1 Jeremy Waldron, “Superseding Historic Injustice,” Ethics 103 (1992): 4-28. Waldron published an extended version of the essay as “Historic Injustice: Its Remembrance and Supersession,” in Justice, Ethics, and New Zealand Society, ed. Graham Oddie and Roy Pettit (Auckland: Oxford University Press, 1992). Since the version published in Ethics has been far more widely distributed, I have focused on it here. More recently, Waldron has published slightly altered versions which replicate these conclusions. See, e.g., Jeremy Waldron, “Redressing Historic Injustice,” University of Toronto Law Journal 52 (2002): 135-60.

2 Waldron, “Superseding Historic Injustice,” p. 19.

3 Ibid., p. 19.

4 Notice that Waldron’s argument applies only weakly to public lands, something that is of obvious relevance to the Canadian case. See Burke A. Hendrix, Ownership, Authority, and Self-Determination: Moral Principles and Indigenous Rights Claims (University Park: Penn State University Press, 2008), pp. 48-50.

5 Waldron, “Superseding Historic Injustice,” p. 13.

6 Ibid., p. 26.

7 It would do Waldron a disservice to suggest that he ignores the ways in which these historical injustices are remembered, or the potential symbolic importance of reparations in some form; he is acutely aware of both. Ibid., pp. 5-6.

8 Ibid., p. 27.

9 Ibid.

10 “I want to end by emphasizing two points”; ibid. These in fact are not the final paragraphs of the article, which instead summarize the article’s central conclusions about how injustices can fade.

11 I regard Waldron’s decision to excise the following line from the version published in Ethics (“Superseding Historic Injustice”) as deeply mistaken: “Failing that determination to do justice now, there is nothing with which one can resist aboriginal claims of reparation except the shabby apparatus of the title deed and the police barricade” (Waldron, “Remembrance and Supersession,” p. 167).

12 For a more polemical explication, see Burke A. Hendrix, “Political Theorists as Dangerous Social Actors,” Critical Review of Social and Political Philosophy 15 (2012): 41-61.

13 This is especially true given the relative paucity of Aboriginal academics well-placed to challenge these claims, and the difficulty they have in being heard on their own terms. See Dale A. Turner, This is Not a Peace Pipe (Toronto: University of Toronto Press, 2006), chaps. 4-5.

14 See, e.g., the copious discussions of land in the Report of the Royal Commission on Aboriginal Affairs (Canada: Canada Publishing Group, 1996).

15 See further Hendrix, “Dangerous Social Actors.”

16 For an explanation of broader social requirements essential to the rule of law, see, e.g., Martin Krygier, “The Grammar of Colonial Legality: Subjects, Objects, and the Australian Rule of Law,” in Australia Reshaped: 200 Years of Institutional Transformation, ed. Geoffrey Brennan and Francis G. Castles (Cambridge: Cambridge University Press, 2002).

17 It is of course an open question whether any actual programs of assistance apply “without distinction” in the relevant sense for those who administer and experience them. In the American case, see, for example, Anna Marie Smith, Welfare and Sexual Regulation (Cambridge: Cambridge University Press, 2007).

18 Institutional development can obviously come in more or less effective forms. See, e.g., Harvard Project on American Indian Economic Development, The State of Native Nations: Conditions under US Policies of Self-Determination (New York: Oxford University Press, 2007); Stephen Cornell and Joseph Kalt, eds., What Can Tribes Do? Strategies and Institutions in American Indian Economic Development (Los Angeles: UCLA American Indian Studies Center, 1992).

19 So long as Aboriginal groups are allowed the real control necessary to reap the economic benefits. See, e.g., Tom Flanagan, Christopher Alcantara, and André Le Dressay, Beyond the Indian Act: Restoring Aboriginal Property Rights (Montreal and Kingston: McGill-Queens University Press, 2010), part 3.

20 Waldron’s rather ambiguous caveats suggest that this may be his view. If so, it is perplexing that he has chosen to focus so much attention on Aboriginal claims, especially without emphasizing this larger framework in his writings on the expiration of historical injustice. See his more generalized arguments in Jeremy Waldron, The Right to Private Property (Oxford: Oxford University Press, 1988), especially pp. 431-9.

21 It is obvious that inheritance is an ongoing social practice that stretches far beyond the bounds of the law in any formal sense. While it is sometimes said that property rights are the creatures of the state, this is so only in the most attenuated way – practices of inheritance existed long before there were social forms that could easily be described by the term “state,” and these practices have many associated social institutions that make attempts to change the laws accordingly difficult.

22 Although this essay is not focused primarily on political distributions, it should be obvious that parallel arguments can be offered where political power and territorial boundaries are concerned. States like Canada and the United States claim historical justifications for their current territorial configurations, meaning that patterns of inheritance are even more foundationally structuring here. The appropriate responses are likewise roughly the same.

23 Brian Barry, Culture and Equality (Cambridge, MA: Harvard University Press, 2001), pp. 11-2.

24 For an overview of the debate in this regard, see, e.g., Will Kymlicka and Keith Banting, eds., Multiculturalism and the Welfare State: Recognition and Redistribution in Contemporary Democracies (New York: Oxford University Press, 2007).

25 It is not only non-Aboriginal populations who may be made uneasy by apparent profit-seeking by already well off groups, of course. Many members of Aboriginal groups also seem likely to regard such possibilities as a dangerous rupture with egalitarian and co-operative traditions. One appropriate response would be for already-wealthy Aboriginal groups to distribute special assistance to Aboriginal groups that remain poor. Another potentially more transformative option toward broad coalition-building would be for well off Aboriginal groups to make arrangements for aiding poor persons who are not Aboriginal; for example, by offering academic scholarships to children of any background raised in persistent poverty. Given the importance of egalitarianism along other axes, however, it seems fully permissible for Aboriginal groups to forgo such options if they so choose.

26 I would like to thank Sepeyeonkqua Myles, Duncan Ivison, Robert Mayer, Joel Olson, Xavier Landes, Chris Alcantara, Loren King, Anna Marie Smith, Jacob Hannan, Jimmy Casas Klausen, Dan O’Neill, Larry Dodd, Dennis McKerlie, Jeff Spinner-Halev, an anonymous reviewer, and audiences at Cornell University, Wilfred Laurier University, and the Universities of Alberta, Florida, Wisconsin, and Nebraska for comments on this work in various stages of development.