Introduction
Ngotho, the main character in Ngũgĩ wa Thiong’o’s novel, Weep Not, Child, remarks of Nganga, the village carpenter, “He had land. Any man who had land was considered rich.”[1] The remark speaks to both the class differences between Ngotho, a farmer’s son, and the carpenter and to the specialness of owning land. The novel excavates the residual impacts of colonialism in Kenya as one of its primary themes, Ngotho’s description of the carpenter just one such scene. This paper discusses why land has its special quality with particular attention to cases of historical, forced displacement. When a group of people are systematically stripped of their territory, a grave moral wrongdoing occurs. To appropriately apologize for the historical wrongdoing and achieve moral repair, I argue land must be given back. The restitution is about taking accountability for a historical wrong and committing to restoring the world to a better place.
This paper focuses solely on historical, forced displacement when there is a primary wrongdoer, likely a nation. Three salient cases are considered: Aboriginals in Australia, indigenous populations in the United States of America, and Kenyan pastoral communities. Moreover, the groups eligible for restitution must exist today and have some historical connection to the original wrong. This limits how far back the apologies must go and prevents a the conclusion that all nations with a history of colonialization would need to apologize for every historical, forced displacement they have carried out. For example, the Susquehannock in the Mid-Atlantic of the United States, the Charrúa in Uruguay, or the Oyster Bay and Big River peoples of the Palawa (Tasmania) Aboriginal tribes all do not exist today, and as such, are not considered a relevant group for the kind of apology outlined in this paper.[2]
In Australia, no treaties were signed with Aboriginals or Torres Strait Islanders during colonization.[3] For most of Australia’s legal history, Terra Nullis has reigned supreme. Terra Nullis means the land belonged to no one and the Australia’s monarchy—the Crown—used it as the means to justify that they had ownership over the land. However, in Mabo v Queensland (No 2), the High Court overturned Terra Nullis, holding that the Crown acquired ownership over the land, but not beneficial ownership.[4] Most recently, Commonwealth v Yunupingu held that monetary compensation is required for violating indigenous land rights, not a return of the land.[5] As such, Australia has had little regard for recognizing indigenous land ownership until recently, and even now, restitution is often monetary rather than a returning of land.
The United States fares little better than Australia. Numerous treaties were signed between the United States government and indigenous tribes, but many were ultimately not honored as America continued its expansion westward through North America.[6] The Trust Doctrine, following the Indian Removal Act (1830), marked a shift in American attitudes towards indigenous populations.[7] The doctrine held that the U.S. Federal government had a fiduciary duty, meaning a duty to act solely in the best interests of the indigenous populations, to protect tribal lands and assets. This marks a shift however, and a big one, in land ownership. Rather than indigenous populations retaining ownership over their land, the federal government retains ownership and then, allegedly, does things to benefit the indigenous populations. The Doctrine of Trust is formalized through the Indian Reorganization Act (1934) which takes indigenous lands into federal trust and stopped giving more land back to indigenous populations as well as halted assimilation policies. Like Australia, the United States offers some monetary compensation for lost lands through the Indian Claims Commission Act (1946), and today lands are still managed in trust by the U.S. Federal government and subject to Congressional authority.
Kenya, like Australia, had no historical treaties with indigenous people, precolonial or colonial. Kenya structured its land governance through Crown Land Ordinances, Native Reserves, and forced removals. However, the Kenyan Constitution (2010) recognizes community land in Articles 63 and 64.[8] Land belonging to communities through traditional occupation and ancestral territories as well as land held under customary law is constitutionally protected. Two landmark cases are of note. First, Centre for Minority Rights Development (Kenya) & Minority Rights Group International v. Kenya held that Kenya violated rights to property, culture, religion, and development by evicting the Endorois from Lake Bogoria.[9] The Court recognized the Endorois as having collective land rights and required compensation and benefit-sharing. The second, African Commission on Human and Peoples’ Rights v. Kenya,held that the forced removal of the Ogiek from Mau Forest violated the African Charter on Human and Peoples’ Rights and recognized the Ogiek’s collective land rights.[10] The Court required Kenyan States provide restitution, compensation, and secure Ogiek land rights. The two cases demonstrate the plausibility of recognizing indigenous land rights. The Ogiek case better remedies, as will be argued in the sections below, the moral wrongdoing because it ensures the Ogiek will be returned some of the land they lost.
I. What’s an Apology?
To give a proper account of apology for forced displacement, we first have to define what I mean by apology. The two broadest categories of apology are interpersonal apologies and political apologies. Interpersonal apology focuses on repairing a relationship between two parties[11] or the self.[12] Political apology describes a political entity redressing an entity’s wrongdoing towards another, either individual or collective entity, but often collective identity, like another nation or cultural group.[13]
(a) Tirrell’s two-horned apology framework
Lynne Tirrell’s account (2013) lays out a two-horned framework of apology.[14] The first horn of Tirrell’s framework, the Account, requires (1) formal acknowledgement of wrongdoing, (2) explanation and understanding of the wrongdoing’s damage, (3) an explanation of the situation that allowed for the wrongdoing to occur, and (4) a description of the perpetrator’s motives. First, formal acknowledgement is important because it actually says a wronging happened and gives the words some moral weight. It correctly locates the historical injustice with an entity and does so publicly. Merely expressing regret that some historical wrong happened, but not owning up to the role the entity played in the wrongdoing or adequately acknowledging the wrongdoing privately fails to generate a proper response.[15] Furthermore, formal acknowledgement differs from the reflexive, trivial apologies we utter when accidentally bumping into passerby on the sidewalk. Apologies like these carry limited to no moral weight. Self-serving apology, like a world leader formally acknowledging a historical wrong their nation committed, but only to score some extra points on the campaign trail, would not count as genuine, formal acknowledgement.
Second, explanation of the wrongdoing’s damage shows the apologizer adopting an attitude that a moral wrongdoing occurred and that damage came from it. If the United States formally acknowledged slavery was a grave wrong, but at the same time claimed Blacks did not suffer any damage from it, that would fail as an apology because it minimizes the inimical effects of the wrongdoing. Third, when the wrongdoer explains how the wrongdoing arose, this demonstrates the apologizer has reflected on what circumstances led to the moral wrongdoing and appropriately condemns the wrongdoing. Fourth, an explanation of the perpetrator’s motives makes them vulnerable to deeper criticisms and may change what is required of their restorative action. For instance, if the perpetrator acted unintentionally or ignorantly, the required restitution may be less than if the perpetrator maliciously pursued the wrongdoing.
Tirrell’s Account, to borrow from a metaphor from Miranda Fricker, “points and wags the finger”.[16] Pointing the finger answers the question of who to blame. In this case, the apologizer points the finger at themselves (or the nation or institution they are representing), taking responsibility. Wagging the finger instead focuses on the apology’s content, “the what.” In explaining their actions, the apologizer appropriately characterizes past actions as injustices, not mere facts. These help explain why the apologizer is apologizing.
The second horn of Tirrell’s apology framework is the Response. The Response is both a disclosure of the wrongdoer’s present attitudes about the past wrong and continued restorative action. The Response guards against mere performative words that do not lead to any meaningful restitution.[17] For example, if a spouse expresses regret, consistent with the four criteria of the Account above, about repeatedly not cleaning up the kitchen when it is their turn to do so, but makes no effort to change their behavior, Tirrell would argue their apology is not genuine, because it fails to have any future, restorative action. We might then ask, why bother with words at all? Would it not be better to direct our effort towards restorative action once internally recognizing we have committed a wrongdoing? No. Saying aloud the apology situates the future actions as being part of a moral repair process. [18] Otherwise, restorative actions may be considered goodwill or charity rather than restitution for a historical wrongdoing. For instance, if America suddenly implemented many reforms to help their indigenous populations without explicitly acknowledging and explaining why the reforms are being enacted, some might believe that America is merely acting out of good faith. It may receive a pat on the back for its goodwill, when in reality, it is one part of an apology for historical wrongs. Therefore, for genuine apology, there must be both the Account and the Response.[19]
II. Collective self-determination and land
Now that Tirrell’s account of apology is on the table, we can think about what the Response should look like for historical, forced displacement.
(a) Inadequacy of other forms of reparations
As I continue working my way towards the claim that land should be the appropriate remedy, I have to first talk about other forms of reparations. There are three types of reparations typically discussed when determining whether a group is owed anything: monetary payments, social policy improvements, and equal democratic participation and representation. These three types of reparations do not sufficiently restore the aggrieved party of their collective self-determination, which, for apologies for forced displacement, should be the primary goal.
First, money has a slew of problems such as the difficulty calculating the appropriate sum to make the wronged party whole. It would be difficult to determine what would be an appropriate amount to give.[20] The opportunities lost due to the historical, forced displacement are numerous. If lives were lost as part of the forced displacement, which is (nearly) always the case, it’s hard to put a price on a life. While insurance companies or utilitarians may try, I believe lives are incommensurable. Even if it were the case that we decided on a number, if we include interest for forced displacement happening hundreds of years ago, the final sum would be astronomical.
Beyond the calculation problems, most importantly, monetary payments, whether a lump sum or recurring, do not give back sufficient collective self-determination because the wronged are still subject to future wrongs pertaining to the historical injustice. If the wronged group suffered additional harms as a result of the forced displacement, for example, receiving unfair treatment in the nation they have been subsumed into, the wronged party would not be able to cite the historical injustice as a reason for making their case for injustice. This is because nations and institutions would think their hands were wiped clean since they paid, or continue to pay, monetary reparations, and thus the wronging party has been made whole.
Second, social policy improvements are not an appropriate remedy because they too fail to bestow sufficient collective self-determination for the wronged party. Consider the pre-colonial Kingdom of Hawai’i. The Kingdom of Hawai’i was strongly hierarchical and had a monarchical government until 1893 when foreign residents overthrew the monarchy in a coup.[21] Now, as a state of the United States of America, Hawaii must conform to a representative democracy, a form of government the indigenous population did not endorse. Moreover, in being subsumed into another culture, there is a risk of losing cultural identity. The American indigenous reservations are overrun with well-documented problems of addiction, and the indigenous populations do not practice their historical cultural practices with the same vigor they did prior to forced displacement.[22] Furthermore, there is an inherent power imbalance between those who construct the rules of society and have meaningful control over governance. The group forcibly displaced will like not have appropriate political power to retain sufficient collective self-determination.
Naturally, then it might be argued that if social policy improvements are coupled with sufficient democratic involvement and political power, collective self-determination might be retained.[23] As argued above, many indigenous populations did not have a representative democracy governance structure, so to force them to adhere to a representative democracy is to strip them of some collective self-determination. Similarly, the group forcibly displaced will be a minority in their new nation. Then, the worry is that the minority group will lack meaningful representation in democracies.[24] Therefore, even if given sufficient democratic involvement, the forcibly displaced group does not retain sufficient collective self-determination.
Now that I have hopefully dissuaded you from thinking other kinds of reparations could be done, we can move to defining collective self-determination, or basically, how groups of people can collectively decide how they want to live.
(b) Collective self-determination basics
There are various conceptions of collective self-determination such as political or democratic participation,[25] economic self-sufficiency,[26] cultural self-determination,[27] nested self-determination,[28] freedom from domination,[29] and territorial rights.[30] Political or democratic participation fails to be a sufficient criterion because the minority group is subject to majoritarian rule and cultural practices to which they did not assent. It also assumes representative democracy’s supremacy as a governance structure which many indigenous populations did not have as their governance structures. Economic self-sufficiency faces similar problems as it forces compliance to an economic system not endorsed by the subsumed collective. Cultural self-determination risks being too inclusive because people have many cultural identities, such as religion, political ideologies, professional commitments, interests, etc.[31] Therefore, cultural identity does not accurately pick out the individuals pertaining to the group forcibly displaced. Finally, nested self-determination, while potentially possible, has worries associated with undue influence from the surrounding nation and risks losing the group’s collective identity; more on this later. Consequently, this paper grounds collective self-determination in territorial rights because it bestows the group with robust political authority to self-govern themselves, grants economic self-sufficiency, and secures cultural identity.
(c) The specialness of land for collective self-determination
Cara Nine (2013) provides the criteria for a group to have territorial rights. The group must:
“(i) demonstrate the capacity to meet minimal standards of justice (to provide secure access to the objects of basic human needs for members and to respect the basic human rights of all persons) through authority over territory and resources, and
(ii) have members who share a common conception of justice.”[32]
These criteria ground territorial rights in the right to self-governance.[33] If the group merely needed to demonstrate the capacity to meet minimal standards of justice, then any authority with the capacity for a minimally just regime could claim to be a territorial sovereign. This opens the door for benevolent colonization.[34] For example, were Australia to implement just governance of the aboriginal populations, Australia would retain the territorial rights over the land, but still meet the minimum standards of just governance. The key component of collective self-determination is not merely that individuals should be governed justly, but that they should be governed by their own government.[35]
The natural next step is to determine who is granted territorial rights. For a group victimized by forced displacement, there has to be enough of an enduring, transgenerational collective for members to still identify with the group. For example, if forced displacement happened long enough ago such that the group’s members still exist, but there is not a persistent cultural identity or community with which the members can identify, then this group would not be given territorial rights.
The next qualifier is that the group must be large enough to establish minimally just institutions and have the capacity to solve transgenerational coordination problems, such as provisioning basic needs, dispensing justice, and resolving political disputes. This functionally fulfills Nine’s first criteria of who is granted territorial rights. If the group is too small, such that they do not fulfill Nine’s first criteria, then they do not have a right to territory. This may mean that some victims of forced displacement are not entitled to land. However, again, there may still be value in formally acknowledging the wrongdoing and some other form of restorative action.
To take stock, monetary reparations, improvements to social policies, and democratic participation all fail as appropriate forms of continued, restorative action because they do not adequately restore the group’s collective self-determination. Instead, land should be given to groups that are big enough to establish minimal standards of justice and have an enduring, transgenerational collective identity.
(d) Which land to give up and how much?
From here, the question of which land to give up and how much remains. In his Second Treatise of Civil Government, John Locke specifies two restraints, or provisos, on property rights. The first is that property rights must leave ‘as much and as good’ available for others. The second, often referred to as the spoilage proviso, requires that property be limited to what one can take advantage of before it spoils.[36], [37] The focus of this paper is primarily on the first proviso, (henceforth “the proviso”). As Nine argues, the proviso, applied to territory rights, cannot apply to when new land is acquired, but only land already legitimately held. Applying the proviso to current holdings rather than acquisition means that current entitlements can be retained, but borders must be redrawn.[38] This happens when territory rights that were once legitimate may cease to be so with decreases in the pool of resources, increases in the number of people requiring the resource, or as this paper argues, as remediation for a historical injustice. AJ Simmons (1995) suggests that it should be the relinquisher’s choice to decide which portions of their holdings they forfeit.[39] The land must be of appropriate size and quality to ensure the group is minimally self-determining. This fulfills the ‘as much and as good’ proviso. Moreover, the group may need some minimal compensation and political support to help communities establish their sovereignty.[40] The monetary compensation and political support are constitutive of the appropriate response for the apology, not an additional qualification. It would not be an effective apology to bestow land to a group without adequately supporting them until they can establish minimally just institutions. Without the additional support, the wronging party would be setting the group up for failure.[41]
Conclusion
This paper remained largely silent on broader implications for reparations for other historical wrongs, such as slavery, the Japanese internment camps in the United States during World War II, or the failures of nations to intervene in genocides, historically Rwanda, Armenia, but also now with Palestine and Sudan. My argument was a more modest proposal, only claiming that when land is lost, land must be returned. It seems that land has a special power to imbue a group with robust self-determination, so perhaps the appropriate response in apologizing for these other morally reprehensible acts would be some allotment of land. However, there may be additionally complicating factors that make this task more arduous. I leave it to future research to pursue these possibilities.
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Notes
[1] wa Thiong’o (2012).
[2] Some survivors of the Susquehannock have been subsumed into the Iroquois and some descendants of both the Charrúa and Palawa tribes exist today. However, these groups fail to meet the criteria for territory rights and therefore, historical, forced displacement apology does not apply. There could still be some value in acknowledging the wrongdoing happened to these peoples, but that would be a different kind of apology than the one I have in mind in this paper.
[3] With the one exception of the Batman “Treaty” (1835). State Library of Victoria (n.d.); Anon (2005)
[4] Mabo v Queensland (No 2) (“Mabo case”) (1992); see also Wik Peoples v Queensland (“Pastoral Leases case”) (1996) (arguing native title can coexist with pastoral leases); Members of the Yorta Yorta Aboriginal Community v Victoria (2002) (arguing that native title requires continuous acknowledgement and observance of traditional laws and customs); Western Australia v Ward (2002)(clarifying the ‘bundle of rights’ approach in which native title is not a monolithic right, but a bundle of specific rights relating to land, some of which can be extinguished individually).
[5] Commonwealth of Australia v Yunupingu (2025).
[6] The treaty of Hopewell (1785-1786) was one of the first post-U.S. Constitution treaties between the United States and indigenous populations. It recognized tribal territory boundaries and affirmed tribes were sovereign political communities. The treaty of Fort Laramie (1851 & 1868) recognized the Lakota Sioux as sovereign political entities and guaranteed them vast territorial rights. The treaty of Dancing Rabbit Creek (1830) was the first removal treaty signed under the Indian Removal Act and forced the Choctaw Nation to surrender millions of acres in Mississippi and Alabama, and to move to what is now Oklahoma.
[7] Common cases cited as part of the Trust Doctrine are Cherokee Nation v. Georgia, 30 U.S. 5 Pet. 1 1 (1831) (still describing tribes as domestic dependent nations) and United States v. Kagama, 118 U.S. 375 (1886) (further expanding federal authority over tribal lands).
[8] Articles 11, 44, and 56 also support land-based claims tied to culture, but indirectly. Article 56 makes specific reference to the rights of minority groups like the Ogiek, Endorois, and Sengwer.
[9] Centre for Minority Rights Development (Kenya) & Minority Rights Group International v. Kenya (“Endorois case”), Communication 276/2003, (2010).
[10] African Commission on Human and Peoples’ Rights v. Kenya, Application 006/2012,(2017).
[11] Gill (2000).
[12] Cohen (2018).
[13] Smith (2021); MacLachlan (2015); Tirrell (2013); MacLachlan and Speight (2013).
[14] Tirrell (2013) at pp. 168-173.
[15] Smith (2021) at p. 160.
[16] Fricker (2025) at p. 21.
[17] I use performative words differently than JL Austin does. He argues an effective apology is a performative utterance, but embedded within that locution is some continued, restorative action. See Austin et al. (1979) at p. 136.
[18] Tirrell (2013) at p. 177.
[19] Since I try and keep NN Digests relatively short, I’ll leave out where I respond to common objections like: (1) nations are not moral agents and cannot be held culpable for historical wrongs; (2) wrongs happening so long ago make it hard to locate who should apologize; and (3) since the wrongs were done to people long ago, apologizing now is pointless. You can read that section (and the other parts omitted) in the long-form post of this article, here.
[20] Waldron discusses the impropriety of the counterfactual approach in his seminal paper, “Superseding Historic Injustice.” See Waldron (1992) pp. 7-20.
[21] Kuykendall (2021).
[22] Soto et al. (2022).
[23] Meisels (2003).
[24] Nine (2013) at p. 51; Herrick (2017).
[25] Meisels (2003).
[26] Lienau (2020).
[27] Moore (2001).
[28] Nine (2010) pp. 372, 375 and suggested by Allen Buchanan (see note 34 in Nine (2010)).
[29] Young (2010).
[30] Nine (2013); Nine (2010).
[31] Nine (2013) at p. 59.
[32] Ibid.; Nine (2013) at p. 45.
[33] Cf. Margalit and Raz (1990) at pp. 439-461.
[34] Nine (2013) at p. 50.
[35] Ibid.
[36] Locke (2003). See section 27 and 31.
[37] But see Grotius (2014, [1625]) claiming that newcomers only have the right to land in a host state only “if there be any waste or barren Land” (II.2.XVII). Cf. Wyman (2012) at p. 447.
[38] Nine (2010); Simmons (1995).
[39] Pufendorf (1934, [1688]) argues similarly that newcomers “cannot seize for themselves anything they may want or occupy […] or any section of our land that may be unused, but they must be content with what we have assigned them” at 3.3.10. Cf. Wyman (2012) at p. 447.
[40] Kritzman-Amir (2009) arguing that “financial aid” is a complementary measure” to refugee law. Cf p. 170.
[41] At this point, you may be wondering if my argument means all land taken by colonization at any point in time where there is a collective identity today must be given up. I take up this issue in greater detail in the long-form essay, which you can read here, but the main takeaway is there is an obligation to redraw current borders to correct historical wrongs.
So insightful!!!
Thought provoking read. Thanks for sharing!