Abstract
This article argues against privileging the expectations of settlers over
those of dispossessed peoples. I assume in this article that historical rights to
occupancy do not persist through all changes in circumstances, but a theory of
justice should reduce perverse incentives to unjustly settle on land in hopes of
legitimating occupancy. Margaret Moore, in her 2015 book, A Political Theory of
Territory, tries to balance these intuitions through an argument based on legitimate
expectations. I argue that Moore’s attempt to reduce perverse incentives
(through expectation-altering institutional design) fails. Moore unduly privileges
settler expectations, especially over those of indigenous peoples. I criticize
United States court decisions resurrecting the expectations of past settlers in
the allotment era (which share structural features with Moore’s arguments).
Lastly, distinguishing between ‘final’ supersession of historical injustice through
changing circumstances, and ‘dormant’ supersession, shows how indigenous
claims to land and jurisdiction may revive.