onto the past – is relevant to this study, and deserves more discussion than I am prepared to deliver in a footnote; readers are directed to his book instead, and, no doubt, the interpretative upheavals it will leave in its wake. 23. The best starting point is Pieter Jolly, ‘Interaction between South-Eastern San and Southern Nguni and Sotho Communities c.1400 to c.1880’, South African Historical Journal 35, 1 (1996), pp. 30–61. See also David B. Coplan, ‘People of the Early Caledon River Frontier and their Encounters’, African Historical Review 44, 2 (2012), pp. 55–77. 24. Jolly, ‘Interaction’, pp. 46–7. 25. Elizabeth A. Eldredge, Power in Colonial Africa: Conflict and Discourse in Lesotho, 1870–1960 (Madsion: University of Wisconsin Press, 2007), pp. 25–70. 26. Sandra B. Burman, Chiefdom Politics and Alien Law: Basutoland under Cape Rule, 1871–1884 (New York: Africana, 1981), pp. 128–36. 27. That most recent ‘age of Empire’ – the one which spread out across most of the globe, hauling select portions of it into ‘modernity’ as it went – ends, according to the textbook reading, with the coming of ‘decolonisation’ after World War II. In this version of history, colonies of all shapes and sizes seem almost predestined to transform into nations (each of them commencing their own journey along the pathway of development, ever choosing between communism and capitalism along the way). See, for an introduction: R. F. Holland, European Decoloniza- tion, 1918–1981 (London: Macmillan, 1985); James D. Le Sueur (ed.), The Decolonization Reader (New York: Routledge, 2003); Raymond F.
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