'Art Through a Birch Bark Heart': 
An Illustrated Interview with 
Erin Marie Konsmo

with PJ Lilley¹

Erin Marie Konsmo is the Media Arts and Projects Coordinator for the Native Youth Sexual Health Network. She is Métis/Cree from the historic Métis communities of Onoway/Lac St. Anne, Alberta. She is a self-taught community-engaged visual and multi-media Indigenous artist, supporting community to create their own art and expressions around sexual and reproductive health, rights and justice. Her art practice is based in community spaces, culture, and Indigenous led media and arts initiatives.

Erin is currently serving as one of the North American focal points for the Global Indigenous Youth Caucus at the United Nations Permanent Forum on Indigenous Issues. She holds a Bachelor of Arts in Sociology from the University of Calgary and a Master of Environmental Studies from York University, with a concentration in environmental and reproductive health. (See more at http://erinkonsmo.blogspot.ca)

Below: The Interview Sidebar: Aamjiwnaang Sidebar: Terra Nullius About the Cover Families of Sisters in Spirit (FSIS) Native Youth Sexual Health Network & the International Indian Treaty Council: STATEMENT to the United Nations, Expert Mechanism on the Rights of Indigenous Peoples Native Youth Sexual Health Network: {Additional Notes to the} Study on access to justice in the promotion and protection of the rights of Indigenous Peoples

For Radical Criminology , PJ spoke with Erin in July 2013...

PJ Lilley : It's nice to "meet" you. Thank you for taking the time with us, as it seems to me that the themes in your work overlap and carry through many similarities with the themes of our journal. Your work conveys strong images, life and death, the impacts of extractive industries, such as the tar sands' environmental destruction heavy upon women's bodies, contrasted the with the fierce beauty and strength of women in resistance, the struggle for life lived with full self-determination.

I noticed also several pieces of your artwork seem useful as 'agit-prop', and much of your blog portfolio seems to be work that you've done as posters for various organizations, conferences, public events or actions. Could you begin by talking a bit about the process of your art practice?

Erin Marie Konsmo: I'll start with where the art has come from in my life. I go back to who has brought the creative tendencies into my life. Art has always been an important part of who I am and how I grew up. I've had strong mentors in art throughout, the two strongest ones were my mom and my grandmother. Art was a really important way for me to express myself growing up, even as a young child. Like my mom (and grandma) always said, "keep your hands busy." Arts and crafts were one way to do that, we kept our hands busy. I remember pressing flowers with my grandmother, seeing her carve wood, and using materials like birch-bark. My mom is also a truly creative person as well. It might not be a formal artistic practice, but it was about the practice of being creative and doing something with our hands. As an Indigenous youth, I found that there was no way to express the feelings of going through a decolonization process, of reconnecting with culture, and understanding all of the things that I was seeing and feeling without going back to that art practice. Going back to art was out of necessity; it wasn't this luxury, it was something that I felt I had to go back to, and so that was the beginning, of how I came back to it-this process of having no other way, except through that, to work through those feelings. So began that larger practice of connecting back to community and back to self-and there being a lot of difficult things to go through with that process. Once it really started, it did connect to my work with community, so I often describe myself as a "self-taught artist" in that I don't have any actual formal artistic training, so I say I'm a self-taught, community-engaged, visual multimedia Indigenous artist.

I work with multiple mediums, and that's almost out of necessity as well. As an Indigenous person, I've found I've needed multiple mediums in order to convey the layers of expression around any given subject. We have to find multiple different ways to express our voice. I really started back in with the visual arts, but since then, it's moved into needing to incorporate video and sound. I've started to pull in more traditional materials. Birchbark, for example, is very important to me. This traditional material has become an expression of my identity, of where I come from. I've named my blog "Artwork from a Birchbark Heart"; birchbark has been something that has been really "hands-on" for me, and it has helped me to work through a personal healing process. The layers of birch bark have a spiritual connection that I see connected to my body.

A lot of my artwork has been done for specific actions, events, or responding to issues. There's so much talent around us, so many talented, intelligent, expressive Indigenous youth around us, but there's also really huge obstacles to being able to express Indigenous worldviews in a way that's going to make people actually want to stop and listen to what we have to say. Whenever I've been asked to create by community, it's felt like, "if I have that gift"-and I've been told by elders, by people around me-if I have that gift of art, it's important for me to share.

PJ: Art in the service of the movement...?

EMK: Yes, art isn't just something for me to have. In fact, I often feel uncomfortable if I'm just doing art for myself. It doesn't make sense to me as a process.

PJ: Yes, it conveys the sense that the process is very much related to the finished product. I noticed there are often layers of 'text' in your images, written messages, even slogans.

EMK: Yes, people often refer to it as "your art" or they use these kind of very individualistic possessive pronouns to describe it, but I react to that, because I feel like it's community-owned. The messages and themes that come out of them are built around joint experiences, community experiences of working through things, like an expression of ceremony in response to missing and murdered Indigenous women, or around environmental violence from major extractive industries. Those understandings have been built through the work that I do on a day-to-day basis with the NYSHN, with grassroots organizations that are led by Indigenous peoples, groups like Families of Sisters in Spirit,² and by Indigenous youth, by conversations with my friends. It's a collective process and a collective resistance through art.

PJ: The art does seem like it's a conversation in process. Do you tend to work alone, or often as a group production? When you're working on a poster for a group action, how does that happen, as a back and forth, or is it more of a solitary process?

EMK: Like any other kind of product or outcome or action that's meant for community, the process looks different for every piece, but generally, a lot of it involves having a conversation with people. We talk about it, "this is something we would like to express through art"... Sometimes there are direct needs, people say "we need this for this action" or "it's for a presentation", or "we want to move the agenda forward and we want art to be central", to present the ideas or issues that we want to put forward.

I've also been really careful about what I share publicly. I try to be aware of what knowledge I share through my art, how it is portrayed and how it will be received. In some of my pieces, I've been really careful to ask the community, or follow up with the elders, and ask, "is this ok for me to share in my art?" Protocol is a part of my artistic practice.

There are also pieces that have been more individual to my lived experiences. The environmental justice and reproductive justice pieces of my work, of which there are many-that has come from the place where I grew up, and seeing those connections was definitely something that I grew up with. Once I started doing more work with the NYSHN, and working with Indigenous women internationally, that's when I was able to express more of what I saw growing up. But, again, it's often when I've been in those community spaces that those expressions, visually, have been creatively supported. It's been really important to not just have those reflections of myself, but to have them engage at national levels, at international levels, for other people to reflect those same things back. That's where I have that moment, where I have that sense of empowerment, that there are people around me, that we're facing the same thing, that we're reflecting on the same issues. I feel that I was able to express that in an image.

An artist isn't supposed to say this, but I have a really hard time making art. Part of that comes back to that point in my life where I stopped altogether, because of traumatic events and losing family members. My art work also conveys and is built out of very real issues about missing and murdered Indigenous women, about consent, etc. Something that I've become more and more interested in is some of the violence that can come out of art practice. It's not something I've fully worked through yet, but I'm engaging with more Indigenous people and Indigenous artists who do this kind of social commentary in their work.

PJ: You mean the violence brought up when remembering, when going through a healing process? How do you mean the "violence comes out of the art"?

EMK: Yes, well, part of it is it being a really heavy process to work through this art. There definitely is a lot of ceremony behind it. There's a certain level of understanding behind it, when artists are able to put down visually, or through sound, that which opens up a path to your heart, that is really visible, vulnerable.

PJ: Immersion in toxics threats/risk is something you're raising in several of the pieces, though, in your "Sharpie Ceremony", where you're smudging with sharpie fumes, and it struck me as intense in a chosen way. But, it seems like a lot of your work hits right at the gut, it has a 'low-blow' so to speak. For example the prison bars right in the pregnant womb, or the woman pole dancing. We look to publish more writings in our future issues around the decriminalization of sex work and also reproductive self-determination, which seems to be a major recurring theme in your work, so I hope we can have further collaboration with some of these pieces in the future.

EMK: Yes, some of them are really controversial. I've done the social commentary in my art for a longer period of time now and I've started to see more people's reactions and the effects of the art and what pieces are taken up over others, and why people choose to use them. So it's more of a reflective practice.

Also, I don't actually own a lot of my artwork, or I don't have it anymore; a lot of my pieces are actually made to be gifted. Gifting is a regular practice in Indigenous communities. A lot of the pieces you see on the blog are in people's homes or have traveled to different communities to be gifted.

PJ: And you've shown publicly at an exhibit here in Vancouver, too, last year at Rhizome?

EMK: Yeah, I've done a couple of different exhibits. It's not something that I've made a priority, but maybe it will happen more in the future, more showings. I continue to strive for my work to be shared in community based space. People keep telling me to show my art more in exhibits, but the majority of my showing just happens in the community, they're used as teaching tools, or in different ways of engagement.

PJ: Such visualizations must be helpful for youth in learning processes. So this has application in the kind of workshops that you do around sexual health for young people?

EMK: Yes, we work around a full spectrum of sexual and reproductive health rights and justice. There's a number of themes in the artwork that we work around at the Native Youth Sexual Health Network and a huge one has been connecting environmental violence to issues of sexual and reproductive health in the last couple of years. These pieces have been created and help us as a community to talk about those connections... whether that's increased rates of sexual violence, or increased drug and alcohol use-with no simultaneous increase in harm reduction services in communities-when resource extraction industries come in. Thus, there's messages around consent and violence in my work, also around HIV, midwifery, many related themes in our workshops.

 

PJ: I really enjoyed the works on midwifery, and had noticed it as a continuing theme. (It reminded me of something else I wanted to share with you around the colonial repression of midwives throughout history, and  a comparison of the suppression of witchcraft with that of midwifery.  ³) It was an idea that I saw running through your various works, which was the concept of healing through birth, pregnancies both literal and figurative in process, the pains of art works being "born".

EMK: Yes, my coworker has talked about the process of my art creation relating to birth. We were trying to talk about how my art practice had developed over the last couple years and I was trying to express my frustration around, well, there's very much this Western sense of what making art is, what that practice is and how it didn't seem to fit at all with what I do. There is an Indigenous process of protocol and creation for my art. That was one way that made sense for the work that we're already doing around sexual and reproductive health. You know, that it takes a community to pull together and do that birthing process, just like it takes communities to make these images. They're community driven, community born. These art pieces will have whole life cycles. They start from their birth in conversations, the triggering event, sometimes traumatic events, sometimes out of absolute necessity, say for increasing the profile of an issue. They come back at different points and mature with age and have different meanings taken up within them. Some of them were created four or five years ago, but they are picked up again when there's new layers added to the issue. People will say "now I see there's this in the artwork."

My borders piece just got picked up quite a bit more in the past month, because it was shared by No One Is Illegal and Idle No More for use in movements around border issues....

So they have these life cycles, these artworks, like a person has life cycles as well. And that's an appreciation I have, that art just doesn't have these static moments, they're meant to, and do have, whole life cycles. And sometimes they disappear too, or they become irrelevant to the conversation so they die off.

PJ: I noticed throughout your work that you refer to the large numbers of Indigenous women inside the prison industrial complex... and that a lot of your focus was towards the Canadian state. (Perhaps as you travel through the American state, you find similar themes; I'm not as clear on what the percentage of Indigenous women is within the US prison system-though there is some research comparing holdings of people of color in the public & private systems in the US published in this issue⁴ and the next of this journal-but clearly it's overwhelmingly disproportionate.) So I'm wondering, in terms of your art practice, how you take that conflict with the state in "agitational propaganda" so to speak. You mention use by No One is Illegal, for example, take even something so simple as saying "NO BORDERS", it's a pretty big assertion. So I guess my question is, how do you see your art helping us to get from where we are now at this moment, to where we want to be?

EMK: Well, first of all, I've never had anybody refer to my art as "agitational propaganda"! *laughs*

PJ: Yes, I guess I use that word 'agit-prop' a lot... I noticed it in regards to thinking of your art in terms of how it could be layed out in a design for use as street art/ ie. you've left space for a meeting point... and in several you've used large striking images with a lot of whitespace. So I thought it seemed like it was designed to be useful for street application... and this is related to the question of your political practice...

EMK: Sure. Talking about the prisons, and the high rate of Indigenous women in the prison industrial complex (PIC) and the larger issue of the PIC coming out into these issues of policing in our lives, whether that's around our bodies, whether that's around medical health services, it's been something that... once again ... we have to talk about because it's always there. We can't not talk about the PIC because it extends into all reaches of our lives as Indigenous peoples, as Indigenous youth, and women in particular. One particular experience I remember is: I was at Aamjiwnaang [Chippewas of Sarnia] First Nation and members of the local community were taking me around and showing me Chemical Valley ⁵... and we were talking about Alberta [Tar Sands]. In both struggles, youth are putting themselves, their bodies on the line, to defend their families, literally from dying.

So we were in a restaurant in Sarnia, and here on the wall, there was a frame with a police badge in it. The badge had industry depicted inside of it, and it was the actual symbol of the police in Sarnia, and I was, like, OMG, that is the most honest representation! It breaks down exactly as the "prison" "industry"...there's the industry, the pumps, and there's the state, the badge, there it all is, open and obvious. That's where, just last month, Ron Plain was given a $16,000 fine for holding up the railway.⁶

---

 

At Aamjiwnaang in Chemical Valley   "The reserve is surrounded by 62 major industrial facilities located within 25 km, including oil refineries, chemical manu-facturers (40% of Canada's chemical industry), and manufacturers of plastics, polymers, and agricultural products. The area is known as "Chemical Valley." Levels of air pollutants, including volatile organic com-pounds, are high. In 1996, hospital admissions for women in Chemical Valley were 3.11 times the expected rates for women and 2.83 times those for men than would be expected based on other rates for Ontario. These admissions were especially pronounced for cardiovascular and respiratory ailments, and were hypothesized to be pollution related. About 40% of Aamjiwnaang residents require use of an inhaler, and 17% of adults and 22% of children are reported to have asthma. The ratio of male births declined over the period 1984-1992 from > 0.5 to about 0.3, a change that may at least partly reflect effects of chemical exposures. Releases of chemicals have also interfered with the community's cultural life, affecting hunting, fishing, medicine gathering, and ceremonial activities." --- Excerpt by:Hoover,Elizabeth, Katsi Cook, Ron Plain, Kathy Sanchez, Vi Waghiyi, Pamela Miller, Renee Dufault, Caitlin Sislin, and David O. Carpenter from"Indigenous Peoples of North America: Environmental Exposures and Reproductive Justice" in Environmental Health Perspectives. 2012 December; 120(12): 1645-1649. http://dx.doi.org/10.1289/ehp.1205422

---

EMK: Yet this is going to happen more and more... that self-determination, and standing up for the rights of our communities is going to end up with more and more Indigenous youth, Indigenous women and communities in jail. They're set up for Indigenous communities by this point! They're set up so that in the event that we stand up for the defense of self-determination, the rights of our communities, the state can try to contain the dissent. Yet, Indigenous peoples have been doing this for a long period of time, and I recognize that-just because I'm a young person, and I'm really angry-I recognize that there are people that have been doing this for years. But there is a really stark thing that is happening right now, with so many people standing up, so many Indigenous youth standing up, well, the prisons are just going to start to be filled up with us. It really is across the board in North America; there are really stark rates of Indigenous women and youth in US prisons as well as Canadian prisons. We see mandatory minimum drug sentences that have been put into place in Canada, which is clearly modeled after the US system. So, anyone who says "oh the US is way worse than Canada" isn't really seeing the realities of the prison system in Canada, where it's a really bad situation.

PJ: And have you done work within Indigenous forms of justice, held healing circles, been part of restorative justice programs?

EMK: Yes, I would say that's in our day-to-day work, expressing what we understand to be Indigenous forms of justice, even in the way that we build ourselves as Indigenous people. I do see youth taking care of each other when things happen. I see them making active choices around whether or not they involve police, whether or not they involve Child Welfare, and that can be as simple as them instead asking an elder to come in and deal with a conflict. I've had to do that with the stuff that's happened in my life; it's making that active choice to talk to an elder or a community leader instead, and say, "can you come in and help with this issue?"

PJ: So it is a matter of creating the alternatives as we go...?

EMK: Yes, and it's messy.

PJ: Well, it's good if you can continue to reflect that in your artwork, to write and speak about it, because I think there are a lot of people struggling to find justice-native and non-native. Especially on the streets, or under-housed, in crowded situations of housing. Here in Surrey, and Vancouver, where rent is so incredibly high, you see a lot more situations of domestic abuse, where people (most often women) are putting up with awful situations because of the housing crisis. So talking about ways where there can be an intervention, even at the community level, even a large scale intervention, without bringing in the state. ... Well, I just think that your experiences with that type of thing are a very valuable thing to try to communicate. If I can encourage you to try to continue with that, I do think a lot of people are looking for that.

EMK: So these should be my next five art pieces! *laughs*

But more about my art in terms of detaching from dependence on the state: I think sometimes sexual and reproductive health and justice isn't looked at as a serious way of decolonization, of building up Indigenous nationhood. But I do think people can learn more about self-determination, about sovereignty, about what nationhood means, about breaking down these borders and barriers and removal of dependancy on the state from looking at what's been learned by the reproductive justice movement. That's been one aspect of my artwork-the importance of the reproductive justice movement within anti-colonial movements in general-that needs to be taken more seriously.

PJ: I was going to foreground that-the colonial imposition of the Indian Act and how the lineage was purposefully cut off by the state, how if you married out or left the reserve, they could try to cut off "status"-by reading a section from the chapter of the book Speaking My Truth on the "Legacy of Residential Schools: Missing and Murdered Aboriginal Women" by Beverley Jacobs and Andrea Williams:

While initially inclusive of men and women, along with their marriage partners and children, the legislation was quickly amended to exclude non-Indian men who married Indian women but not non-Indian women who married Indian men. The Report of the Royal Commission on Aboriginal Peoples (RCAP) noted: "For the first time, Indian status began to be associated with the male line of descent." The 1857 Gradual Civilization Act furthered the distinction between the standing of men and women by providing a route for Indian men, but not women, to renounce their status "in order to join non-Aboriginal colonial society." The legal means, referred to as 'enfranchisement,' to voluntarily give up Indian status was granted only to men who met a specific set of criteria: for example, over the age of 21; able to read and write English or French; educated; free of debt; and 'of good moral character'. The wives and children of enfranchised men automatically lost their status.

It spoke further about the Victorian imposition of who was "of good moral character". The Indian Agents reserved the right to continue to determine whether or not women were included in that category; sometimes if they weren't married, or if there was a child born out of marriage, they would be excluded-even if their Nation decided to include them-the Indian Agent could come in and formally exclude them and so many people lost status that way. Clearly it was a way of breaking the sense that, as John Trudell put it, "we're all human beings"-in being all human-so that Original Peoples were continually interfered with, attempted to be broken up by the Indian Act processes of colonization. Also the matter of forced sterilizations contributed to this process, officially only ending in the 70's.

In Alberta, the 'Sterilization Act' of 1928 (started under the father of right-wing politician Preston Manning) specifically targeted people in mental health institutions, but also aimed at native women, new immigrants, the disabled, unwed mothers, women accused of lesbian 'tendencies', and so on. It was only finally ended in 1972, after sterilizing more than 2,000 Albertans. ⁷

Have you come across women that are grappling with these issues?

EMK: Yep, that was one of the most annoying aspects of the feminist movement's constant refrain about "the Famous Five" ⁸. Growing up, learning about Emily Murphy, I also learned about the fact that she was part of advocating for the sterilization of Indigenous women and women with disabilities.

Modern forms of sterilization still happen in our communities. There hasn't been very much work of inquiry into the effects of those sterilizations on our communities, and other communities in Alberta, and I also don't think there is enough visibility on the fact that sterilization continues to occur in countries like Canada, for Indigenous women, and for women with disabilities, in the modern forms of reproductive control and contraceptions like the over-prescription of Depo-Provera to Indigenous youth, which has been proven to cause signs of infertility when over-used. So, while sterilization might not look like what it looked like with the Alberta Sterilization Act, there's new forms of sterilization still expanding. What does it mean to have increasing numbers of missing and murdered Indigenous women in regards to this issue?

PJ: Also the forced sterilization of workers continues. We saw in our research, that over the years there has been a large increase in the number of factory workers that are offered (in a practically mandatory way) birth control pills each morning. This is especially prevalent (but not limited to) within "export processing zones" where there are high concentrations of displaced young women being exploited for long hours with low pay. So many other "hot zones" where environmental class repression is widespread, the rates of infant mortality also significantly higher. Like in Detroit, the infant mortality rate, especially for black children, was and still is appalling. So many people across the river in Windsor are affected with respiratory problems, especially recently with the Koch brothers Carbon company storing vast piles of petcoke along the river.

On a tangent here, I wanted to ask you: why the loon? The character seems to reappear in several different pieces.

EMK: The loon has a lot of sentimental significance to me in terms of an animal in my life. For my mom's side, which is my Indigenous side of my identity, the loon has been a really important animal; though I don't really use animals much in my images, I did use a porcupine recently, but it was also because I dequilled a porcupine for the first time, with my mom, which was ...

PJ: difficult?

EMK: Definitely difficult. *laughs* Loons are a solitary animal and if there are changes in the environment, loons are easily impacted. If there's a change in the environment in the ecosystem at all, they're the animals that don't do well with a lot of destruction, damage to the environment, or noise or people around.

◄ " On 
Policing" 
for the Families of Sisters in Spirit + Native Youth 
Sexual Health 
Network Joint Statement: 
"Responding 
Together to Change the 
Story"

(June 2013)

 

PJ: I wanted to ask about the masked Warrior, she reappears with colorful variations, where is she from/what is she doing?

EMK: This one is interesting for this journal issue too, around the themes of terrorism and who gets called a terrorist. This one was done reflecting themes around the Canadian government's spying on Cindy Blackstock. I remember people saying "how could they spy on Cindy Blackstock?? She's just this gentle woman with this big heart." And I'm like, "Have you ever met Cindy Blackstock? That woman is dismantling the state one day at a time! She's a wicked warrior!" But, because she does work with kids, she's not a serious enough warrior?! No.

PJ: Yes, I've heard very similar expressions, it's true.

EMK: Yep, saying such is setting this precedent about what's taken seriously as activism, what is 'taking on the state.' But for me, it's about taking seriously the work that she's defending. She's literally keeping children in their communities, that's the work that she's doing, and if that isn't one of the most important things for us to defend in our communities, just as much as defending the land, then I'm not sure what the state could be more scared of! Removing children from their communities is a central part of the state's assimilation strategy.

PJ: So the womyn, wearing a mask, she's in action?

EMK: Yes, she is. It was actually done of a young, Indigenous woman, a Mohawk. We were talking of the Oka crisis as well... the use of military force (the tanks against her). She's Bear Clan, so that's where the bears come from, looking at those visual representations of the state vs. Indigenous peoples. It also has reference to Indigenous women leading the defense of land.

PJ: Another series that was quite striking is the 'Oral Warrior' women. Can I ask if that's a dental dam? ►

EMK: Yes, that's it exactly. I try and incorporate some of my sexuality in my artwork as well, but this piece goes back to that serious sense of the fact that we're losing our languages. I take that very seriously. I don't speak my Indigenous language, I can only really introduce myself, like many Indigenous youth. Only 2% of Métis people that speak their languages are left, although Cree is much more strong here in Alberta. It was also inspired by the sense that there are other ways that we can "practice" orally that are just as serious... while trying to lighten the mood about that, saying there's other ways that orally we can protect our world views and one of them is through safe oral sex, that we can be warriors through that way, without necessarily using words.

 

This next one was done around work that we were doing with midwives at the time, speaking about how within many of our communities midwives are traditional, but they've been criminalized. It's definitely a process that's about resistance and building up self-determination for our communities, and so there's reasons why the state forbids certain midwifery practices in hospitals. Building and reclaiming midwifery knowledge in Indigenous communities means that those who are pregnancy don't have to leave their community (and their supports) to give birth. ▼

PJ: What about this "Terra Nullius -- Doctrine of Discovery" piece, when was that created?

EMK: That was done for the Roe V. Wade 40th Anniversary... because abortion "rights"-in terms of asserting our rights to self-determination of our bodies-these are obviously not only 40 years old. We are not 'Terra Nullius'.

▲ This piece was created as a political statement around the impacts of terra nullius (empty land, empty bodies) to be conquered. In this image the body is the territory that is represented as terra nullius and how experiences of environmental violence transfer to our bodies. It resists the idea that our bodies are terra nullius, while simultaneously resisting that Indigenous territories are terra nullius. From an Indigenous Feminist perspective, resistance to violent legal frameworks (such as terra nullius) can be taken up when we fight for the self-determination of our bodies as Indigenous Peoples.

Excerpt from "The Doctrine of Discovery is less of a problem than terra nullius" "What made the Doctrine of Discovery so devastating was the application of a related legal concept, the principle of terra nullius. Terra nullius is a legal theory, or more accurately a legal fiction (something which may not be true, but is assumed to be so in order to facilitate particular legal findings) which holds that 'discovered' lands were, or are, empty. As a result of this 'emptiness', European powers asserted a unilateral right to simply take territories and resources within their jurisdictions. To put it another way, the legal fiction of terra nullius allowed European powers to simply assume that the underlying title to the entire territory belonged to those powers, rather than to the indigenous nations actually living there. In a territory subject to terra nullius, once that territory has been properly claimed by a European power (vis a vis other powers), it would be assumed to be 'owned' by the power. By default, all lands, territories and resources would be the patrimony of the colonizing power. This is important because the fundamental point of an indigenous rights claim is that indigenous peoples controlled lands, territories and resources before being 'discovered' by a European power and that they were never legally dispossessed of those lands, territories and resources. In other words, an indigenous rights case is, at base, a challenge to the assertion by the state that it has complete control over the lands, territories and resources within its international boundaries."