Political Theory and the Rights of Indigenous Peoples

POLITICAL THEORY AND T H E R I G H T S O F INDIGENOUS PEOPLES EDITED D U N C A N

BY I V I S O N

University of Sydney P A U L

P A T T O N

University of Sydney W I L L

S A N D E R S

Australian National University

Hi

CAMBRIDGE

^jpF

U N I V E R S I T Y PRESS

CAMBRIDGE UNIVERSITY PRESS Cambridge, N e w York, Melbourne, Madrid, Cape Town, Singapore, Sao Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, N e w York www.cambridge.org Information on this title: www.cambridge.org/9780521770484 © Cambridge University Press 2000 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2000 Reprinted 2002 A catalogue

record for this publication

is available

from the British

Library

National Library of Australia Cataloguing in Publication data Political theory and the rights of indigenous peoples. Includes index. ISBN 0 521 77048 3. ISBN 0 521 77937 5 (pbk.). 1. Indigenous peoples - Politics and government. 2. Aborigines, Australian - Politics and government. 3. Maori (New Zealand people) - Politics and government. 4. Indians of North America - Politics and government. 5. Indians of North America - Canada - Politics and government. I. Ivison, Duncan 1965-. II. Patton, Paul. III. Sanders, Will. 342.0872 ISBN 9 7 8 - 0 - 5 2 1 - 7 7 0 4 8 - 4 hardback ISBN 978-0-521-77937-1 paperback Transferred to digital printing 2007

Contents

List of Contributors A cknowledgemen ts

Vll

Introduction

1

1

X

DUNCAN IVISON, PAUL PATTON AND WILL SANDERS

Part I Sovereignty 2

Waitangi as Mystery of State: Consequences of the Ascription of Federative Capacity to the Maori

25

J.G.A. POCOCK

3

T h e Struggles of I n d i g e n o u s Peoples for a n d of F r e e d o m

36

JAMES TULLY

4

Beyond Regret: Mabo's Implications for Australian Constitutionalism

60

JEREMY WEBBER

5

Engaging with Indigeneity: T i n o Rangatiratanga in Aotearoa

89

ROGER MAAKA AND AUGIE FLERAS

Part II Identity 6

Paths Toward a Mohawk Nation: Narratives of Citizenship a n d N a t i o n h o o d in Kahnawake AUDRA SIMPSON

v

113

vi 7

CONTENTS

(De) Constructing the Politics of Indigeneity

137

MANUHUIA BARCHAM

8

O n Display for its Aesthetic Beauty: How Western Institutions Fabricate Knowledge about Aboriginal Cultural Heritage

152

SONIA SMALLACOMBE

9

O n the Plurality of Interests: Aboriginal Self-government and L a n d Rights

163

JOHN BERN AND SUSAN DODDS

Part III Democracy 10

T h e Liberal Image of the Nation

183

WILLIAM E . CONNOLLY

11

Minority Claims u n d e r Two Conceptions of Democracy

199

PHILIP PETTIT

12

American Multiculturalism a n d the 'Nations Within'

216

WILL KYMLICKA

13

Hybrid Democracy: Iroquois Federalism a n d the Postcolonial Project

237

IRIS MARION YOUNG

Notes Bibliography Index

259 282 305

Contributors

MANUHUIA BARCHAM is a P h D s t u d e n t in the D e p a r t m e n t of Political Sci­ e n c e in the Research School of Social Science, Australian National University. H e is a m e m b e r of the Ngati K a h u n g u n u , Te Arawa a n d Ngati T u w h a r e t o a Iwi of New Zealand. His P h D thesis critically exam­ ines the comparative political e c o n o m y of d e v e l o p m e n t in Australia a n d P a p u a New Guinea, a n d h e has an o n g o i n g interest in the inter­ section of political t h e o r y a n d political practice, particularly in the analysis of notions of indigeneity a n d social change. JOHN BERN is Professor of Sociology a n d Director of the South East A r n h e m L a n d Collaborative Research Project at the University of Wollongong. H e has u n d e r t a k e n extensive e t h n o g r a p h i c research with Aboriginal p e o p l e in Australia's N o r t h e r n Territory. T h e major foci of his research are the national politics of indigenous people, issues of i n d i g e n o u s g o v e r n a n c e a n d land ownership, a n d socio­ political developments in r e m o t e Aboriginal communities in the N o r t h e r n Territory. WILLIAM CONNOLLY is Professor a n d Chair of Political Science at J o h n s H o p k i n s University. His The Terms of Political Discourse (1974) received the biennial Lippincott Award in 1999 for the 'best book in political t h e o r y still influential fifteen years or m o r e after publication'. His most r e c e n t publications are The Ethos of Pluralization (1995) a n d Why I am Not a Secularist (1999). SUSAN DODDS is a Senior Lecturer in Philosophy at the University of Wol­ l o n g o n g a n d j o i n t co-ordinator (with J o h n Bern) of the Public Policy: Civil Society a n d State Institutions research g r o u p within the Institute of Social C h a n g e a n d Critical Inquiry. H e r work is primarily within the

viii

CONTRIBUTORS

areas of moral a n d political philosophy. She has published papers on a r a n g e of topics, including indigenous justice a n d citizenship, property rights, reproductive technology, personal autonomy a n d research ethics. AUGIE FLERAS is Associate Professor in sociology at the University of Waterloo in Canada. H e has long-standing interests in race, ethnic a n d aboriginal relations, with particular emphasis o n policy a n d poli­ tics. H e is currently working with Roger Maaka on a host of issues per­ taining to Maori-Crown relations. DUNCAN IVISON teaches in the D e p a r t m e n t of Philosophy at the University of Sydney. H e is the a u t h o r of The Self at Liberty (1997) and various arti­ cles in the history of political t h o u g h t a n d c o n t e m p o r a r y political theory. WILL KYMLICKA is a Q u e e n ' s National Scholar in the Philosophy depart­ m e n t of Q u e e n ' s University in Kingston, a n d a visiting professor in the Nationalism Studies p r o g r a m at the Central E u r o p e a n University in Budapest. H e is the a u t h o r of four books published by Oxford Uni­ versity Press: Liberalism, Community, and Culture (1989), Contemporary Political Philosophy (1990), Multicultural Citizenship (1995), and Finding Our Way: RethinkingEthnocultural Relations in Canada (1998). H e is the editor of Justice in Political Philosophy (Elgar, 1992), The Rights of Minor­ ity Cultures (1995), Ethnicity and Group Rights (NYU, 1997) a n d Citizen­ ship in Diverse Societies (2000). ROGER MAAKA is H e a d of the D e p a r t m e n t of Maori at the University of C a n t e r b u r y a n d a m e m b e r of the Waitangi Tribunal. H e has research interests in Maori political a n d social d e v e l o p m e n t a n d change. H e has published several studies on Maori society, including a study on the effects of urbanisation. Roger is currently o n the Tribunals hear­ ing the Mohaka ki Ahuriri region land claims a n d the Indigenous Flora, Fauna a n d Intellectual Property Rights claim. PAUL PATTON is Associate Professor in Philosophy at the University of Syd­ ney. H e is the a u t h o r of Deleuze and the Political (2000), a n d has pub­ lished several articles o n the implications of native title in Australia. PHILIP PETTIT is Professor of Social a n d Political T h e o r y at the Research School of Social Sciences, Australian National University. H e is the a u t h o r of a n u m b e r of books on philosophy a n d political theory, including The Common Mind: An Essay on Psychology, Society and Politics (1993) a n d Republicanism: A Theory of Freedom and Government (1997). JOHN POCOCK is Professor Emeritus of History at the J o h n s Hopkins Uni­ versity, where h e taught from 1974-94. H e has held posts as Professor

CONTRIBUTORS

ix

of Political Science at the University of C a n t e r b u r y a n d Professor of History at Washington University, St Louis. His publications include The Ancient Constitution and the Feudal Law (1957), The Maori and New Zealand Politics (1969), Politics, Language and Time (1971), The Machi­ avellian Moment (1975), Virtue, Commerce and History (1985), a n d Bar­ barism and Religion I: The Enlightenment of Edward Gibbon, II: Narratives of Civil Government (1999). WILL SANDERS has b e e n , since 1993, a Research Fellow at the Australian National University's C e n t r e for Aboriginal Economic Policy Research, where h e has also b e e n c o o r d i n a t o r of the Institutions of Aboriginal Australia strand of the ANU's Reshaping Australian Insti­ tutions Project. H e has worked o n several areas of Australian public policy relating to indigenous Australians, including housing, employ­ m e n t , i n c o m e support, health, local g o v e r n m e n t a n d inter-govern­ mental relations. AUDRA SIMPSON is a P h D candidate in the D e p a r t m e n t of Anthropology, McGill University. H e r doctoral research examines the relationship between discourse, narrativity a n d n a t i o n h o o d . She is a Kahnawake Mohawk. SONIA SMALLACOMBE is an indigenous Australian a n d a m e m b e r of the Maramanindji peoples from the Daly River region of the N o r t h e r n Territory. She is u n d e r t a k i n g a P h D at ANU in C a n b e r r a , a n d also m a n a g e s the I n d i g e n o u s Cultural a n d Intellectual Property Task Force within the Aboriginal a n d Torres Strait Islander Commission (ATSIC). JAMES TuLLYis Professor of Political Science at the University of Victoria, Victoria, British Columbia. His publications include Strange Multiplic­ ity: Constitutionalism in an Age of Diversity (1995, revised 1999); a n d as editor, Struggles for Recognition in Multinational Societies (forthcoming). JEREMY WEBBER is Dean a n d Professor of Law at the University of Sydney. Until 1998, h e was o n the Faculty of Law of McGill University. H e is the a u t h o r of Reimagining Canada: Language, Culture, Community and the Canadian Constitution (1994) a n d of o t h e r works on cultural differ­ e n c e , indigenous rights, federalism, nationalism, constitutional law a n d legal theory. IRIS MARION YOUNG is Professor of Political Science at t h e University of

Chicago, where she teaches political theory a n d feminist theory. She is a u t h o r of several books, including Intersecting Voices: Dilemmas of Gen­ der, Political Philosophy and Policy (1990). Inclusion and Democracy will a p p e a r in the Oxford University Press Series in Political T h e o r y in August 2000.

A cknowledgements

T h e project from which this book e m e r g e d was first conceived when the editors were all resident, in various capacities, at the Australian National University in C a n b e r r a . Since this is a book c o n c e r n e d to explore the c o n s e q u e n c e s of indigenous peoples' claims a n d aspirations for contem­ porary political theory, we would like, first of all, to acknowledge the Ngunnawal p e o p l e as traditional owners of the land u p o n which o u r e n d e a v o u r s began a n d took shape, a n d thank t h e m for their interest in a n d s u p p o r t of the project. We are especially grateful to the Humanities Research Centre at the ANU, a n d especially to the Director, lain McCalman, a n d the Associate Director, G r a e m e Clarke, for their unstinting support of o u r efforts. W i t h o u t the backing of the H R C this book, a n d the various seminars a n d colloquia organised a r o u n d it, would simply not have occurred. T h e C e n t r e provided an unrivalled a t m o s p h e r e in which to pursue our pro­ ject. T h e HRC graciously allowed us to offer visiting fellowships to many of o u r contributors, enabling t h e m to c o m e to C a n b e r r a for various lengths of time, a n d to develop a n d discuss their papers with each o t h e r a n d the many o t h e r visiting a n d resident scholars from a wide range of disciplines. T h e administrative staff at the HRC were wonderfully sup­ portive as well, a n d h a n d l e d the often complex a r r a n g e m e n t s involved with great efficiency a n d good h u m o u r . In particular, we would like to t h a n k L e e n a Messina, Stephanie Stockdill, Julie Gorrell, Ben Penny, Lia Szokalski a n d Misty Cook. We would also like to acknowledge the support of o u r efforts by the Research School of Social Sciences at the ANU, u n d e r the auspices of the Reshaping of Australian Institutions Project directed b y j o h n Braithwaite a n d Frank Castles. F u r t h e r s u p p o r t was provided by the Social a n d Politi­ cal T h e o r y G r o u p at the RSSS which enabled us to bring a n u m b e r of o u r x

ACKNOWLEDGEMENTS

xi

contributors to C a n b e r r a . We are especially grateful to Philip Pettit, Director of the G r o u p , a n d to Robert Goodin a n d Barry Hindess for their h e l p in this regard. Additional support for the project was provided by the Nuffield F o u n d a t i o n , the D e p a r t m e n t of Politics at the University of York a n d the Australian F o u n d a t i o n for Culture a n d the Humanities. To all these institutions a n d organisations, we are very grateful. Phillipa McGuinness a n d Sharon Mullins of Cambridge University Press have b e e n receptive a n d supportive editors ever since we first a p p r o a c h e d t h e m with the idea of this book, a n d provided the right com­ bination of incentives a n d sanctions to help keep us focused o n the task at h a n d . Melissa McMahon provided excellent help in readying the man­ uscript for publication. We are also grateful to Peter Cook for help in p r e p a r i n g the index. Finally, we would like to thank the following for their h e l p in realising this project: Mick Dodson, Danny Celermajer, Frank B r e n n a n , Russell Barsh, Roy Perrett, H e n r y Reynolds, J o h n Wunder, Sidney Haring, Garth N e t t h e i m a n d Margaret Wilson.

CHAPTER 1

Introduction D u n c a n Ivison, Paul Patton a n d Will Sanders

C o n t e m p o r a r y political theory has m u c h to learn from the e n c o u n t e r with its colonial past. T h e d e m a n d s of indigenous peoples for justice pre­ sent far-reaching challenges. Suppose we begin by asking what are 'indigenous rights'? Are these rights as liberal political theorists under­ stand them? If c o n t e m p o r a r y liberal political t h o u g h t presents itself as a universal idiom for u n d e r s t a n d i n g a n d reflecting u p o n social a n d politi­ cal relations, where does this leave indigenous political t h o u g h t a n d indigenous u n d e r s t a n d i n g s of their rights to land, culture a n d self-rule? How can c o n t e m p o r a r y political theory contribute to a future in which indigenous c o m m u n i t i e s n o longer suffer the consequences of colonisa­ tion, dispossession a n d forced assimilation? Can liberal democracy b e c o m e genuinely intercultural? These questions d o n o t arise in a vacuum, but in response to a prob­ lem of o n g o i n g political c o n c e r n in many former colonial countries, namely, the relationship between western colonial societies a n d the con­ tinuation a n d resistance of pre-existing indigenous societies o n the same territory. They are n o t issues of m e r e academic interest, since they touch u p o n historically e n t r e n c h e d injustice a n d social disadvantage. Ulti­ mately, they c o n c e r n the very survival of indigenous peoples. Such issues should c o n c e r n any reflective citizen of a c o n t e m p o r a r y nation state. W h a t has b e e n the relationship between m o d e r n western political theory a n d the struggles of indigenous peoples over the past 400 years? Each set of peoples a n d each state has its own particular story with its i n h e r e n t complexities. T h e chapters in this book address the legal, con­ stitutional a n d cultural circumstances of a g r o u p of countries colonised u n d e r British law: Australia, Canada, A o t e a r o a / N e w Zealand and the U n i t e d States of America. Generally speaking, at various points of his­ tory, different strands of western political t h o u g h t have n o t only b e e n 1

2

D . I V I S O N , P. P A T T O N A N D W. S A N D E R S

complicit with, but h e l p e d to justify, colonial expansion a n d imperial control over indigenous peoples a n d their territories. As m u c h as mod­ e r n political theory, especially in its liberal a n d social democratic vari­ ants, has emphasised universal h u m a n rights, equality before the law a n d individual a n d collective freedom, it has also explicitly d e n i e d such enti­ tlements to indigenous peoples. Much of m o d e r n western political t h o u g h t has t e n d e d to rely o n an anthropological minimalism that has in fact b e e n anything but minimal. As we u n d e r s t a n d it, 'western political t h o u g h t ' refers broadly to that body of political, legal a n d social theory developed by E u r o p e a n , American, Australian and New Zealand authors a n d practitioners from the b e g i n n i n g of the m o d e r n period in E u r o p e to the present. It is a complex a n d contested body of t h o u g h t c o n c e r n e d with the normative p r o b l e m of the justification of g o v e r n m e n t as well as the question of how, in fact, peoples or populations are governed. T h u s it includes reflection u p o n a n d e n g a g e m e n t with practices of self-forma­ tion, discipline, education a n d training as well as u p o n the sanctions a n d limits of political power (Tully 1993; 1995). Western political t h o u g h t has often e m b o d i e d a series of culturally specific assumptions a n d j u d g e m e n t s a b o u t the relative worth of o t h e r cultures, ways of life, value systems, social a n d political institutions, a n d ways of organising property. As a result, egalitarian political theory has often e n d e d u p justifying explicitly inegalitarian institutions and prac­ tices. This history of western, a n d especially liberal, political t h o u g h t ' s e n t a n g l e m e n t with colonialism has b e e n recently told in m u c h detail a n d with great force. T h e e m e r g e n c e of 'postcolonial' theory in English a n d Cultural Studies, the careful work of historians a n d legal historians of set­ tler societies a n d Empire, as well as historians of early m o d e r n political t h o u g h t , have b e e n of particular i m p o r t a n c e in this regard. Finding a p p r o p r i a t e political expression for a just relationship with colonised indigenous peoples is o n e of the most i m p o r t a n t issues con­ fronting political theory today. As i m p o r t a n t as it is to u n d e r s t a n d how western a n d especially liberal political theory is implicated in the justifi­ cation of colonialism, it is even m o r e i m p o r t a n t to d e t e r m i n e w h e t h e r this complex tradition of t h o u g h t might provide space for the contem­ p o r a r y aspirations of indigenous peoples. Typically, these have included claims for the r e t u r n of traditional lands, the preservation of culture, a n d the right as well as the m e a n s to exercise effective self-government. Western political t h o u g h t is not necessarily the language of the world's i n d i g e n o u s peoples, although they have often b e e n constrained to use it a n d t h e r e are points at which it overlaps with indigenous conceptions of what is right or j u s t . This book is i n t e n d e d as a contribution to an ongo­ ing intercultural conversation between indigenous a n d non-indigenous theorists, a n d between theorists occupying different vantage points 1

2

INTRODUCTION

3

within the same general ' l a n g u a g e ' of western political thought. O u r aim is to h e l p create a better u n d e r s t a n d i n g of the range of relations between political theory a n d indigenous rights claims, as well as to contribute to new thinking a b o u t the best m e a n s to address such claims. What new c o m b i n a t i o n of familiar values or concepts can be constructed to m e e t indigenous claims? W h a t would it m e a n to ' d o justice' to these claims in ways that are acceptable a n d accessible to both indigenous a n d noni n d i g e n o u s peoples? What d o we m e a n by 'justice' in this context? I n d i g e n o u s peoples' claims to prior a n d c o n t i n u e d sovereignty over their territories question the source a n d legitimacy of state authority. Some states rely o n the now discredited doctrine of terra nulliusr, in others, the terms of treaties are n o t always observed. No d o u b t most states owe their existence to some c o m b i n a t i o n of force a n d fraud. However, the issue is n o t simply a matter of how a state came to be, but of how it can b e c o m e 'morally rehabilitated', even if it began in an illegitimate fash­ ion. How might the narratives of n a t i o n h o o d be retold, the founding m o m e n t s of a state reconstituted or its fundamental d o c u m e n t s reinter­ preted? T h e s e issues have b r o a d consequences for philosophical views a b o u t the relation between the individual a n d the state, a n d the n a t u r e of c o m m u n i t y a n d identity. O n e i m p o r t a n t issue that emerges at the outset is the problem of dis­ tinguishing i n d i g e n o u s claims from the claims of o t h e r kinds of cultural or 'societal' groups. In o r d e r to 'do justice' to indigenous claims we n e e d an u n d e r s t a n d i n g of the distinctive n a t u r e of the claims p u t forward by indigenous peoples. As m u c h as it is t r u e that, historically speaking, lib­ eral democracies have tried to assimilate indigenous peoples and deny t h e m any group-specific forms of recognition, Will Kymlicka points out in his c h a p t e r that the same is t r u e with many o t h e r minority groups. Basques, Bretons, Scots a n d Quebecois have all, at various points, b e e n victims of state-sponsored discrimination or assimilation. Moreover, these 'stateless n a t i o n s ' have also t e n d e d to see themselves n o t only as a distinct p e o p l e , as d o indigenous peoples, but as occupying territories they have c o m e to think of as their ' h o m e l a n d s ' . If we are to distinguish between these g r o u p s a n d i n d i g e n o u s peoples, how can it be d o n e , a n d according to what criteria? This question leads us into issues of cultural difference, universalism a n d particularism. Rights are generally conceived of as securing or protecting funda­ mental h u m a n interests, for example, those to d o with property or bod­ ily integrity. H e n c e they appeal to conceptions of what counts as a f u n d a m e n t a l interest a n d are shaped by the particular contexts a n d the challenges faced in securing or p r o m o t i n g those interests. They are also e m b o d i e d a n d expressed in distinctive conceptions a n d idioms of law, which in t u r n r e q u i r e institutional expression. T h e recognition a n d

4

D . I V I S O N , P. P A T T O N A N D W. S A N D E R S

expression of indigenous rights will require a c c o m m o d a t i o n a n d trans­ lation of all these different facets, with the additional b u r d e n of doing so in the context of an imposed non-indigenous legal framework. As J e r e m y W e b b e r points out, whatever else might be said about the character of indigenous rights, they are 'mediated rights': the recognition of indige­ n o u s interests in land as legal or political rights inevitably transforms those interests. J a m e s Tully suggests that western political theory has consistently failed to enter into ajust dialogue with indigenous peoples and their politi­ cal traditions a n d understandings. At the same time, the d e m a n d for a j u s t dialogue between indigenous and non-indigenous peoples presents a series of difficult challenges. What are the necessary conditions for such dialogue? O n the o n e h a n d , it is clearly a presupposition of dia­ logue that indigenous a n d western political theories are not utterly i n c o m m e n s u r a b l e . O n the o t h e r h a n d , this does n o t m e a n that there c a n n o t be p r o f o u n d differences between their conceptions of social rela­ tions, individual rights a n d obligations and that, as a result, we still face the p r o b l e m of finding a p p r o p r i a t e translations or reconciliations. Does this imply that western liberal political theory should r e n o u n c e its claim to universality a n d present itself as based u p o n o n e possible set of values to be considered alongside others, including indigenous ones? And would this n o t raise the spectre of cultural relativism? Are we, then, not in d a n g e r of assuming that cultures a n d traditions are m o r e h o m o g e ­ n e o u s a n d self-contained than they actually are? Do we n o t risk losing sight of the possibility that t h e r e may be values c o n c e r n e d with equality, freedom, autonomy, wellbeing a n d justice that are shared between cul­ tures a n d traditions? C o n t e m p o r a r y anthropologists a n d cultural theorists have shown how even the most apparently 'traditional' cultures are actually quite com­ plex a n d fluid (Clifford 1988; Moody-Adams 1997). This seems particu­ larly t r u e in the case of the cultures of colonised indigenous peoples within c o n t e m p o r a r y liberal democracies. Conversely, problematic assumptions a b o u t the i n h e r e n t inferiority of indigenous peoples a n d their practices a n d the i n h e r e n t superiority of E u r o p e a n n o r m s a n d insti­ tutions have b e e n a standard feature of arguments in political theory since at least the sixteenth century. W h e n we invoke a mysterious 'oth­ erness' or radical difference in referring to indigenous cultures, we are in d a n g e r of simply replaying such prejudices. Deep cultural diversity a n d difference is a key feature of many c o n t e m p o r a r y societies. But that is n o t to say that the various cultures and peoples are encased within sta­ tic a n d clearly delineated cultural structures a n d boundaries. Claims of cultural difference have to be balanced against the dynamic n a t u r e of cultural practices a n d traditions a n d the ways in which cultures borrow 1

INTRODUCTION

5

a n d i m p o r t practices a n d beliefs from outside of themselves. T h e chap­ ters by M a n u h u i a Barcham, A u d r a Simpson, William Connolly a n d J e r e m y Webber e x a m i n e the conceptions of identity a n d difference cur­ r e n t in c o n t e m p o r a r y political thought. In r e c e n t years, t h e r e have b e e n g e n u i n e attempts from within the lib­ eral tradition to a c c o m m o d a t e indigenous claims. These n e e d to be evalu­ ated as m u c h as the earlier forms of complicity with the process of colonisation. Accordingly, this book addresses two general questions. First, in what ways has western political theory contributed to the coloni­ sation, subjugation a n d c o n t i n u i n g disadvantage faced by indigenous peoples in the past a n d today? Second, what resources exist in political theory for thinking differ­ ently a b o u t these relations a n d a b o u t the possibility of 'decolonising' relations between indigenous a n d non-indigenous peoples? Contribu­ tors have b e e n asked to pursue b o t h questions with regard to three gen­ eral t h e m e s - sovereignty, identity a n d democratic theory - in each case, with an eye to the fundamental issue of justicefor colonised indigenous peoples. Some of the chapters touch on all t h r e e themes, others focus on o n e or a c o m b i n a t i o n of them. Each of these t h e m e s represents a significant d o m a i n within western political theory, a n d each has b e e n central to the e n c o u n t e r between indigenous a n d non-indigenous peoples. O u r aim h e r e is to provide a philosophical context within which the r e a d e r can situate the essays. We shall consider how indigenous claims have c o m e to be u n d e r s t o o d a n d interpreted by c o n t e m p o r a r y political philosophers, a n d what they have taken to be the consequences of these claims. Liberal political philosophy looms large, since it has been a m o n g liberal political theorists that d e b a t e o n the n a t u r e of indigenous claims from a n o n - i n d i g e n o u s perspective has b e c o m e , philosophically speak­ ing, most developed. We aim to provide a sense of b o t h the limits a n d possibilities within liberal political theory for recognising a n d respond­ ing to indigenous claims.

Responses to Indigenous Claims T h r e e kinds of response to i n d i g e n o u s rights claims have e m e r g e d in recent years. T h e first argues that liberal political theory n e e d n o t be r e s h a p e d in light of indigenous d e m a n d s , but instead should hold fast to its individualist a n d non-interventionist credentials, and ensure that the rights a n d protections it cherishes effectively be e x t e n d e d to indigenous peoples. T h e second argues that liberal political t h o u g h t can be r e m o u l d e d a n d r e s h a p e d to m e e t indigenous aspirations, but only to the extent of the limits given by liberal conceptions of equality a n d a u t o n o ­ my. T h e third argues that the poverty of both previous responses suggests

6

D . I V I S O N , P. P A T T O N A N D W. S A N D E R S

that some reshaping of the conceptual framework of political theory is r e q u i r e d in o r d e r to d o justice to indigenous aspirations. T h e first response invokes a form of liberal neutrality a n d argues that the liberal state should not seek to recognise distinctive cultural or g r o u p rights but instead focus on providing effective individual civil rights such as freedom of expression, association, religion, m o v e m e n t a n d the like. In particular, liberal theorists should be wary of the social ontology of cultures a n d groups. Groups are not h o m o g e n o u s but dynamic, het­ e r o g e n o u s historical associations of individuals (Kukathas 1992; 1997b). To treat t h e m otherwise is to risk e m p o w e r i n g elites within groups a n d creating problems for 'internal minorities'. H e n c e , it is argued, individ­ uals should be e m p o w e r e d to move a r o u n d within and, if they so choose, o u t of the 'associations' in which they grew u p in or choose to live. Indi­ viduals should be free to form associations with others on the g r o u n d s of a shared societal culture or way of life. T h e state has n o business inter­ fering with their choice, b u t it must e n s u r e that the rights of individuals to express dissent from or exit such associations are protected. This m e a n s avoiding e n t r e n c h i n g g r o u p rights. Rights should n o t be exercis­ able over individuals by s o m e t h i n g like a g r o u p or a 'culture'. T h e link between individual wellbeing a n d g r o u p or cultural m e m b e r s h i p is con­ tingent a n d bi-directional. Cultural m e m b e r s h i p may contribute to indi­ vidual wellbeing, b u t g r o u p rights can increase the transaction costs of c o m m u n i c a t i o n in a state by complicating the political process a n d slow­ ing down effective decision-making. T h e y can also place b u r d e n s - mate­ rial a n d otherwise - u p o n majority populations (that is, subsidising alternative legal systems; language programs; separate schools etc.) that can g e n e r a t e r e s e n t m e n t a n d 'backlash', thereby u n d e r m i n i n g the con­ ditions for granting such rights in the first place (Offe 1997; Hardin 1995; Post forthcoming). Individual a n d not g r o u p rights are what need to be secured. T h e rights of self-government or self-determination for indige­ n o u s peoples are satisfied ipso facto u p o n the provision of their individual rights. This conclusion suggests why such a r g u m e n t s have b e e n u n d e r s t o o d by i n d i g e n o u s peoples to be fundamentally hostile to their claims. It a p p e a r s to r e d u c e what they see to be certain distinctive rights they pos­ sess as p e o p l e s to the undifferentiated rights of citizens participating in the processes of collective will formation as part of an already consti­ tuted ' p e o p l e ' . In o t h e r words, they see it as a n o t h e r form of assimila­ tion. So, as m u c h as the fluidity of cultural b o u n d a r i e s a n d the d a n g e r s of the 'dynamic effects' of g r o u p rights are recognised, this first approach has b e e n seen as deeply problematic on normative g r o u n d s , for it pre­ supposes precisely what is at issue: the n a t u r e of 'the p e o p l e ' u p o n whom

INTRODUCTION

7

rests the legitimacy of democratic authority (see the chapters by Kymlicka, Pettit a n d Tully). An alternative response, still from within the liberal tradition, has b e e n to tie the recognition of m o r e extensive rights of self-government and the protection (or r e t u r n ) of indigenous lands to an a r g u m e n t a b o u t individual wellbeing. This a r g u m e n t has been developed with con­ siderable skill by Kymlicka (1989; 1995; 1998a). Kymlicka's a r g u m e n t is that indigenous p e o p l e are owed self-government a n d title to their lands because without such rights (in addition to traditional liberal rights of freedom of movement, association a n d expression) they are in d a n g e r of losing access to a secure societal culture a n d h e n c e , to the context in which individual freedom is r e n d e r e d meaningful. T h u s g r o u p rights, u p to a n d including self-government, are justified o n the g r o u n d s of pre­ serving the conditions for the flourishing of individual a u t o n o m y and freedom. T h e same g r o u n d s also justify the limiting condition 'liberals can only e n d o r s e minority rights insofar as they are consistent with respect for the freedom a n d a u t o n o m y of individuals' (Kymlicka 1995: 75). Justice involves c o m p e n s a t i n g for arbitrary a n d unfair social disad­ vantages, as well as p r o m o t i n g a n d securing the capacities of individuals to p u r s u e a n d revise their own conception of the good. T h e value of cul­ tural m e m b e r s h i p , including in this case a particular relation to land, is fixed relative to a conception of justice in which the value of autonomy is central. To give u p on the centrality of a u t o n o m y for the purposes of a liberal recognition of difference is to risk tolerating practices that are n o t simply illiberal, b u t potentially harmful. Kymlicka's innovative a r g u m e n t has b r o k e n new g r o u n d in liberal political theory. It manages to transcend the sterile debate between lib­ erals a n d c o m m u n i t a r i a n s ; it addresses the claims of cultural, ethnic a n d national minorities historically left o u t of the story of the e m e r g e n c e of the liberal state; a n d it preserves a fluid a n d dynamic account of culture that avoids romanticising or 'freezing' cultural practices in time. This is an impressive achievement, given how often liberals are castigated on all these fronts by various critics. Moreover, as Kymlicka himself emphasises, even if the details of his a r g u m e n t or the g r o u n d s u p o n which it is m a d e are rejected, it represents at least an a t t e m p t to formulate a distinctly lib­ eral response to indigenous claims. H e n c e it can be read as an attempt to initiate intercultural dialogue r a t h e r than simply as a justification for imposing liberal principles o n indigenous communities (Kymlicka 1995: 1 6 3 - 7 2 ) . Kymlicka sees his a r g u m e n t as actually building u p o n recent d e v e l o p m e n t s within c o n t e m p o r a r y liberal democracies and, to a lesser extent, international law (1989: 206-19; 1995: 4 9 - 7 4 ) . In his chapter, h e shows how a n a r r o w view of 'American multiculturalism' has exerted a detrimental effect o n c u r r e n t debates c o n c e r n i n g the rights of indige4

8

D . I V I S O N , P. P A T T O N A N D W. S A N D E R S

n o u s peoples a n d o t h e r 'nations within'. In particular, h e argues that the tendency to contrast the apparently o p e n , fluid a n d voluntary nature of American multiculturalism with the closed, static a n d involuntary con­ ception of 'minority nationalisms' associated with the claims of the Quebecois, Basques a n d various indigenous peoples is empirically a n d historically mistaken. Moreover, insofar as this contrast is employed inter­ nationally to p r o m o t e 'the American m o d e l , it actually inhibits the efforts by many c o n t e m p o r a r y states to u n d e r s t a n d a n d a c c o m m o d a t e minority nationalisms'. Kymlicka's a r g u m e n t has nevertheless b e e n subject to extensive criti­ cism. O n the o n e h a n d , liberals who are worried a b o u t his incorpora­ tion of ' c u l t u r e ' into the list of primary goods the liberal state should seek to p r o m o t e a n d protect have criticised him for not being interven­ tionist e n o u g h with regard to the cultural practices of various groups (Okin 1998; Laitin 1998; Doppelt 1998). If the limiting condition of ' a u t o n o m y ' is to be i n t e r p r e t e d broadly - p e r h a p s even according to stan­ d a r d s internal to the particular cultural g r o u p - then Kymlicka risks e n d o r s i n g a form of cultural relativism. Some have queried the g r o u n d s for a n d the need to provide g r o u p rights at all, in addition to the basic rights of expression, conscience a n d association usually p r o m o t e d by lib­ erals (Kukathas 1992; Offe 1997). O n the o t h e r h a n d , some critics have focused o n the a p p a r e n t imperial tenor of Kymlicka's a r g u m e n t , espe­ cially his g r o u n d i n g of the case for g r o u p rights on the value of individ­ ual autonomy. It can be a r g u e d that Kymlicka justifies g r o u p rights on g r o u n d s that only basically liberal groups can meet, a n d thus his argu­ m e n t is actually less a c c o m m o d a t i n g than often p r e s u m e d . More seri­ ously, others a r g u e that if the self-government rights for indigenous peoples are m e a n t as a form of internal a u t o n o m y within a pre-existing state that continues to claim p r e e m i n e n t sovereignty, t h e n Kymlicka's a r g u m e n t could be said to be p e r p e t u a t i n g internal colonisation rather than dismantling it. T h e p r e s u m p t i o n of sovereignty anticipates the p r o b l e m of reconciling two or m o r e peoples o n a territory rather than offering a possible solution to it (Kymlicka 1996). T h e phrase 'nations within' shows the persistence of this p r o b l e m . As a result, the conditions for a just dialogue between indigenous a n d non-indigenous peoples are n o t m e t by Kymlicka's case for g r o u p rights. In response to such objections, Kymlicka (1998a: 144—46) has argued explicitly that it is o u r 'most u r g e n t obligation of justice' to 'recognize the principle of the i n h e r e n t right of self-government' of Aboriginal peoples a n d to 'negotiate in good faith a b o u t its a p p r o p r i a t e implemen­ tation'. H e makes clear his view that existing federal a r r a n g e m e n t s in C a n a d a are unjust because ' t h e b o u n d a r i e s drawn u p a n d the division of powers within C a n a d i a n federalism took n o account of Aboriginal needs 5

6

INTRODUCTION

9

a n d aspirations' (144). Moreover h e thinks that it is wrong for liberals to simply p r e s u m e that it is justified to subject indigenous governments or institutions to the Canadian or American S u p r e m e Court (Kymlicka 1995: 166-67; 1996; 1998b). More decentralised a n d 'culturally appro­ priate' forms of judicial review, or even international forums, are arguably m o r e justifiable. However, the greater the scope for self-gov­ e r n m e n t Kymlicka is willing to grant to indigenous peoples, the m o r e h e seems to be moving away from his c o m m i t m e n t to g r o u n d i n g g r o u p rights o n a liberal interpretation of the value of individual autonomy. This tension between cultural difference a n d liberal values leads to the third response to indigenous claims, which sees a n e e d for greater conceptual a n d practical reshaping of liberal democratic n o r m s a n d institutions. Part of the reason for this scepticism a b o u t existing n o r m s a n d institutions is that liberal a r g u m e n t s are said to be u n a b l e to com­ p r e h e n d what is distinctive a b o u t i n d i g e n o u s claims to land a n d self-gov­ e r n m e n t . W h a t is it a b o u t the claims of indigenous peoples that is missed by liberal responses, a n d in what way are indigenous claims distinctive when c o m p a r e d to those of o t h e r minority peoples? A p p r o a c h e s to this issue tend to appeal either to the ' i n h e r e n t ' sover­ eignty of i n d i g e n o u s peoples, to the history of their relations with set­ tlers, or to their cultural differences with Europeans. Some argue that indigenous peoples exercised historical sovereignty over their lands a n d c o m m u n i t i e s a n d therefore possessed an ' i n h e r e n t ' sovereignty that was unjustly taken away a n d should be r e t u r n e d to them. Similarly, lands that were unfairly e x p r o p r i a t e d should be r e t u r n e d or a p p r o p r i a t e c o m p e n ­ sation negotiated where this is n o t possible. T h e r e are two difficulties with this a r g u m e n t . First, o t h e r stateless peoples also o n c e exercised historic sovereignty over their lands a n d communities (for e x a m p l e the Scots a n d the Catalans) a n d it is not clear how i n d i g e n o u s claims are any m o r e distinctive than theirs. It might be a r g u e d that i n d i g e n o u s peoples have suffered m o r e than o t h e r peoples have, and thus there is a remedial case for distinguishing their claims from others (Anaya 1996). But linking self-government rights to degrees of suffering is problematic. T h e case for remedial rights d e p e n d s on there being a t e m p o r a r y measure i n t e n d e d to address specific disadvantage caused by historic injustice. But indigenous claims appeal to ' i n h e r e n t ' , n o t temporary, sovereignty. T h e second p r o b l e m with the historical sov­ ereignty a p p r o a c h is that it is n o t clear what is m e a n t by 'sovereignty' in this context, a n d therefore what should actually be recognised or ' r e t u r n e d ' to indigenous peoples. T h e relevance of the history of relations between indigenous a n d n o n - i n d i g e n o u s peoples is s o m e t h i n g c o n t e m p o r a r y theories of justice have b e e n slow to recognise. J e r e m y Waldron has a r g u e d that the recog-

10

D . I V I S O N , P. P A T T O N A N D W. S A N D E R S

nition of Aboriginal claims to land or self-government rights should not be about c o m p e n s a t i n g for historical injustice, but a b o u t addressing c o n t e m p o r a r y discrimination a n d disadvantage (Waldron 1992; Sim­ m o n s 1995). If it were the historical n a t u r e of the entitlements that mat­ tered most, then it wouldn't b e clear what the restoration of lands or resources h a d to d o with distributive justice, since the parties might just as well be reasonably well-off, or at least n o t suffering from any serious disadvantages. Of course indigenous peoples d o currently suffer from appalling social disadvantages. Moreover, on the most charitable reading of his a r g u m e n t , Waldron's aim is precisely to acknowledge this point. But the distinctiveness of indigenous claims, if u n d e r s t o o d as deriving from their a t t a c h m e n t to the land a n d the history of their relations with the colonial state, is lost or r e n d e r e d o p a q u e in discussions of distribu­ tive justice. Some would argue that this is unavoidable. Justice is about the impartial distribution of goods, a n d the distinctive identity or history of Aboriginal peoples is only relevant insofar as it affects consideration of their fair share of 'primary g o o d s ' h e r e a n d now relative to o t h e r citizens. But this m e a n s that t h e r e is a risk that the m a n n e r in which such lists of p r i m a r y goods are arrived at, as well as the construction of notions of fairness, will misunderstand n o t only the particular value of culture or land being a p p e a l e d to, b u t also the n a t u r e of the moral wrongs u p o n which the claims are based - the historical legacy of colonialism. Indige­ n o u s claims are n o t j u s t for rights to any fair share of Australian or Cana­ dian resources, b u t to a particularised share (Simmons 1995: 174); o n e that must be u n d e r s t o o d against the b a c k g r o u n d of the denial of their equal sovereign status, the dispossession of their lands a n d the destruc­ tion of their cultural practices. T h e final m e a n s of distinguishing indigenous claims from those of o t h e r peoples involves an appeal to cultural difference. O n this approach, indigenous peoples' claims are distinctive because of the nature of their culture a n d especially their relation to the land, which affects the partic­ ular history of their interactions with various settler states. T h e way we dis­ tinguish between indigenous peoples a n d other 'stateless' nations is that, in the processes of state-building, these other peoples were able to con­ verge along with the majority nation o n what Kymlicka has put, in his chapter, as 'certain cultural self-conceptions, a n d to share certain eco­ nomic a n d social needs a n d influences'. Indigenous peoples r e m a i n e d apart from such convergences, a n d were only ever integrated by force. H e n c e their way of life, although not incommensurable from that of o t h e r cultures in liberal democracies, is sufficiendy different n o t to be readily assimilated. O n e p r o b l e m with this a p p r o a c h is that focusing on cultural differ­ ence risks locking in unrealistic a n d paternalistic views of indigenous cul-

INTRODUCTION

11

tures. Notions of custom or culture should not be p r e s u m e d to exist i n d e p e n d e n t l y of c o n t e m p o r a r y indigenous social a n d political life, which should n o t be either romanticised or demonised. Recent legal cases have highlighted the d a n g e r of interpreting indigenous cultures in ways that locate their practices in supposedly 'traditional' contexts and then a t t e m p t to limit any s u b s e q u e n t rights in virtue of t h e m accord­ ingly. T h e d a n g e r h e r e is that of reinstating hierarchical assumptions a b o u t the value or 'authenticity' of cultures while deciding which inter­ ests should be p r o t e c t e d or p r o m o t e d by various kinds of rights or insti­ tutions. T h e s e interests should be defined a n d contested as m u c h as possible by c o n t e m p o r a r y indigenous peoples themselves, rather than according to assumptions elaborated within various western a n t h r o p o ­ logical, political or legal doctrines. Although, needless to say, these are doctrines of which indigenous peoples might avail themselves. But this touches on a n o t h e r problem for the difference approach. If indigenous peoples' claims are distinct because of their cultural difference then how d e e p does this difference run? Should indigenous social and political institutions be exempt from basic h u m a n rights legislation or charters of rights? Many commentators argue that although indigenous communities have good reason to be sceptical about the existing legal and political institutions a n d mechanisms that enforce such rights, this isn't to say they should be e x e m p t from the basic underlying n o r m s of h u m a n rights (Carens 1995; Kymlicka 1996). This is seen as especially important with regard to vulnerable m e m b e r s of such communities (often women) and 'internal minorities'. O t h e r s insist that indigenous political theory itself contains constraints on indigenous decision-making processes and institutional design that are m o r e than capable of meeting such chal­ lenges. If anything, it has been constant colonial interference in these practices that has u n d e r m i n e d traditional mechanisms for dispute resolu­ tion and the protection of vulnerable m e m b e r s of the community (Alfred 1999a; Canada, Royal Commission on Aboriginal Peoples 1996a, 1996b). 7

Reshaping Sovereignty, Identity and Justice New ways of thinking are r e q u i r e d with regard to certain crucial con­ ceptual a n d normative assumptions informing indigenous claims. This is particularly t r u e in t h r e e areas: the n a t u r e of sovereignty, questions of political a n d cultural identity and difference (both individual a n d collec­ tive) ; a n d c o n t e m p o r a r y a p p r o a c h e s to distributive justice a n d democratic theory. Consider first the spectre of sovereignty that dominates contem­ porary political theories of the state. It h a u n t s the complex of issues at stake in the conflicts between i n d i g e n o u s peoples a n d the institutions of colonial societies in a variety of ways.

12

D. IVISON, P. PATTON A N D W. SANDERS

Roger Maaka a n d Augie Fleras highlight the issue of the legitimacy of the colonial states in their chapter. O n what basis did white settler systems acquire sovereignty over the land a n d its inhabitants, a n d by what authority d o they exercise that sovereignty? T h r e e answers have been p u t forward t h r o u g h o u t the history of m o d e r n colonisation. T h e first relies exclusively u p o n the doctrine of discovery, which was the basis o n which E u r o p e a n nations recognised each o t h e r ' s claims to specific territories in the New World. However, discovery is only a sufficient basis for the acqui­ sition of sovereignty if t h e r e were n o original inhabitants, or if the inhab­ itants lived u n d e r such r u d i m e n t a r y conditions of social organisation that they could not be considered sovereign peoples. T h e latter view a m o u n t s to the so-called e x t e n d e d doctrine of terra nullius, which was invoked by colonial g o v e r n m e n t s a n d courts t h r o u g h o u t the n i n e t e e n t h a n d early twentieth centuries to deny that indigenous peoples had any legal or political rights o t h e r than those derived from the colonial sover­ eign. This was the basis on which the British Crown laid claim to its Australian territories. However, since Mabo (1992), the High Court of Australia has ruled out any reliance o n terra nullius with respect to domestic law a n d the consequences of colonisation, as has the S u p r e m e C o u r t of C a n a d a since Colder (1973). Nevertheless, notwithstanding the rejection of the e x t e n d e d doctrine of terra nullius by the International C o u r t of Justice in its Advisory Opinion on Western Sahara (1975), a n d in the absence of any declared alternative, it remains the basis of state authority over the indigenous population. T h e historian H e n r y Reynolds points to an unresolved issue of legitimacy which, h e suggests, is: the fundamental problem at the heart of Australian jurisprudence. The doc­ trine of the settled colony only works if there literally was no sovereignty - no recognisable political or legal organisation at all - before 1788. And that proposition can only survive if underpinned by nineteenth-century ideas about 'primitive' people. (Reynolds 1996: 13—14)

Michael Asch argues that a similar contradiction emerges in recent Canadian jurisprudence: T h e view that indigenous peoples were uncivilised at the time of settlement was repudiated in Colder, and to uphold it in order to explain State sovereignty is not only contradictory; it is also repugnant to contemporary values. The idea is ethnocentric and racist, a direct holdover from the colonial era . . . Yet the State has derived n o thesis to supplant it; the government has chosen not to address it; and the court has chosen either to ignore it in the Calder era, or to define it away in Van der Peet. (Asch 1999: 441)

INTRODUCTION

13

T h e second justification of the acquisition of sovereignty u n d e r inter­ national law stems from the doctrine of conquest. However, few coun­ tries are p r e p a r e d to rely u p o n the claim of conquest alone. More c o m m o n is recourse to the third justification, namely the con­ clusion of treaties with local indigenous populations. Treaties draw their legitimacy from the fundamental principle of western political a n d legal t h o u g h t that actions affecting the interests of others are acceptable only with the consent of those affected. Moreover, as both J.G.A. Pocock a n d J a m e s Tully p o i n t out, recourse to treaties presupposes that the indige­ n o u s peoples involved are sovereign. However reliance u p o n treaties as the g r o u n d of acquisition of sovereignty over indigenous peoples raises a further set of p r o b l e m s with regard to the interpretation of those treaties. Pocock a n d Tully question w h e t h e r or not indigenous signato­ ries to treaties can reasonably b e said to have agreed to the transfer of sovereignty r a t h e r than the extension of their own sovereignty, or at least consent to share their land a n d resources with the newcomers. This raises further questions a b o u t the n a t u r e of sovereignty itself a n d the degree to which it is a c o n c e p t shared between E u r o p e a n a n d nonE u r o p e a n traditions of political thought. Sovereignty is by n o m e a n s an u n c o n t e s t e d c o n c e p t even within western legal a n d political theory: does it apply, as Iris Young suggests, only to states, or, as Pocock a n d Tully sug­ gest, can it be applied to peoples i n d e p e n d e n t l y of w h e t h e r they exercise their sovereignty t h r o u g h forms of state government? Many indigenous writers have questioned w h e t h e r sovereignty is an a p p r o p r i a t e concept with which to r e p r e s e n t the forms of indigenous governance a n d rela­ tion to the land (Boldt a n d Long 1985; Pearson 1993: 15; Alfred 1999a: 53-69, 109-10). Underlying this p r o b l e m are the complex issues of crosscultural translation, which are raised in stark form by the controversy sur­ r o u n d i n g the interpretation of the founding d o c u m e n t of A o t e a r o a / New Zealand. In the English version of the Treaty of Waitangi signed in 1840 by representatives of the British Crown and some 500 Maori chiefs, the Maori agreed to transfer 'sovereignty' to the Crown in e x c h a n g e for royal protection of the 'full a n d undisturbed possession' of Maori lands a n d estates. N o t only is t h e r e n o c o n c e p t of sovereignty in the Maori lan­ guage, but it is n o t evident how this concept should be aligned with the terms used in the Maori version. What the chiefs consented to transfer to the Crown was kawanatanga, which some argue should be translated as ' g o v e r n o r s h i p ' . What they retained was te tino rangatiratanga, which may be translated as full a n d c o m p l e t e chieftainship or authority (Sharp 1997; M c H u g h 1991; Kawharu 1989; O r a n g e 1987). Maaka a n d Fleras argue that the political p r o b l e m of Maori sovereignty today is precisely the p r o b l e m of finding political structures a d e q u a t e for the expression of te tino rangatiratanga. 8

14

D. I V I S O N , P. PATTON A N D W. SANDERS

Over a n d above these issues of intercultural translation, the assertion of indigenous peoples' rights intersects in a n u m b e r of ways with o t h e r c o n t e m p o r a r y challenges to the u n d e r s t a n d i n g a n d forms of exercise of sovereignty. Standard definitions of sovereignty point to a range of ele­ ments which may or may n o t be included within the concept: sovereignty as s u p r e m e legal authority within a given jurisdiction; sovereignty as com­ prehensive authority within that jurisdiction; sovereignty as s u p r e m e a n d comprehensive authority over a given territory (Onuf 1991; Philpott 1995; Caney 1999). T h e prevailing view has t e n d e d to c o n n e c t all three of these elements with the concept of the state as the e m b o d i m e n t and agent of sovereign power in a global political system based entirely u p o n such states. However, as several of the chapters in this book point out, the idea a n d the reality of such a system have come u n d e r increasing moral as well as political pressure in recent years. Young points to the range of moral considerations that have been advanced against the idea of a global state system as well as the pressures in practice to regulate across national boundaries. Like several o t h e r contributors, she points to the sense in which, to the extent that the rights of indigenous peoples are recognised a n d e n s h r i n e d in law and legislation, they constitute a form of internal limit to the sovereign power of colonial states. Moreover, since indigenous peoples' d e m a n d s for a u t o n o m y a n d self-determina­ tion rarely e x t e n d as far as i n d e p e n d e n t sovereign statehood, they con­ tribute to the n e e d for a reconceptualisation of sovereignty that would separate it from the system of nation states in favour of m o r e diverse a r r a n g e m e n t s of'secessionless' sovereignty that is shared a m o n g differ­ e n t levels of g o v e r n m e n t . Maaka a n d Fleras e m b r a c e the suggestion that the c o n c e p t i o n of state sovereignty 'reflects a certain u n d e r s t a n d i n g of power a n d authority, rooted in a particular historically d e t e r m i n e d con­ figuration of social relations a n d public space' that may have already r u n its course. Recent settlements in A o t e a r o a / N e w Zealand u n d e r the Treaty of Waitangi as well as the r e c o m m e n d a t i o n s of the Canadian Royal Com­ mission point to the n e e d to separate the issue of the underlying sover­ eignty of i n d i g e n o u s peoples from that of the appropriate political structures a n d mechanisms for the expression of that 'sovereignty' (or te tino rangatiratanga) in the present. D e m a n d s for the reshaping of sovereignty lead directly to questions of political a n d cultural identity. William Connolly argues that the domi­ n a n t m o d e of u n d e r s t a n d i n g identity in western political t h o u g h t has involved prioritising relations of identity over difference, which serves to obscure the d e g r e e to which identity a n d difference are fundamentally relational in n a t u r e (Connolly 1991; 1995). T h e i r i n t e r d e p e n d e n c e implies that the a t t e m p t to fix some authentic or natural centre to indi-

INTRODUCTION

15

vidual or national identity d e p e n d s u p o n defining an identity against a n o t h e r who is not the same. And yet the n e e d to fix some immutable centre or a u t h e n t i c identity only serves to inflame feelings of r e s e n t m e n t and fear of this very ' o t h e r ' . As Connolly points out in his piece, this leads to a p a r a d o x with regard to national identity: the nation is experienced by many as an imperative that must be achieved if cultural belonging is to be secure . . . or if sovereignty is to be stable. But the nation is also an imagination of unity or wholeness that has never been actualised.

Webber also draws attention to the tendency to exaggerate the extent to which national identities require a single, c o h e r e n t national story. H e r e c o m m e n d s instead the m e t a p h o r of a conversation between different groups, suggesting that 'it often seems that nations are m a r k e d as m u c h by the structure of their disagreements as by their a g r e e m e n t s ' . This general p o i n t about the relations between identity a n d difference has consequences for thinking about indigenous identities. Manuhuia Barcham, for example, points to the very real problems presented by assumptions a b o u t cultural identity with regard to the e m e r g e n c e of the urban Maori in New Zealand, an issue not limited to that country alone (see, for example, Canada, Royal Commission o n Aboriginal Peoples 1996a, 1996b). H e argues that academic a n d policy-oriented definitions of Maori tend to be derived from notions of indigeneity contingent u p o n the possession of ' a u t h e n t i c ' cultural n o r m s a n d traditions. T h e result is that a socially a n d politically constructed notion of indigenous authentic­ ity is then used to j u d g e between relative degrees of indigeneity as a means of d e t e r m i n i n g which groups are m o r e deserving of 'indigenous rights' than others. But since all political a n d cultural identities are historically a n d socially dynamic, this leaves those groups not fitting the d o m i n a n t m o d e l of indigeneity outside the framework of indigenous rights. H e n c e 'urban Maori' are set against 'traditional Maori', a n d d e n i e d access to the resources a n d benefits - such as they are - reserved for ' g e n u i n e ' indige­ nous people. And yet, u r b a n Maori represent a significant proportion of the general population of Maori. Barcham argues that any claim based on indigenous identity and culture must accept that they are inherently dynamic a n d subject to c h a n g e not only over time, but in relation to institutional a n d practical frameworks. T h e institutional forms through which indigenous cultures manifest themselves should also remain o p e n to change; urban-based institutions for Maori should be seen as n o m o r e or n o less ' a u t h e n t i c ' than kin-based institutions. T h u s , as Pocock sug­ gests, the model of a postcolonial state may be envisaged, individually a n d institutionally speaking, as a kind of 'confederacy of shape-changers'.

16

D. IVISON, P. PATTON A N D W. SANDERS

T h e chapters by J o h n Bern a n d Susan Dodds, Sonia Smallacombe, A u d r a Simpson a n d J e r e m y Webber also point to the i n t e r d e p e n d e n c i e s between identity a n d difference, a n d to unavoidable articulation of indigenous interests with the governmental apparatus of the state. I n d i g e n o u s peoples, like any o t h e r g r o u p in a liberal democratic state, are subject to a whole range of ' g o v e r n m e n t a l ' actions on their actions (not limited to those by the state itself). Using the example of the Aus­ tralian N o r t h e r n Territory's Aboriginal Land Rights Act, Bern and Dodds show how legislative a n d policy regimes shape not only indigenous inter­ ests in land, b u t also those who are said to have authority to represent those interests - a point similarly emphasised by Barcham, Smallacombe a n d Webber. Smallacombe criticises the way in which the d o m i n a n t cultural institu­ tions construct a n d then display 'Aboriginal culture' according to particu­ lar western understandings of'cultural heritage'. Simpson's narratives of different strands of Kahnawake n a t i o n h o o d , glimpses of what she refers to as the 'interior frontiers of Mohawk n a t i o n h o o d ' , illustrate the practi­ cal a n d conceptual contexts within which claims to identity and differ­ ence are m a d e a n d h e a r d . Drawing on a critical use of Michael Jackson's conception of 'radical empiricism', she points out that these social a n d historical contexts are difficult to capture through essentialist a n t h r o p o ­ logical discourse. T h e focus on the dynamics of experience in Jackson's a p p r o a c h , she argues, resonates with Mohawk claims for sovereignty over both their land a n d representations of their culture (a point m a d e equally forcefully with regard to Australian Aboriginal identity by Smallacombe). N a t i o n h o o d becomes the 'prism t h r o u g h which Indians view their histori­ cal experience, themselves a n d their aspirations', with the result that, like t h o u g h t in Heidegger's formulation, ' " n a t i o n h o o d " . . . may be under­ stood as a m o v e m e n t toward a clearing'. Emerging h e r e is a conception of sovereignty that has as m u c h to d o with the reclaiming a n d retelling of various histories - of peoples, cultures a n d institutions - as it does with control over territory and resources. Webber argues that the c o m m o n law recognition of native title in Mabo (1992) has far-reaching implications for Australian constitution­ alism because of the way it implicidy acknowledges the c o n t i n u e d exis­ t e n c e of distinct Aboriginal a n d Islander societies with their own a u t o n o m o u s legal traditions. In sharp contrast to the assimilationist views that have d o m i n a t e d policy towards Australia's indigenous peoples, native title law implies that they should be c o u n t e d as legally and politi­ cally a u t o n o m o u s participants in the national story. In c o m m o n with Bar­ c h a m , D o d d s a n d Bern, Smallacombe a n d Simpson, Webber focuses o n the n e e d for institutional a r r a n g e m e n t s i n t e n d e d to protect indigenous

INTRODUCTION

17

cultures a n d secure self-determination. W h e t h e r local, national or inter­ national, these a r r a n g e m e n t s n e e d to be capable of recognising a n d a c c o m m o d a t i n g the dynamic a n d fluid n a t u r e of indigenous identities. O n e lesson we m i g h t draw from these discussions is the n e e d to detach ourselves from the paralysing discourse of 'individual versus g r o u p rights' that d o m i n a t e s so m u c h of the consideration of indigenous claims in western political theory. This n e e d n o t m e a n a b a n d o n i n g the lan­ guage of rights completely, but o n e c o n s e q u e n c e of perceiving the com­ plex relations between identity a n d difference might be the moderation of o u r desire to translate every claim into o n e that can be classified as an individual or g r o u p right. Seeing cultural a c c o m m o d a t i o n as mainly about setting the scope a n d limits of individual a n d g r o u p rights holders provides incentives for the parties involved to telescope cultural a n d political identities a n d d e m a n d s in o r d e r to secure the gains associated with rights conceived in a zero-sum fashion. T h e dynamic effects of such assumptions, especially with regard to 'internal minorities' or the 'con­ stitutional stability' of a state, inevitably leads to a p e r c e p t i o n of collec­ tive a n d individual interests being diametrically opposed. But this a p p r o a c h tends to underplay points of i n t e r d e p e n d e n c e a n d possible forms of a c c o m m o d a t i o n (Post f o r t h c o m i n g ) . Arguably, processes of cul­ tural a c c o m m o d a t i o n should be seen m o r e as matters to d o with institu­ tional innovation a n d evolution r a t h e r than as an extension of the j u r i s p r u d e n c e of rights. Disavowing colonialism involves m o r e than assertions a n d counter-assertions of rights. Rights, u n d e r s t o o d as powers or i n s t r u m e n t s to secure or p r o m o t e individual a n d g r o u p interests, o p e r a t e a n d c o m e to be grasped within practical a n d interpretive frame­ works that are partly held in place by historically p a t t e r n e d beliefs a n d practices. A postcolonial political theory n e e d s to focus as m u c h on these processes as it does on the language (s) of right. Finally, what does it m e a n to d o justice to indigenous claims within the framework of a democratic a n d postcolonial state? T h e 1996 Royal Commission o n Aboriginal Peoples in Canada, p e r h a p s the most exten­ sive study of relations between indigenous a n d non-indigenous peoples ever u n d e r t a k e n , has p r o p o s e d that these relations be based o n principles of mutual recognition, mutual respect, sharing and mutual responsibility (Canada, Royal Commission o n Aboriginal Peoples, 1996a: 676-97). Ajust relationship between i n d i g e n o u s a n d non-indigenous peoples is o n e that involves dialogue, which must occur u n d e r conditions that are accept­ able to b o t h parties. We have referred to the difficulties that arise in a situation where t h e r e is disagreement a b o u t the relevance of the histori­ cal character of injustices. However, t h e r e are further difficulties with the conditions u n d e r which democratic consensus or legitimacy is arrived at

18

D. IVISON, P. PATTON A N D W. SANDERS

by the parties involved. Public discourse is always characterised by relations of power as m u c h as it is by reason. Political settlements are thus much closer to a kind of modus vivendi, as opposed to a d e e p e r 'overlapping consensus' on constitutional n o r m s (Rawls 1993: 146-72; Ivison 2000). Consensus is important, b u t is never a sufficient condition for under­ standing relations of power since it is often a result of such relations. T h e history of indigenous peoples' t r e a t m e n t in the h a n d s of liberal democratic states provides ample reason for such caution towards the regulative role of consensus. For this reason, it is a p p r o p r i a t e that some contributors directly address questions of democratic theory by indige­ n o u s peoples' claims. Philip Pettit argues that o n a thin 'electoral' conception of democracy, claims by indigenous people a n d o t h e r minority groups will n o t fare very well, since to argue that a minority g r o u p needs special rights of selfg o v e r n m e n t to protect it from the decisions of the majority is to challenge the principle of the sovereignty of the people. Even if we think general counter-majoritarian measures such as a Bill of Rights are essential for the possibility of democracy itself, 'special minority rights' are n o t similarlyjustifiable. They a p p e a r to c o m e u p o n democracy from the outside. H e n c e the n e e d for a richer account of democracy; a two-dimensional c o n c e p t i o n in which t h e r e is a d e m a n d for n o t only 'electoral' legitimacy b u t a 'contestatory' dimension as well. If the rationale for democracy is in p a r t to force g o v e r n m e n t s to take their guidance from people's gen­ u i n e c o m m o n interests, then it should b e organised so as to give stand­ ing to all possible c o m m o n interests. T h e r e should be mechanisms to e n s u r e that where citizens feel they have n o t b e e n treated as equals they can contest g o v e r n m e n t decisions a n d have some confidence of such decisions being reversed. 'Special' - or p e r h a p s m o r e accurately, specific - minority rights present just such a mechanism. T h e justification for t h e m is tied to t h e value of equal standing, which in turn is tied to the value of democratic rule. T h e m o r e multicultural a state, the greater the n e e d for such contestatory mechanisms. However, t h e question remains w h e t h e r such 'special' minority rights are sufficient in o r d e r to establish the conditions for just relations with i n d i g e n o u s peoples, a n d whether or n o t thinking of t h e m as 'special' is n o t itself part of the p r o b l e m . Connolly argues for 'a thick public culture of multidimensional pluralism well oiled by an ethos of e n g a g e m e n t between diverse constituents'. Pettit suggests that the case for specific rights may e x t e n d beyond merely contestatory mechanisms to include significant powers of self-government in matters affecting the survival of i n d i g e n o u s communities a n d cultures. T h e strategy of creating space within liberal democracies for indige­ n o u s claims therefore leads back to the issue of sovereignty and the

INTRODUCTION

19

nature a n d limits of state power. For some, including Tully, Pocock, Simpson a n d Kymlicka in this volume, there can be n o equal standing for indigenous peoples until they are acknowledged as equal sovereigns within a postcolonial constitutional a r r a n g e m e n t . For others, such as Young a n d Fleuras a n d Maaka, it is the very n a t u r e of the sovereign state that must b e r e t h o u g h t . Young argues that the challenge posed by the history a n d c u r r e n t status of indigenous peoples converges with femi­ nism a n d o t h e r m o v e m e n t s towards a form of global democracy involv­ ing self-determination without sovereign borders. An i m p o r t a n t part of the a r g u m e n t in the Report of the Royal Commis­ sion on Aboriginal Peoples (1996a) is that the principles of mutual recogni­ tion a n d respect can only be realised if they draw on Aboriginal a n d western values that b o t h sides can accept as legitimate, including the ways in which Aboriginal a n d non-Aboriginal peoples have acted together in the past. How does the case for the i n h e r e n t sovereignty of indigenous peoples fit into this framework? O n the o n e h a n d , self-gov­ e r n m e n t is clearly a value central to western conceptions of justice. T h e r e is a freedom a n d equal dignity secured by participation in the gov­ e r n m e n t of a political association o n e not only consents to but in which o n e feels 'at h o m e ' a m o n g its institutions a n d practices ( H a r d i m o n 1992; Mason 1999). But these are goods shared by b o t h indigenous a n d nonindigenous conceptions of justice, albeit developed in their own ways. Generally speaking, the 'currency' of egalitarian justice is o n e of rights a n d resources impartially distributed between individuals a n d groups. This distribution is usually justified relative to some account of the basic capacities or goods n e e d e d for citizens to live d e c e n t lives, including the capacity to participate freely in the governing of one's society a n d pursue one's life according to o n e ' s own choices a n d responsibilities. However, the way in which indigenous claims to land a n d self-government are r e d e e m e d according to liberal theories of justice raises a series of diffi­ culties. O n Kymlicka's a r g u m e n t , self-government is justified by virtue of the disadvantages indigenous peoples suffer in view of the vulnerability of their cultural structure - their lands a n d their cultural practices - to the political decisions of the majority society. These disadvantages stem not from the choices indigenous peoples make but from the way they find themselves relative to the rest of the population. H e n c e they are a legiti­ m a t e basis for d e m a n d s for justice. But it is n o t clear to what extent this distinguishes their claims from o t h e r ethnic groups a n d thus, how it cor­ r e s p o n d s to the form of recognition indigenous peoples actually seek. Many migrant g r o u p s were unjustly incorporated into 'settler' states. Moreover, the children of migrants who have tried to recreate the cul­ tural structures they have left b e h i n d are arguably in a position analo9

20

D. IVISON, P. PATTON A N D W. SANDERS

gous to that of m e m b e r s of indigenous cultures: n e i t h e r chose to be m e m b e r s of minority cultures. If what differentiates these indigenous g r o u p s from migrants is the fact that the former are m u c h worse off than the latter because they suffer from m u c h greater social and political disadvantages, then o n c e again, the historical nature of their claim seems to be less i m p o r t a n t than the fact of c o n t e m p o r a r y disadvantage. This a r g u m e n t may be effective, but it misrecognises the nature of indigenous claims for the recognition of their i n h e r e n t rights to self-gov­ e r n m e n t , since it g r o u n d s the basis of these rights in the facts of con­ t e m p o r a r y disadvantage relative to an i n d e p e n d e n t l y derived currency of rights a n d resources. For some, this is entirely correct. T h e r e can be n o special pleading o n the basis of historical status or cultural difference when it comes to distributing rights a n d resources. But seeing indige­ n o u s claims as so m u c h 'special pleading' against a c o m m o n currency of justice is, arguably, precisely the p r o b l e m indigenous peoples are argu­ ing n e e d s to be addressed. Is t h e r e an alternative way of thinking about the recognition of special rights in the case of indigenous peoples? O n e possibility might be to insist that the recognition of indigenous difference - o n e g r o u n d e d in the historical consequences of colonialism a n d their particular relation to the land - is a necessary p r e c o n d i t i o n of the legitimacy of the very institutions and practices within which rights and resources - the currency of egalitarian justice - are to be distributed. This is a strong precondition. How can we know when it is fulfilled? According to what g r o u n d s a n d in what contexts? T h e idea of 'recognition' needs content. Does it mean recognising indigenous sovereignty? If so, what does that actually entail? W h o or what is to be recognised? And how? We have surveyed some of the possibilities a n d risks involved, as have many of o u r contributors. A balance will have to be struck between d e m a n d s for the preservation of culture a n d the m e a n s to adapt a n d c h a n g e the practices involved to suit the times a n d the diverse peoples for w h o m culture represents a living, dynamic thing rather than a m u s e u m piece. A crucial aspect of any possible just response to these issues is the man­ n e r in which the principles or n o r m s invoked to govern indigenous and non-indigenous relations are related to the concrete practices and con­ texts in which they occur. T h e justice or injustice of any set of political a r r a n g e m e n t s d e p e n d s as much on how principles and n o r m s are applied a n d used on the g r o u n d as they d o on how they are derived or justified philosophically. Unjust political a r r a n g e m e n t s are often so precisely because of the way in which they have arisen or been imposed on those subject to them. But even apparently just a r r a n g e m e n t s can be imposed unjustly. Perhaps this is o n e of the contributions e n g a g e m e n t with i n d i g e n o u s claims makes to the practice of political theory. It teaches us

INTRODUCTION

21

that care a b o u t the application a n d use of principles a n d n o r m s in the world is as i m p o r t a n t a n d relevant to considerations of justice as the hypothetical or deliberative process of settling o n the principles them­ selves. T h e p o i n t is n o t simply a pragmatic or p r u d e n t i a l o n e . Care a b o u t the application a n d use of n o r m s feeds back into the process of how we select or identify the relevant principles a n d n o r m s in the first place. Ironically, o n e of the interesting consequences of the e n c o u n t e r between liberalism a n d its colonial past a n d present might be a m o r e context-sen­ sitive a n d multilayered a p p r o a c h to questions of justice, identity, democ­ racy a n d sovereignty. T h e result would be a political theory o p e n to new modes of cultural a n d political belonging. O n this a p p r o a c h , universalism a n d particularism would n o t be conceived as irreconcilable moral vantage points between which we are forced to choose, but as points of reference between which new forms of coexistence a m o n g different peoples a n d cultures must be negotiated. This is not an easy task, but an i m p o r t a n t o n e in liberal democracies striving to b e c o m e 'postcolonial' in the eyes of all of their citizens.

PARTI

Sovereign

ty

CHAPTER

2

Waitangi as Mystery of State: Consequences of the Ascription of Federative Capacity to the Maori J.G.A. Pocock

A m o n g the English-speaking political societies for w h o m indigenous rights are at p r e s e n t problematic in political theory and practice - t h e r e are of course o t h e r non-English-speaking societies of which this is true New Zealand occupies a special a n d , to all appearances, u n i q u e position. Australia, C a n a d a a n d the US are continental confederations. Within this g r o u p , indigenous or pre-settlement peoples apart from those in Australia are able to appeal to treaties m a d e with the British Crown before the confederations b e c a m e self-governing a n d i n d e p e n d e n t , a n d to further treaties with state a n d federal governments d u r i n g a n d after that process. Canadian First Nations a n d Native Americans seek to affirm forms of sovereignty alleged in treaties with federal states whose sover­ eignty was attained t h r o u g h processes in which indigenous peoples did n o t play a crucial part. Australian Aborigines were party to n o such treaties, a n d it is doubtful w h e t h e r they could or should seek o n e now. T h e r e is also the case of the Native Hawaiians, whose claim may be based o n the alleged illegitimacy of the overthrow of the K a m e h a m e h a king­ d o m in 1898. Distinct from these cases, New Zealand (in Maori, Aotearoa) is a uni­ tary state established by the Crown's sovereignty, whose establishment was in t u r n p r e c e d e d by the Treaty of Waitangi in 1840, drawn u p between representatives of the Crown a n d rangatira (translatable as 'chiefs') of the iwi a n d h a p u (translatable as 'tribes'), constituting the p e o p l e or p e o p l e s w h o came to call themselves Maori ( m e a n i n g 'nor­ mal') a n d w h o are also t e r m e d 'tangata w h e n u a ' or ' p e o p l e of the land a n d birthplace' - a t e r m conveying some of the meanings of 'aboriginal' ( O r a n g e 1987). This Treaty was drawn u p a n d signed before - t h o u g h its signatories were able to envisage - the massive settlement of New Zealand by the British, Irish a n d o t h e r E u r o p e a n colonists known as 25

J.G.A. P O C O C K

26

pakeha, now a majority of the p e o p l e who democratically exercise the sov­ ereignty of the crown, in whose n a m e they perform legislative and judi­ cial acts (Belich 1996). It is necessary to explain this vocabulary to publics who may be igno­ rant of it, because a situation has arisen that constitutes New Zealand's uniqueness. T h e Treaty of Waitangi is now considered fundamental, in the sense that it precedes and establishes the national sovereignty; it therefore furnishes a basis o n which Maori may make claims against that sovereignty, r e m i n d i n g it that it is conditional u p o n fulfilment of a treaty that m a d e promises to the Maori which have not always been h o n o u r e d (this is to p u t it mildly). T h e Treaty is not used to delegitimise sovereignty, but as a r e m i n d e r of its conditionality a n d put in its m i n d claims to which it is urgently c o n c e r n e d to attend. Democratisation has m e a n t that the sovereignty of the Crown is n o longer that of a distant imperial authority, b u t is exercised by a people divided into a pakeha majority a n d an indige­ n o u s minority whose understandings of property, sovereignty a n d history differ sharply from those of the Crown and the majority (Sharp 1997; M c H u g h 1991; Kawharu 1989). Both sets of understandings are traceable to the Treaty itself. New Z e a l a n d / A o t e a r o a (the order can be reversed) is therefore u n i q u e c o m p a r e d to other countries, a n d may be so in a m u c h larger conceptual category, in having consciously exposed its sovereignty to legal, political a n d philosophical challenges. All arise from the prob­ lem of indigenous rights, but at a time in history when the concept a n d practical exercise of sovereignty are being globally challenged by forces of an altogether different origin. T h e case of New Zealand/Aotearoa is therefore interesting a n d international publics unaware that its history has b e e n going o n will d o well to study it a n d learn its vocabulary. This c h a p t e r will be - to use an older terminology - a discourse u p o n history r a t h e r t h a n a history. Without attempting a close narrative of what has b e e n h a p p e n i n g in the world of practice, it will draw out a n d p u r s u e some general implications for politics of the decision to contract a treaty with Maori in 1840, a n d of the decision to make that treaty a fun­ d a m e n t a l d o c u m e n t nearly 150 years later. T h e initial decision received the following theoretical s u p p o r t from Lord Glenelg, then Colonial Sec­ retary, in a m e m o r a n d u m dated 15 D e c e m b e r 1837: They are not Savages living by the Chase, but Tribes who have apportioned the country between them, having fixed Abodes, with an acknowledged Prop­ erty in the Soil, and with some rude approaches to a regular System of inter­ nal Government. 1

Glenelg was an Evangelical, a n d this m e m o r a n d u m has its place in a complicated history of liberal Christian attempts to influence govern­ m e n t s a n d settler associations in their dealings with indigenous peoples

WAITANGI AS MYSTERY OF STATE

27

in various parts of the s o u t h e r n oceans. A m o n g these points of contact were Tasmania a n d Victoria, a n d it is possible to view Glenelg's words in the context of settler-Aboriginal history in Australia (Reynolds 1996). However, the 'they' of the o p e n i n g statement are, in the first instance, N g a p u h i a n d o t h e r hapu living a r o u n d the Bay of Islands, t h e n the chief point of contact between the Crown a n d Maori where the Treaty of Wai­ tangi was to be signed later. Glenelg t h o u g h t of t h e m as 'the New Zealanders', a n d the effect of these words was soon e x t e n d e d to all peoples living in b o t h major islands who b e c a m e collectively known as 'Maori'. In saying that they were ' n o t Savages living by the Chase', Glenelg was mak­ ing a distinction i m p o r t a n t in E u r o p e a n j u r i s p r u d e n c e , political philos­ ophy a n d anthropology. H e was saying that the Maori h a d left the h u n t e r - g a t h e r e r condition, to which the word 'savage' (sauvage, selvaggio, forester, b u s h m a n ) was in theory restricted, a n d e n t e r e d a condition supposed to succeed it in natural law a n d stadia! theory: that of agricul­ ture, in which h u m a n c o m m u n i t i e s b e c a m e sedentary u p o n the land, a n d by tilling a n d r e n d e r i n g it productive established property in it a n d m a d e property the basis of civil society (Pocock 1992; 1998). In Lockean theory, h u n t e r - g a t h e r e r peoples might have property in what they found or c a p t u r e d - ' t h e d e e r is that Indian's that h a t h killed it' - but n o t in the land over which they travelled in its pursuit (Locke 1988: 289). It is tempting, therefore, to o p p o s e what Glenelg is saying of the Maori to what was being said of Australian peoples whose n o r m a l condition was held to b e o n e of walkabout, pursuing songlines in search of sustenance, a n d to find in this distinction the source of the decision that the land over which they passed was terra nullius, u n a p p r o p r i a t e d by agriculture. ( E u r o p e a n s ignored, or were i g n o r a n t of, the Aboriginal sense that land m i g h t b e a p p r o p r i a t e d by song.) To make such an oppo­ sition would b e to situate Glenelg's m e m o r a n d u m at a point of bifurca­ tion, from which New Zealand a n d Australian history begins to b e c o m e as profoundly different, as in many ways they are. A m o n g these differ­ ences would be the circumstance that the Treaty of Waitangi has n o equivalent in the history of Australian settlement. T h e effect of Glenelg's words is to justify e n t e r i n g into treaty with Maori, o n e that has b e e n m a d e foundational in New Zealand history a n d is h e r e discovered at its foun­ dation. Terra nullius has the effect of denying Aborigines the capacity to make treaties; the federative capacity, derived from foedus, the Latin word for 'treaty'. At this point, however, we must refine the distinctions being m a d e . In E u r o p e a n t h o u g h t , the capacity to establish 'a fixed property in the soil' is the b e g i n n i n g of two processes: the d e v e l o p m e n t of civil society a n d the d e v e l o p m e n t of civil g o v e r n m e n t . T h e former may have r e a c h e d the point (well known to Locke) where t h e r e are known to be claims, rights,

28

J.G.A. P O C O C K

disputes a n d m e a n s of resolving t h e m , t h o u g h the latter has n o t reached the p o i n t where t h e r e exists a sovereign authority c o m p e t e n t to resolve all disputes. Glenelg says n o m o r e of the Maori than they have m a d e ' s o m e r u d e a p p r o a c h e s ' , b u t h e is saying that they have n o t developed a sovereign authority or state. T h e question imposed by the vocabulary h e is using may r u n as follows: treaties are m a d e between sovereigns, so what treaty can be m a d e with peoples as yet lacking 'a regular system of inter­ nal g o v e r n m e n t ' ? In subsequent New Zealand history, the famous Prendergast j u d g m e n t p r o n o u n c e d that the Treaty of Waitangi lacked b i n d i n g force in law, precisely because the Maori signatories lacked the authority of sovereign statehood that alone could have m a d e the terms of a treaty with t h e m b i n d i n g o n the Crown a n d its subsequent judges, officers a n d subjects. Faced with this a r g u m e n t , there are strategies m o d e r n Maori may a d o p t to make the Treaty b i n d i n g o n the Crown. O n e is to intensify, as p a r t of the historical record, the approaches to a regular system of inter­ nal g o v e r n m e n t that were being m a d e by Maori before 1840; much may be m a d e of the 'Declaration of the United Tribes' that came into being in 1835 a n d had a flag of its own. A n o t h e r - to use terms compatible with the vocabulary of classical pakeha political philosophy - is to move from the c o n c e p t of treaty towards that of contract of government. In classical theory, people possessed of rights a n d civil society, but as yet of n o civil g o v e r n m e n t , may compact to set u p such a government, transferring to a sovereign authority the right of enforcing these rights a n d legislation con­ c e r n i n g them, while retaining for themselves the rights they empower g o v e r n m e n t to enforce. A compact of this sort may be held to have o c c u r r e d at Waitangi, where the Maori signatories recognise the Crown as endowed with kdwanatanga - a neologism in te reo Maori (the Maori lan­ guage as cultural i n s t r u m e n t ) , which is a phonetic equivalent of the word ' g o v e r n m e n t ' - while the Crown guarantees t h e m the continued posses­ sion of rangatiratanga, a word m o r e authentically Maori, whose meanings include chiefly authority, property in land and, by extension then and since, the entire fabric of Maori culture a n d self-possession. At a culminating p o i n t in the ceremonies at Waitangi, Governor H o b son is said to have r e m a r k e d , 'now we are o n e p e o p l e ' . His c o m m e n t s can be r e a d as m e a n i n g simply that t h e r e has o c c u r r e d a u n i o n of head and body; the Maori have b e c o m e a p e o p l e in the state of civil g o v e r n m e n t by recognising the Crown as their sovereign. It would follow - as it has that Maori are entitled to claim that the Crown is b o u n d to maintain ran­ gatiratanga, that failure to d o so is a breach of the contract of govern­ m e n t , a n d that the consequences of such a breach may extend as far as a Lockean 'dissolution of g o v e r n m e n t ' , a threat sufficient to maintain the b i n d i n g force of the Crown's obligation. Maori in the late twentieth cen2

3

4

29

WAITANGI AS MYSTERY OF STATE

tury have e n g a g e d in large-scale symbolic actions a p p r o a c h i n g civil dis­ obedience, with the precise effect of using such r e m i n d e r s to revive the binding force of the Treaty, b u t it does n o t follow, as it might, that the Treaty is simply the outward or originatory form of a contract of civil gov­ e r n m e n t . T h e r e is m o r e to the New Zealand state a n d its a t t e n d a n t civil society than the confrontation of kdwanatanga a n d rangatiratanga; the former is n o t the only threat the latter faces. Hobson's words at Waitangi n e e d not be read - though they often have been - as m e a n i n g that Maori a n d pakeha 'are now o n e people'. T h e rea­ son is that massive pakeha presence - intensive colonisation by British setders intending to appropriate land in their own way, to develop a civil society of the kind they are used to, a n d to continue to live u n d e r the Crown as their civil g o v e r n m e n t - is not envisaged at Waitangi or spoken of in the Treaty. It was, however, beginning to occur. T h e Crown knew this, and h a d its own intentions regarding it, a n d accusations of bad faith against the Crown in its dealings at Waitangi begin here. It was the Crown's intention to establish its sovereignty before settlement began in order to retain sovereignty over the process. It did so by means of a treaty, or con­ tract of government, with the Maori, but did not make clear to t h e m either the impact that settlement would have on their rangatiratanga, or the extent to which the Crown would further that process in the act of exer­ cising sovereignty over it. If the Crown did not become the m e r e instru­ m e n t of the settlement companies, it came close, especially after 'the growth of responsible government' m e a n t that its sovereignty was exer­ cised in a n d by acts of parliament representing the settler majority. H e r e we revert to Glenelg. His language ascribes to pre-Treaty and pre-contact Maori a capacity to create property in l a n d . Property is a right, h e r e recognised as a n c i e n t a n d aboriginal, rooted in the customs of an indigenous p e o p l e . This is crucial to any claim that may subse­ quently b e m a d e that rangatiratanga antedates, conditions a n d obliges the establishment of sovereignty at Waitangi. However, research into the language a n d behaviour of the agents of settlement companies a n d o t h e r land purchasers t h e n active in various parts of Aotearoa reveals that they were as anxious as the Crown to ascribe property a n d original title to the Maori from w h o m they sought to purchase land, for the obvious reason that they n e e d e d it to legitimate their purchases in the eyes of a Crown u n d e r whose sovereignty they m i g h t soon find themselves. For its part, the Crown was interested in ascribing to Maori a capacity to hold p r o p ­ erty a n d e n t e r into treaties, in o r d e r to acquire sovereignty over the processes of p u r c h a s e a n d settlement, over which it did n o t wish the set­ tlement c o m p a n i e s to acquire an authority preceding its own. T h e capacity to hold property, to claim rights in it a n d to e n t e r into treaties respecting it were u n d e r s t o o d by Maori in terms of their own 5

6

30

J.G.A. P O C O C K

c o n c e p t of rangatiratanga. We now see, however, that they implied - a n d were o p e r a t e d by pakeha in 1840 so that they should imply - a capacity to alienate property with which Maori were n o t familiar a n d which might be hostile to their governing values. What went on in the m i n d of a rangatira e n g a g e d in what a pakeha t h o u g h t of as a land sale may b e h a r d to recap­ ture, b u t probably entailed a belief that h e was e x t e n d i n g his mana (the t e r m is stronger even than rangatiratanga) over the land in question, n o t that h e was parting with it for money. Historically, this is the point from which many confusions a n d injus­ tices - the latter often quite deliberate - take their origin. J u r i s p r u d e n tially, h e r e begins a history that has to be re-assessed with a view to r e m e d y i n g the injustices, o n c e their existence a n d origin have b e e n p o i n t e d out. Philosophically, at this point we observe that Maori are being involved for the first time in a historical process to which they have n o t consented, a n d p e r h a p s in the first historical process they are obliged to recognise as such. Rights in E u r o p e a n j u r i s p r u d e n c e might exist timelessly or in a process conceived merely to elucidate their char­ acter. Property, as a specie of right, required n o organisation of time beyond inheritance a n d custom. T h e time structure of the Maori world was mythic, c o m p o s e d of ancestral a n d cosmic images. But the move­ m e n t of property from possession to alienability entailed a history m o r e drastic than any of the stadial sequences designed to p r e c e d e it; a process of commodification in which all goods b e c a m e mobile a n d homo became mercator, c o m m i t t e d to exchange. As goods b e c a m e commodities, e x c h a n g e transformed their use a n d character. T h e future b e c a m e o p e n , at the price of uncertainty. Maori, accustomed to living in a cosmos of reciprocity, justice a n d revenge (the word for the latter two is utu), found themselves living in a process of shifting patterns, in which the new must be u n d e r t a k e n without seeing its o u t c o m e , n o t h i n g was quite what it seemed, a n d the Treaty that was supposed to g u a r a n t e e their rangati­ ratanga b e c a m e an i n s t r u m e n t by which they lost it. T h e wars fought in A o t e a r o a / N e w Zealand d u r i n g the 1860s were in part between Kingitanga, Maori w h o resisted land sales, and kupapa, Maori who had decided to e n g a g e in a n d control them. But the wars could not check the flood of pakeha immigration, a n d the kupapa sometimes found their lands con­ fiscated, like those of the Kingitanga (Belich 1986; 1989; 1996: 229-46). This is life in the o p e n - e n d e d n e s s of history, a vision of things frighteningly necessary to the o p e n society in which h u m a n s seek freedom a n d self-determination. Neo-conservative historians sometimes point out that even the most b a r b a r o u s a n d brutal Europeans e n c o u n t e r e d by Maori knew things a b o u t living in a history of differences, a n d therefore a b o u t being free, unknowable in a closed Maori cosmos that taught n o response to t h e m , a n d that o n c e the sailors had arrived, freedom could

31

WAITANGI AS MYSTERY OF STATE 7

only be h a d by living in a history like - if n o t identical with - theirs. This may well be, but a history that has b e e n forced o n o n e can only be m a d e one's own by its retelling, a n d those who e n t e r history with the fragments of a cosmos a b o u t t h e m must tell it in terms that n o t only the fragments, b u t the knowledge of their former wholeness, provide. T h e r e may b e ways of relating Glenelg a n d the Treaty to this process. Glenelg gives us textual evidence that Maori were t h o u g h t capable of federative action because they were able to establish a n d a p p o r t i o n p r o p ­ erty in the soil, a n d were therefore a p p r o a c h i n g the state of civil govern­ m e n t (it is noteworthy, in Lockean terms, that the federative capacity here p r e c e d e d the legislative). T h e r e is a further way of stating this capacity, which Glenelg did n o t use a n d which does n o t seem to figure in the discourse a t t e n d i n g Maori-Crown settler relationships; it was never­ theless available to pakeha e n g a g e d in this discourse, a n d may be intro­ duced into t h e history as a m e a n s of enlarging its philosophical significance. E n c o u n t e r s between the Crown a n d the indigenous peoples of N o r t h America h a d b e e n going o n for two centuries before Glenelg wrote his m e m o r a n d u m , a n d t h e r e had taken shape an elaborate image of the capacity of Mohawk, Iroquois a n d H u r o n leaders for war, oratory and reason of state (Colden 1747: v, viii, xiii, 106, 135, 150-51, 178-79; Ferguson 1995). It h a d b e e n p o i n t e d o u t as a p a r a d o x that these were h u n t i n g peoples - Glenelg's 'Savages living by the Chase' - who should in theory lack all these capacities; their powers of political speech exceeded their powers to c o m m a n d a state's resources. Nevertheless, they could resolve to make wars, treaties a n d alliances, a n d could enter into debate with French a n d British governors a n d settlers as to w h e t h e r the wars fought by the latter were j u s t or unjust. It h a d in c o n s e q u e n c e b e e n sug­ gested in the literature of e m p i r e that h u n t i n g peoples might demarcate h u n t i n g g r o u n d s a n d fight wars, just or unjust, a n d terminate these wars by treaties c o n c e r n i n g their d e m a r c a t i o n (Pownall 1993: 259n, 265-80). This was an i m p o r t a n t step away from the supposition that peoples 'living by the chase' lacked political capacity, a n d toward the proposition that the federative capacity m i g h t arise in the o r d e r of natural develop­ m e n t before the governmental. It could be applied to the historical con­ dition of Maori at the time of contact, who h a d 'advanced' (as a progress-based discourse would p u t it) beyond 'living by the chase', a n d a m o n g w h o m t h e r e visibly o c c u r r e d what a E u r o p e a n could recognise as wars' a n d 'treaties' over ' a p p o r t i o n m e n t ' of land. T h e capacity to engage in war, t e r m i n a t e it by treaties, p r e c e d e it by alliances, a n d behave wisely or unwisely, justly or unjustly, in the practice of these activities was impor­ tant in what was t e r m e d ' t h e progress of society' a n d of the h u m a n moral faculty. It constituted the universes of jus gentium a n d 'reason of state', the intellectual universes governing the relations of sovereigns with o n e 8

J.G.A. P O C O C K

32

a n o t h e r . T h e sovereign's 'federative' capacity to make wars a n d enter into treaties was significant in the history of morals a n d morality. Against this b a c k g r o u n d , it can be a r g u e d that the Treaty of Waitangi a n d the intellectual preparation for it have had the effect of conceding the Maori presence in the universe of jus gentium, whereas the effect of terra nullius has b e e n the refusal of such a presence to Aboriginal peoples, d e e m e d u n a b l e to a p p r o p r i a t e lands or make war a n d peace, a n d thus obliging t h e m , even today, to seek their remedies in the uni­ verse of jus naturale, which has n o history. This a r g u m e n t in several ways entails ideal simplifications. T h e admission of Maori to jus gentium was imperfect a n d often denied, and did not prevent Maori suffering mani­ fold injustices within that universe. To write Aboriginal history as if it h a d b e e n governed by the terra nullius j u d g m e n t a n d by n o t h i n g else would certainly be i n a d e q u a t e , a n d m o d e r n attempts to reconstitute the men­ tal universes of b o t h Maori and Aborigines at the time of contact have shown t h e m containing elements d e e p e r a n d m o r e various than those of the universe of jus gentium alone - elements to which appeals are now b e i n g m a d e . However, the a r g u m e n t does p e r m i t the contention that, in virtue of Waitangi, A o t e a r o a / N e w Zealand history has, as Aboriginal/ Australian history p e r h a p s has not, o c c u r r e d in a universe of jus gentium, w h e r e wars a n d treaties are recognised c o m p o n e n t s of history. In precontact Aotearoa, wars a n d treaties recognisably occurred. T h e r e was a Treaty at the foundation of sovereignty a n d partly in consequence of its imperfections, wars o c c u r r e d in the 1860s a n d were fought by those who knew t h e m to be wars, in b o t h Maori a n d pakeha senses; these wars were n o t t e r m i n a t e d by treaties, but the Treaty is now being invoked as a m e a n s of saying they were n o t properly t e r m i n a t e d a n d of applying vari­ ous m o d e s of closure which are thought to be needed. It is a strong but minority position that the condition of New Zealand/Aotearoa is one of internal war that has not yet b e e n terminated by Treaty; a m u c h more gen­ eral position, to which the state itself appears to subscribe, is that the Treaty of Waitangi is to be used as a means of re-assessing history a n d remedying grievances that have caused wars in the past and arise out of ways in which those wars were terminated (if terminated they were). T h e rewriting of New Zealand/Aotearoa history in this way appears to have become estab­ lished, a n d since it is unlikely that history can be written with finality, it must continue to be practised, and to h a p p e n , as well as be rewritten. This is a remarkable characteristic of that polity as it now finds itself. It is evident at this point that history has b e c o m e i m p o r t a n t in the the­ ory a n d practice of politics. T h e Maori bring to the Treaty envisaged by Glenelg s o m e t h i n g o t h e r than the history of property a n d progress in which Glenelg (we may say) t h o u g h t it would involve them. T h e Treaty b e c o m e s a focal p o i n t a r o u n d which they organise their history as they 9

WAITANGI AS MYSTERY OF STATE

33

u n d e r s t a n d it: the history of the mana a n d rangatiratanga which they once created a n d possessed, the history of their dispossession of rangati­ ratanga contrary to the promises of the Treaty, the history of how ran­ gatiratanga a n d mana nevertheless survived and how the Treaty may be used as a means of re-asserting a n d reclaiming them. (The circumstance that all these concepts are becoming debatable a m o n g Maori themselves is important to the politics of history, b u t will n o t be discussed here.) This history is a source of b o t h pride a n d pain, a n d both are significant when it is b r o u g h t to the negotiating table that the Treaty provides an occasion for the constant re-assertion of that history. Because it is seen as unful­ filled, it b e c o m e s n o t a single e n c o u n t e r between negotiating peoples whose histories begin again (perhaps as o n e history) as the o u t c o m e of a treaty, but as a m e a n s of r e n d e r i n g the e n c o u n t e r a n d the negotiation ongoing a n d o p e n - e n d e d , so that they b e c o m e the history that the nego­ tiants now have in c o m m o n . At issue is n o t rights a n d justice alone, but the identity a n d history they define. W h e n a New Zealand g o v e r n m e n t some years ago was seen to be offering a cash settlement in r e t u r n for the closure of all claims u n d e r the Treaty of Waitangi, it was told in effect that the history of e n c o u n t e r between Maori a n d pakehawzs such that it could not be b r o u g h t to a closure, that the offer was insulting, a n d that the his­ tory would have to c o n t i n u e in the form of negotiation into an indefinite future in which negotiation a n d history would be inseparable a n d nearly identical (Gardiner 1996; Oliver 1997: 135-45). H e r e s o m e t h i n g begins to b e said a b o u t pakeha history, first by Maori and by pakeha themselves. T h e Maori r e m i n d the pakeha that the history of their settlement as a p e o p l e entails at every p o i n t the dispossession of the Maori from that rangatiratanga g u a r a n t e e d t h e m by the Treaty, a n d their relegation to a history of dispossession, survival a n d recovery. They invite the pakeha to r e t u r n to Waitangi a n d recognise that their legitimacy as a p e o p l e rests o n promises that have n o t b e e n fulfilled a n d for whose unfulfilment r e m e d y is necessary a n d obligatory. Unless their response is o n e of c o m p l e t e denial, pakeha r e s p o n d that they recognise the history that calls for remedial justice, b u t - unless their reply is m a d e for t h e m by a critical intelligentsia anxious to u n m a k e every identity including its own - they further r e s p o n d that their history does n o t fully arise from the Treaty of Waitangi a n d does n o t consist wholly in the u n d e n i a b l e nonfulfilment of its provisions. More pertinently, their identity as a p e o p l e is characterised b u t n o t defined by the dispossession of Maori which the Treaty at every p o i n t entails. They point out that the Treaty was m a d e by the Crown before t h e r e was a pakeha people, that t h r o u g h democratiza­ tion they have assumed the obligations of the Crown u n d e r the Treaty, but that their self-formation as a p e o p l e has c o m e a b o u t n o t solely t h r o u g h interaction between t h e m a n d the Crown or between pakeha a n d

34

J.G.A. P O C O C K

Maori, b u t also between pakeha a n d pakeha - defining their own history by its own contestations - a n d between t h e m a n d the land (in Maori, te whenua) they now inhabit. They acknowledge the central unfairness of colonial history, that colonisers h a d a better chance of making their own history than the colonised, but say that their history is not to be taken from t h e m merely because it is unfair that they should have it on terms exclusively their own. W h e n informed by the critical intellect that it is highly debatable how far their history has b e e n of their own making, they reply that they have always known that, which is why it is paradoxically theirs. This d e b a t e will be with Maori centrally, but with Maori a m o n g others, a n d the others will include themselves. T h e Treaty as history c a n n o t a n n u l , although it can act u p o n , the exis­ tential imbalance that, for o n e p e o p l e , is about the loss, retention a n d recovery of its mana, but for the o t h e r it is not. O n e g r o u p may have its own mana a n d history, b u t the Treaty is only a part of that history. O n e possible contributing remedy is that Maori may discover a history of themselves that is n o t exclusively a b o u t mana a n d the Treaty, but has b e e n m a d e by Maori interacting with Maori, pakeha a n d whenua, in a his­ tory to b e possessed differently. T h e r e are signs that such a historio­ graphy is taking shape, t h o u g h only Maori can write it. It will not diminish the i m p o r t a n c e of the Treaty in providing an alternative to it, since every p e o p l e should possess alternative histories of itself. Meanwhile, the Treaty d e b a t e a n d process have i m p o r t a n c e for both peoples. It has b e e n m a d e a d e b a t e over the exercise a n d character, if n o t exactly the loca­ tion, of sovereignty, a n d if sovereignty is n o t mana, a spiritual and histori­ cal essence a n d identity, it is the place - in Maori the marae- where 'we' (the p r o n o u n may be u s e d ) make decisions of a certain finality regard­ ing what 'we' will d o a n d have d o n e , a n d therefore (insofar as o u r actions in history define us) d e t e r m i n e who we have been a n d will be. T h e Treaty of Waitangi r e n d e r s New Zealand sovereignty perpetually debatable, b u t recasts sovereignty as a perpetual debate between Crown, Maori a n d pakeha qualified to engage in it. Sovereignty rests on the Treaty, b u t the Treaty remains unfulfilled, a n d the lack of fulfilment sets u p a process a n d a debate that e x t e n d into an indefinite future. Like a written or an unwritten constitution, the Treaty is o p e n to perpetual interpretation by a body identical to n e i t h e r courts of law n o r parliament ( t h o u g h in p r o c e d u r e it resembles the f o r m e r ) , n o t exercising sover­ eignty so m u c h as advising it of its perpetually disputable character, the d e b a t e going o n (as in the two texts, English a n d Maori, of the original Treaty) between two never finally c o n g r u e n t readings of the world a n d its A o t e a r o a / N e w Zealand history. In c o n d u c t i n g this debate, the dis­ p u t a n t s c o n d u c t their history by maintaining its ambivalence. This is an idealist a n d historicist a c c o u n t of a situation that actual his­ tory - the o p e r a t i o n of social, cultural a n d e c o n o m i c forces - may quite 10

11

WAITANGI AS MYSTERY OF STATE

35

possibly b r i n g to an e n d . O n e may even identify some forces o p e r a t i n g to d o so. I o n c e suggested, at a c o n f e r e n c e of the New Zealand Histori­ cal Association, that inhabitants of the c o u n t r y might cease dividing themselves into tangata whenua (people of the land, or Maori) a n d tau iwi (strangers, or everybody else), o n the g r o u n d s that b o t h were tangata waka, peoples of the s h i p . A distinguished spokesman of the Ngai Tahu iwi of the South Island replied that b o t h might very well find themselves boat p e o p l e . H e m e a n t that e c o n o m i c a n d cultural globalisation might dissolve t h e m into pools of m i g r a n t labourers a n d consumers, unaware of any history save the fluidity of the global market. U n d e r such condi­ tions, it is reasonable to i n q u i r e what it is that sovereignty can d o - a rea­ sonable question that too often t u r n s rhetorical in the h a n d s of a cultural criticism insistent o n the negotiability of sovereignty a n d iden­ tity, in the evident belief that to negotiate these things is to negotiate t h e m away - into whose h a n d s , we are n o t usually told. T h e Treaty process, however, seems to have h a d some success in supplying New Z e a l a n d / A o t e a r o a with a history where sovereignty has a c o n t i n u i n g part to play: the c o n d u c t of an unfinishable d e b a t e over how it is itself to b e exercised. Suppose, however, that the d e b a t e should c o n t i n u e forever in this form: a d e b a t e over the e n c o u n t e r between two u n d e r s t a n d i n g s of his­ tory, a r o u n d which two peoples should crystallise as participants. It might c o n t i n u e forever to p r o d u c e contested yet sovereign decisions, and still leave unanswered the question: is this a debate a m o n g citizens or a treaty between sovereigns? T h e politics of difference may dissolve the polis or res publica into a confederacy, a series of ad hoc a g r e e m e n t s negotiated between separate identities, each c h a n g i n g but intent o n autonomously c o n d u c t i n g its own transformation. T h u s the Haida Gwaai canoe, in the great sculpture by the late Bill Reid chosen by J a m e s Tully to illustrate his Strange Multi­ plicity, is crewed entirely by shape-changers and steered (if at all) by a s h a m a n t h r o u g h w h o m all changes are mediated (Tully 1993; 1995: xvii, 17-29). O n e recalls the Hunting of the Snark, a n d wonders if they will ever arrive at a collective decision, which the m o u t h of the steersman (gubernator) will enact. Perhaps a confederacy of shape-changers is the best we can h o p e for in a postcolonial a n d p o s t m o d e r n world. Perhaps the world market requires us to be n o m o r e than shape-changers that may be directed. But if we discover histories that we must d e b a t e with o n e another, even d e b a t i n g the character of the histories in which we are involved a n d the m e a n s of d e b a t i n g t h e m , t h e r e may develop transitive, if ambivalent, languages that we speak to o n e another, a step towards the recovery of sovereignty a n d - in however strange a multiplicity - of mana. It might be d o n e , which is why the reconstitution of New Zealand as Treaty is interesting. 12

CHAPTER

3

The Struggles of Indigenous Peoples for and of Freedom J a m e s Tully

How does political theory hinder or help the liberation of indigenous peoples? T h a t is, in what ways can political theory help or h i n d e r the strug­ gles of indigenous peoples for a n d of freedom? T h e s e are n o t new questions. They have been raised a n d answered in various ways since the first e n c o u n t e r of E u r o p e a n s with indigenous peoples, and they have been raised in, and partly given rise to, the com­ plex language (or multiplicity of languages) of m o d e r n , western, noni n d i g e n o u s political thought. This c h a p t e r is an a t t e m p t to address aspects of these complex and dif­ ficult questions from a non-indigenous perspective with reference to Canada. Western political theory h e r e is used broadly to refer to the political, legal a n d social theories, reasoned legal decisions and legisla­ tive a n d policy d o c u m e n t s written by E u r o p e a n , North a n d South Ameri­ can, Australian a n d New Zealand non-indigenous authors from the b e g i n n i n g of the m o d e r n period in E u r o p e to the present. These theo­ ries make u p part of the complex, shared a n d continuously contested languages of m o d e r n , western political thought. T h e motley language of western political t h o u g h t has two well-known characteristics. It is a language woven into the everyday political, legal a n d social practices of these societies a n d , in a slightly m o r e technical a n d abstract key, a language of interpretation and critical reflection on the practices of these societies in the institutions of law, policy a n d academia. In short, it is the language of both political self-understanding a n d self-reflection of these societies a n d their non-indigenous m e m b e r s . It is not the language of political self-understanding a n d self-reflection of i n d i g e n o u s peoples, even t h o u g h they are constrained to use it. Indige­ n o u s p e o p l e have, for lack of better terms, indigenous political theories a n d a complex a n d contested shared indigenous language of political 36

T H E STRUGGLES FOR AND OF FREEDOM

37

thought. T h e s e two languages are n o t closed, i n c o m m e n s u r a b l e or inde­ p e n d e n t of each other, b u t massively u n e q u a l in their effective discursive power in the present. O n e is the d o m i n a n t language that presents itself as a universal vocabulary of u n d e r s t a n d i n g a n d reflection; the o t h e r a subaltern language which, when noticed at all, is normally taken to be some kind of minority language within the d o m i n a n t language of west­ ern political t h o u g h t . T h e questions I ask at the start d o n o t arise in a v a c u u m b u t in response to a f u n d a m e n t a l p r o b l e m in practice. The practical problem is the relation between the establishment and development of western societies and the pre-existence and continuing resistance of indigenous societies on the same territory. This p r o b l e m a t i c relation takes different forms in C a n a d a , the US, New Zealand a n d Australia, varying widely within each of these societies in relation to different i n d i g e n o u s societies, a n d also over time. Despite wide variation, t h e relation is c o m m o n l y called the 'inter­ nal colonisation' of i n d i g e n o u s p e o p l e s by the d o m i n a n t societies. As systems of i n t e r n a l colonisation a n d the arts of resistance by indige­ n o u s p e o p l e s c h a n g e over time, they periodically give rise in the domi­ n a n t societies to t h e sorts of questions addressed in this volume. (These questions arise m u c h m o r e frequently in i n d i g e n o u s societies, where colonisation is the lived reality.) To address t h e m effectively, it is nec­ essary to u n d e r s t a n d t h e main features of systems of i n t e r n a l colonisa­ tion a n d practices of resistance, as well as the m o r e specific features that have b e c o m e p r o b l e m a t i c in the p r e s e n t a n d given rise to critical reflection. I restrict my investigation to N o r t h America a n d mostly to what is now called C a n a d a . 1

Internal Colonisation and Arts of Resistance I n t e r n a l colonisation refers, first, to the historical processes by which structures of d o m i n a t i o n have b e e n set in place o n Great Turtle I s l a n d / N o r t h America over the i n d i g e n o u s p e o p l e s a n d their territo­ ries without their c o n s e n t a n d in response to their resistance against a n d within these structures. T h e relevant institutions of the US a n d C a n a d a constitute structures of d o m i n a t i o n in Weber's sense because they are now relatively stable, immovable a n d irreversible vis a vis any direct c o n f r o n t a t i o n by t h e colonised p o p u l a t i o n , as the massive dis­ play of force at K a h n e s a t a k e / O k a , Q u e b e c in 1990 was d e s i g n e d to show (MacLaine & Baxendale 1991; York & P i n d e r a 1991). T h e y ' i n c o r ­ p o r a t e ' or ' d o m e s t i c a t e ' t h e s u b o r d i n a t e i n d i g e n o u s societies. T h e s e two c o n c e p t s are widely used by i n d i g e n o u s p e o p l e s to refer to the form d o m i n a t i o n takes: t h a t is, as a m a t t e r of fact, a n d of the coloniser's law i n d i g e n o u s p e o p l e s exist within the d o m i n a n t societies as minorities,

JAMES TULLY

38

domestic, d e p e n d e n t nations, aboriginal peoples or First Nations of C a n a d a a n d so o n . Second, within the stable structures of incorporation, internal coloni­ sation refers to the vast array of m o r e mobile a n d changeable techniques of g o v e r n m e n t by which indigenous peoples a n d their territories are gov­ e r n e d within the American a n d Canadian political systems. Techniques of g o v e r n m e n t refer to the totality of modifiable discursive and nondiscursive ways a n d m e a n s used in strategies for guiding the conduct, directly a n d indirectly, a n d r e s p o n d i n g to the resistance of indigenous peoples. Ever since the consolidation of the control of the US a n d C a n a d a over two-thirds of the c o n t i n e n t a n d the effective assertion of exclusive jurisdiction by the mid-nineteenth century, the struggles of i n d i g e n o u s peoples o n the g r o u n d have primarily involved attempts to modify the techniques of g o v e r n m e n t to gain degrees of self-government a n d control over some of their territories, r a t h e r than direct confronta­ tion with the b a c k g r o u n d structures of domination. T h e r e is not a sharp distinction between structures of d o m i n a t i o n a n d techniques of govern­ m e n t in practice, as what appears to be a part of the immovable back­ g r o u n d to o n e g e n e r a t i o n can be called into question and b e c o m e the object of struggle a n d modification by another, a n d vice versa. T h e for­ m e r is like the relatively stable riverbanks that c h a n g e imperceptibly while the latter is like the changing waters of the river. T h e processes of internal colonisation have developed in response to the struggles of indigenous peoples for freedom both against a n d within colonisation o n the o n e h a n d , a n d in response to overriding objectives of the settler societies a n d the capitalist m a r k e t on the other. T h e r e have b e e n four major dimensions to these processes. W h e n E u r o p e a n s invaded a n d began to settle in N o r t h a n d South America, they encoun­ tered free, vibrant, sovereign indigenous nations with complex forms of social a n d political organisation a n d territorial jurisdictions that were older (3000-30 000 years), m o r e p o p u l o u s (60-80 million) a n d m o r e variegated than E u r o p e . First, t h r o u g h the spread of E u r o p e a n diseases, wars a n d the destruction of indigenous societies, the interlopers r e d u c e d the population by roughly 90 p e r cent by the turn of the twentiethc e n t u r y (from 10 million to 0.5 million in Canada a n d the US). Second, they u s u r p e d the existing traditional forms of g o v e r n m e n t a n d subjected i n d i g e n o u s peoples to French, British a n d then Canadian and American g o v e r n m e n t s , either directly, t h r o u g h various techniques of assimilation, or indirectly, t h r o u g h setting u p systems of internal self-rule (band coun­ cils in Canada) g o v e r n e d by special authorities a n d d e p a r t m e n t s of the d o m i n a n t societies. T h i r d , to build western political societies o n the territories a n d ruins of i n d i g e n o u s societies, the newcomers gradually displaced the rapidly 2

3

T H E S T R U G G L E S FOR A N D OF FREEDOM

39

decreasing native population to small reserves, a p p r o p r i a t e d their terri­ tories by effectively exercising exclusive jurisdiction over them, a n d o p e n e d t h e m to resettlement by the rapidly increasing immigrant p o p u ­ lation, a n d to capitalist d e v e l o p m e n t either indirectly (as in the early fur trade) or directly (agriculture, fishing, forestry, mining a n d o t h e r forms of resource extraction). Fourth, in the early stages a n d again in the pre­ sent, where indigenous resistance has b e e n effective, usurpation a n d appropriation have often b e e n p r e c e d e d or a c c o m p a n i e d by treatymaking. This has modified the processes to some extent a n d created rela­ tions of cooperation. T h e long-term effects of these four dimensions for the vast majority of native p e o p l e in C a n a d a have been to r e d u c e for­ merly economically self-sufficient a n d i n t e r d e p e n d e n t native societies to tiny overcrowded reserves, inter-generational welfare dependency, sub­ standard housing, diet, education a n d health facilities, high levels of u n e m p l o y m e n t , low life expectancy, high rates of death at birth, a n d pre­ dictably, following these conditions o n or off reserves that u n d e r m i n e their wellbeing a n d self-esteem, high levels of substance abuse, incarcer­ ation a n d suicide for native peoples. This form of colonisation is 'internal' as o p p o s e d to 'external' because the colonising society is built o n the territories of the formerly free, a n d now colonised, peoples. T h e colonising or imperial society exercises exclusive jurisdiction over t h e m a n d their territories a n d the indigenous peoples, although they comply a n d adapt (are de facto colonised), refuse to s u r r e n d e r their freedom of self-determination over their territories a n d c o n t i n u e to resist within the system as a whole as best they can. T h e essence of internal colonisation, therefore, is not the appropriation of labour (as in slavery), for this has b e e n peripheral, or depopulation (genocide), for indigenous populations have increased threefold in this century, or even the appropriation of self-government (usurpation), for at different times indigenous peoples have b e e n per­ mitted to govern themselves within the colonial system (as in the early treaty system a n d p e r h a p s again today). Rather, the g r o u n d of the rela­ tion is the a p p r o p r i a t i o n of the land, resources a n d jurisdiction of the indigenous peoples, n o t only for the sake of resettlement a n d exploita­ tion (which is also true in external colonisation), b u t for the territorial foundation of the d o m i n a n t society itself. In external colonisation, colonies a n d the imperial society coexist on different territories. T h e colonies can free themselves a n d form geographically i n d e p e n d e n t societies with exclusive jurisdiction over their respective territories, as Canada, the US, Australia a n d New Zealand have d o n e in relation to the former British Empire. With inter­ nal colonisation, this is n o t possible. T h e problematic, unresolved con­ tradiction a n d constant provocation at the foundation of internal

40

JAMES TULLY

colonisation, therefore, is that the d o m i n a n t society coexists o n a n d exer­ cises exclusive jurisdiction over the territories a n d jurisdictions that the indigenous peoples refuse to surrender. It follows that the entire system of internal colonisation is seen by both sides as a t e m p o r a r y m e a n s to an e n d . It is the irresolution, so to speak, of the relation: a matrix of power p u t in place a n d continuously pro­ voked by a n d adjusted in response to the arts of resistance of indigenous peoples. T h e t e m p o r a r y n a t u r e of internal colonisation is obvious e n o u g h from the indigenous side. They unsurprisingly would prefer to resolve it by regaining their freedom as self-governing peoples. It is n o t as obvious from the side of the colonising society, a n d is commonly over­ looked in the theoretical a n d policy literatures, which t e n d to accept the colonial system as an e n d in itself a n d seek to justify a n d ameliorate it in some new form or another. However, since the beginning, the long-term aim of the administrators of the system has b e e n to resolve the contra­ diction by the c o m p l e t e disappearance of the indigenous problem: that is, the disappearance of the indigenous peoples as free peoples with the right to their territories a n d governments. T h e r e are two major strategies of e x t i n g u i s h m e n t a n d c o r r e s p o n d i n g techniques of g o v e r n m e n t by which this long-term goal has b e e n a n d continues to be sought. T h e first type of strategy is that indigenous peoples could b e c o m e extinct, either in fact, as was widely believed to be the trend in the late n i n e t e e n t h century ( t h r o u g h dying out) a n d is widely h e a r d again today ( t h r o u g h intermarriage a n d urbanisation), or in deed, as the over­ whelming power of the d o m i n a n t society could gradually wear down a n d weaken the indigenous population to such an extent that their will a n d ability to resist incorporation would be extinguished, as various marginalisation hypotheses have projected t h r o u g h o u t the twentieth century (and as the appalling conditions o n most reserves p o r t e n d today). T h e s e c o n d a n d m o r e c o m m o n strategy is the attempt to extinguish the rights of indigenous peoples to their territories a n d self-government. Over the last t h r e e centuries there have been three e n d u r i n g types of this second strategy of extinguishing the rights of indigenous peoples. T h e first is either to p r e s u m e that indigenous peoples d o not have the rights of self-governing peoples which pre-exist a n d c o n t i n u e t h r o u g h colonisation, or to try to d e m o n s t r a t e , o n c e a n d for all, that they d o n o t have such rights. T h e p r e s u m p t i o n of Crown sovereignty, terra nullius, the discovery doctrine, a n d the primitive or less-developed thesis are examples of discursive techniques employed. T h e second strategy is to extinguish indigenous rights either uni­ laterally ( t h r o u g h conquest, the assertion of sovereignty a n d the doc­ trine of discontinuity, supersession or by the unilateral effect of lawmaking) or voluntarily ( t h r o u g h treaties a n d cession). T h e third a n d 4

T H E S T R U G G L E S FOR A N D OF FREEDOM

41

equally familiar strategy a n d set of distinctive techniques is to transform indigenous peoples into m e m b e r s of the d o m i n a n t society t h r o u g h re­ education, incentives a n d socialisation so that they lose their a t t a c h m e n t to their identity by outlawing indigenous political a n d social practices and establishing b a n d councils in their place, residential schools, adop­ tion, exchanging native status for voting rights, p r o g r a m s of de-indigenisation a n d westernisation, a n d fostering a co-opted native colonial elite to administer the system. O n c e o n e or m o r e of these strategies of extinguishment is presumed to be successful, a n u m b e r of different strategies of incorporation of indigenous peoples as m e m b e r s of the d o m i n a n t society have been put into practice by mobilising a c o r r e s p o n d i n g range of governmental tech­ niques. T h e r e are two major c o m p e t i n g strategies of incorporation in Canada today. T h e first is assimilation, where indigenous persons are treated like any o t h e r m e m b e r of the settler society. Difference-blind lib­ eralism, the policy of the Reform Party of Canada, the Statement of the Government of Canada o n Indian Policy of 1969, and various forms of delegated, municipal-style self-government are examples of this approach. T h e second is a c c o m m o d a t i o n , where indigenous people are recognised and a c c o m m o d a t e d as m e m b e r s of Canada a n d the bearers of, or at least claimants to, a range of aboriginal g r o u p rights, in exchange for surren­ dering or denying the existence of their rights as free peoples. Recent Supreme C o u r t rulings, the present treaty process, and various policies and influential theories of C a n a d a as a multicultural a n d multinational society (such as the T h r e e O r d e r s of G o v e r n m e n t of the failed Charlottetown Accord) are examples of this neocolonial approach. In the latter case, commonly called reconciliation, the prevailing system of incorpora­ tion is transformed to a legitimate system of g r o u p recognition a n d rights in the Canadian constitution with the a g r e e m e n t of the indigenous peoples themselves. These five strategies a n d techniques make u p the d o m i n a n t side of the complex agonic relation of colonial governance vis a vis indigenous resis­ tance. From the side of the ruling peoples, this Goliath-versus-David rela­ tion is a political system that underlies a n d provides the foundation for the constitutional democracies of Canada, the US, Australia a n d New Zealand. T h e aim of the system is to e n s u r e that the territory on which the settler societies is built is effectively a n d legitimately u n d e r their exclusive jurisdiction a n d o p e n to settlement a n d capitalist develop­ m e n t . T h e m e a n s to this e n d are twofold: the o n g o i n g usurpation, dis­ possession, incorporation a n d infringement of the rights of indigenous peoples c o u p l e d with various long-term strategies of extinguishment a n d a c c o m m o d a t i o n that would eventually capture their rights, dissolve the contradiction a n d legitimise the settlement (see section 2). 5

6

42

JAMES TULLY

F r o m the side of indigenous peoples, it is a political system that over­ lies a n d is illegitimately based on making use of their pre-existing gov­ e r n m e n t s and territories. It is a system established a n d continuously modified in response to two distinct types of arts of resistance and free­ d o m : against the structure of d o m i n a t i o n as a whole in the n a m e of the freedom of self-determination, a n d within it, by compliance a n d internal contestation of the strategies a n d techniques in the n a m e of the freedom of insubordination a n d dissent (see section 3). First, indigenous peoples' struggle for freedom as peoples in resisting the colonial systems as a whole, in each country a n d t h r o u g h o u t the world of 250 million indigenous people. Given the overwhelming power of the d o m i n a n t societies, indigenous peoples c a n n o t confront t h e m directly in liberation struggles to overthrow occupying imperial powers, as decolonisation has standardly unfolded in the m o d e r n period. Never­ theless, from appeals to the Privy Council in the seventeenth century to statements to the Working G r o u p o n I n d i g e n o u s Populations of the Subcommission on Prevention of Discrimination a n d Protection of Minori­ ties of the United Nations today, their 'word warriors' have never ceased to declaim the illegitimate system of internal colonisation and proclaim their sovereignty a n d freedom (see section 4 ) . Second, they exercise their freedom of manoeuvre within the system. In any relation of power by which techniques of government are mobilised to govern the c o n d u c t of indigenous peoples, individually a n d collectively, there is always a range of possible c o m p o r t m e n t s - ways of thinking a n d acting - that are o p e n in response, from the minuscule range of freedom of h i d d e n insubordination in total institutions such as residential schools to the larger a n d m o r e public displays of the repatria­ tion of powers of internal self-government, health care, education and territorial control. Over the centuries, indigenous peoples have devel­ o p e d a vast repertoire of infra-political resistance to survive a n d revitalise their cultures, nations a n d federations, to keep indigenous ways of being in the world alive a n d well for the next generations, to adapt these ways a n d stories to the present strategic situation, to comply with a n d partici­ pate in the d o m i n a n t institutions while refusing to surrender, to regain degrees of self-rule a n d control over their territories when possible, a n d so to seek to transform internal colonisation obliquely from within (Alfred 1999a; Scott 1990). 7

Legitimations of Internal Colonisation T h e practical relation between internal colonisation a n d practices of resistance has b e e n the focus of theoretical discussion in the legal, polit­ ical a n d academic centres of the d o m i n a n t societies over the last 30

THE STRUGGLES FOR AND OF FREEDOM

43

years because of the capitalist e x p a n s i o n a n d intensification of the colo­ nial a p p r o p r i a t i o n of formerly neglected or under-exploited i n d i g e n o u s lands a n d resources, o n the o n e h a n d , a n d the globally c o o r d i n a t e d insubordination of i n d i g e n o u s p e o p l e s on the other. T h e conflicts o n the g r o u n d have led to five major types of overlapping forms of conflict and dispute irresolution: recourse to the domestic courts a n d interna­ tional law; legislative a n d constitutional c h a n g e ; treaty-making a n d o t h e r forms of political negotiations; unilateral action by domestic a n d transnational resource c o m p a n i e s , interest g r o u p s a n d g o v e r n m e n t s despite i n d i g e n o u s rights a n d protests; a n d native c o m m u n i t i e s unilat­ erally g o v e r n i n g themselves a n d exercising jurisdiction over their terri­ tories despite the law. Critical a n d historical reflection o n these disputes has b r o u g h t to light the long history of the unresolved system of inter­ nal colonisation a n d practices of resistance of which these c o n t e m p o ­ rary struggles form a p a r t . With this practical context in view, it is possible to consider how west­ e r n political theory contributes to the colonisation of indigenous peo­ ples. Written within the larger language of political self-understanding a n d self-reflection of western societies in general, these theories serve either to legitimise or delegitimise the colonisation of indigenous peoples a n d their territories. W h e n they legitimise internal colonisation by justifying, defending, or serving as the language of governance and administration of the system a n d its conflicts, political theories play the (sometimes u n i n t e n d e d ) role of a discursive t e c h n i q u e of g o v e r n m e n t in o n e or m o r e of the five strategies of extinguishment a n d accommoda­ tion. W h e n they delegitimise the system in o n e way or another, political theories are a discursive t e c h n i q u e in a practice of resistance. With a few notable exceptions, western political theory has played the role of legiti­ mation in the past a n d continues to d o so today. Briefly, in the first two centuries of overseas expansion E u r o p e e m e r g e d from relative obscurity to b e c o m e the most powerful centre of nations a n d empires in the world, based largely o n the wealth a n d power g e n e r a t e d from the settlement a n d exploitation of indigenous lands a n d resources. W h e n the colonies freed themselves from the British e m p i r e a n d developed m o d e r n societies o n the c o n t i n u e d appropriation of indigenous lands a n d resources, many of the colonies' leading legal a n d political theorists carried on a n d elaborated o n the traditions of inter­ pretation a n d justification of the legal a n d political system of internal colonisation their canonical E u r o p e a n predecessors had b e g u n . In late nineteenth-century Canada, as the indigenous population was r e d u c e d and marginalised a n d internal colonisation firmly secured, the n e e d for further legitimation was correspondingly diminished. T h e reign­ ing ideology of the superiority of European-derived societies a n d the 8

44

JAMES TULLY

inferiority of indigenous societies served as the taken-for-granted justifi­ cation for the removal of indigenous populations, who were seen as obstacles to the progressive exploitation of their lands. T h e relative disap­ pearance of the issue from the public agenda does not mean that resistance did not continue in less public ways. It signals that members of the immigrant society now took the exclusive and legitimate exercise of sovereignty over Great Turtle Island for granted as the unquestionable basis of their society. T h e question d i s a p p e a r e d a n d was replaced by an abstract starting p o i n t for theories of constitutional democracy that had n o t h i n g to d o with the way these societies were f o u n d e d . T h e prior existence a n d sovereignty, as well as the c o n t i n u i n g colonisation a n d resistance, of i n d i g e n o u s peoples was rarely m e n t i o n e d until it began to r e a p p e a r at the margins d u r i n g the last d e c a d e of the twentieth c e n t u r y ( T u r n e r 1997; Williams 1990; Pagden 1995; C u l h a n e 1998: 37-72; Tully 1993: 5 8 - 9 9 ; 1994). Yet, even in late n i n e t e e n t h a n d early twentieth-century conditions of m a x i m u m western self-confidence a n d dogmatic superiority, a lingering uncertainty a b o u t the legitimacy of the settler society r e m a i n e d u n r e ­ solved in practice. U n d e r the cover of public complacency, officials n o n e the less found it necessary to sign a series of extinguishment treaties with a handful of indigenous peoples who were portrayed in the d o m i n a n t discourse as too primitive to have any rights or to require their consent to take their lands a n d subject t h e m to colonial rule. Incredibly, the offi­ cials asserted that scrawled Xs by a few native p e o p l e o n written docu­ m e n t s constituted a g r e e m e n t s to cede a n d extinguish forever whatever rights they might have to tracts of land larger than the E u r o p e a n conti­ n e n t . T h e signatories were said to agree to this in e x c h a n g e for tiny a n d crowded reserves (which were soon r e d u c e d further) a n d a few usufruc­ tuary rights that exist at the pleasure of the Crown. Indigenous people u n d e r s t o o d these treaties in the same way as the earlier peace a n d friend­ ship treaties: as international treaties a m o n g equal nations to agree to work o u t ways of sharing the use of land a n d resources while maintaining their freedom as nations (Canada, Royal Commission 1995a: 1-59; 1996a: 148-200; 1996b: 9-64; Tobias 1991). Although indigenous communities began to rebuild, reorganise and fight for their rights d u r i n g the first half of the twentieth century, their activities did n o t make a significant impact on the public agenda until the 1970s. T h e Nisga'a Nation's assertion of their rights to collectively use a n d occupy their traditional lands led to the j u d g m e n t of the S u p r e m e Court of C a n a d a of Rv. Calder (1973), which is now seen as marking the transi­ tion to the present period. Six of seven j u d g e s agreed that Nisga'a Aboriginal rights derived from their occupation of their traditional terri­ tories before contact. In the oft-repeated phrase of Mr Justice J u d s o n ,

T H E S T R U G G L E S FOR A N D O F FREEDOM

45

'when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers h a d d o n e for centuries. This is what Indian tide m e a n s . ' T h r e e j u d g e s went o n to say that their Aboriginal rights h a d b e e n extinguished unilaterally by general legisla­ tion; t h r e e said Aboriginal rights could n o t be extinguished unilaterally except by specific legislation; a n d the seventh decided against the Nisga'a o n the traditional British Columbia a r g u m e n t that this case could not be b r o u g h t against t h e province of British Columbia without the appropriate legislation. Although t h e Nisga'a lost their appeal, the Court found that Aboriginal rights existed at t h e time of contact a n d was split evenly on w h e t h e r o r n o t such rights h a d b e e n extinguished. So, the con­ tradiction at the foundation of Canadian society a n d its underlying sys­ tem of internal colonisation o n c e again e n t e r e d the public agenda. Two major official strategies of incorporation have b e e n advanced to resolve the contradiction: to i n c o r p o r a t e indigenous people by m e a n s of assimilation o r a c c o m m o d a t i o n . T h e assimilation a p p r o a c h has s u p p o r t a m o n g some federal a n d provincial parties, the lower courts, e c o n o m i c interest g r o u p s a n d a b o u t half the general public, especially when they are polled o n m o r e specific a n d detailed questions a b o u t indigenous selfgovernment. T h e a c c o m m o d a t i o n a p p r o a c h has s u p p o r t in t h e higher courts, t h e federal Conservative Party when it was in office, t h e c u r r e n t Liberal G o v e r n m e n t of C a n a d a a n d t h e province of British Columbia in the c u r r e n t treaty process, a n d t h e o t h e r half of the general public, espe­ cially when polling questions are posed in general terms (Warry 1998: 20-30, 249-55; Smith 1995). Although incorporation by a c c o m m o d a t i o n is legitimated by policies a n d theories of multiculturalism, it is m o r e illu­ minating to investigate t h e basics of t h e strategy in two fora: the S u p r e m e Court of C a n a d a a n d t h e treaty process. While each a p p r o a c h gives dif­ ferent degrees of recognition a n d a c c o m m o d a t i o n to indigenous peoples, b o t h d o so within t h e indubitable sovereignty of the Canadian state over indigenous peoples a n d so d o n o t question, let alone chal­ lenge, the c o n t i n u i n g colonisation of indigenous peoples a n d their ter­ ritories, b u t serve to legidmise it. In a series of decisions from R v. Sparrow (1990) to Delgamuukw v. BC (1997) the S u p r e m e C o u r t has defined the rights of Aboriginal peoples as those rights that are recognised a n d affirmed in section 35 of the Con­ stitution Act 1982 (Asch 1997; 1999). T h e Court advances four main steps to define these constitutional rights. First, t h e C o u r t incorporates indigenous peoples into C a n a d a a n d subjects t h e m to t h e Canadian constitution in t h e very act of recognising their rights as rights within the Canadian constitution. In so doing, it reaffirms t h e system of internal colonisation. T h e C o u r t does n o t acknowledge that indigenous peoples possess any rights that pre-exist 9

JAMES TULLY

46

the assertion of sovereignty by the Crown in 1846 (in British Columbia) over the territory now called Canada; rights which may r e n d e r the estab­ lishment of Crown sovereignty subject to their consent a n d which may have survived u n s u r r e n d e r e d into the present. T h e rights that Aborigi­ nal peoples have in C a n a d a are said to have their source or foundation in the pre-existence of organised Aboriginal societies, systems of laws a n d the occupation a n d use of their territories since time immemorial. Nev­ ertheless, these activities, institutions a n d practices, which are the uni­ versal criteria of sovereignty a n d self-determination, did n o t give rise to any rights until they were recognised by the Crown as c o m m o n law rights until 1982, a n d as constitutional rights thereafter. As the Court explains with respect to Aboriginal title (the aboriginal right to l a n d ) : from a theoretical standpoint, aboriginal title arises out of the prior occupa­ tion of the land by aboriginal peoples and out of the relationship between the common law and the pre-existing system of aboriginal law. Aboriginal title is a burden on the Crown's underlying title. However, the Crown did not gain this [underlying] title until it asserted sovereignty over the land in question. Because it does not make sense to speak of a burden on the underlying title before that title existed, aboriginal title crystallized at the time sovereignty was asserted. 10

As a result of the n o n s e n s e of speaking about rights of indigenous peoples to their territories before the recognition of their rights within c o m m o n law, t h e r e is n o reason to d o u b t that the unilateral assertion of sovereignty by the Crown over their territories, without their consent, constituted the legitimate achievement of sovereignty: [I]t is worth recalling that while British policy toward the native population was based on respect for their right to occupy their traditional lands, a propo­ sition to which the Royal Proclamation of 1763 bears witness, there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown . . . 11

T h u s , indigenous peoples are subject to internal colonisation by a c o m b i n a t i o n of a doctrine of terra nullius a n d a doctrine that discovery, settlement a n d recognition by o t h e r E u r o p e a n powers constitute legiti­ m a t e sovereignty a n d subjection. T h e second defining characteristic of the Aboriginal rights that i n d i g e n o u s peoples are recognised as having, only in virtue of being m e m b e r s of the C a n a d i a n society a n d subject to its sovereignty, is that such rights derive exclusively from the distinctiveness of Aboriginal p e o p l e s as aboriginals. They d o n o t derive from any universal principles, such as the freedom a n d equality of peoples, the sovereignty of long­ standing, self-governing nations, or the jurisdiction of a p e o p l e over the 12

T H E S T R U G G L E S FOR A N D OF FREEDOM

47

territory they have o c c u p i e d a n d used to the exclusion a n d recognition of o t h e r p e o p l e s since time i m m e m o r i a l . T h e C o u r t explicitly rejects any appeal to such universal g e n e r a l rights of the liberal E n l i g h t e n m e n t as a g r o u n d of aboriginal r i g h t s . T h e C o u r t has shown that a wide r a n g e of cultural, ceremonial a n d economic rights, including rights to the land, can be derived from the distincdveness of Aboriginal peoples a n d that these rights n e e d n o t be limited to the distinctive practices, customs a n d traditions they engaged in at the time of contact. A limited right of self-government within the Canadian constitutional structure may also b e derived from aboriginal distinctiveness in future cases. This exclusive g r o u n d of Aboriginal rights in the politics of difference (without the universal d e m a n d for freedom that underlies a n d justifies it) has thus u s h e r e d in a higher d e g r e e of internal a u t o n o m y for indigenous p e o p l e within the colonial system than they have b e e n p e r m i t t e d since the mid-nineteenth century, when administradve intervention in their internal affairs began in earnest. Nevertheless, it denies i n d i g e n o u s peoples the right to appeal to univer­ sal principles of freedom a n d equality in struggling against injustice, pre­ cisely the appeal that would call into question the basis of internal colonisation. T h e third step in defining Aboriginal rights c o n c e r n s the c o n t e n t a n d proof of Aboriginal title (aboriginal rights to l a n d ) . T h e right of an Aboriginal p e o p l e to land is derived from their distinctive occupation of the land at the time of contact a n d the Crown's recognition of that occu­ pation as a c o m m o n law a n d constitutional right. Aboriginal title is a dis­ tinctive or sui generis proprietary right, yet similar to fee simple. It is a right to the land a n d its exclusive use, alienable only to the Crown, and held communally. T h e land may b e used for a variety of purposes, which d o n o t n e e d to b e distinctive to the Aboriginal community, such as resource extraction, subject to the limitation that the land c a n n o t be used in a m a n n e r that is irreconcilable with the distinctive n a t u r e of the a t t a c h m e n t to the land by the Aboriginal p e o p l e claiming the right (Delgamuukw 1997: 112-39; McNeil 1998: 2 - 6 ) . Following from the first two steps, the onus of proof is not o n Canada to prove that it has the underlying title to all indigenous territories. This is n o t a claim but an assertion validated by its acknowledgment by other E u r o p e a n powers. Rather, the b u r d e n of proof is m a d e to rest with indige­ nous peoples, who are p r e s u m e d n o t to actually possess aboriginal title, b u t to b e making a claim to it before the Court. For an indigenous people to possess a n d be able to exercise title to their land, they have to prove to the satisfaction of the colonial C o u r t that they occupied the claimed land at the time the Crown asserted sovereignty over them, a n d that the occu­ pation was exclusive (Delgamuukw 1997: 140-59; McNeil 1998: 7-8). 13

14

48

JAMES TULLY

N o such proof has b e e n made. Even if such a proof is successful in the future, the structure of the process further e n t r e n c h e s the taken-forgranted colonial relationship in which the claim is presented a n d the proof granted or withheld. T h e fourth a n d final step is that once a claim to Aboriginal title is proven, a n d presuming the land a n d resources have not been developed in the interim, the tide has still to be reconciled with the sovereignty of the Crown. T h a t is, the Crown must take into account the justifiable objectives of the larger Canadian society that conflict with an Aboriginal land right, infringe the right accordingly, and compensate the aboriginal people for the infringement. T h e Court explains in Delgamuukw that proven Aborigi­ nal tide can be infringed by the federal a n d provincial governments if the infringement furthers a compelling a n d substantive legislative objective a n d if it is consistent with the fiduciary relation between Crown and Aboriginal peoples. T h e sorts of objectives that justify infringement are: the development of agriculture, forestry, mining and hydro-electric power, the general economic development of the interior of British Columbia, pro­ tection of the environment or endangered species, and the building of infra­ structure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title. (Delgamuukw 1997: 165, 166-69; McNeil 1998: 8-14)

It is difficult to see in these objectives m u c h difference from the early justifications of dispossession in terms of the superiority of Europeanderived societies a n d their developmental imperatives. T h e federal and provincial g o v e r n m e n t s are not obliged to gain the consent of the Aboriginal p e o p l e whose right they infringe (another u n i q u e feature of this constitutional right) or to bring t h e m in as partners in the develop­ mental activities. As in the n i n e t e e n t h century, governments are u n d e r a duty only to c o m p e n s a t e the Aboriginal people for taking their land. C o m p e n s a t i o n involves consultation (consent if it involves fishing a n d h u n t i n g regulations) a n d the compensation paid should vary with the n a t u r e of the title affected, the severity of its infringement a n d the extent to which aboriginal interests are a c c o m m o d a t e d . In summary, the underlying reason why the land rights of Aboriginal peoples can be treated in this imperial m a n n e r is that Aboriginal societies unquestionably are distinctive colonies incorporated within a n d subject to the sovereignty of the larger Canadian society: 15

Because . . . distinctive aboriginal societies exist within, and are part of, a broader social, political and economic community, over which the Crown is sovereign, there are circumstances in which, in order to pursue objectives of compelling and substantive importance to that community as a whole (taking

T H E S T R U G G L E S FOR A N D OF FREEDOM

49

into account the fact that aboriginal societies are part of that community), some limitation of those rights will be justifiable. Aboriginal rights are a nec­ essary part of the reconciliation of aboriginal societies with the broader political community of which they are a part; limits placed on those rights are, where the objectives furthered by those limits are of sufficient impor­ tance to the broader community as a whole, equally a necessary part of that reconciliation. 16

T h a t is to say, the internal colonisation of indigenous peoples itself provides the ultimate justification for the infringement of the rights they have within Canadian society. In Delgamuukw, the S u p r e m e C o u r t r e c o m m e n d s that the Gitxsan a n d Wet'suwet'en peoples t u r n to the treaty process to settle their lands, guided by the framework the C o u r t sets out, r a t h e r than r e t u r n i n g to an expensive retrial. An e x a m p l e of this alternative strategy is the negotia­ tions of the Nisga'a Nation of N o r t h e r n British Columbia with the fed­ eral g o v e r n m e n t a n d , after 1990, the provincial g o v e r n m e n t of British Columbia. Twenty years of negotiations led to the Nisga'a Final Agreement in 1998, which shows fairly clearly what can be expected from the p r e s e n t treaty process. T h e Nisga'a treaty follows for the most p a r t the framework set o u t by the S u p r e m e C o u r t . T h e P r e a m b l e states that the objective is the same as the C o u r t ' s - to reconcile the prior presence of Aboriginal peoples and the assertion of sovereignty by the Crown - b u t to achieve reconcilia­ tion by negotiation r a t h e r t h a n litigation. Like the a p p r o a c h of the S u p r e m e C o u r t , the Nisga'a are recognised from the outset as Aborigi­ nal p e o p l e within C a n a d a a n d subject to the Crown. They are an Aborigi­ nal p e o p l e or a first nation of C a n a d a . F u r t h e r m o r e , the aim of the negotiations is to define the u n d e f i n e d distinctive aboriginal rights that the Nisga'a have u n d e r section 35 of the Constitution Act 1982 exhaus­ tively a n d completely in t e r m s of the rights a n d remedies set o u t a n d agreed to in the treaty. In place of the Court's step of infringement of a n d compensation for the lands they occupied at the time the Crown asserted sovereignty, the Nisga'a voluntarily gave u p to the Crown in the negotiations 93 per cent of their traditional territory. Over the r e m a i n i n g 7 per cent (approxi­ mately 2000 square kilometres), they are allotted Aboriginal title in the form of an estate in fee simple proprietary right u n d e r the constitution, some rights with respect to trap lines, wildlife a n d migratory birds out­ side Nisga'a lands, a n d approximately $200 million in compensation. Unlike the Court, which has n o t r u l e d o n an Aboriginal right of selfg o v e r n m e n t , b u t following the federal a n d provincial g o v e r n m e n t ' s poli­ cies of recognising such a right in principle, the Nisga'a Nation negotiated an Aboriginal right of limited, western-style self-government, 17

50

JAMES TULLY

with m o r e powers than a municipality yet less than a province, a n d within the b o u n d s of the c o n s t i t u t i o n . Like the Court, the federal g o v e r n m e n t has never questioned the legitimacy of the unilateral exercise of sovereignty over the indigenous peoples a n d their territories. Nevertheless, as we have seen, govern­ m e n t s of C a n a d a have always b e e n c o n c e r n e d to extinguish whatever rights indigenous peoples might have i n d e p e n d e n t of the Canadian legal system. Therefore, unlike the Court, which does not acknowledge such rights, the treaty stipulates that the rights set out are the full and final settlement of the Aboriginal rights of the Nisga'a, n o t only u n d e r section 35, but any rights they may have or c o m e to have as indigenous peoples from any o t h e r source. For greater clarity, any such rights are either modified a n d c o n t i n u e d in their entirety in the treaty rights or the Nisga'a Nation releases t h e m to Canada {Nisga'a 1998: 2 0 - 1 ) . Although the t e r m is 'release' rather than the traditional 'extinguish­ m e n t ' , the legal effect is the same. As far as I am aware, this is the first time in the history of Great Turtle Island that an indigenous people, or at least 61 p e r cent of its eligible voters, has voluntarily s u r r e n d e r e d their rights as indigenous peoples, not to mention surrendering over 90 per cent of their territory, a n d accepted their status as a distinctive minority with g r o u p rights within Canada. This appears to be the first success of strate­ gies of extinguishment (release) and incorporation by a g r e e m e n t . 18

19

20

Struggles for Freedom Western political theories n e e d n o t legitimise colonisation. Political the­ orists can employ the language of western political t h o u g h t critically to test these dubious justifications, to delegitimise t h e m a n d to test the claims of indigenous peoples for a n d of freedom. This orientation takes u p the second question m a d e at the beginning: what resources exist in political theory for thinking about the possibilities of a non-colonial rela­ tion between indigenous a n d non-indigenous peoples? Recall that indigenous peoples resist colonisation in two distinct ways. First, they struggle against the structure of domination as a whole a n d for the sake of their freedom as peoples. Second, they struggle within the structure of d o m i n a t i o n vis a vis techniques of government, by exercising their freedom of t h o u g h t a n d action with the aim of modifying the system in the short term a n d transforming it from within in the long term. A p e o p l e can struggle directly against colonisation in two ways: by words a n d deeds. In this case the recourse to d e e d - a direct confronta­ tion in a revolution to overthrow the colonial system - is next to impos­ sible. T h e states against which the revolution would take place are the most powerful in the world a n d exist o n the same territory as the colony.

T H E S T R U G G L E S FOR A N D OF FREEDOM

51

T u r n i n g to direct confrontation by the p e n rather than the sword, two underlying p r e s u m p t i o n s , firmly held in place by the day-to-day activities that r e p r o d u c e these societies, serve to legitimise the system of internal colonisation. T h e first is that the exercise of exclusive jurisdiction over the territories of indigenous peoples is n o t only effective b u t also legiti­ mate: it was either legitimately established in the past or the present irreso­ lution is in the process of being legitimately resolved today by o n e or more of the five main strategies. T h e second p r e s u m p t i o n is that t h e r e is n o viable alternative. Given the m o d e r n system of i n d e p e n d e n t nation states, each with exclusive jurisdiction over its territory, either the domi­ n a n t state exercises exclusive jurisdiction or the indigenous p e o p l e d o after a successful colonial revolt, b u t the latter is impossible. These two presumptions reinforce each other. They are a m o n g the ' h i n g e ' p r o p o ­ sitions a r o u n d which the political a n d e c o n o m i c way of life of these mod­ ern societies t u r n s . Although it is impractical to struggle for freedom in d e e d by direct confrontation, it is possible to struggle in words by confronting a n d seek­ ing to invalidate the two legitimating hinge propositions. This is the way of indigenous word warriors a n d of western political theorists who take a critical stance towards the legitimating a n d deeply e m b e d d e d myths of their society. This critical activity consists in t h r e e major exercises: 21

• to test if t h e freedom a n d equality of indigenous peoples as peoples with jurisdiction a n d g o v e r n a n c e over their territories is defensible by the principles of western political thought; • to test the alleged validity of various legitimations of their incorpora­ tion; a n d • to show that the second h i n g e proposition is a false dichotomy that conceals a way of resolving the underlying contradiction of the colo­ nial system: namely, i n d i g e n o u s peoples and settler peoples can recog­ nise each o t h e r as free a n d equal o n the same territory because jurisdiction can be shared as well as exclusive. Dale T u r n e r explains that i n d i g e n o u s word warriors have their ways of engaging in these t h r e e exercises by presenting indigenous political the­ ories that draw o n the indigenous language of political thought. By lis­ tening to a n d r e s p o n d i n g to these presentations in critical discussions, m e m b e r s of the d o m i n a n t society can begin to free themselves from the hold of the hinge propositions a n d take a critical stance. T h e s e intercultural dialogues are the best a n d most effective way, for they enable Westerners to see their conventional horizon as a limit a n d the dialogues are themselves intimations of a n d indispensable groundwork for a future non-colonial relationship between genuinely free a n d equal peoples ( T u r n e r 1997; f o r t h c o m i n g ) . A second-best, monological a p p r o a c h is to

52

JAMES TULLY

draw o n the resources of critical self-reflection available within the dom­ i n a n t western language of political t h o u g h t to challenge the comfortable a n d u n e x a m i n e d prejudices of self-understanding a n d present a noncolonial alternative. In the second-best a p p r o a c h , employed by indigenous a n d noni n d i g e n o u s scholars over the last forty years, the three critical exercises g o together. To show that indigenous peoples are self-determining peoples with jurisdiction over their territories entails that the standard legitimations of their colonisation are false, since these legitimations pre­ suppose that indigenous populations are n o t peoples, and the third exer­ cise t h e n follows. T h e two most thoroughly researched a n d reasoned a r g u m e n t s of this comprehensive kind are the prior a n d coexisting sovereignty a r g u m e n t a n d the self-determination a r g u m e n t . T h e prior a n d coexisting sovereignty a r g u m e n t begins with a histori­ cal investigation of the situation at the time that E u r o p e a n s arrived o n Great Turtle Island a n d the Crown asserted sovereignty. America was i n h a b i t e d by indigenous peoples, divided into separate stateless nations, i n d e p e n d e n t of each o t h e r a n d the rest of the world, who governed themselves by their own laws and ways, occupying a n d exercising juris­ diction over their territories. As a c o n s e q u e n c e , they met the criteria of free peoples a n d sovereign nations in the law of nations, a n d so were equal in status to E u r o p e a n nations. T h e question is, how can the Euro­ p e a n s legitimately settle a n d establish their sovereignty; that is, acquire their own territory a n d exercise jurisdiction over it a n d establish their own political a n d e c o n o m i c institutions? This is the starting point for an inquiry into justice a n d legitimacy of g o v e r n m e n t s a n d jurisdiction in the US a n d Canada, n o t the fictitious and counter-factual original position that has d o m i n a t e d most political theory for the twentieth c e n t u r y . T h e only defensible answer in accordance with unbiased western prin­ ciples of international law at the time a n d today is that the legitimate achievement of non-indigenous sovereignty in North America consists of two steps. First discovery, some settlement, the assertion of sovereignty by an E u r o p e a n nation, and the international negotiation of boundaries with o t h e r affected E u r o p e a n colonising nations is sufficient to establish sovereignty vis a vis o t h e r E u r o p e a n nations. However, this step has n o effect o n the indigenous nations of the territories over which sovereignty is asserted because these nations, unlike the other European nations, have not given their consent. To legitimise their exercise of sovereignty on Great Turtle Island, the E u r o p e a n nations had next to gain the consent of indigenous peoples. This second step is fundamental to legitimation, for it follows from the basic principle of western law, both domestically a n d in international relations a m o n g i n d e p e n d e n t nations, that the exer­ cise of sovereignty must be based o n the consent of those affected by it. 22

23

THE STRUGGLES FOR A N D OF FREEDOM

53

To gain the consent of indigenous peoples, representatives of the Crown are required to e n t e r into negotiations with indigenous peoples as nations equal in status to the Crown. T h e negotiations are nation to nation, a n d the treaties that follow from a g r e e m e n t on both sides are, by definition, international treaties. If the Crown p r e t e n d s that the treaty negotiations take place within its overriding jurisdiction, then it fails to recognise the status of indigenous peoples, a n d incorporates and subordi­ nates t h e m without justification, r e n d e r i n g the negotiation illegitimate. T h e indigenous nation in question thus has the right to appeal not only to domestic courts for redress of infringement, but, if this fails, to inter­ national law, like any o t h e r n a t i o n . U n d e r these circumstances, the indigenous peoples were a n d are will­ ing to give their consent to the assertion of the coexisting sovereignty of the Crown o n t h r e e conditions. First, that the indigenous peoples con­ tinue to exercise their own stateless, popular sovereignty on the territo­ ries they reserve for themselves a n d the newcomers are n o t to interfere. Second, the settlers can establish their own governments a n d jurisdic­ tions o n u n o c c u p i e d territories that are given to t h e m by indigenous peoples in r e t u r n for being left alone o n their own territories. Third, indigenous peoples agree to share jurisdiction with the newcomers over the remaining, overlapping territories so that o n e party to a treaty does not extinguish its rights a n d subordinate itself to the other. Instead, they treat each o t h e r as equal, self-governing, and coexisting entities, a n d set u p negotiation p r o c e d u r e s to work o u t consensual a n d mutually binding relations of a u t o n o m y a n d i n t e r d e p e n d e n c e , a n d to deal multilaterally rather than unilaterally with the legitimate objectives of the larger soci­ ety, subject to review a n d renegotiation when necessary, as circumstances change a n d differences a r i s e . Such a stance constitutes a g e n u i n e resolution of the problem of inter­ nal colonisation. It shows that indigenous peoples were i n d e p e n d e n t peoples or nations at the time of the assertion of sovereignty by the Crown, that this status has not been legitimately s u r r e n d e r e d , and, con­ sequently, the prevailing legitimations of exclusive Crown sovereignty are indefensible. T h e p r e s u m p t i o n that jurisdiction must be exclusive is replaced with two (indigenous) principles: free a n d equal peoples o n the same c o n t i n e n t can mutually recognise the a u t o n o m y or sovereignty of each o t h e r in certain spheres a n d share jurisdictions in others without incorporation or subordination. This is a form of treaty federalism with the capacity to negotiate fairly all the legitimate objectives of the now m u c h larger settler society (including obligations beyond Canadian bor­ ders) m u c h better than the present system of infringements, protests, lawsuits, negotiations a n d uncertainty. In summary, prior a n d c o n t i n u i n g sovereignty' does n o t refer to state sovereignty, but, rather, a stateless, 24

25

54

JAMES TULLY

self-governing a n d a u t o n o m o u s p e o p l e , equal in status, but not in form, to the Canadian state, with a willingness to negotiate shared jurisdiction of land a n d r e s o u r c e s . Notwithstanding the availability a n d legitimacy of this resolution, it has b e e n overwhelmed by the drive of colonising states to establish their exclusive jurisdiction a n d to legitimate it by doctrines of discovery a n d incorporation a n d by interpreting treaties as domestic instruments of e x t i n g u i s h m e n t and release. H e n c e , indigenous peoples have t u r n e d to international law to gain recognition a n d protection of their status as peoples with the right of self-determination. T h e extensive research a n d reasoning that s u p p o r t their prior a n d coexisting sovereignty also, and eo ipso, s u p p o r t the recognition of indigenous populations as internally colonised peoples to w h o m the principle of self-determination applies. T h e principle or right of the self-determination of colonised peoples is o n e of the fundamental a n d universal principles of the U n i t e d Nations a n d international law. In Article 1(2) of the Charter a n d the Covenants of the UN self-determination is equal in status to individual h u m a n rights. Moreover, it is in general the principle that has justified decoloni­ sation struggles since the E n l i g h t e n m e n t , including those of Canada, the US, Australia a n d New Z e a l a n d . I n d i g e n o u s peoples have gained a m o d i c u m of s u p p o r t at the UN. In an advisory o p i n i o n of the International C o u r t of Justice, Western Sahara, the International C o u r t of Justice rejected the doctrine of discovery and asserted that the only way a foreign sovereign could acquire a right to e n t e r into territory that is not terra nullius is with the consent of the inhabitants by m e a n s of a public a g r e e m e n t . T h e C o u r t further advised that the structure a n d form of g o v e r n m e n t a n d w h e t h e r a people are said to be at a lower level of civilisation are not valid criteria for deter­ m i n i n g if the inhabitants have rights, such as the right of self-determina­ tion. T h e relevant consideration is if they have social and political organisations. This line of reasoning calls into question the doctrines that c o n t i n u e to serve to deny the prior a n d continuing rights of indige­ n o u s peoples in C a n a d a . In addition, indigenous peoples m a n a g e d to have established within the Sub-Commission o n the Prevention of Dis­ crimination a n d Protection of Minorities of the Commission of H u m a n Rights a working g r o u p o n indigenous populations in 1982. T h e working g r o u p provides a forum for presentations by indigenous peoples a n d has issued a draft Declaration on the Rights of Indigenous Peoples which states that indigenous peoples have a qualified right to self-determina­ tion. " Despite such occasional glimmers of h o p e , indigenous peoples are n o t recognised as colonised peoples to w h o m the principle of self-deter­ mination applies. T h e reason for this is that international law, the UN 26

27

28

29

3

T H E S T R U G G L E S FOR A N D O F FREEDOM

55

and its Committees are created by existing nation states that will d o everything in their power to deny the application of the principle of selfd e t e r m i n a t i o n whenever it threatens their exclusive jurisdiction. T h e four main ways its application to indigenous peoples is d e n i e d in inter­ national law a r e analogous to a n d c o m p l e m e n t t h e earlier a r g u m e n t s in domestic law to i n c o r p o r a t e a n d assimilate or a c c o m m o d a t e indigenous peoples within the exclusive jurisdiction of existing nation states. As in the domestic case, indigenous a n d non-indigenous scholars have criti­ cally e x a m i n e d these rationalisations, shown t h e m to be dubious, a n d defended the application of the principle to indigenous peoples. T h e first a r g u m e n t is that indigenous peoples d o n o t meet the criteria of 'peoples' but are 'populations' or 'minorities' within states. This strat­ egy is n o t difficult to employ because there is n o official a g r e e m e n t on the criteria a n d the general guidelines are vague. Even so, studies by Special Rapporteurs at the U N tend to substantiate what i n d e p e n d e n t research has shown: the indigenous peoples of the Americas are peoples in the clear m e a n i n g of the t e r m as it is used in the Charter a n d the General Assembly Declaration o n the Granting of I n d e p e n d e n c e to Colonial Countries a n d Peoples, a n d thus the principle of self-determination enunciated in the Declaration applies to t h e m . It is difficult to see how peoples who have governed themselves over their territories for millennia and have n o t s u r r e n d e r e d u n d e r a few centuries of colonisation can be denied the status of peoples by those who have colonised them, without introducing a biased criterion that the ICJ has said to be inadmissible. T h e second a r g u m e n t is t h e 'saltwater' thesis that t h e right of selfd e t e r m i n a t i o n applies only to colonised peoples o n geographically sepa­ rate territories from the imperial country. This notorious a n d arbitrary thesis in t h e General Assembly Declaration on the Granting of I n d e p e n ­ d e n c e to Colonial Countries a n d Peoples neatly legitimises the disman­ tling of external colonies in the twentieth century while excluding internal colonies, thereby denying indigenous peoples the same right as o t h e r colonised peoples a n d protecting the exclusive jurisdiction of the major drafters of the D e c l a r a t i o n . A m o r e serious a r g u m e n t is that the right of self-determination of colonised peoples is subordinate to the protection of the territorial integrity of existing nation states from d i s r u p t i o n . T h e r e are two cogent responses to this argument. First, it presupposes what is in question: namely, the legitimacy of the present territorial integrity of existing nation states. T h e second a n d m o r e i m p o r t a n t response is that the recognition of the n g h t of indigenous peoples to self-determination does n o t entail the disruption of the territorial integrity of existing nation states. This would be the case only if t h e exercise of t h e right of self-determination by indigenous peoples took the E u r o p e a n a n d third-world form of deco31

32

33

34

JAMES TULLY

56

lonisation a n d the establishment of sovereign nation states with exclusive jurisdiction over their territories. For indigenous peoples, the exercise of self-determination consists of decolonisation a n d the recognition of indigenous peoples as free, equal a n d self-governing peoples u n d e r international law, with .s/iarafjurisdiction over lands a n d resources on the basis of mutual c o n s e n t . This achieves rather than disrupts territorial integrity (if 'integrity' has any normative content) by a m e n d i n g an ille­ gitimate exclusive jurisdiction into a legitimate shared jurisdiction. This kind of post-Westphalian, multiple a n d overlapping governance a n d jurisdiction is said to be the general tendency of global politics in many spheres. T h e r e is n o non-discriminatory reason why it should be d e n i e d in this specific case, only the tenacity by which existing states hold on to their exclusive jurisdiction, inherited from an earlier period in which state sovereignty ruled s u p r e m e . T h e final a n d most p r e v a l e n t a r g u m e n t is that t h e principle applies only to colonised p e o p l e s , whereas i n d i g e n o u s p e o p l e s are said already to enjoy t h e r i g h t of self-determination within existing nation states. T h i s c o m e s in two varieties. T h e first is that t h e right of selfd e t e r m i n a t i o n is satisfied when i n d i g e n o u s p e o p l e s a r e c o u n t e d as p a r t of t h e fictitious, h o m o g e n e o u s sovereign p e o p l e of a nation state a n d a r e able to exercise t h e same individual rights of participation as o t h e r c i t i z e n s . H e r e , t h e r e d u c t i o n of t h e rights of p e o p l e s to undif­ f e r e n t i a t e d individual rights of participation is used to gloss over the e x i s t e n c e of m o r e t h a n o n e p e o p l e in an existing n a t i o n state a n d so to legitimise t h e i r assimilation. Given t h e dispossession, u s u r p a t i o n a n d cultural g e n o c i d e this ruse conceals, it is b e n e a t h c o n t e m p t . Even so, critical liberal theorists have r e s p o n d e d that it u n d e r m i n e s the individual liberties a n d g o o d s that liberal d e m o c r a c y is s u p p o s e d to s e c u r e , by destroying t h e a p p r o p r i a t e institutions of self-rule in which they a r e cultivated a n d p r o t e c t e d . T h e m o r e sophisticated version of this a r g u m e n t is that forms of a c c o m m o d a t i o n that recognise degrees of self-government a n d land rights within existing nation states satisfy the criteria of internal selfd e t e r m i n a t i o n . T h e right of internal self-determination is the right of a p e o p l e within a larger state to govern themselves in a wide range of mat­ ters, including culture, religion, education, information, health, housing, welfare, e c o n o m i c activity, land a n d resource m a n a g e m e n t , environ­ m e n t a l practices a n d m e m b e r s h i p . If a people exercise such a right, they are n o t colonised b u t internally self-determining. Only if this right of internal self-determination is thwarted by the encompassing society may a p e o p l e in principle exercise the right of external self-determina­ tion: that is, free themselves from the d o m i n a n t society a n d set u p their own nation state. Since societies with systems of internal colonisation 35

36

37

38

39

T H E S T R U G G L E S FOR A N D OF FREEDOM

57

claim to be moving in t h e direction of recognising the right of internal self-determination, the d e m a n d for self-determination is being m e t a n d these societies are legitimate u n d e r international law. T h e response of indigenous p e o p l e is that this a r g u m e n t perpetuates rather than dismantles t h e system of internal colonisation by giving inter­ national legitimacy to domestic policies of incorporation a n d a c c o m m o ­ dation (Venne 1998: 119-22, 138-63). I n d i g e n o u s peoples are not recognised as peoples u n d e r international law, b u t as peoples u n d e r domestic law. Also, their jurisdiction over their territories is n o t recog­ nised. Rather, they are given a form of proprietary right to a small por­ tion of their territories u n d e r the domestic legal system. As a result, they are p r e c l u d e d from appealing to international law as peoples to redress infringement of their rights u n d e r the guise of domestic law - t h e very reason they t u r n e d to international law. Finally, the contradiction gener­ ated by t h e p r e s u m p t i o n of exclusive jurisdiction is r e p r o d u c e d rather than questioned by the distinction between internal a n d external selfd e t e r m i n a t i o n , thereby eliding t h e resolution indigenous people offer. It follows that internal self-determination is n o t a valid form of selfd e t e r m i n a t i o n at all. T h e principle o r right of self-determination is, on any plausible account of its contested criteria, the right of a p e o p l e to govern themselves by their own laws a n d exercise jurisdiction over their territories, either exclusively or shared. A people are said to govern themselves, a n d thus to b e a free p e o p l e , when the laws by which they are governed rest on their consent o r the consent of their representatives. T h e condition of consent holds for legislation a n d even m o r e funda­ mentally for t h e constitution. If the constitution does n o t rest o n t h e con­ sent of t h e p e o p l e or their representatives, or if there is n o t a p r o c e d u r e by which it can be so a m e n d e d , then they are neither self-governing n o r self-determining, b u t are governed a n d d e t e r m i n e d by a structure of laws that is imposed on t h e m a n d they are unfree. This is the principle of popu­ lar sovereignty by which m o d e r n peoples a n d governments are said to be free a n d legitimate. Yet, this principle of p o p u l a r sovereignty a n d condition of self-deter­ mination is not m e t by the concept of internal self-determination. An alien constitution, the constitution of s u r r o u n d i n g nation state, is imposed over indigenous peoples a n d their territories without their con­ sent a n d to which they are subject. Their internal self-determination exists within the constitution, which functions as a structure of domina­ tion. They will b e free a n d self-determining only when they governed themselves by their own constitutions a n d these are equal in international status to western constitutions. Internal self-determination, therefore, is n o t a form of self-determination or freedom. It is a form of indirect colo­ nial rule, n o t unlike earlier forms of British indirect colonial rule, which 40

41

58

JAMES TULLY

Canadians, Americans, Australians a n d New Zealanders found to be an intolerable form of unfreedom and the justification for their own suc­ cessful a n d purportedly universal struggles for freedom. Yet, for reasons that d o n o t withstand public scrutiny, they d o not hesitate to impose such a yoke o n weak a n d captive peoples within their own b o r d e r s . 42

Struggles of Freedom Despite the cogency of research a n d a r g u m e n t s supporting the freedom of indigenous peoples in domestic a n d international arenas, the system of internal colonisation remains firmly in place and the two presump­ tions reinforcing it remain largely u n q u e s t i o n e d . O n e reason for this inertia is the overwhelming power and interest of the existing nation states with internal indigenous colonies. A n o t h e r is that propositions which play the h i n g e role in a society - of b e i n g presupposed by a n d legit­ imising its routine way of political a n d e c o n o m i c life - are relatively i m m u n e from direct criticism. They are background n o r m s of the daily o p e r a t i o n a n d criticism of the institutions a n d practices, n o t objects of criticism - the riverbed, not the river (Wittgenstein 1974: 341, 343, 655; Zerilli 1998). T h e irresolution thus remains in theory a n d practice, as East T i m o r tragically illustrates. If such hinge propositions a n d the social system they legitimise c h a n g e over time, they d o so obliquely, by m e a n s of m o r e local a n d indi­ rect criticism a n d modification within the system they frame. T h e multi­ plicity of i m m a n e n t activities of challenging specific strategies a n d t e c h n i q u e s by the democratic means of dissent a n d insubordination available may n o t only modify this or that rule of the system, which is i m p o r t a n t in itself, b u t may also in the long r u n bring a b o u t the self-over­ c o m i n g of the system itself (Foucault 1998: 316; Scott 1990). Conse­ quently, the arts of resistance involved in struggles o/freedom to modify the system of internal colonisation from within are arguably m o r e impor­ tant a n d m o r e effective than the c o m p l e m e n t a r y arts of legitimising a n d delegitimising struggles for freedom with which political theorists have b e e n preoccupied. T h e diverse range of possibilities of thinking a n d acting differently vis a vis the relations of knowledge a n d techniques of g o v e r n m e n t that r e p r o d u c e the system - of working with a n d against, of complying and a d a p t i n g while resisting the allure of the co-opted native, male colonial elite, of indigenising the d e g r e e of self-government a n d land use recov­ ered, of c o n n e c t i n g reserve and off-reserve native people, and i n n u m e r ­ able o t h e r arts of resistance - constitute a vast field of h u m a n freedom, n o t unlike any o t h e r colonial system. These arts of words a n d deeds have b e e n practised since the beginning of colonisation. In addition to the

T H E S T R U G G L E S F O R AND

OF FREEDOM

59

spectacular public displays of resistance m e n t i o n e d earlier, they are mostly quotidian acts of protecting, recovering, gathering together, keeping, revitalising, teaching a n d a d a p t i n g entire forms of indigenous life that were nearly destroyed. T h e persistence of traditional medicine, healing a n d child-rearing practices, the revitalisation of justice circles, indigenous languages a n d political ways, a n d the astonishing recovery and renaissance of indigenous art are some examples of these arts of resistance a n d indigenisation that Taiaiake Alfred calls 'self-conscious traditionalism' (Alfred 1999a: 8 0 - 8 ; Simpson, this volume). These practices of freedom o n the r o u g h g r o u n d of daily colonisation usually fall b e n e a t h the attention a n d interest of Western political theo­ rists unless they are m e m b e r s of an oppressed g r o u p , a n d it is the big, abstract questions of normative legitimation that tend to capture the attention of most of the field. Yet it is these u n n o t i c e d contextual strug­ gles of h u m a n freedom in t h e face of t e c h n i q u e s of g o v e r n m e n t a n d strategies of legitimation that have b r o u g h t the internal colonisation of indigenous peoples to the threshold of public attention a n d critical reflection in o u r time. And it is these which have the potential to lead in the long r u n to the same kind of freedom for indigenous peoples that western political theorists a n d citizens already enjoy, but which is cur­ rently based on the u n f r e e d o m of indigenous peoples.

CHAPTER

4

Beyond Regret: Mabo *s Implications For Australian Constitutionalism J e r e m y Webber

To the extent that the common law is to be understood as the ultimate constitutional foundation in Australia, there was a perceptible shift in that foundation [in the decision of Mabo v. Queensland (No. 2)] away from what had been understood at federation.' Wik Peoples v. Queensland (per Gummow J) 2

In Mabov. Queensland (No. 2), the High C o u r t broke with Australia's long history of denying indigenous title a n d recognised indigenous title's c o n t i n u e d existence within Australian law. Like many j u d g m e n t s , Mabo was primarily - a n d quite properly - backward-looking. It explored the reasons for the denial of indigenous title, evaluated those reasons in the light of developments in Australian law a n d society, a n d suggested how the law should be reconceived. My p u r p o s e h e r e is to look forward, to e x a m i n e the significance of Mabo's, recognition of indigenous title for i n d i g e n o u s / n o n - i n d i g e n o u s relations over the c o m i n g decades. It explores the shift in Australia's constitutional foundations to which G u m m o w J adverted in Wik, in the passage q u o t e d above. It describes the sense of m e d i a t e d n a t i o n h o o d , of mediated sovereignty, that is implied in the recognition of indigenous title - for indigenous peoples a n d for Australia as a whole. This c h a p t e r is therefore about the impact of Mabo on Australian con­ stitutionalism. By that, I d o not mean its effect on specific rules of con­ stitutional law, but r a t h e r o n the general framework of presumptions a n d c o n c e r n s that inform o u r u n d e r s t a n d i n g of public action a n d that are used to explain a n d justify the exercise of governmental power within any society. Such p r e s u m p t i o n s o p e r a t e at a high level of generality a n d are closely c o n n e c t e d to conceptions of n a t i o n h o o d , but their effects are not confined to a realm of ideological abstraction. They have a marked s

4

60

MABO A N D A U S T R A L I A N C O N S T I T U T I O N A L I S M

61

conditioning effect o n legal interpretation, governmental practice a n d institutional reform. I suggest how we should u n d e r s t a n d the c h a n g e accomplished by the recognition of indigenous title in Mabo, what new constellation that recognition has i n t r o d u c e d into Australian constitu­ tionalism, a n d some of the c o n s e q u e n c e s the recognition of indigenous title should have for legal interpretation a n d the evolution of govern­ mental structures. T h e suggestion that Mabo has implications for Australian constitu­ tionalism n e e d s defending, for o n e often hears a m u c h narrower inter­ pretation of its significance. I n d i g e n o u s title is frequently discussed as t h o u g h it were simply a n o t h e r kind of interest affecting land, slipped into the structure of Australian property law. O n that view, its implica­ tions may b e important, b u t they remain relatively confined. T h e impli­ cations are thoroughly c a p t u r e d by d e t e r m i n i n g the c o n t e n t of indigenous title according to the rules of indigenous customary law, examining to what e x t e n t the title has b e e n extinguished by prior acts of the non-indigenous sovereign, a n d then enforcing the r e m a i n i n g inter­ est. T h a t view of indigenous title is, however, altogether too limited, not just because a m o r e ambitious interpretation should be preferred as a matter of policy, b u t because it misunderstands what the recognition of indigenous title necessarily involves. Indeed, it mischaracterises the very nature of indigenous title as a legal doctrine. T h a t doctrine does n o t merely acknowledge what is, to Australian law, a novel form of title. It o p e r a t e s at a b r o a d e r level of generality, implying a quite different relationship between indigenous a n d non-indigenous Australians of significance beyond the b o u n d s of land law. Mabo does n o t p u r p o r t to describe the incidents of that relationship in detail. T h o s e incidents c a n n o t b e described in advance. Rather, Mabo initiates a process of mutual adjustment that will c o n t i n u e long into the future (if Australians r e m a i n t r u e to the start m a d e in that case). Perhaps it is n o t quite accurate to say that Mabo initiates the process of adjustment, since a measure of mutual interaction has always characterised Aus­ tralian history. Mabo attempts to c h a n g e the basis o n which that interac­ tion occurs, placing it ( o n e hopes) o n a m o r e positive, m o r e acceptable foundation. In emphasising the transformative potential of that c h a n g e , I d o n o t m e a n to a d o p t the m o r e sanguine interpretations of indigenous rights, in which Mabo a n d cases like it r e p r e s e n t a c h a n c e to restore a pristine Aboriginal s p h e r e . Mabo is n o t a b o u t the recognition of two utterly sepa­ rate spheres - o n e indigenous, the o t h e r non-indigenous - that can go forward in parallel. I n d i g e n o u s a n d non-indigenous societies have b e e n thrown together a n d inevitably affect each other. Mabo is a b o u t the restructuring of that relationship, in which o n e h o p e s that there will be 5

62

JEREMY WEBBER

areas of significant a u t o n o m y a n d continuity of Aboriginal and Torres Strait Islander traditions, but in which relative autonomy will be com­ b i n e d with a measure of interaction a n d mutual influence. ( O n e hopes that the influence will i n d e e d be mutual, and not entirely a matter of non-indigenous pressure o n indigenous traditions.) Thus, the recogni­ tion of indigenous title a n d the mediation of sovereignty that it entails have a h a r d institutional edge; it is not e n o u g h to praise the recognition of indigenous traditions of land-holding a n d affirm their autonomy; o n e has to be c o n c e r n e d with the structures t h r o u g h which indigenous and non-indigenous societies will continue to interact into the future. I begin by looking at the principal decisions of the High Court of Aus­ tralia, a n d particularly at the doctrine of native title elaborated in those cases, to show that there is m o r e going on than the simple recognition of a neglected or forcibly suppressed type of land title. I will then move to a m o r e general plane - indeed, a very general plane - to explore what I take to be the broad implications for Australians' sense of their country, as well as their u n d e r s t a n d i n g of g o v e r n m e n t and law. Finally, I will attempt to bring those reflections down to institutional specifics: how should Aus­ tralia go on, in a m a n n e r consistent with the paths o p e n e d in Mabo}

The Nature of Indigenous Title in Australian Law In o n e sense, Mabo certainly does recognise a form of land title. Native title d o e s involve the acknowledgement of a u n i q u e set of rights to the land. W h e r e the conventional view fails is in its treatment of that entitle­ m e n t as t h o u g h it were a d e t e r m i n a t e set of rules that can be ascertained by h e a r i n g evidence on indigenous custom and then enforced by the common-law courts, m u c h like any o t h e r common-law title. T h e r e is m o r e to the recognition of Indigenous title than that.

Native Title/Normative

Autonomy/Political

Autonomy

To begin, the law of indigenous title recognises n o t just a set of rights a n d obligations with respect to land, but the c o n t i n u e d relevance of a u t o n o m o u s indigenous legal traditions. In o n e sense, this is patent in the j u d g m e n t s . T h e very c o n t e n t of indigenous title is said to be the p r o d u c t of the laws a n d customs of indigenous societies, so that the title is recognised but not created by the c o m m o n law. In Brennan J's words: Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. T h e nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs. 6

MABO AND AUSTRALIAN CONSTITUTIONALISM

63

T h e action of these legal orders is n o t confined to the past, however. Brennan J acknowledges in Mabo that indigenous orders were n o t frozen at the m o m e n t of contact, b u t that they have c o n t i n u e d to evolve a n d to apportion rights a n d responsibilities a m o n g the community's m e m b e r s . It is this c o n t e m p o r a r y , n o t the pre-contact, indigenous custom that pro­ vides the c o n t e n t of native title. This suggests something very different from indigenous title as a con­ fined set of rights, which is simply absorbed into the c o m m o n law. It acknowledges, at least implicitly, that indigenous societies form auto­ n o m o u s legal orders, a n d moreover, that those orders c h a n g e over time. T h e capacity for c h a n g e suggests a degree of political autonomy (at least de facto), for indigenous societies are able to d e t e r m i n e the evolution of their law by their own internal means. O n e must be careful not to overstate this implicit recognition of politi­ cal autonomy. T h e recognition, t h o u g h real, n e e d not imply any accep­ tance that indigenous societies are i m m u n e from non-indigenous governmental action. T h e a u t o n o m y may exist o n sufferance, liable to erosion or obliteration. In that sense, indigenous societies may lack 'sov­ ereignty' - although w h e t h e r some partial 'sovereignty' (or o t h e r pro­ tected right of self-government) might persist in Australia has yet to be squarely a d d r e s s e d . But in any case, until obliterated, a measure of nor­ mative a u t o n o m y - including the capacity for change, n o t merely the possession of a static set of rights - certainly exists. T h e recognition of indigenous title necessarily involves an acceptance, at least provisional, of that autonomy. If this seems implausible - if o n e wants to cling to the view that indige­ nous title merely involves the recognition of a particular form of title o n e can arrive at the same conclusion by asking what the c o n t e n t of that title would be. At what time would its c o n t e n t stop evolving a n d crys­ tallise? T h e m o m e n t when sovereignty was first asserted seems highly arti­ ficial, a n d it is n o w o n d e r that that position was rejected in Mabo. What other p o i n t is appropriate? T h e m o m e n t of j u d g m e n t is the next most obvious, b u t if that p o i n t is chosen, o n e must then explain why indige­ nous title can c o n t i n u e to evolve u n d e r the control of the indigenous people themselves u p to that point, but then must be utterly displaced to the courts. It would b e bitterly ironic if, in the very act of recognising indigenous title, the courts simultaneously extinguished its vitality, espe­ cially if this o c c u r r e d without any clear perception that that was h a p p e n ­ ing or any a t t e m p t at justification. 7

8

9

Mediated Law It is also a mistake to believe that Mabo is simply a b o u t the continuation (in that word's most straightforward sense) of indigenous laws with respect

64

JEREMY WEBBER

to land. T h e c o n t e n t of indigenous title is n o t simply a carry-forward of what was before; the very c o n t e n t of indigenous title has been marked by its e n c o u n t e r with non-indigenous society. This is true not just in the cata­ clysmic sense that some indigenous rights have been extinguished. Rather, the very c o n t e n t of the rights has been transformed t h r o u g h a process of translation a n d re-expression. To begin, the need to express indigenous interests as 'rights' may only arise o n c e indigenous societies are confronted with colonisation. Before t h e n , the interests may well still exist - p e r h a p s in distinctively indige­ n o u s conceptions of law, perhaps merely as the way things are - but in a form that is not well described using the c o m m o n law's language of right. T h e n e e d to characterise the interests as rights becomes relevant only w h e n they are subjected to the threats posed by colonisation and o n e is forced to find some m e a n s of protection that is comprehensible to a n d efficacious within a non-indigenous system of law. This is most obvious in the case of rights to a measure of governmen­ tal autonomy, such as the recognition of indigenous societies as 'domes­ tic d e p e n d e n t nations' in American law (a right not yet acknowledged within Australian l a w ) . " Before colonisation, indigenous societies cer­ tainly were a u t o n o m o u s a n d governed themselves. They were, in that sense, 'sovereign'. But it is questionable w h e t h e r they would have con­ ceived themselves as having a 'right' to self-government, and inconceiv­ able that they would have t h o u g h t of themselves as having anything like the qualified rights of domestic d e p e n d e n t nations, except perhaps for those peoples who acknowledged the suzerainty of a n o t h e r indigenous p e o p l e , as, for example, the Delawares a n d certain o t h e r peoples did with respect to the Iroquois (Jennings 1987: 75). Why would they? T h a t latter right only makes sense within the context of an overarching colo­ nial sovereignty. It is generally the case that the articulation of rights is p r o m p t e d by some threat or perceived challenge. If there is n o threat, why b o t h e r articulating it as a right? It is simply the way things are. T h a t does not m e a n that they are any less deserving of protection as rights o n c e there is a challenge. T h e h u m a n value of self-government may well be sufficiently i m p o r t a n t that it deserves legal recognition in some form of right o n c e the conflict of colonising power a n d indigenous p e o p l e has arisen. It is not at all unfamiliar to see fundamental interests recognised as rights, o n c e subjected to threat. T h a t progression lies at the origin of virtually all common-law a n d equitable rights. T h e whole law of fiduciary obligation, for example, is an attempt to provide legal recognition a n d e n f o r c e m e n t of the distinctive interests a n d responsibil­ ities i n h e r e n t in a wide range of relationships, a n d the law of fiduciary obligation has e x t e n d e d precisely as it has c o m e to grips with new types of relationship (Sealy 1962). 10

MABO AND AUSTRALIAN CONSTITUTIONALISM

65

I n d e e d , s o m e t h i n g like this process is arguably i n h e r e n t in the pow­ erful allegories at the foundation of many theories of natural rights. Those theories often claim that rights exist in the state of nature, before the formation of society. T h u s , for example, in Locke, the compelling need of individuals to a p p r o p r i a t e things in o r d e r to eat is held to sup­ port a natural right of a p p r o p r i a t i o n , a n d ultimately a fully elaborated set of property rights (Locke 1986: 327ff). But t h e r e is a n o t h e r way of think­ ing about those allegories, in which the rights themselves d o not exist, as rights, in the state of n a t u r e . O n the contrary, the existence of rights requires precisely the web of social recognition that exists only u p o n the formation of society. Rather, the n e e d to appropriate exists in the state of nature as a compelling interest - a fundamental prerequisite of survival, which individuals in the state of n a t u r e simply act u p o n . T h e 'right' is generated when individuals' attempts to a p p r o p r i a t e a n d cultivate c o m e into conflict. T h e challenge generates the n e e d for a system of obliga­ tion. T h e fact that the right emerges only in response to challenge does not diminish its force in the slightest. I d o n o t mean to a d o p t h e r e a natural rights t h e o r y of property, n o r d o I m e a n to suggest that indige­ nous societies are best conceived as having b e e n themselves in a state of nature before colonisation. T h a t was manifestly n o t the case, a n d the rejection of such a bigoted conception has b e e n a major e l e m e n t in set­ tler societies c o m i n g better to terms with the presence of indigenous p e o p l e s . Rather, the allegory is significant in drawing o u r attention to the fact that interests are fundamental a n d rights e p i p h e n o m e n a l - that rights are fashioned in o r d e r to protect fundamental interests from chal­ lenge, a n d their particular form is shaped by the specific context a n d nature of that challenge. This is also t r u e of rights which, like native title, serve to protect inter­ ests that were conceived to b e matters of e n t i t l e m e n t within the precolonial legal traditions of indigenous peoples. Even t h o u g h native title does protect entitlements that existed pre-contact, it does so within a pro­ foundly c h a n g e d context, a n d especially within a superimposed legal sys­ tem. T h a t context inevitably shapes the rights in a myriad ways. Perhaps the most fundamental is tied u p with the very idea of law in the western legal tradition, in which 'law' is generally considered to capture only a subset of social n o r m s , o n e enforced by specialised tribunals. In indige­ nous societies, t h e r e tends not to be the same sharp differentiation between law a n d o t h e r forms of social normativity; there may n o t be the same emphasis o n the posited quality of law, t h e r e may be less emphasis o n rules, a n d of course t h e r e may be n o specialised agencies for the e n f o r c e m e n t of law (Law Reform Commission 1986: 75-8; Maddock 1984; Myers 1986: 103-58; B e r n d t et al. 1993: 5 8 - 7 3 ) . It may b e difficult, then, to identify a distinctive category of 'law' apart from m e t h o d s of 12

13

JEREMY WEBBER

66

social o r d e r i n g generally. This is not a sign that indigenous societies lack n o r m s worthy of the n a m e 'law' or occupy a lesser stage of development, as was often suggested in the past; it is simply that indigenous m e t h o d s of social o r d e r i n g may be structured very differently. But it does pose dif­ ficulties to the a t t e m p t to recognise a n d respect indigenous rights within the c o m m o n law. What is o n e respecting? All social practices? All those that have, in indigenous societies, an obligatory character? Only those that are analogous to property rights, or p e r h a p s analogous to o t h e r con­ ventional elements of a western legal system? T h a t uncertainty underlies a n u m b e r of the thorny issues in indigenous rights adjudication today. It is especially acute in Canada, where the rights enjoy constitutional protection. Inevitably, interests that are recognised are expressed in a form that involves some a c c o m m o d a t i o n to the need for the rights to be intelligible within the b r o a d e r legal framework. This does not necessarily m e a n that the t e r m s of the a c c o m m o d a t i o n are rigidly set by the non-indigenous legal tradition. T h e history of indigenous title has involved the recogni­ tion of interests a n d m e t h o d s of proof that have few parallels with those previously existing in the c o m m o n law. But there is nevertheless a mea­ sure of translation a n d adjustment in the very act of recognition, and this process may well be u n e q u a l . Indigenous rights are mediated rights (Rose 1996: 35). This is p a t e n t in legislative regimes for the recognition and adminis­ tration of native title. Creating an Aboriginal Land Council, land trust or i n d i g e n o u s corporation involves the establishment of new institutional forms quite different from indigenous forms, t h r o u g h which the inter­ ests are henceforth regulated a n d exercised. This inevitably affects the enjoyment a n d control of the interest, often conferring a measure of authority on individuals who are not themselves traditional owners of the relevant land. This is especially true when the bodies charged with hold­ ing or administering the title are umbrella groupings, comprising many peoples (as is the case with Land Councils). For that reason, o n e often e n c o u n t e r s ambivalence about statutory regimes. As H. C. Coombs (1994: 210) asked at the time of the adoption of the Native Title Act 1993 (Cth): 'is n o t the survival of native title in its legislative form simply a n o t h e r m e c h a n i s m for the progressive extinguishment of Aboriginal t i t l e ? ' H e r e , I argue that a continual process of adjustment a n d adapta­ tion is i n h e r e n t in the recognition of indigenous title - indeed is of its essence - a n d d o n o t share the view that indigenous interests can b e respected in a pristine, pre-contact form (neither does C o o m b s ) . But the r e m a i n i n g ambivalence is real, a n d results from the fact that o n e is nec­ essarily faced with better or worse accommodations, n o t the protection of the pre-contact interests themselves. 14

15

16

MABO A N D AUSTRALIAN CONSTITUTIONALISM

67

T h e fact that the recognition of native title inevitably requires accom­ modation is also reflected in the judicial decisions. T h e courts have implicitly acknowledged that new institutions for the m a n a g e m e n t of the title may be required, a n d have taken that into account in their adjudi­ cation of native title. T h e Mabo j u d g m e n t s recognise that the establish­ ment of a trust for the administration of indigenous land does not extinguish that title, even t h o u g h trusts clearly take many of the preroga­ tives of ownership o u t of owners' h a n d s . In the year following Mabo, the Federal C o u r t dealt with an action b r o u g h t by certain traditional owners to prevent the vesting of land in a Land Trust u n d e r the Aborigi­ nal Land Rights (Northern Territory) Act 1976 (Cth), on the g r o u n d s that the structures created by that Act would bring a b o u t the extinguishment of their native title. Lockhart J, speaking for the Full Court, noted that there was n o precise c o r r e s p o n d e n c e between the traditional owners o n the o n e h a n d a n d the Aboriginal individuals whose views had to be ascer­ tained by a Land Council in its administration of land within a Land Trust on the other. H e also acknowledged that the rights a n d obligations that flow from a grant to a Land Trust are not identical to those of native title. Yet h e c o n c l u d e d : 17

The establishment of Land Trusts and Land Councils is essentially a modern adaptation of traditional Aboriginal decision-making processes through their communities. The Land Rights Act was created to reflect the rights and obliga­ tions that arise from traditional t i t l e . . . 18

Indeed, the development of new indigenous institutions goes h a n d in h a n d with the recognition of indigenous title. This is clear in specialised regimes. T h e Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) is founded u p o n a structure of Land Councils a n d Land Trusts. T h e Native Title Act 1993 (Cth) allowed for the recognition a n d funding of 'repre­ sentative Aboriginal/Torres Strait Islander bodies', which could facilitate the preparation of claims a n d represent claimants in proceedings. T h e development of effective coalitions of title claimants a n d the encourage­ m e n t of agreements to coordinate various interests in the land have become crucial elements of the native title process. Very frequently, these structures have not simply been imposed by legislation, but have e m e r g e d out of the process of advocacy for a n d litigation of indigenous claims. Thus, the Land Councils of the N o r t h e r n Territory are the descen­ dants of Aboriginal councils established informally during the Woodward commission of inquiry into indigenous land rights.which led to the adop­ tion of the Aboriginal Land Rights (Northern Territory) Act 1976. T h e Native Title Act 1993 has served as a catalyst for the creation of regional coalitions or working groups to m a n a g e today's tide claims (Sullivan 1997: 129). Similarly in the Canadian context, the extensive political structures of the 19

68

JEREMY WEBBER

J a m e s Bay Crees a n d the Inuit of N o r t h e r n Q u e b e c e m e r g e d out of their struggle to secure recognition of indigenous land rights in n o r t h e r n Que­ bec. I n d e e d , the principal regulatory agency u n d e r the James Bay and Northern Quebec Agreement of 1975 - the H u n t i n g , Fishing and Trapping Coordinating Committee - is the successor of a subcommittee created to deal with wildlife issues during the negotiation of that Agreement; the negotiating structure was transformed into the regulatory agency {James Bay 1976: section 24; LaRusic 1979; L a n d m a n n 1988: 15). T h e n e e d to struggle with issues of institutional representation is also present in c o m m o n law actions. T h e claimants themselves must decide w h o should bring the action, in the n a m e of what entity (as individual owners? as individuals in a representative capacity? t h r o u g h representa­ tive organisations? or, as in Wik, in the n a m e of the people - clan? lan­ guage group? - as a whole?).' They have to decide how decisions with respect to the litigation are to be taken. T h e court can be drawn into these issues if the form of the action or the entitlement to sue is chal­ lenged. Moreover, if the action is successful, the court may ultimately have to d e t e r m i n e who holds the title, a n d how that entity can act to avail itself of the interest. Especially when o n e is dealing with a c o m m u n a l title, held by a collectivity, these questions may involve difficult issues of political organisation a n d control. T h u s , the recognition of native title is about far m o r e than simply the recognition of a particular kind of land t e n u r e , surviving from the period before contact. It is intrinsically b o u n d u p with issues of political organi­ sation a n d self-government. This is true, first, in that the title is g r o u n d e d in a n d its c o n t e n t d e t e r m i n e d by c o n t e m p o r a r y indigenous societies, which have their own legal orders and their own continuing capacity for legal change. I n d i g e n o u s societies are, by the very doctrine of indige­ n o u s title itself, c o n t e m p o r a r y polities with continuing control over their own normative o r d e r s (at least until displaced). T h e recognition of i n d i g e n o u s title is simultaneously a recognition of that political capacity. Second, the indigenous interests are not simply absorbed into the gen­ eral law in their pre-contact form. They are mediated, translated into forms susceptible to protection within a non-indigenous legal system. Sometimes entitlements are created for the first time in the act of recog­ nition, for the g o o d reason that despite their fundamental character, t h e r e was n o n e e d for t h e m to be expressed as entitlements before the threats posed by colonisation. Finally, the n e e d to vindicate and admin­ ister those interests in the c o n t e m p o r a r y e n v i r o n m e n t requires that o n e develop institutions a p p r o p r i a t e to those c h a n g e d circumstances. T h e recognition of native title involves, as a necessary concomitant, attention to political organisation a n d the d e v e l o p m e n t of institutions. Native title is m o r e a b o u t adjustment a n d adaptation than the conventional view of 20

MABO AND AUSTRALIAN CONSTITUTIONALISM

69

native title - as simply a n o t h e r property interest incorporated within non-indigenous land law - presumes. This n e e d for adjustment is also t r u e o n the non-indigenous side. Mabo involved a reconsideration of the feudal foundations of Australian land law, with the radical title of the Crown being taken henceforth as a notional attribute of sovereignty a n d an abstract postulate of the doc­ trine of tenures, r a t h e r than an irrebuttable p r e s u m p t i o n that absolute beneficial ownership h a d b e e n held, at some historical m o m e n t , by the Crown. T h e c o m m o n law thereby m a d e r o o m for a kind of title that had its roots outside the system, in the pre-contact legal orders of the indigenous peoples. T h a t m u c h is uncontroversial, but there is good rea­ son to believe that the recognition of native title will require c o n t i n u e d reconsideration a n d adaptation. T h a t i n d e e d is o n e of the principal points of difference between the majority a n d the minority j u d g m e n t s in Wik. T h a t case refined o u r u n d e r s t a n d i n g of the n a t u r e of pastoral leases - a form of t e n u r e , based on statute, extensively used in Australia. T h e Court was forced to d o so because of the n e e d to decide w h e t h e r native title could persist o n land subject to a pastoral lease. O n e of the elements u p o n which the major­ ity a n d minority disagreed was w h e t h e r the granting of a pastoral lease immediately vested a beneficial interest in the Crown, namely the rever­ sionary interest that would e x p a n d into a full interest u p o n the e n d i n g of the lease. If so, this would have excluded native title, for in effect the Crown would have created two beneficial interests covering all aspects of the land: the interest held by the lessee for the t e r m of the lease; a n d the balance of the interest in the land, held by the Crown. T h e notion of the immediate vesting of the reversion was very like the Crown's radical title in Mabo: an e l e m e n t of the doctrine of estates, i n h e r e n t in the c o m m o n law conception of a lease, a n d originally developed without any t h o u g h t for its possible interaction with indigenous title. T h e majority a n d minor­ ity divided o n w h e t h e r it is a p p r o p r i a t e to i m p o r t that notion into a statu­ tory 'lease', g r a n t e d o u t of Crown lands subject to indigenous title, a n d having incidents that are in some ways materially different from c o m m o n law leases. T h e majority held that that was neither required n o r appro­ priate, a n d therefore declined to d o s o . Shortly after the decision in Mabo, Brendan Edgeworth (1994) sug­ gested that the case's c o n s e q u e n c e s for Australian land law should be considerably m o r e far-reaching, leading to the a b a n d o n m e n t of land law's feudal foundations altogether so that interests in land are seen to be entirely allodial (which h e also linked to the movement for a republic). T h e recasting of land law is unlikely to h a p p e n in such a thorough-going fashion. Nevertheless, Edgeworth's suggestion does draw attention to the extent to which native title poses challenges for o u r u n d e r s t a n d i n g of 21

22

23

70

JEREMY WEBBER

property, even in non-indigenous law. And decisions such as Wik may sug­ gest that Australian land law is, in an incremental and lawyerly fashion, e m a n c i p a t i n g itself from its feudal roots.' T h u s , the recognition of indigenous title appears n o t so m u c h as the cut a n d dried incorporation of a discrete set of private rights, b u t the ini­ tiation of a longer process of interaction, mutual adaptation a n d incite­ m e n t to reflection a n d reform. Native title is about the co-existence of partially a u t o n o m o u s societies, each with its own system of law, that must in some fashion, good or ill, relate to o n e another. Because of the chal­ lenges of adjustment - because of the sometimes profound differences of context a n d forms of social o r d e r i n g - that process may only be achieved t h r o u g h mutual a c c o m m o d a t i o n over the very long term. 24

Judicial Strategy This intersocietal, adaptive and, in a b r o a d sense, constitutional dimen­ sion of native title is evident in the very way in which the law of indige­ n o u s title has b e e n developed by the courts, especially in N o r t h America where it originated. If indigenous title were simply a n o t h e r set of rights i n c o r p o r a t e d into the broader, non-indigenous system of land law, o n e would expect that the courts would simply articulate that title's incidents a n d t h e n p r o c e e d to enforce them. In o t h e r words, the courts would seek to d e t e r m i n e precisely the relationship, u n d e r the various indigenous systems of law, between specific individuals or groups a n d specific tracts of land, a n d they would then enforce these specific entitlements. T h a t i n d e e d a p p e a r s to be the process envisaged in the first Australian j u d g ­ m e n t s o n native title a n d p e r h a p s in the Native Title Act 1993 itself. But in fact, the N o r t h American courts have traditionally been manifestly uncon­ c e r n e d with d e t e r m i n i n g entitlements within indigenous law. Instead, they have focused purely a n d simply o n the recognition of the title's exis­ tence a n d o n the n e e d to respect it. O n e could summarise the law of I n d i g e n o u s title with little distortion by stating that it involved: • the recognition that indigenous societies have title to their lands; • the proposition that that title should be (or, if the j u d g m e n t is retro­ spective, should have b e e n ) dealt with before non-indigenous settle­ m e n t of those lands; a n d • regulation of the m o d e of acquisition (for example, the prohibition o n the alienation of indigenous lands except to the Crown). (Slattery 1987) This p o i n t bears emphasis. O n e searches the North American deci­ sions in vain for any serious discussion of the i n n e r workings of indige­ n o u s systems of landholding. T h e reason is simple: that is n o t the

L

MABO A N D AUSTRALIAN CONSTITUTIONALISM

71

purpose of the law of indigenous title. T h a t body of law does n o t seek to have the non-indigenous courts take over a n d enforce indigenous sys­ tems of land law (as t h o u g h non-indigenous courts were c o m p e t e n t to d o so). T h e law of indigenous title is a law of the interface between societies presumed to c o n t i n u e with considerable legal autonomy. It requires respect for indigenous systems of land law. It does not absorb them. It effectively says: ' T h e indigenous peoples have rights to this land. Deal with t h e m before encroaching, or you will be in violation of those rights. T h e p r o p e r agency to deal with the rights is g o v e r n m e n t , n o t private par­ ties.' T h e internal administration of indigenous title is, in very large mea­ sure, left to the indigenous communities themselves. This explains why indigenous title is often said to be 'collective' or ' c o m m u n a l ' . Frequently, title to land is n o t collective if by that is m e a n t that land is, according to the law of the particular community, held in c o m m o n . T h e r e are many indigenous societies in which land is held by individuals or by families, with n o overarching proprietary right in the community. T h a t is true of the Meriam Islanders, for example, whose rights were the subject of the action in Mabo (Mabo 1992: 87; Sharp 1996: 132-35). It is also true of the J a m e s Bay Crees of n o r t h e r n Q u e b e c , a n d indeed of many o t h e r North American societies (Tanner 1979: 182ff). But the law of indigenous title is n o t c o n c e r n e d with that internal attri­ bution of rights. It views those societies from the outside - a n d viewed from the outside, the societies d o hold their land 'collectively', for the internal distribution of rights a n d responsibilities is left to the commu­ nities themselves. In o t h e r words the 'collective' n a t u r e of indigenous title is an implicit recognition of the political a n d legal a u t o n o m y of indigenous societies, n o t a description of the actual form of l a n d h o l d i n g practised within t h e m . T h e t e n u r e is 'collective' because the c o m m o n law treats the land as the province of the c o m m u n i t y c o n c e r n e d ; any inter­ nal allocation is left to the c o m m u n i t y . T h e effective c o n s e q u e n c e of indigenous title is therefore the n e e d to manage the interface between non-indigenous a n d indigenous legal orders, between non-indigenous a n d indigenous occupation. In the North American context, this o n c e m e a n t the detailed regulation of the mechanism of land acquisition across the cultural boundaries. I n d e e d , the e m e r g e n c e of the c o m m o n law of indigenous title was intrinsically b o u n d u p with the gradual extension of controls o n colonial settlement a n d the progressive centralisation of the power to acquire indigenous lands (Webber 1995b: 644-47, 6 5 1 - 5 5 ) . In o n e sense, o n e could say that the recognition of o n e was the premise for the other, but this is probably too tidy. It is m o r e accurate to say that the recognition of indigenous title e m e r g e d through the imposition of constraints o n s e t d e m e n t a n d the d e v e l o p m e n t of a practice of treaty-making. 25

JEREMY WEBBER

72

Even when indigenous title has c o m e before the Canadian courts, the courts have t e n d e d to see themselves as simply policing the boundary, with the detailed m a n a g e m e n t of the relationship to be resolved t h r o u g h negotiation. This is p a t e n t in a n u m b e r of the recent decisions, in which the courts have e x h o r t e d the parties to n e g o t i a t e . But the same a p p r o a c h is arguably implicit in the j u r i s p r u d e n c e of indigenous rights in C a n a d a as a whole. T h e courts' consistent strategy has been to rule u p o n the framework of indigenous title - to ensure that indigenous title is taken seriously as a material interest in the land - but n o t to enter too deeply into the precise n a t u r e of the rights or how those rights should be a c c o m m o d a t e d . T h a t is left to negotiation. W h e n o n e thinks of the great Canadian decisions o n indigenous title or related rights - Calder, Sparrow, Delgamuukw - those decisions o p e r a t e almost entirely at the level of gen­ eral principle, n o t the definition a n d e n f o r c e m e n t of specific interests {Calder\. AG BC [1973] SCR 313; Sparrow 1990; Delgamuukw 1997). Even in the most r e c e n t a n d far-reaching of those decisions, Delgamuukw v. British Columbia, the S u p r e m e Court of Canada did n o t rule in detail on the claims, although invited to d o so on the basis of the most extensive evidentiary record ever presented. Instead, it referred the matter back to trial o n the thin g r o u n d that the pleadings h a d b e e n framed as claims by each of the 51 Gitxsan a n d Wet'suwet'en Houses, not (as ultimately accepted) as amalgamated claims by the Gitxsan a n d Wet'suwet'en n a t i o n s . T h e principal majority j u d g m e n t concluded with a powerful s t a t e m e n t that the matter should be negotiated, not re-tried: 26

27

Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve what I stated . . . to be a basic purpose of s. 35(1) [of the Constitution Act 1982 (Canada), which protects Aboriginal and treaty rights] - 'the recon­ ciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown'. Let's face it, we are all here to stay. 28

If negotiations are n o t successful, the courts may be compelled to i n t e r v e n e m o r e vigorously. This is, in effect, what the S u p r e m e Court has d o n e over time, not least in Delgamuukw itself. It has by stages defined m o r e of the c o n t e n t of indigenous rights. But it has d o n e so with reluc­ tance, exercising restraint in its p r o n o u n c e m e n t s a n d e n c o u r a g i n g the parties at each point to take matters into their own hands. T h e set of draft constitutional a m e n d m e n t s in the failed Charlottetown Accord of 1992 would have imposed a duty to negotiate indigenous self-govern­ m e n t (including control of land) in g o o d faith u p o n Canadian govern­ ments, with the courts exercising a s u p e r i n t e n d i n g role over those n e g o t i a t i o n s . O n e could argue that the courts have already, tacitly, b e e n d o i n g just that. 29

MABO AND AUSTRALIAN CONSTITUTIONALISM

73

In Canada, t h e n , the law of indigenous title has b e e n very m u c h con­ cerned with fostering negotiated solutions to issues that are broadly con­ stitutional - c o n c e r n e d with defining a n d i n d e e d structuring the interface between indigenous a n d non-indigenous legal orders - even though t h e issues have b e e n framed t h r o u g h the concept of indigenous title. What of Australia? T h e Australian authorities have t e n d e d to speak as though the recognition a n d e n f o r c e m e n t of a proprietary right by the non-indigenous courts alone were in issue. T h e Canadian experience is often distinguished o n the basis that Canadian custom is f o u n d e d on a practice of treaty-making n o t p r e s e n t in Australia - without recognising that the treaty process in N o r t h America was n o t a separate sphere of 'political' interaction but an integral e l e m e n t of the recognition of indigenous title. T h e p r o b l e m lies in the artificially constricted a n d ulti­ mately i n a d e q u a t e u n d e r s t a n d i n g of what is in issue in Australia. T h e constitutional dimensions of indigenous title are just as present, notably the implicit recognition of the a u t o n o m o u s legal orders from which indigenous title derives a n d the n e e d to structure the relationship of the i n d i g e n o u s / n o n - i n d i g e n o u s boundary. As in Canada, the Australian courts are faced with the incongruity of an a p p r o a c h to indigenous title that suggests that they should b e c o m e the privileged interpreters a n d enforcers of indigenous systems of land t e n u r e . They have confronted in practice ( t h o u g h p e r h a p s n o t yet in theory) the dilemma that if they d o enforce a n i n d i g e n o u s title like any other, they will, by that very act, dis­ place the i n d i g e n o u s institutions o n which the title d e p e n d s . And they have also b e g u n to e n c o u n t e r the complexities of deciding what precise entity should be recognised as the h o l d e r of the title, how the nonindigenous legal o r d e r might conceive of that entity a n d of the native title holder's relationships to non-indigenous institutions, a n d how deci­ sions with respect to the use of that indigenous title might validly be m a d e in the future. Faced with these questions of fundamental constitutional relationship, the Australian courts a n d the specialised agencies created u n d e r the Native Title Act 1993 have a d o p t e d strategies, implicitly, very like those in Canada. T h e courts have confined themselves to ruling u p o n the general existence of indigenous title a n d issues of extinguishment or impairment; they have not engaged in the detailed specification of the content of the title, n o r decided conflicts between m e m b e r s of a single indigenous p e o p l e . In the most extensive judicial discussion of native title in Aus­ tralia to date, Ward v. Western Australia, the Federal Court was asked to d e t e r m i n e that certain lands of the Miriuwung a n d Gajerrong c o m m u n i ­ ties were held by subgroups ('estate g r o u p s ' ) . T h e court declined to d o so, finding instead that the c o m m u n a l title was held collectively by all 30

31

JEREMY WEBBER

74

m e m b e r s of the community. In that decision, Lee J m a d e reference to the difficulty of proving that the c u r r e n t m e m b e r s of the subgroups were d e s c e n d e d from the pre-colonial owners, but the b u r d e n of his decision rests n o t u p o n a question of proof but u p o n the intrinsic nature of indige­ nous title at c o m m o n law - that indigenous title operates at a broader level of generality a n d is vested in the entire community rather than in subgroups. Also in Ward, the court declined to rule in detail on how indigenous title a n d c o n c u r r e n t non-indigenous interests in the land should be coordinated, suggesting that the parties should resolve those questions by n e g o t i a t i o n . Moreover, the proceedings u n d e r the Native Title Act have moved increasingly towards mediation a n d negotiation, with respect to the exis­ tence a n d scope of indigenous title, b u t also with respect to the coalesc­ ing of indigenous groups in o r d e r to bring the claims, the resolution of conflicts a m o n g indigenous parties, the reconciliation of indigenous land use with non-indigenous interests a n d public authorities, and, o n occasion, the structuring of institutions to administer indigenous title. T h e proliferation of 'regional a g r e e m e n t s ' a n d 'Indigenous land use a g r e e m e n t s ' is an i m p o r t a n t manifestation of this p r o c e s s , suggesting that the precise signification of indigenous title is being defined in prac­ tice t h r o u g h a process of adaptation a n d a c c o m m o d a t i o n , within a broad framework d e t e r m i n e d by the courts a n d the Native Title Act. This reliance u p o n a c c o m m o d a t i o n may b e worrying, especially if o n e distrusts the c o m m i t m e n t of non-indigenous parties to negotiate in good faith. I d o n o t m e a n to suggest that it is ideal, or that it occurs in a spirit of generosity or even respect. T h e r e will always be r o o m for criticism of negotiating stances, dispute settlement mechanisms, a n d outcomes, always cause for ambivalence like that of C o o m b s ' , cited previously. N o r are the a c c o m m o d a t i o n s insulated from relations of power in society at large, a l t h o u g h relations of power are n o t the whole story. Arguments of justice, consistency of principle and moral appeal remain important ( t h o u g h by n o m e a n s determinative), as i n d e e d they have b e e n through­ out Australia's recent grappling with indigenous r i g h t s . T h e courts retain a crucial role in maintaining fundamental elements of principle. But the issues of intercultural a c c o m m o d a t i o n are sufficiently complex the challenges of developing a p p r o p r i a t e structures for the admini­ stration of indigenous land and the resolution of its relationship to non-indigenous interests sufficiently difficult - that there is n o real sub­ stitute for negotiations in the long term. 32

33

34

35

Judicial Role Given that indigenous title is b o u n d u p with the recognition of indige­ n o u s societies as a u t o n o m o u s legal orders possessing their own political

MABO AND AUSTRALIAN CONSTITUTIONALISM

75

presence, a n d that this recognition necessarily raises difficult issues of a c c o m m o d a t i o n , is this an a p p r o p r i a t e arena for the courts? T h e ques­ tion is a live o n e , for the High Court's decisions have been subjected to fierce criticism from some quarters because of their allegedly 'political' character. T h e objection, however, is misconceived. Even within m u c h m o r e conventional a n d familiar areas of the law, there are concepts that play a role similar to that of indigenous title: a fundamental but relatively inchoate claim is recognised, the precise details of which are left to be worked o u t over time, often t h r o u g h a complex, c o n t e x t - d e p e n d e n t process of adjustment. This p h e n o m e n o n takes a variety of forms. First, many of the most familiar legal concepts began with the recog­ nition of an abstract principle, sometimes found to be implicit in a pre­ vious body of law. T h a t recognition set in train a long process of reflection a n d elaboration as the principle's implications were explored in s u b s e q u e n t decisions. T h e d e v e l o p m e n t of the law of negligence pro­ vides many g o o d examples, from the first recognition of a general tort of negligence in Donoghuev. Stevenson, t h r o u g h negligent misstatement, the liability of public authorities, a n d compensation for p u r e e c o n o m i c loss. In these situations, o n e trusts that o n e will be able to develop m o r e detailed principles over time, as o n e confronts a diversity of circum­ stances to which the principle applies, b u t o n e does not expect to be able to give a full, certain a n d detailed account of the law in the early stages. Indeed, common-law j u d g e s have generally declined to provide full dis­ cussions of an area even after that area has b e e n extensively canvassed in previous decisions, in the belief that a continual, cautious incrementalism is m o r e likely to capture the full complexity of the interests in play. But second, t h e r e are areas of law in which o n e does not have confi­ d e n c e that t h e r e ever can be a detailed elaboration of the applicable principles, because the principles apply to such complex relationships that o n e ' s j u d g m e n t s must always be situation- a n d context-dependent. T h e principles r e m a i n at a high level of abstraction, t h o u g h nonetheless operative. T h e principal criterion for child custody decisions - the 'best interests of the child' - is a g o o d example. It has a material impact u p o n virtually all custody decisions, yet it seems highly unlikely that it will ever be given the kind of detailed elaboration o n e expects in many areas of the law, simply because the complexity of circumstances makes generali­ sations very difficult. Third, t h e r e are areas - m u c h rarer than the two already discussed - in which law again operates at a b r o a d level of generality, b u t where o n e has little confidence that either incremental elaboration byjudges or contextspecific adjudication can p r o d u c e acceptable outcomes. Instead, the con­ tent is best filled out t h r o u g h processes of political deliberation or by negotiation - although p e r h a p s the latter word carries too m u c h baggage that suggests an amoral, normless compromise. 'Bilateral deliberation' 36

JEREMY WEBBER

76

might be better, although this errs in the o t h e r direction. In these situa­ tions, there may be broad recognition of the need for a settlement, and a sense of certain general criteria that such a settlement should observe, but substantial differences of interest or principle as to how one should be achieved. T h e issues may combine an insoluble mixture of corrective a n d distributive justice. They may involve elements of j u d g m e n t that are best left to m o r e participatory or m o r e representative institutions than the courts. At times, the differences of perspective may have a strong bilat­ eral character, so that joint conferences may be the best response to issues of detail. Industrial disputes may be a good example, in which even dur­ ing the heyday of Australia's arbitration regime the essential challenge was to reconcile the different perspectives of employers and employees. Careful attention was therefore paid to balance of representation, and commissioners used negotiations and processes of decision-making that mimicked negotiations to fashion workable solutions, while still asserting an overarching framework of p r i n c i p l e . T h e belief that similar circum­ stances are present in family break-up may be a crucial element under­ lying the move towards mediation in that context. T h e recognition of indigenous title may raise similar challenges: strong justification for the general principle, but great difficulty elaborating the content except t h r o u g h negotiations. A n o t h e r way to conceive of these issues is that in indigenous title, the principle has great force, but that principle is consistent with a wide range of possible m e a n s of respecting indigenous control a n d managing the interface between indigenous and non-indigenous institutions. T h e overarching principles might be t e r m e d 'framing n o r m s ' , in that they o p e r a t e at a level of abstraction consistent with a wide range of possible instantiations. T h e choice a m o n g the instantiations is best left to negoti­ ation a n d legislation, as long as the principles are r e s p e c t e d . This m e a n s that adjudication must often employ a lighter h a n d than is usually the case, so that it affirms the principle while leaving r o o m for t h e parties to work o u t the detail of co-existence. This does c o n t e m ­ plate a closely linked c o m b i n a t i o n of adjudicative a n d negotiational a p p r o a c h e s , the latter with a political cast that may, in the view of some p e o p l e , cast d o u b t on the decisional integrity of the former. But what alternative is there? T h e simplest would be to avoid the chal­ lenge by denying that indigenous peoples retained any right to their lands, affirming that Australia was o n c e again terra nullius, and treating Aborigines a n d Torres Strait Islanders o n c e again as trespassers on their own land. T h a t result hardly seems m o r e just, hardly consistent with o u r respect for proprietary rights, o u r c o m m i t m e n t to equal respect regard­ less of race, or the reasons why both c o m m o n and international law contain principles that protect private rights u p o n the acquisition of 37

38

39

MABO AND AUSTRALIAN CONSTITUTIONALISM

77

territory. T h e r e is, in short, n o substitute for a serious g r a p p l i n g with indigenous rights to land, unless o n e wants to succumb to m u c h g r e a t e r injustice a n d normative inconsistency. And if o n e does take i n d i g e n o u s title seriously, o n e confronts t h e fact that the basic questions have an ineluctably constitutional d i m e n s i o n , c o n c e r n e d with how very different societies, each with its own legal order, should coexist within Australia. Indigenous title does have compelling force as a principle of Australian law, but it also inevitably sets in m o t i o n a process of intercultural adjust­ ment and accommodation.

The Significance of Indigenous Title for Australian Constitutional Theory T h e recognition of indigenous dtle therefore has very b r o a d implications for an u n d e r s t a n d i n g of the Australian legal a n d constitutional order. This is p a t e n t in the popular debate, where it has provoked a long discus­ sion of the conditions of reconciliation between indigenous a n d nonindigenous Australians; extensive arguments over the extent of a society's responsibility for its past; and, in the specifically legal d o m a i n , the awak­ ening of a multitude of issues with respect to the role of the courts. N o r have these controversies exhausted Mabo's implications. In Wik, G u m m o w J said that Mabo b r o u g h t about a shift in Australia's constitu­ tional foundations (Wik 1996: 230). It is worth u n d e r s t a n d i n g the n a t u r e of that shift. (In sketching that shift, I d o not mean to suggest that it is fully or uniformly accomplished across Australian society. T h e a r g u m e n t is about the potentialities i n h e r e n t in the change, about the change's gen­ eral orientation, n o t a b o u t its c u r r e n t acceptance in popular discourse.) T h e recognition of i n d i g e n o u s title clearly has involved the recogni­ tion of an a u t o n o m o u s source of legal a n d political authority within Aus­ tralia. It is t r u e that indigenous title is recognised by the c o m m o n law, a n d in that sense t h e r e are 'sources' of indigenous title within the com­ m o n law. F u r t h e r m o r e , the act of recognition is n o t an utterly deferen­ tial o n e (such acts never a r e ) ; in the act of recognising, the law also goes some way towards d e f i n i n g . T h e c o m m o n law acknowledges, for exam­ ple, m e a n s by which I n d i g e n o u s title can be obliterated, a n d j u d g e s ulti­ mately decide w h o should be considered 'owners'. I n d i g e n o u s legal orders are therefore portrayed as partially, not entirely, a u t o n o m o u s . But nevertheless, indigenous title involves the recognition of n o r m s whose source lies outside the c o m m o n law. T h a t source is n o t confined to the period before contact, b u t is a parallel social structure with its own bod­ ies of law, which c o n t i n u e s post-contact. This constitutes an extraordinary change in position. Australian n a t i o n h o o d is n o longer forged within an exclusively non-indigenous 40

78

JEREMY WEBBER

crucible. Aborigines n o longer enter the national story merely as out­ siders against whom settlement was established or - to capture the role that was commonly assigned to Aborigines - as d o o m e d relics of a previ­ ous stage of humanity, destined to be utterly displaced. They are n o longer people from a n o t h e r time, co-existing only physically, not morally, with non-Aboriginal Australians. Bain Attwood (1996a: xiii-xiv, 100; 1996b: 101 ff) has emphasised that Mabo is about the recognition of the contem­ poraneity of indigenous Australians. T h a t seems absolutely right. If we take the law of indigenous title seriously, Aborigines a n d Torres Strait Islanders are now c u r r e n t participants (partners?) in the Australian story. They are seen as having a c o n t e m p o r a r y role, perhaps even a unique con­ tribution, to fulfil. This development is n o t u n p r e c e d e n t e d . Indigenous Australians already have a substantial presence in Australian cultural sym­ bolism. But it does represent a substantial change in their perceived role within the legal a n d political s p h e r e s . Some c o m m e n t a t o r s have suggested (or feared) that this might mean the fracturing of Australian n a t i o n h o o d . In academic discourse, the great differences of perspective between indigenous a n d non-indigenous p e o p l e are sometimes emphasised, with the suggestion that irre­ d e e m a b l e difference a n d mutual i n c o m p r e h e n s i o n u n d e r m i n e any pos­ sibility of c o h e r e n t national narrative (Povinelli 1998: 575). In m o r e p o p u l a r discourse, some have expressed anxiety that the recognition of indigenous claims will lead to a devaluing of the country's history. I n d e e d , Prime Minister Howard a n d others have decried a supposed 'black a r m b a n d ' theory of Australian history. Both these assertions are excessively pessimistic. T h e first overesti­ mates the isolation between indigenous a n d non-indigenous people. T h e relationship between settler society a n d indigenous peoples has i n d e e d b e e n conflictual, m a r k e d by severe tensions over land and at times by e x t r e m e brutality. These conflicts have b e e n reflected in, a n d p e r h a p s sometimes b e e n the p r o d u c t of, profoundly different beliefs on the ideological plane. But o n e can acknowledge these divisions, while still recognising that t h e r e have b e e n i m p o r t a n t points of connection. In every era there have b e e n individuals a n d associations who have sought to u n d e r s t a n d , with some success, those o n the o t h e r side of the divide. T h e s e c o n n e c t i o n s have led to m o r e constructive relationships between peoples. And it is u n d e n i a b l e that the societies have, over time, shaped each other. I d o n o t romanticise this interaction. T h e influence of noni n d i g e n o u s on indigenous cultures has often b e e n accomplished by vio­ lent a n d objectionable m e a n s . Nor has it b e e n anything like reciprocal. Today, indigenous societies may well most n e e d respect for a u t o n o m y in o r d e r to maintain their cultures a n d protect their material a n d spiritual possessions, n o t d e m a n d s that they participate in what has long b e e n an 41

42

43

MABO AND AUSTRALIAN CONSTITUTIONALISM 44

79

u n e q u a l cultural e x c h a n g e . But o n e can acknowledge all that without asserting that t h e r e is an u n b r i d g e a b l e gulf between the societies a n d without denying that m o r e productive relations are possible. To assert such a gulf is n o t only false; it r u n s the risk of treating indigenous peoples once again as p e o p l e from a n o t h e r time, which non-indigenous Australians can observe, b u t from w h o m they n e e d learn n o t h i n g . As for the 'black a r m b a n d ' , it is t r u e that a re-evaluation of indigenous peoples' place within Australian society requires coming to terms with aspects of Australian history that are not meritorious, a n d may involve regret for things that were previously praised. But what alternative is there? T h a t o n e p e r p e t u a t e the injustices of the past, because o n e is reluctant to admit the failings? T h a t o n e build o n e ' s national pride u p o n a deliberate denial of the past? Martin Krygier a n d Desmond Manderson have a r g u e d with great force that if o n e takes pride in what is good a b o u t one's past, o n e also has to b e o p e n to regret (Krygier 1997: 64—98; Man­ derson 1998: 238-39; Webber 1995a: 10-11, 15, 2 4 - 5 ) . Acknowledging the bad does n o t diminish the good. O n the contrary, it may help to iden­ tify j u s t what was good, the conditions u n d e r which the good was achieved, a n d the lessons for today. T h e r e is m u c h to treasure a b o u t Aus­ tralian society, a n d o n e of those things is the frankness a n d (at its best) the honesty of public debate. T h a t quality should be preserved in o u r evaluation of the past. Finally, b o t h pessimistic views exaggerate the extent to which national identity must be f o u n d e d o n a single, c o h e r e n t , a n d p e r h a p s static national story. N o nation works like that. All c h a n g e t h r o u g h time. All are m a r k e d by internal differences a n d by vigorous debate, frequently over the most fundamental matters. I n d e e d , it often seems that nations are m a r k e d as m u c h by the structure of their disagreements as by their agreements. I have suggested elsewhere the m e t a p h o r of conversation as a way of u n d e r s t a n d i n g national identity a n d i n d e e d cultures generally (Webber 1993: 136-38; 1994: 183-93). Such identities are like conversa­ tions t h r o u g h time, in which those who participate share a real com­ monality in the way in which they frame the questions, in the historical references u p o n which they draw, in their knowledge of a n d d e p e n d e n c e u p o n earlier stages of the conversation itself, a n d in their c o m m i t m e n t to c o n t i n u e d e n g a g e m e n t in that conversation (although the commit­ m e n t may n o t be a matter of choice; we often find ourselves in o u r com­ munities without choosing t h e m ) . They emphatically d o not require that all m e m b e r s believe the same thing, a n d their very n a t u r e involves change. They can a c c o m m o d a t e p r o f o u n d disagreements, without nec­ essarily fracturing their commonality. U n d e r s t o o d in this way, indigenous a n d non-indigenous Australians already share m u c h . T h e native title debate itself has b e e n shaped by the

80

JEREMY WEBBER 45

distinctive ways in which such issues have b e e n framed in this c o u n t r y . In o n e sense, the struggle of indigenous people has been about how they are to take part in that conversation, the d e g r e e to which they are going to be able to preserve their own a u t o n o m o u s identities while doing so, a n d the recognition within the conversation of indigenous peoples' integrity, the value of their beliefs a n d property, a n d their entitlement to pass t h e m on to their children. H e n c e the i m p o r t a n c e of the apology that indigenous Australians have d e m a n d e d from the Commonwealth g o v e r n m e n t , especially for the forced removal of indigenous children. Such an apology would serve as a symbolic coming-to-terms with the past. National narratives are always being worked and reworked against the country's past. People draw u p o n that past in their arguments and their claims, and as they do, they suggest what is most important about the coun­ try, what is most valuable, and what should be left behind. T h e fashioning a n d refashioning of national identity is, inevitably, a process of moral reflection on the past. We j u d g e the past, at least implicitly. T h e d e m a n d for an apology is an attempt to call those j u d g m e n t s into the o p e n . T h e reworking of the national conversation will, if it continues, occur in many forums a n d across a wide range of issues. This is not the place to explore those dimensions in detail. But I will draw attention to o n e aspect of special significance for Australian constitutionalism. For non-indigenous Australians, a constitution is a m a d e order, a p r o d u c t of h u m a n will a n d industry. At the most general level, this is reflected in national myths a b o u t the building of the country, which cel­ ebrate the material achievements of the society, portraying those achievements as the p r o d u c t of individual a n d collective effort. It is also p r e s e n t in the strong strain of democratic republicanism in Australia the sense that g o o d g o v e r n m e n t is a b o u t taking one's destiny in one's own h a n d s a n d making society what o n e wants. It is evident in the m a r k e d positivistic leanings in Australian legal a n d political culture: its heavy emphasis o n p r o c e d u r e , d u e process a n d compliance with explicit rules established by the self-conscious action of democratic legislatures; its suspicion of informal n o r m s a n d processes; a n d its reluctance to con­ ceive of law as inherently moral, for fear that that will necessarily mean that s o m e o n e else's morality is imposed. Regardless of w h e t h e r 'a strict a n d c o m p l e t e legalism' (conceived as the application of express rules entirely p r e - d e t e r m i n e d by d u e authority) is an accurate description of judicial decision-making in practice or in t h e o r y , it retains a very tight h o l d over the Australian conception of the rule of law a n d the justifica­ tion of authority. I n d i g e n o u s title has the potential to upset that p r e s u m p t i o n . First, the very recognition of a body of law that has its origin outside the system deflects attention from the legislature as the font of law. Second, it 46

47

MABO A N D AUSTRALIAN CONSTITUTIONALISM

81

initiates a process of adjustment across societies that challenges the con­ ceptual unity a n d willed rationalism of many Australians' conception of law. T h i r d a n d most importantly, law for indigenous Australians has traditionally b e e n considered n o t to be the p r o d u c t of deliberate choice, but an inheritance, d e t e r m i n e d in T h e D r e a m i n g or by what has c o m e before, n o t merely by the desires of those now living. T h e visions of law could hardly b e m o r e different. Often this is n o t seen. Its potential for generating misunderstanding and awkwardness of institutional a r r a n g e m e n t s is missed. But it surfaces, for example, in the unease occasionally affecting the alliance between those c o m m i t t e d to reform in general political life (for example, envi­ r o n m e n t a l p r o t e c d o n , individual rights, the republican movement) a n d indigenous peoples. T h e visions of social organisation held by reformers and indigenous peoples can b e quite different, the reformers emphasis­ ing agency a n d a purely democratic u n d e r s t a n d i n g of legitimacy, the indigenous peoples often m o r e c o n c e r n e d with issues of respect (for ancestors, for elders), restoration a n d autonomy. I d o not m e a n to exag­ gerate the difference. I n d e e d , I believe firmly that there are ways of rec­ onciling t h e m . But it is n o accident that in the period of settlement, those o n the conservative e n d of the political spectrum were often m o r e respectful of indigenous rights than those c o m m i t t e d to reform, whose belief in d e v e l o p m e n t a n d individual opportunity frequently led t h e m to advocate rapid a n d relatively u n c o n t r o l l e d expansion of white settle­ ment, a n d whose c o m m i t m e n t to a highly cohesive democratic polity sometimes led t h e m to exclude p e o p l e of o t h e r r a c e s . Today compara­ ble tensions occasionally e m e r g e , most obviously over issues of environ­ mental protection o n c e lands are u n d e r indigenous control, a n d over women's place within society. O n e of the ways in which this tension will be manifest in the years to come is in contrasting expectations of how issues of i n d i g e n o u s / n o n indigenous relations might b e resolved. T h e r e is often a sense in nonindigenous political life that if t h e r e are serious questions of indigenous rights, they should be squarely addressed a n d exhaustively defined, so that political a n d e c o n o m i c life can p r o c e e d in full certainty of what those rights entail. This attitude was abundantly evident in the political debate s u r r o u n d i n g Mabo a n d Wik, a n d was effectively harnessed by the Howard g o v e r n m e n t in its campaign to a m e n d the Native Title Act 1993 (Brennan 1998; Clarke 1997: Iff). A m o n g those who favour indigenous rights, o n e sometimes e n c o u n t e r s a similar sense that reconciliation can be achieved by an act of collective will - p e r h a p s a national treaty refounding the relationship a n d re-affirming rights. Such dramatic ini­ tiatives may i n d e e d be essential as a way of m a r k i n g new beginnings, of accomplishing a material c h a n g e in the protection of rights long denied, 48

49

50

51

JEREMY WEBBER

82

a n d of achieving some practical conciliation between indigenous rights a n d non-indigenous interests. But we should not p r e t e n d that they can solve these issues o n c e a n d for all, at o n e m o m e n t in time. T h e redefini­ tion of the relationship is a matter for the long haul, a n d i n d e e d is likely to b e a matter of continual adjustment. This is true because of the com­ plexity of the issues, because o n e is dealing with relations between whole societies that c o n t i n u e to c h a n g e , a n d because of the additional reason suggested here: today's indigenous leaders may not see themselves as having such c o m p l e t e authority over their communities' structure a n d law. T h e r e are unlikely to be any quick fixes. T h e post-Mate relationship is in part, t h e n , about the e n c o u n t e r between different legal/political philosophies. T h e m a n a g e m e n t of the interface between societies requires that we conciliate social visions (Pocock 1998; Poirier 1996). This will undoubtedly involve respect for autonomy, a l t h o u g h that a u t o n o m y should be c o m b i n e d with construc­ tive e n g a g e m e n t . T h e p r o b l e m is o n e of restructuring a dialogue - or p e r h a p s it would be m o r e accurate to say 'developing a dialogue', given the largely one-directional n a t u r e of influence to this point - n o t restor­ ing some pre-dialogic purity. T h e r e is substantial potential for that interaction. In drawing the con­ trast between i n d i g e n o u s a n d non-indigenous approaches to law, I por­ trayed the difference as m o r e stark than it is in fact. T h e r e are strong e l e m e n t s of tradition in the non-indigenous Australian law, although imperfectly acknowledged. By this I d o n o t m e a n merely that there are elements we consciously recognise as 'traditional' (although there are these), b u t that the c o n c e p t of tradition is a good way to u n d e r s t a n d the processes of legal reasoning generally. Legal reasoning works with con­ cepts a n d j u d g m e n t s inherited from the past; it reflects o n the signifi­ cance of those concepts a n d those j u d g m e n t s for the issues of today, a n d in the process, the tradition itself evolves (Krygier 1986; 1988; 1991; Parkinson 1994:10-18) . Taking that traditional character seriously may allow a better u n d e r s t a n d i n g of the non-indigenous system a n d the place of intention a n d inheritance within it. It may also provide g r o u n d s for m o r e respectful interaction with cultures in which tradition plays a m o r e obvious role. C h a n g e has also b e e n a larger part of indigenous traditions than has frequently b e e n supposed. I n d e e d , indigenous cultures have inter­ nalised values from non-indigenous cultures, so that now those values are fully p a r t of the indigenous societies (Law Reform Commission 1986: 88-90; C o o m b s 1994: 9 3 - 5 ; Attwood 1996b: 109-10; Maddock 1984: 234—35; Macdonald 1997). T h e issue is not o n e of complete separation or of fracturing. It is a b o u t the conditions of interaction, a n d about the 52

5 3

MABO AND AUSTRALIAN CONSTITUTIONALISM

83

achievement of a national dialogue that is m o r e typified by respect than by imposition. Institutional Implications T h e shift in focus for which I have a r g u e d - away from indigenous title as a simple property interest a n d towards a recognition of the intersocietal a n d constitutional dimensions i n h e r e n t in that title - has i m p o r t a n t practical implications for the d e t e r m i n a t i o n of native title claims a n d for the restructuring of Australian institutions. While I will not canvass those implications in detail, a couple of examples will help d e m o n s t r a t e the practical impact of reconceiving indigenous title. First, t h e r e are very significant consequences for the way in which courts a n d tribunals go a b o u t d e t e r m i n i n g native title claims, b o t h how they frame their conclusions a n d how they c o n d u c t the adjudicative process itself. I have shown that courts have, in practice, b e e n reluctant to absorb principles of indigenous l a n d h o l d i n g into the body of law they administer. T h e y have n o t treated indigenous title as merely a set of pro­ prietary interests to be i n t e r p r e t e d a n d enforced in the same way that they adjudicate o t h e r interests in land. Instead, they have kept their j u d g ­ ments o n e step removed from this level of detail, ruling on the existence of native title a n d o n its extinguishment, but saying very little about the rights enjoyed u n d e r any specific indigenous people's law. I have shown why this a p p r o a c h is right - why it conforms to what is really in issue in indigenous land claims, namely respect for indigenous people n o t merely as individual or familial proprietors, but as m e m b e r s of societies with their own law, their own cultures a n d institutions, their own patterns of social order, a n d their own conceptions of land use a n d landholding. I have offered a rationale for the m e t h o d that the courts a n d tri­ bunals have themselves a d o p t e d when faced with the practical d e m a n d s of native title d e t e r m i n a t i o n . T h a t rationale will, I h o p e , s u p p o r t the courts' a p p r o a c h , e n c o u r a g i n g t h e m in adjudication with a light touch, which rules u p o n the persistence of the indigenous c o m m u n i t y a n d its control over resources, b u t allows the precise d e t e r m i n a t i o n of those interests to o c c u r (if possible) t h r o u g h m o r e e x t e n d e d processes of adjustment a n d a c c o m m o d a t i o n . T h e courts may b e driven to i n t e r v e n e m o r e strongly if the f u n d a m e n t a l claim is n o t respected. But the start­ ing p o i n t should be that native title o p e r a t e s at a level of generality com­ patible with a r a n g e of possible instantiations, a n d that it is best if the detail is worked o u t t h r o u g h the internal p r o c e d u r e s of indigenous communities, c o m b i n e d with negotiations with n o n - I n d i g e n o u s actors. In o t h e r words, that it has the characteristics of the 'framing n o r m s '

84

JEREMY WEBBER

described previously. Otherwise, the courts will find themselves ruling u p o n precise questions of i n d i g e n o u s law, the internal r e q u i r e m e n t s of i n d i g e n o u s political action, the specific m a n n e r in which indigenous land use must be reconciled with n o n - i n d i g e n o u s interests, a n d the design of institutions to bridge the i n d i g e n o u s / n o n - i n d i g e n o u s divide for all of which they are poorly suited. Moreover, the realisation that indigenous title is about the recogni­ tion of indigenous societies, rather than a b o u t d e t e r m i n i n g the rights of i n d i g e n o u s individuals, has implications for the p r o c e d u r e by which courts should d e t e r m i n e indigenous title. In the Yorta Yorta claim, for e x a m p l e , the parties invested e n o r m o u s energy in attempting to trace the claimants' ancestry to known individuals living in the area claimed at the time of the assertion of sovereignty (the required date being 1788, even t h o u g h non-indigenous explorers reached the area only in 1824) (Yorta Yorta 1998: 52). This d e g r e e of individual genealogical research seems hardly necessary if the primary question is o n e of survival of the society that occupied the land in question. S h o u l d n ' t the focus be on the c o n t i n u a t i o n of that society, rather than o n biological descent? If, for example, individuals were a d o p t e d into that community in the post-con­ tact period, wouldn't they be entitled to participate in the rights of the community? And if the r e m a i n i n g m e m b e r s of several communities coa­ lesced in o n e c o m m u n i t y in the period following contact, wouldn't the successor community enjoy the rights of its predecessors? After all, such political consolidations are a c o m m o n feature of the evolution of all soci­ eties, a n d were especially c o m m o n in the North American context, with­ out imperilling the persistence of indigenous title t h e r e . Genealogies may b e c o m e i m p o r t a n t in situations where the survival of the c o m m u n i t y as a collectivity is in d o u b t - as i n d e e d the court found in the Yorta Yorta claim (Yorta Yorta 1998). If, for example, o n e has to d e t e r m i n e w h e t h e r a significantly transformed successor community is d e s c e n d e d from the original inhabitants, individual descent may be part of the proof. But surely in the main r u n of cases, the focus on bloodlines is too narrow, mistaking individual inheritance (according to what law of succession?) for continuity of the society. In fact, most indigenous title cases d o deal with descent in a b r o a d e r fashion than this. They remain c o n c e r n e d with the c u r r e n t claimants' connection to the original hold­ ers of the land, but they look at succession t h r o u g h time of the Indige­ n o u s community, not the biological descent of individuals. T h e recognition of the constitutional dimension of indigenous title also serves to shift the focus away from adjudication towards issues of institutional design. These are, in the e n d , inseparable from native title, given the n e e d to d e t e r m i n e precisely what entity holds the land a n d how that entity makes valid decisions a b o u t it. They b e c o m e especially 54

55

MABO A N D AUSTRALIAN CONSTITUTIONALISM

85

i m p o r t a n t o n c e o n e realises that the simple e n f o r c e m e n t by the courts of interests held u n d e r i n d i g e n o u s law would p r o d u c e detrimental results: it would displace indigenous m e t h o d s of social ordering, freeze the d e v e l o p m e n t of i n d i g e n o u s law, a n d place the administration of that law in the h a n d s of non-indigenous tribunals. T h e essential p r o b l e m becomes, t h e n , o n e of recognising a n d respecting autonomy, a n d this means that institutions have to be developed to provide for the effective m a n a g e m e n t of the i n d i g e n o u s / n o n - i n d i g e n o u s divide - institutions that can h o l d indigenous resources, while relating to the b r o a d e r society in a m a n n e r that non-indigenous law can a c c o m m o d a t e ; structures that can protect indigenous interests in lands that are subject to j o i n t indige­ n o u s / n o n - i n d i g e n o u s use. If native title itself is law of the interface, tak­ ing it seriously requires that o n e develop strong institutions that can structure a n d protect the i n d i g e n o u s / n o n - i n d i g e n o u s divide. T h e a r g u m e n t in this c h a p t e r has implications for the design of those institutions. T h e various Aboriginal Land Councils have suffered consid­ erable criticism in r e c e n t years, sometimes from their friends, because their processes d e p a r t from strict control by the traditional o w n e r s . It is true that L a n d Councils d o enable p e o p l e who may n o t be traditional owners to have a role in d e t e r m i n i n g the use of the land. Some of the most influential Councils cover vast tracts, with m e m b e r s h i p from many indigenous peoples. T h e law governing the Councils instructs t h e m to have regard for the interests of the traditional owners (an obligation that the Councils generally take very seriously), b u t this is certainly less than full a n d exclusive traditional c o n t r o l . But is this criticism too precious (if confined to this g r o u n d alone)? Isn't it too focused o n the p r o p r i e t a r y dimensions of native title, insuffi­ ciently attentive to the fact that indigenous title is a b o u t relations between societies r a t h e r t h a n the simple vindication of property rights, a n d p e r h a p s even too resistant to political c h a n g e that has o c c u r r e d in indigenous c o m m u n i t i e s themselves, driven by indigenous leaders? T h e Land Councils - especially the N o r t h e r n a n d Central Land Councils in the N o r t h e r n Territory - have, without d o u b t , b e e n m o r e effective in working for the recovery of i n d i g e n o u s lands a n d in asserting control over those lands t h a n would have b e e n the case h a d the initiative rested solely with traditional owners, with n o overarching political coalition. T h e Councils have b e e n particularly powerful because of their size, expertise a n d the resources derived from resource revenues in the N o r t h e r n Territory. In native title claims in s o u t h e r n Australia, c o m m u ­ nities have similarly found that combination increases the chances of suc­ cess. T h e r e has, therefore, b e e n a c o m p a r a b l e process of political coalescence in the south, driven by the practicalities of making title claims a n d administering the lands obtained. 56

57

86

JEREMY WEBBER

This seems to m e to b e b o t h a necessary a n d an acceptable process. Just as it makes n o sense for non-indigenous courts to t u r n themselves into adjudicators of indigenous law - indeed, precisely because it makes n o sense for that to occur - it is a p p r o p r i a t e for indigenous communities to create structures that stand midway between traditional owners on the o n e h a n d a n d non-indigenous institutions o n the other. Land Councils d o that. They provide a mechanism for h o l d i n g the land that works well within Australian law, while enabling traditional owners to continue to enjoy their lands, according to indigenous custom, u n d e r that umbrella. Rowley m a d e this point in his path-breaking study of indigenous com­ munities in the 1960s a n d 1970s. H e referred to the incorporation of i n d i g e n o u s c o m m u n i t i e s as possibly providing 'the carapace structure within which the m e m b e r s have comparative security from interference, to develop patterns of leadership'. It provides 'an area of security for a u t o n o m o u s a d j u s t m e n t ' . Anthropologists have drawn attention to the flexibility, capacity for c h a n g e , a n d toleration for multiple and shifting interests that characterises the law of at least some Aboriginal peoples (Myers 1986: 127-58; Poirier 1996; B e r n d t 1982: 1; Hiatt 1989: 99; Sut­ ton 1995b: 49-60; Langton, in Yunupingu 1997: 84). Land Councils pro­ vide a sphere, p r o t e c t e d from non-indigenous interference, in which that kind of e n t i t l e m e n t can c o n t i n u e to o p e r a t e without the formalisation a n d rigidity that judicial e n f o r c e m e n t would inevitably entail. They can blend indigenous m o d e s of decision-making with structures that interact well with non-indigenous forms. They p e r m i t indigenous land use to m e e t new challenges, including the n e e d to respond to the dislo­ cation a n d dispossession of many indigenous people, a n d to the new ties to c o u n t r y developed by indigenous p e o p l e who have, following disloca­ tion, long resided on o t h e r s ' land - again u n d e r indigenous c o n t r o l . T h e r e is n o g u a r a n t e e of perfection in the h a n d l i n g of these issues. T h e r e are occasions when Land Councils have failed their constituents (as, of course, is t r u e of virtually all political authorities). Land Councils are real institutions, with all the factionalism a n d political manoeuvring that involves. Tensions have led some constituent groups to secede from the N o r t h e r n Territory Councils. It may be that better institutions can be devised, or existing o n e s improved. But s o m e t h i n g like this form of organisation would seem to be essential if the a u t o n o m o u s d e v e l o p m e n t of i n d i g e n o u s peoples a n d indigenous law is to c o n t i n u e . 58

59

T h e recognition of indigenous title in Mabo has b e g u n a process that reaches well beyond the simple recognition of a property right. It raises b r o a d e r considerations of relations between non-indigenous a n d indige­ n o u s societies. It requires that Australian law c o m e to grips with the pres­ e n c e of o t h e r legal orders, with their own dynamism a n d their own

MABO A N D AUSTRALIAN CONSTITUTIONALISM

87

mechanisms of c h a n g e , within Australia. It therefore has a constitutional dimension, raising issues of the mediation of sovereignty, requiring that one attend to the insdtutions that can appropriately structure the intersocietal interface. Claims of indigenous self-government are often treated as t h o u g h they were quite separate from claims of native title. I have d e m o n s t r a t e d that they are integrally c o n n e c t e d , even t h o u g h the c o n n e c t i o n may n o t be explicit in the j u d g e s ' reasons. I n d e e d , B r e n n a n J ' s j u d g m e n t in Mabo expressly separates the proprietary from the governmental (Grattan a n d McNamara 1999: 5 5 - 8 ) . But i n d i g e n o u s title necessarily involves that o n e recognises the presence of a u t o n o m o u s legal orders that have their ori­ gin outside the settler society's legal system. O n c e o n e acknowledges (as the High C o u r t does) that indigenous orders are dynamic entities, with the capacity to develop a n d c h a n g e , t h e n the governmental dimension of indigenous c o m m u n i t i e s b e c o m e s clear. It is n o exaggeration to say that the recognition of i n d i g e n o u s title necessarily involves the recogni­ tion of a m e a s u r e of indigenous self-government. Those governmental mechanisms may not, u n d e r the c o m m o n law, be i m m u n e from legisla­ tive i m p a i r m e n t , b u t that does n o t make t h e m any less recognised by law. Native title itself is n o t i m m u n e , yet it is undeniably a legal right. T h e c o m m o n law of indigenous title squarely raises the persistence of a u t o n o m o u s legal orders o n the Australian continent, a n d forces us to ask difficult questions a b o u t how non-indigenous institutions should respond to that reality. I n d i g e n o u s a n d non-indigenous legal orders therefore interact across a front that is b r o a d e r than is often realised. T h e issues are extraordi­ narily complex, involving respect for indigenous entitlements to land but also the recognition a n d institutionalisation of spheres of indigenous control, m e c h a n i s m s for the resolution of jurisdictional conflicts a n d means of reconciling different forms of land use over the same territory. These issues are best resolved t h r o u g h negotiation rather than adjudica­ tion. They r e q u i r e the working o u t of solutions over the long term. Indigenous title is therefore m o r e a b o u t the continual definition a n d redefinition of a relationship r a t h e r than the simple vindication of a property right. This has i m p o r t a n t implications for the drive for 'certainty' that has b e e n so m u c h a p a r t of the r e c e n t d e b a t e over native title in Australia. T h e issues raised by native title c a n n o t be resolved, o n c e a n d for all, by an exhaustive s t a t e m e n t of that title's incidents. If a court did p u r p o r t to d e c r e e such a result, we would soon find that the issues e m e r g e d in o t h e r guises, as i n d i g e n o u s p e o p l e took issue with the interpretations given of their law a n d asserted their ability to have a c o n t i n u e d role, as societies, in the control of their lands. If we d o wish to obtain some

88

JEREMY WEBBER

d e g r e e of 'certainty' - some m e c h a n i s m for conciliating, in a stable a n d predictable fashion, i n d i g e n o u s a n d n o n - i n d i g e n o u s land use - we would d o m u c h better to think a b o u t institutional responses that pro­ vide for a m e a s u r e of co-determination or m u t u a l adjustment (such as j o i n t m a n a g e m e n t structures in national parks, or the a g r e e m e n t s many resource c o m p a n i e s now c o n c l u d e , often without legal compulsion, to secure I n d i g e n o u s c o n s e n t to new developments) (Woenne-Green et al. 1994; Howitt 1991; Senior 1998). Institutionalised adjustment a n d col­ laboration, r a t h e r t h a n exhaustive definition, is the p a t h of the future. W h a t is n o t o p e n to us is to avoid the issue a n d r e t u r n to a vision of a single p e o p l e , c o m i n g together in the simplicity of a c o m m o n parliament to create the only legitimate law of the land. Australians came to recog­ nise, in Mabo, that Australia was m a d e u p of the overlay, displacement, inter-penetration, parallel trajectory, dialogue, mutual i n c o m p r e h e n ­ sion of a set of i n d i g e n o u s societies, each with its own pathways traced across this land, a n d a newly implanted non-indigenous society whose m e m b e r s have fashioned their own heritage, their own distinctive gov­ e r n m e n t a l institutions, a n d their own d e e p connection to this country. T h e task now before us (of which the recognition of indigenous title is o n e c o m p o n e n t ) is to think how those societies can best relate to o n e a n o t h e r as c o m m u n i t i e s living in the same time. T h e r e are resources o n which to draw. We can build productively u p o n the moral a n d practical interaction that has b e e n , at times, a part of Australian history, a n d on the respect that all have for this country. We can also draw u p o n the tra­ dition of democratic a n d institutional innovation in this land, which may now have to r e s p o n d to a d e e p e r diversity a n d a greater complexity than it has in the past, b u t which has often shown itself to b e highly adaptable. We must also, without prevarication, c o m e to terms with the conse­ q u e n c e s of denying indigenous connection to the land, of attempting forcibly to sever Aborigines' connection to their heritage, a n d of even denying, at times, indigenous Australians' humanity. T h a t m o r e wrench­ ing e x p e r i e n c e holds its own lessons, a n d has left a legacy that we c a n n o t simply avoid. But o n e crucial e l e m e n t is the o n e emphasised here: that we take i n d i g e n o u s societies seriously as living, dynamic communities, with their own institutions a n d laws. For the most part, Aboriginal a n d Torres Strait Islander societies survive, even t h o u g h they have, like any societies, b e e n subject to c h a n g e , adjustment a n d reconstitution over the years since 1788 ( a n d i n d e e d before). T h o s e indigenous societies c a n n o t be wished back into the past.

CHAPTER 5

Engaging with Indigeneity: Tino Rangatiratanga in Aotearoa Roger Maaka a n d Augie Fleras

Working through Differences T h e e m e r g e n c e of indigeneity as discourse a n d collective transformation marks a major ideological shift in realigning the postcolonising dynam­ ics of white settler d o m i n i o n s (Maaka a n d Fleras 1997). T h e p r o p o s e d restructuring of indigenous peoples-state relations is a n i m a t e d by the transformational politics of indigeneity, with its politicisation o f ' o r i g i n a l occupancy' as basis for e n t i t l e m e n t a n d e n g a g e m e n t . R e c u r r e n t t h e m e s pervade the transformational dynamics within these settler cultures: foremost is a rejection of colonialist a r r a n g e m e n t s in e x c h a n g e for indigenous m o d e l s of self-determination that sharply curtail the legiti­ macy a n d jurisdiction of the state while bolstering indigenous jurisdic­ tion over land, identity a n d political voice (Alfred 1995). T h e politics of indigeneity resonate with references to sovereignty a n d self-determination. Particular emphasis is focused on indigenous peoples as fundamentally a u t o n o m o u s political communities, each of which is sovereign in its own right, yet sharing in the sovereignty of soci­ ety t h r o u g h multiple, yet interlocking, jurisdictions (Asch 1997). To be sure, indigenous claims to sovereignty rarely entail separation or seces­ sion b u t instead a reconstitutionalising of the first principles u p o n which indigenous peoples-state relations are governed. Nevertheless, the trans­ formational process continues to b e c o m p r o m i s e d by an almost exclusive reliance o n 'catch-up justice' ('claims-making') as a basis for renewal a n d reform - in effect, privileging conflict over cooperative coexistence, out­ come over process, a n d the 'throwing of m o n e y ' at a p r o b l e m rather than working t h r o u g h differences. To cut t h r o u g h this impasse requires models of constructive e n g a g e m e n t that foster innovative patterns of rela­ tive yet non-coercive a u t o n o m y without necessarily falling into the trap of secession or confrontation. 89

90

R O G E R MAAKA A N D A U G I E FLERAS

Such an assessment would appear to apply to Aotearoa/New Zealand, where the various h a p u and iwi ('tribes') who comprise Maoridom con­ tinue to contest their relationship with the Crown. Maori-Crown relations are u n d e r g o i n g profound changes in response to the privileging of binary cultural politics as a catalyst for transforming Aotearoa's political contours in ways that have yet to be fully explained or explored (Fleras and Spoonley 1999). Discourses that once bolstered 'society-building' themes of 'com­ munity development', 'multiculturalism', 'te taha Maori' a n d 'institutional a c c o m m o d a t i o n ' have been sharply challenged. Endorsed instead are the discursive frameworks of a new constitutional order, including 'Maori sovereignty', 'tino rangatiratanga', 'tangata whenua', 'iwi models of selfdetermination', 'bi-nationalism' a n d 'Treaty partnerships'. Instead of a 'needs'-driven agenda that historically framed Maori-Crown interaction namely, a Crown perception of Maori as a problem to be solved rather than as a relationship to b e n u r t u r e d - there is a growing c o m m i t m e n t to a rights-based discourse involving the principle of tino rangatiratanga as articulated in the Treaty of Waitangi (Maaka and Fleras 1998-99). Emer­ gence of tino rangatiratanga as a constitutional framework for redefining the 'dialogue between sovereigns' has proven to be double-edged: Maori claims to indigenous self-determination may be fortified by virtue of their status as tangata whenua (original occupants), yet such an assertion invari­ ably clashes with state assumptions of unilateral and undivided authority over all of the land. T h e contesting of these 'duelling discourses' strikes at the core of cultural politics in Aotearoa. This chapter examines the politics of indigeneity in Aotearoa by refracting debate over Maori sovereignty a n d self-determination through the prism of tino rangatiratanga. We argue that appeals to tino rangati­ ratanga go beyond the restoration of Treaty entitlements or resolution of historical grievances perse. E n g a g e m e n t with tino rangatiratanga acknowl­ edges Maori indigenous rights as a legitimate source of sovereign author­ ity, a preferred basis for consent, a framework for a new constitutional o r d e r a n d a supportive context for constructive re-engagement. We also a r g u e that principles of tino rangatiratanga are inseparable from Maori initiatives that emphasise 'standing apart' as a precondition for 'working together' as part of a 'bi-national' partnership. This shift in emphasis from entitlement to re-engagement invariably raises questions regarding the extent to which tino rangatiratanga is a b o u t relationships rather than rights, about reconciliation rather than restitution, about process rather than results, and about listening rather than legalities (Coates and McHugh 1998). To the extent that tino rangatiratanga reflects and reinforces Maori aspirations for recalibrating the political contours of Aotearoa, its role in reconstitutionalising the interactional basis of Maori-Crown rela­ tions c a n n o t be underestimated. In that tino rangatiratanga espouses

T I N O RANGATIRATANGA IN A O T E A R O A

91

Maori models of self-determination t h r o u g h innovative patterns of belonging to society, yet is subject to contested debate over who owns what and why, its potential in advancing the cause of a postcolonising Aotearoa has yet to b e realised. Indigeneity: Discourse and Transformation Structurally speaking, white settler d o m i n i o n s such as Canada, Australia and New Zealand have m u c h in c o m m o n . At the core of the colonisation process was the dispossession a n d d i s e m p o w e r m e n t of indigenous peoples by way of force, policy or persuasion (Stasiulis a n d Yuval-Davis 1995). But indigenous peoples in these a n d o t h e r postcolonising domains have b e c o m e increasingly politicised, in the h o p e of 'unsettling' their relationship with society at large (Dudley a n d Agard 1993). T h e now-encapsulated d e s c e n d a n t s of t h e original occupants insist o n t h e fol­ lowing d e m a n d s as a p r e c o n d i t i o n for a t o n e m e n t a n d reconciliation: • a special relationship ('nation to n a t i o n ' ) with the state; • repossession of land a n d resources unless explicitly ceded by treaty, Parliament or conquest; • a c k n o w l e d g e m e n t that legitimacy rests with the consent of the people rather t h a n state authority; • moves to restore a u t o n o m y a n d cultural integrity at the level of gover­ nance; • espousal of new p a t t e r n s of belonging in which sovereignty is shared with society at large (Stea a n d Wisner 1984; Morse 1992; Alfred 1999a). Of particular n o t e in this package of proposals are indigenous d e m a n d s for recognition of indigeneity as integral in sculpting an inno­ vative political o r d e r a r o u n d the primacy of indigenous rights as the basis for e n g a g e m e n t a n d entitlement. Indigeneity as discourse a n d transformation can be defined as the politicised awareness of original occupancy as the g r o u n d s for reward a n d relationships. As discourse, indigeneity refers to indigenous peoples as 'first nations', whose customary rights to self-determination over juris­ dictions p e r t a i n i n g to land, identity a n d political voice have never b e e n extinguished b u t r e m a i n u n d i s t u r b e d for purposes of identity, belonging a n d relations (Fleras 1996). T h e e m e r g e n c e of indigeneity as discourse entails a discursive shift in the constitutionalisms that historically undergirded colonial d o m i n a t i o n (Tully 1995). Institutional structures that o n c e colonised the 'nations within' are n o longer acceptable; e n d o r s e d instead are i n d i g e n o u s models of self-determination that sharply curtail the state while advancing the idea of indigenous peoples as a u t o n o m o u s political communities. T h e n o t e d Metis scholar, Paul C h a r t r a n d , writes

92

R O G E R MAAKA A N D A U G I E FLERAS

to this effect when h e says: "We are political communities in the sense that we are a distinct culture a n d we want to create political institutions to maintain those very distinct c o m m u n i t i e s ' (Chartrand 1999: 100). Also pivotal in contesting the balance of sovereign power are proposals for constructive e n g a g e m e n t as an empowering normative framework for sorting out who controls what, a n d why. Appeals to constructive ree n g a g e m e n t are critical in advancing the cause of a shared sovereignty, involving multiple yet interlocking jurisdictions in working t h r o u g h dif­ ferences. I n a s m u c h as indigeneity challenges the paramountcy of the state as the final arbiter of jurisdictional control a n d absolute authority, the assertion of 'sovereignty without secession' is i n d e e d 'subversive'. In its willingness to work within the system r a t h e r than outside of it, a secessionless sovereignty is consistent with the d e m a n d s of postcolonising society (Fleras 1999). Indigeneity and the Sovereignty Game I n d i g e n o u s challenges to the legitimacy of white settler d o m i n i o n s have e r o d e d political conventions that formerly circumscribed indigenous peoples-state relations (Fleras a n d Spoonley 1999). With its claims that simultaneously deny yet affirm a sovereign state, indigeneity assumes a political framework that is inherently contradictory of settler state claims to sovereignty ( H a v e m a n n 1999). Colonialist assumptions about sover­ eignty have c r u m b l e d accordingly. Daniel Salee a n d William Coleman strike a r e s o n a n t c h o r d when they repudiate the sovereign mindsets that govern white settler d o m i n i o n s : The nineteenth-century idea of sovereignty may have run its course; it is not a natural, or an eternal given. It reflects a certain understanding of power and authority, rooted in a particular, historically determined configuration of social relations and public space. As sociohistorical conditions change, does sovereignty remain an adequate or desirable political objective? (Salee and Coleman 1997: 196) Discrediting the tacit constitutional assumptions that u n d e r p i n white settler g o v e r n a n c e raises a host of questions (Dodson 1994; Spoonley 1995). Legitimacy is the key issue: on what basis a n d by what authority d o white settler systems exercise sovereignty over the land and its inhabi­ tants? (Fleras 1999) In what ways can descendants of white settlers claim rights to citizenship - by discovery, conquest, Treaty, legislation or by default over time (Mulgan 1989)? Does political legitimacy reside first a n d foremost with the consent of those peoples whose customary rights to land, identity a n d political voice remain undisturbed (Renwick 1991)? W h a t p e o p l e have the right to draw a line a r o u n d themselves a n d declare

T I N O R A N G A T I R A T A N G A IN A O T E A R O A

93

sovereign status (Reynolds 1996)? Is sovereignty indivisible or can it b e shared without u n d e r m i n i n g the integrity a n d cohesion of society (Winichakul 1996)? To what extent can any system a c c o m m o d a t e con­ tested sovereignties when social realities are diametrically o p p o s e d (Cheyne et al. 1997)? How can anyone 'belong together with (funda­ mental) differences' when absolute sovereignty is withdrawn or divided (Taylor 1992)? T h e politics of indigeneity g o beyond the simple expedient of creating cultural space or social equity. With its focus o n the removal of discrimi­ natory cultural a n d structural barriers within the existing institutional framework, its scope transcends a c o m m i t m e n t to official multiculturalism. N o r does indigeneity simply entail restitution for historical griev­ ances or even restoration of indigenous rights per se. Indigeneity as principle a n d practice is ultimately c o n c e r n e d with reshaping the struc­ ture of indigenous peoples-state relations in the h o p e of crafting a legiti­ mate political o r d e r where innovative patterns for belonging can be explored (Taylor 1992; Kaplan 1993; Kymlicka 1995; Tully 1995; Char­ trand 1996; Webber 1997). Claims to indigenous sovereignty are a central element in the discourse. Obsolete versions of absolute sovereignty are being discarded for indigenous equivalents that emphasise an autonomy both relative a n d relational, yet non-coercive (Scott 1996). Several mod­ els of sovereignty can be discerned: at o n e e n d of the c o n t i n u u m are appeals to absolute sovereignty ('statehood') with complete indepen­ dence a n d control over internal a n d external jurisdictions (O'Regan 1994). In between are models o f ' d e facto' sovereignty ( ' n a t i o n h o o d ' ) and 'functional' sovereignty ('municipalityhood') that d o not entail any explicit separation ('sovereignty without secession'), but limited only by interaction with similar bodies a n d higher political authorities. Indigene­ ity as practice can coexist with the principle of a multiple yet interlocking sovereignty at this level, provided that jurisdictions are defined a n d divided accordingly. At the opposite pole are sovereignties in n a m e only ('nominal sovereignties'); that is, a 'soft' sovereign option with residual powers of self-determination within existing institutional frameworks. Table 1 provides a somewhat ideal-typical overview of indigenous sover­ eignty levels by c o m p a r i n g a n d contrasting their degree of autonomy. T h e proliferation of sovereignty discourses makes it i m p o r t a n t to dis­ tinguish n u a n c e s in usage. O n the o n e h a n d , the right of sovereignty applies to all i n d i g e n o u s peoples as the original occupants; o n the other, t h e r e may b e a reluctance to exercise that right because of political cir­ cumstances or social conditions ( C h a r t r a n d 1993). Indigenous sover­ eignty rarely invokes a call for i n d e p e n d e n c e or non-interference: preference is in cultivating relationships as a way of working t h r o u g h dif­ ferences in a non-combative m a n n e r .

94 Table 1

ROGER MAAKA A N D A U G I E FLERAS Levels of indigenous sovereignty

State

Nation

• absolute (dejure) sovereignty • internal and external autonomy • complete independence with no external interference

• de facto sovereignty • control over internal jurisdiction within framework of shared yet interlocking sovereignty • nations within

Municipality

Institutional

• functional sovereignty • community-based autonomy • internal jurisdictions, limited only by interaction with similar bodies and higher political authorities

• nominal sovereignty • decision-making power through institutional accommodation

T h e distinction between the right of sovereignty versus the right to sov­ ereignty is also important. Indigenous peoples have the right of sover­ eignty by virtue of original occupancy; however, the right to sovereignty in the sense of final authority is m o r e fiercely contested and widely rejected (Daes 1996). Indigenous peoples may not b e sovereign in the political-legal sense, b u t they most certainly are for purposes of e n t i d e m e n t and engage­ ment. Such distinctions confirm that references to sovereignty below the level of statehood constitute a form o f ' n e s t e d ' sovereignty: that is, a people retain the right of self-determination over those jurisdictions of direct relevance to t h e m but in conjunction with the legitimate concerns of other jurisdictions (Clark a n d Williams 1996). References to the Eurocentric term 'sovereignty' may not correspond with indigenous mindsets, and thus co-opting indigenous peoples into dialogues that do not reflect their culture a n d realities (Alfred 1999a). Nevertheless, indigenous groups may have litde choice except to engage in this discourse if they want to talk the talk that resonates with results (McHugh 1999).

Impasse With so m u c h at stake in the sovereignty game, the restructuring of s t a t e - i n d i g e n o u s peoples relations has proven m o r e d a u n t i n g than anticipated. T h e era of indigenous rights talk has e m e r g e d as a significant feature of c o n t e m p o r a r y political discourse, but there is n o a g r e e m e n t w h e t h e r the principle of indigeneity has resulted in the constitutionalising of i n d i g e n o u s rights or the indigenising of dimensions of white set­ tler polity ( H a v e m a n n 1999: 403). At the source of this impasse is the state's persistent intent to maintain colonial control over indigenous

T I N O R A N G A T I R A T A N G A IN A O T E A R O A

95

peoples a n d their land, notwithstanding removal of the most egregious aspects of colonialism (Alfred 1999a). Equally obstructive is the failure to appreciate the implications of indi­ geneity as a politicised ideology for radical renewal. References to indi­ geneity are inextricably linked with competition over power - or, m o r e accurately, the transfer of power from those who have it to those who never c o n s e n t e d to its e x t i n g u i s h m e n t (Oliver 1995). Indigenous chal­ lenges are n o t a b o u t isolated cases of injustice as the Crown went a b o u t its legitimate business of colonisation a n d land alienation; the very legiti­ macy of the colonising process is contested by challenging Crown author­ ity over peoples, land a n d governance. Indigeneity is political in that choices a b o u t who controls what, a n d why, are out in public a n d subject to debate. It is political because indige­ nous claims constitute grievances against the state, a n d because govern­ m e n t policy a n d administration are the institutional correlates of that domination. I n d i g e n o u s d e m a n d s are inherently political in radicalising the relationship between indigenous people a n d the state over the allo­ cation of scarce resources. Finally, recognition of indigeneity as p a r t of the national a g e n d a has h a d the effect of curbing state jurisdiction over indigenous affairs; it has also advanced the counter-hegemonic assertion that political legitimacy rests with indigenous peoples' consent rather than in the p a r a m o u n t c y of the state (Levin 1993). T h e politicisation of indigeneity opens u p the governing process to contestation. Politicisation confronts white settler d o m i n i o n s with the most quintessential of p a r a d o x e s - by forcing t h e m to justify their very right to existence, the legitimacy of their claims to citizenship a n d their rationale for rule over land a n d inhabitants. T h e state is drawn into the most contentious of all relations, namely, the relationship between cosovereign equals in the political arena, each of which claims intrinsic authority over separate yet interlocked spheres of jurisdiction (Fleras 1996). Yet state initiatives for engaging indigeneity tend to reflect politi­ cal discourses that miscalculate the m a g n i t u d e a n d intensity of transfor­ mational politics (MacDuff 1995; Wickcliffe 1995). Political preference remains m i r e d in the multicultural p l a c e m e n t of all minorities in a settled hierarchy of a s c e n d i n g / d e s c e n d i n g order, with all sectors com­ mitted to a c o m m o n goal as well as a shared set of rules (Sharp 1990). T h e state appears comfortable with a 'needs'-driven indigenous policy through removal of discriminatory barriers a n d advocacy of develop­ mental modes; it is less predisposed towards a 'rights'-driven policy (Parata 1994). State perception of indigenous peoples as a disadvantaged multicultural minority has c o m p r o m i s e d their aspirations as distinct soci­ eties of a n i n h e r e n d y political n a t u r e with the right to participate in craft­ ing a legitimate political o r d e r (Chartrand 1996). Inasmuch as

96

ROGER MAAKA A N D A U G I E FLERAS

indigenous claims against the state are articulated by those who d e m a n d recognition n o t as disadvantaged subjects, but as equals with i n h e r e n t rights to redefine the basis for belonging, a conflict of interest is inevitable a n d irreconcilable. According to Salee: The points of contention between First Nations and nonAboriginals do not simply consist of irritants that might be overcome by mere good will, or of ter­ ritorial claims that might be satisfied if o n e or the other party showed flexi­ bility or compromised. As the conceptual differences over land partly revealed, the two parties operate within institutional parameters and sociocultural systems which have nothing in c o m m o n . . . The contention between Aboriginals and non-Aboriginals rests in fact on a paradigmatic contradiction of which the poles are, a priori, logically irreconcilable. (Salee 1995: 291)

T h e resultant 'dialogue of the d e a f is known to have transformed i n d i g e n o u s peoples-state relations into a j u m b l e of c o m p e t i n g agendas a n d o p p o s i n g constituents. Such a politicised climate confirms indige­ n o u s policy as a 'contested d o m a i n ' involving the struggle of opposing interests for definition a n d control. It also reinforces a view of indigene­ ity as m o r e than a postmodernist deconstruction of the discursive cate­ gories that subordinate a n d ' h e g e m o n i s e ' . What we have instead is a c o u n t e r - h e g e m o n i c vision that articulates a fundamentally 'subversive' way of belonging to society. Such a subversion complicates the process by which i n t e r d e p e n d e n t peoples must negotiate the thicket of jurisdictions w h e n sorting o u t what is ' m i n e ' , 'yours' a n d 'ours'. Untying the Gordian knot: Toward Constructive Engagement T h e resolution of claims is undeniably i m p o r t a n t as part of a b r o a d e r exercise in relations repair for righting historical wrongs. But o n its own a n d divorced from the bigger picture of re-engaging state-indigenous peoples relations, corrective justice is fraught with underlying contradic­ tions. A 'winner-take-air a p p r o a c h (Langton 1999) has the effect of reconstituting the very colonialisms that indigenous peoples are seeking to discredit a n d discard (Fleras and Maaka 1998). Reliance o n results r a t h e r t h a n relations appears to have g e n e r a t e d as many problems as it solved (McHugh 1998). A preoccupation with contesting claims to the exclusion of e n g a g e m e n t has also h a d the effect of glossing over the key e l e m e n t in any productive interaction: namely, the m a n a g i n g of a rela­ tion in the spirit of cooperative coexistence rather than according to the letter of the law ( H e n a r e 1995: 49; McHugh 1998). T h e e m e r g e n c e of a new 'constructive e n g a g e m e n t ' model of interaction may provide a respite from the i n t e r m i n a b l e bickering over 'who owns what', while bro­ kering a tentative b l u e p r i n t for a discrete institutional framework that

T I N O RANGATIRATANGA IN A O T E A R O A

97

secures the legitimacy of indigenous models of self-determination (Maaka a n d Fleras 1997; Walker 1999). By e m b r a c i n g a m o r e flexible a p p r o a c h that emphasises e n g a g e m e n t over entitlement, constitutional­ ism over contract, relationships over rights, i n t e r d e p e n d e n c e over oppo­ sition, c o o p e r a t i o n over competition, reconciliation over restitution, a n d power-sharing over d o m i n a t i o n , constructive e n g a g e m e n t provides a cat­ alyst for reconstitutionalising indigenous peoples-state relations (Fleras and Maaka 1998). A m o n g the key planks in forging a c o m m i t m e n t to constructive e n g a g e m e n t are the following constitutional principles. • I n d i g e n o u s peoples d o n o t aspire to sovereignty per se. Strictly speak­ ing, they already have sovereignty by virtue of original occupancy, never having relinquished this i n d e p e n d e n c e by explicit a g r e e m e n t . Only the structures necessary for its practical expression are subject to debate o n c e t h e reality of i n d i g e n o u s sovereignty is assumed for the purposes of rewards a n d relations. • I n d i g e n o u s peoples are n e i t h e r a p r o b l e m to solve n o r a competitor to be j o u s t e d , b u t a p a r t n e r with w h o m to work t h r o u g h differences in a spirit of cooperative coexistence. In acknowledging that 'we are all in this t o g e t h e r for the long h a u l ' , is t h e r e any o t h e r option except to shift from the trap of c o m p e t i n g sovereignties to the primacy of rela­ tions between equal p a r t n e r s (McHugh 1998)? • T h e bi-culturalism implicit in a constructive relationship is not the kind that grafts a few multicultural bits o n t o an existing institutional framework. A g e n u i n e bi-culturalism ('bi-nationalism') acknowledges a p a r t n e r relationship between two equals involving power-sharing a n d distribution of resources (Linden 1994). A bi-national a r r a n g e m e n t may m o r e accurately describe the notion of relative yet relational a u t o n o m y between peoples, each of which is a u t o n o m o u s in their juris­ diction, yet sharing in the sovereignty of society. • T h e reconstituting of indigenous peoples as relatively a u t o n o m o u s political c o m m u n i t i e s is critical in crafting a revised political o r d e r based on i n d i g e n o u s rights. I n d i g e n o u s peoples must be accepted as having their own i n d e p e n d e n t sources rather than being shaped for the convenience of the political majority or subject to unilateral over­ ride (Asch 1997). • Innovative patterns of b e l o n g i n g are integral to constructive engage­ m e n t . While these p a t t e r n s will vary in time a n d place, indigenous pro­ posals for b e l o n g i n g to society entail an e x p a n d e d citizenship, a n c h o r e d a r o u n d a primary affiliation with ethnicity or tribe rather than as individual citizens. Citizenship in the sense of control a n d con­ sent will n e e d to be e x p a n d e d a n d differentiated to foster a belonging t h r o u g h difference.

98

ROGER MAAKA A N D A U G I E FLERAS

An a d h e r e n c e to constructive e n g a g e m e n t goes beyond the legalistic (abstract rights) or restitutional (reparations), however i m p o r t a n t these c o n c e r n s are in building identity a n d mobilising resources. Reliance on the legalities of rights a n d reparations tends to emphasise continuities with the past at the expense of social changes a n d evolving circumstances (Mulgan 1989). Worse still, as Taiaiake Alfred concludes, attempting to right historical wrongs by equalising material conditions ignores the fact that indigenous peoples were essentially a u t o n o m o u s political commu­ nities before the wrongs began (Alfred 1999a: xv). By contrast, a con­ structive e n g a g e m e n t policy is focused o n advancing an o n g o i n g relationship by taking into account shifting social realities. Constructive e n g a g e m e n t also goes beyond the dualities i n h e r e n t in claims-making dualisms establish a confrontation between two entities, so a choice must be m a d e in terms of this opposition, thus disallowing the possibility that e a c h of the opposing t e r m s requires a n d draws u p o n a / t h e supposed opposite (Fay 1996). A dialectical m o d e of thinking is p r o p o s e d u n d e r constructive e n g a g e m e n t in which differences are n o t perceived as absolute or antagonistic, b u t as deeply i n t e r c o n n e c t e d in the sense of b e i n g held in tension within a larger framework. ' E n g a g e m e n t ' is the key. Time will tell if state-indigenous peoples relations can evolve from claims-making to constructive e n g a g e m e n t . Acceptance of difference is insufficient; p r o p o s e d instead is an active e n g a g e m e n t with indigeneity as legitimate in shaping outcomes, interac­ tion, relations a n d identity.

Rethinking Aotearoa: The Politics of Tino Rangatiratanga Few i n d i g e n o u s peoples have enjoyed as m u c h publicity or notoriety as the tribes ('iwi' a n d ' h a p u ' ) comprising Maori of Aotearoa. Images long extolled Maori as cooperative a n d congenial contributors to New Zealand's m u c h ballyhooed reputation as a paragon of racial h a r m o n y (Blythe 1994). Recent representations have accentuated a h a r d e r dimen­ sion because of Maori protest action from o p e n confrontations to acts of civil disobedience (Walker 1995b; Poata-Smith 1996). T h e politics of protest bristle with a growing Maori assertiveness over their relational sta­ tus as 'junior p a r t n e r s ' in a bi-cultural project. Maori politics resonate with increasingly politicised calls to rebuild the relationship along binational lines. Discourses range from assertion of Maori sovereignty over the entire country (Awatere 1984) to the creation of separate Maori insti­ tutions (Spoonley et al. 1996), with a r g u m e n t s for constitutional-based power-sharing a r r a n g e m e n t s in between (Oliver 1997). C o m m o n to each of these assertions is restoration of tino rangatiratanga as a framework for putting these transformative principles into practice.

T I N O RANGATIRATANGA IN A O T E A R O A

99

Tino Rangatiratanga: A Contested Site Tino Rangatiratanga! T h e expression resonates with a lilt that betrays its potency ( H u t t o n 1996). Few words are as likely to elicit such a n i m u s or to evoke admiration; fewer still have the o p e n - e n d e d n e s s for spanning the s p e c t r u m of m e a n i n g s from e m p o w e r m e n t a n d c h a n g e to destruc­ tion or deceit, with points of irrelevance in between. Issues of rangati­ ratanga a n i m a t e a host of political discourses in A o t e a r o a / N e w Zealand, yet the c o n c e p t r e m a i n s s h r o u d e d in mystery, as Renwick observes: But rangatiratanga is still a mystery to a great many Pakeha and it catches them in o n e of their cultural blindspots. If the task of the 1980s was to rethink the duties of the Crown under the Treaty, the task of the 1990s is to develop ways by which Maori express their Article 2 rights of rangatiratanga as part of the fabric of the wider New Zealand society. (Renwick 1993: 37)

Uncertainty is p e r h a p s u n d e r s t a n d a b l e : at various times, tino rangati­ ratanga has e n c o m p a s s e d the following: Maori sovereignty, Maori nation­ h o o d , self-management, iwi n a t i o n h o o d , i n d e p e n d e n t power, full chiefly authority, chiefly m a n a , strong leadership, i n d e p e n d e n c e , s u p r e m e rule, self-reliance, Maori autonomy, tribal autonomy, absolute chieftainship, trusteeship, self-determination. T h a t confusion prevails is less problem­ atic than the refusal to front u p to tino rangatiratanga which, in the words of the late Matiu Rata, may well r e p r e s e n t ' t h e most crucial a n d i m p o r t a n t m e a n s by which Maori can participate fully both in their affairs a n d in those of the c o u n t r y ' (Ihimaera 1995: 89). For many non-Maori, the expression is often dismissed as offensive or an affront, since references to rangatiratanga n o t only challenge the foundational myth o f ' h e iwi kotahi tatou' ('we are o n e p e o p l e ' ) . Critics also d e p l o r e rangatiratanga as little m o r e than a smokescreen for p r o p ­ ping u p the 'grievance' industry while capitulating to the i m p e r t i n e n t d e m a n d s of hot-blooded activists. In contrast are Maori perceptions of tino rangatiratanga. T h e princi­ ple a n d practice of tino rangatiratanga conjures u p a host of reassuring images for restoring Maori as a p e o p l e to their rightful place in a post­ colonising society. T h e notion o f ' t i n o rangatiratanga' is subject to a host of different interpretations ( M e l b o u r n e 1995; Archie 1995; Barlow 1996; Durie 1995; Mead 1997). D e p e n d i n g on the person or context, reference to tino rangatiratanga has b e e n used to justify: • • • • • •

Maori power a n d e m p o w e r m e n t ; self-determination a n d control over jurisdictions a n d destinies; bi-culturalism a n d p a r t n e r s h i p ; Maori control over Maori things within a Maori value system; restoration of m a n a Maori; Maori cultural a u t o n o m y a n d territorial development.

100

ROGER MAAKA A N D A U G I E FLERAS

To complicate matters further are debates over the scope of tino ran­ gatiratanga. For some, tino rangatiratanga resides within the h a p u ; for others, the iwi; for still others only Maori as a collectivity; a n d for yet others still, within the individual. Appeals to tino rangatiratanga have leapt to the forefront of Maori struggles in challenging colonial arrangements and orthodox sovereign discourses (Ward a n d Hayward 1999). T h e essence of rangatiratanga is sov­ ereignty-driven: for some, this sovereignty prevails over the entirety of Aotearoa; for others, it entails some degree of autonomy from the state; for still others, it consists of shared jurisdictions within a single framework. 'Radical' views equate tino rangatiratanga with absolute Maori ownership and political control (Jackson 1997). Maori versions of the Treaty ceded kawanatanga (governorship) to the Crown, but vested Maori sovereignty in tino rangatiratanga by guaranteeing exclusive customary rights over property. Moderate versions suggest a shared sovereign a r r a n g e m e n t involving a division of jurisdiction. According to Sir H u g h Kawharu, the Treaty established a u n i q u e relationship in which Maori sovereignty over the land was b e q u e a t h e d to the Crown in exchange for the 'full', 'exclu­ sive' a n d 'undisturbed' possession of Maori properties (Kawharu 1996). Also guaranteed u n d e r the indigenous rights concept of rangatiratanga was the traditional m a n a (authority) of chiefs over tribes to conduct lives accordingly (Mulgan 1989). This interpretation is consistent with recent publications of the Waitangi Tribunal in extolling the oppositional tension between kawanatanga (Crown governance) and tino rangatiratanga (indigenous rights to self-determination) as a basis for crafting a bi-nationalistic partnership (Maaka and Fleras 1998-99). (a) In the Maori text the chiefs ceded 'kawanatanga' to the Queen. This is less than the sovereignty ceded in the English text, and means the authority to make laws for the good order and security of the country, but subject to the protection of Maori interests. The cession of sovereignty is implicit from sur­ rounding circumstances. (b) In recognising the 'tino rangatiratanga' of their lands, the Crown acknowledged the right of the Maori people for as long as they wished, to hold their lands in accordance with long-standing custom on a tribal and commu­ nal basis. (Waitangi Tribunal 1987: 149, para 11.11.4) A s u b s e q u e n t r e p o r t by the Waitangi Tribunal also disengaged tino rangatiratanga from any claim to separate sovereignty, restricting it instead to 'tribal self-management o n lines similar to what we u n d e r s t a n d by local g o v e r n m e n t ' (Waitangi Tribunal 1995: 13) - a decision that many say is n a r r o w a n d restrictive. In short, the relationship between ran­ gatiratanga a n d sovereignty is complex and multi-textured, and that puts the o n u s o n disentangling the issue over who controls what.

T I N O RANGATIRATANGA IN A O T E A R O A

101

Principles and Philosophy Tino rangatiratanga resists simple definition since it is an intangible that c a n n o t b e seen or t o u c h e d , m u c h like power or sovereignty. Only the exercise of tino rangatiratanga provides tangible evidence of its exis­ tence. As well, its m e a n i n g has evolved over time a n d varies with place, although differences in m e a n i n g may be m o r e contextual rather than categorical (Durie 1997). Instead of a ' t h i n g ' with definable properties, tino rangatiratanga may be better seen as a process by which this attribute is applied after the fact. With those caveats in mind, we prefer a definition inspired by the writings of the American First Nation's scholar, Kirke Kickingbird: tino rangatiratanga is the s u p r e m e power from which all specific powers related to self-determination are based a n d derive their legitimacy (Kickingbird 1984). More specifically, tino rangatiratanga refers to those indigenous rights to self-determination that Maori possess by virtue of their status as origi­ nal occupants ('tangata w h e n u a ' ) , confirmed by Article 2 of the Treaty. Rangatiratanga rights d o m o r e than redress historical grievances; in addition to 'catch-up justice', they also establish patterns of belonging that contest Crown sovereignty, yet privilege Maori as essentially auto­ n o m o u s a n d self-determining political communities. As the epitome of power, strictly speaking, tino rangatiratanga is not interchangeable with sovereignty or self-determination (Walker 1995b). Tino rangatiratanga serves as a precursor of Maori sovereignty; it also provides the basis for, derives from, is contingent on, a n d is strengthened by claims to selfdetermination. What are the constituent features of tino rangatiratanga? O n e of the m o r e articulate expressions is drawn from a discussion p a p e r by Mason Durie entitled ' T i n o Rangatiratanga: Maori Self-determination', at an executive m e a n i n g of the Maori Congress in May of 1995. T i n o rangati­ ratanga is analysed from different perspectives, including: • its expression in Maori society; • its compatibility with c u r r e n t constitutional a r r a n g e m e n t s within Maoridom; • its status within a national Maori body politic; a n d • its role in s t r e n g t h e n i n g formal structures a n d improving relationships with the Crown. T h r e e principles are intrinsic to tino rangatiratanga. First, Nga Matatini Maori - the principle of Maori diversity. Maori are organised into a variety of traditional a n d non-traditional bodies, each of which is legiti­ mate in its own right a n d deserves protection of its integrity.

102

ROGER MAAKA A N D A U G I E FLERAS

Second, Whakakotahi - the principle of Maori unity. Despite diversity in affiliations a n d structures, t h e r e remains a cohesive core based on a shared sense of belonging a n d c o m m o n destiny. Strength in n u m b e r s may also result from a unified base. T h i r d , Mana M o t u h a k e Maori - the principle of a u t o n o m y a n d con­ trol. T h e single unifying aspiration u n d e r tino rangatiratanga is that of autonomy, that is, the right to take control of their destiny a n d resources t h r o u g h control of the decision-making policy process. Taken together, tino rangatiratanga is a b o u t self-determination. With its sense of Maori ownership and active control over the future at both h a p u / i w i a n d national levels, tino rangatiratanga symbolises a Maori right to exercise authority within a Maori constitutional framework. In separate publications, Mason Durie equates tino rangatiratanga with self-determination over internal jurisdictions (Durie 1995; 1998). According to Durie, tino rangatiratanga prevails at the level of m a n a w h e n u a in that it implies tribal control of resources as well as iwi rights to negotiate direcdy with the Crown for grievance resolution. It also must prevail at the m a n a tangata level by acknowledging recognition of Maori rights to organise according to a range of social a n d political groupings, from h a p u a n d iwi to u r b a n authorities a n d national bodies. More specifi­ cally, Durie continues, tino rangatiratanga is about the development of Maori policy by Maori as part of the special covenant with the Crown, together with assumptions of Maori responsibility over Maori affairs at iwi, h a p u a n d national levels. Four additional elements r o u n d out tino ran­ gatiratanga: m a n a wairua (the spiritual e l e m e n t that pervades all aspects of Maori life a n d organisation); m a n a ariki (the authority of chiefs to lead a n d guide their own people and o t h e r peoples); m a n a w h e n u a / m a n a rangatira (the authority of iwi to secure ownership and exercise control over land a n d resources); a n d m a n a tangata (the right of all Maori, both individually a n d collectively, to d e t e r m i n e policies a n d control over des­ tiny without unnecessary d e p e n d e n c e o n governments). From this, tino rangatiratanga would be supported by three structural c o m p o n e n t s of a Maori constitutional framework: namely, m a n a a iwi (hapu a n d iwi), m a n a a tangata (Maori community interests) and m a n a Maori (national Maori representation). Taken together, rangatiratanga rights constitute a level of Maori sovereignty that incorporates a separate power base with parallel institutions for reformulating Maori-Crown relations. In brief, t h e n , tino rangatiratanga is closely aligned with the principles a n d practices of indigeneity as discourse a n d transformation. Just as indi­ geneity constitutes a politicised ideology that privileges original occu­ pancy as a basis for e n g a g e m e n t a n d entitlement, so too does tino rangatiratanga pose a political challenge by the tangata w h e n u a over pre­ vailing distributions of power a n d resources. T i n o rangatiratanga asserts

T I N O RANGATIRATANGA IN A O T E A R O A

103

the primacy of Maori rights of sovereignty n o t in the sense of separation or secession. Innovative patterns of belonging are invoked that privilege Maori values a n d rights as foundations for establishing a new constitu­ tional o r d e r that acknowledges h a p u , iwi a n d whanau as fundamentally a u t o n o m o u s political communities that are sovereign yet share sover­ eignty. Moreover, tino rangatiratanga was n e i t h e r created by the Treaty nor bestowed by the Crown. Its pre-existence by virtue of Maori occu­ pancy rights (tangata whenua) a n d reaffirmation in the Treaty of Wai­ tangi only requires a p p r o p r i a t e structures for its expression as principle and practice. In seeking to advance Maori indigenous rights, tino ran­ gatiratanga is unmistakably Maori in spirit a n d style. Tino rangatiratanga is equally c o m m i t t e d to building bridges by working together in a spirit of constructive e n g a g e m e n t . Tino Rangatiratanga in Practice It is o n e thing to talk a b o u t tino rangatiratanga as a principle, a n d quite a n o t h e r to d e m o n s t r a t e its manifestation as practical activity. Is tino ran­ gatiratanga solely a philosophical concept or can it be practised? W h e r e should o n e look for evidence of tino rangatiratanga? In whose body should tino rangatiratanga b e vested? Are t h e r e signs that New Zealand society has a d a p t e d to Maori d e m a n d s for the acknowledgement of their customary rights? In response to Maori political agitation a n d the build-up to the national sesquicentennial celebrations of 1990, New Zealand society has struggled to c o m e to grips with its colonial past. C o n t e m p o r a r y Maori d e m a n d s for the recognition of their sovereignty surfaced publicly o n 6 F e b r u a r y 1971 at the a n n u a l formal celebration of the signing of the Treaty of Waitangi. From that time the m o v e m e n t has b e e n constant, relentless a n d increasing in intensity a n d sophistication. In 1975 the Treaty of Waitangi Act allowed Maori to make claims against the Crown for c u r r e n t b r e a c h e s of the Treaty of Waitangi; a d e c a d e later this act was a m e n d e d to allow claims retrospective to 1840 to be lodged with the Waitangi T r i b u n a l . As a result of this act t h e r e have b e e n some l a n d m a r k decisions such as the Maori Language Act 1987, which m a d e Te Reo Maori an official l a n g u a g e of New Zealand. In May 1995, the WaikatoTainui p e o p l e s received $170 million as c o m p e n s a t i o n from the gov­ e r n m e n t for lands confiscated by the Crown in the n i n e t e e n t h century. This c o m p e n s a t i o n , received t h r o u g h Treaty settlements, has created e c o n o m i c power for tribes which in t u r n has fortified Tainui-defined d e v e l o p m e n t growth (Mahuta 1996). Such developments have given substance to the n o t i o n of tino rangatiratanga at national a n d tribal levels. T h e l a n g u a g e act constitutes an a c k n o w l e d g e m e n t of Maori

104

ROGER MAAKA A N D A U G I E FLERAS

rangatiratanga; the Tainui Settlement a n d Ngai Tahu Settlement of 1998 are an expression of tribal rangatiratanga. Evidence suggests that recognition of tino rangatiratanga is b e c o m i n g socially acceptable in certain spheres of society. O n e of the earlier signs of shared sovereignty in practice took place within the Anglican C h u r c h of New Zealand. In 1990 it a d o p t e d a constitution that gave to the Maori a n d Pacific Island c o m p o n e n t s of the c h u r c h equal status to that of the d o m i n a n t P a k e h a c o m p o n e n t of the c h u r c h . T h e constitution recog­ nises each c o m p o n e n t , which it describes as tikanga, as a u t o n o m o u s : A N D WHEREAS (12) the principles of partnership and bicultural develop­ ment require the Church to: a) organise its affairs within each of the tikanga (social organisations, language, laws principles and procedures) of each part­ ner. (Anglican Church 1990: 10)

It goes o n further to state that each tikanga 'has power to structure and organise itself in such a m a n n e r as it shall from time to time d e t e r m i n e ' (Anglican C h u r c h 1990: 42). Additional signs include developments in the sports world where the rugby league's premier international compe­ tition, the 1998 World Cup, hosted a New Zealand Maori team in addition to the New Zealand national team {Christchurch Press, 1 0 J u n e 1997). T h e s e events are b u t r a n d o m examples of changing perceptions a m o n g Pakeha, yet they could n o t have o c c u r r e d without a significant shift in p o p u l a r o p i n i o n . Formal political representation is yet a n o t h e r place to locate an expression of tino rangatiratanga, a n d the outcomes of the first MMP election in 1996 have b e e n p r o f o u n d for Maori. Currently the five Maori MPs w h o occupy the Maori seats hold the balance of power. O t h e r Maori MPs, especially those in the coalition government, e n h a n c e this position but the actual power lies with occupants of the Maori seats. For the first time Maori MPs wield real political power rather than delegated or negotiated power, at the highest levels of cabinet deci­ sion-making r a t h e r than on the margins. It could be a r g u e d that the sta­ tus of Maori parliamentary representation has simply caught u p with the actual position of Maori in New Zealand society. All political parties that seek power must interact with the Maori constituency a n d n o t just have a token Maori representation or relegate Maori to an advisory capacity. Maori have gravitated to the centre of political power without the aboli­ tion of the Maori seats, that is, on Maori terms a n d n o t as a p r o d u c t of expediency or assimilation. Increased Maori parliamentary representa­ tion u n d e r the new MMP system reflects an integrationist (or 'institu­ tional') m o d e l of tino rangatiratanga that revolves a r o u n d participation in the established parliamentary system. To be sure, the ultimate power u n d e r an integrationalist m o d e l still resides with the Pakeha majority

T I N O RANGATIRATANGA IN A O T E A R O A

105

who, if u n i t e d in opposition to Maori initiatives, could prevent Maori political representation from having any effective say. Yet this line of thinking needs to be t e m p e r e d by the fact that unilateral rejection of Maori political aspirations b e c o m e s less a n d less of an option as Maori b e c o m e politically a n d economically stronger (Maaka a n d Fleras 1998). More substantial expressions of tino rangatiratanga have taken place as a result of the Fisheries Settlement (Cheyne et al. 1997). Polarised views a n d shades of differing opinions on how tino rangatiratanga should translate into tangible ownership rights are being played o u t in the very public a n d hotly contested arena of 'who gets what'. After m o r e than seven years of lobbying, Maori negotiators b r o k e r e d a deal with the g o v e r n m e n t for a settlement o n treaty rights o n off-shore fishing. T h e settlement was formalised u n d e r the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, which effectively gave Maori interests control over 23 per c e n t of the national off-shore fisheries, a substantial asset consisting of 57 000 t o n n e s of fish quota, a n d $30 million in cash. T h e actual set­ tlement pivoted a r o u n d the Sealords Deal. Sealords were the largest pri­ vate fishing enterprise in New Zealand a n d the g o v e r n m e n t financed a joint-venture acquisition of Sealord Products Ltd to purchase a half inter­ est in the c o m p a n y for the Maori. In r e t u r n , the Maori had to r e n o u n c e all future fishery litigation against the Crown as part of the full a n d final settlement of all Maori claims to commercial fishing rights. T h e deal was negotiated by a small g r o u p of p r o m i n e n t Maori leaders who, over the period of the settlement process, b e c a m e the Treaty of Waitangi Fish­ eries Commission (Te O h u Kaimoana, TOKM). TOKM's role is to man­ age the asset until a system of allocation to Maori can be devised. T h e settlement was u n i q u e in that it was a pan-Maori solution to a multi-tribal claim. But as the move to develop allocation models suggests, there was never any intention that the settlement remain a Maori asset. It was always going to b e allocated o u t to sectional interests, the tribes that constitute M a o r i d o m . T h e fishing settlement process caused a n d continues to elicit vigorous a n d often acrimonious public debate. T h e debates are many a n d multilayered, a n d those considered h e r e are the ones s u r r o u n d i n g the allocation models only. It is this area of d e b a t e that best illustrates conflicting views o n tino rangatiratanga. T h e first d e b a t e to surface was a m o n g the tribal groups a n d involved criteria for distribution - coastline versus population base. Coastal tribes advocated that allocation of the assets should be m a d e in p r o p o r t i o n to the a m o u n t of coastline c o n t a i n e d in a tribal territory. Inland tribes, o n the o t h e r h a n d , e n d o r s e d a p a t t e r n of distribution in p r o p o r t i o n to the size of the tribe. T h e r e was to b e n o compromise in the debate a n d the g o v e r n m e n t t h r e a t e n e d to pre-empt TOKM a n d unilaterally impose a solution. O n 17 April 1997 T O K M a n n o u n c e d that 60 per cent of the

106

R O G E R MAAKA A N D A U G I E FLERAS

assets were to be allocated o n the basis of coastline a n d 40 per cent o n the basis of population. T h e matter is far from settled, with at least o n e dissatisfied major tribe considering taking the matter to court. As this debate was going on, a third party a p p e a r e d a n d d e m a n d e d inclusion in the allocation of assets. A combination of urban Maori Authorities from Auckland, Wellington a n d Christchurch have m a d e claims for a share of the fisheries assets, namely a percentage of the money, n o t fishing quota. W h e n TOKM rejected their claim, the matter went to court. O n 30 April 1996 the C o u r t of Appeal ruled in favour of the u r b a n groups. T h e tribal groups r e s p o n d e d by taking the matter to the Privy Council in L o n d o n , which o v e r t u r n e d the Court of Appeal's decision a n d asked that the case be r e t u r n e d to New Zealand to redefine the c o n c e p t of iwi. At the High Court h e a r i n g in Auckland on 4 August 1998, Justice B.J. Paterson found that the u r b a n groups were not 'iwi' for the p u r p o s e s of allocation. As of August 1999 the issue is before the C o u r t of Appeal. T h e situation has not altered since, with TOKM sup­ p o r t e d by tribal g r o u p s steadfastly refusing to negotiate with urban g r o u p s o n the g r o u n d s that the assets are iwiowned. Even proposals at the A n n u a l General Meeting of the T O K M on 26 July 1997 to set aside $20 million in trust for u r b a n Maori proved unacceptable. T h e fisheries d e b a t e illustrates that tino rangatiratanga is contestable a n d is b e i n g redefined internally with changes to Maori social circum­ stances. T h e treaty claims a n d settlement processes in spite of several 'Maori' settlements, such as the Maori Language Act, have p u t tribes at the fore. Tribal groups remain at the forefront of the Treaty claims process a n d tribal formations have gained ascendancy in public awareness, espe­ cially in the wake of various iwi-development policies. Most Maori leaders d o n o t recognise any o t h e r type of tino rangatiratanga. In an interview o n sovereignty the Tainui leader Sir Robert Mahuta puts it very succinctly: 'To us Maori sovereignty is Kingitanga. Full stop' ( M e l b o u r n e 1995: 144). A n o t h e r well-known tribal leader, Sir T i p e n e O'Regan, also endorses tribal self-determination as the basis for tribes controlling assets in their own r o h e (territory) ( M e l b o u r n e 1995: 156). T h e underlying premise a r g u e d by Maori leaders has b e e n that the chiefs signed the Treaty on behalf of their tribes, n o t o n behalf of all Maori; therefore, tino rangati­ ratanga can only be expressed t h r o u g h tribal affiliation. Still, the fish­ eries claim, b o t h in its settlement and allocation debate, has o p e n e d the way for m o r e expansive definitions of tino rangatiratanga. With TOKM c e d i n g 40 p e r c e n t of the allocation to the 'population'-based a r g u m e n t , the decision has signalled the negotiability of the ' o n e tribe, o n e terri­ tory' basis of tino rangatiratanga. Maori parliamentary representation a n d the fisheries setdement demonstrate two mutually interrelated but analytically distinct expressions

T I N O RANGATIRATANGA IN A O T E A R O A

107

of tino rangatiratanga. Much of the controversy revolves a r o u n d the dichotomous situation of defining tino rangatiratanga in terms of Maori rights or in terms of tribal first nations rights. In contrast to Australia, Canada a n d the US where a b r o a d range of diverse indigenous groups exists, in New Zealand there exists b u t one: Maori. T h e notion of Maori as a collectivity is a post-contact social construct. Before colonisation Maori saw themselves solely as tribal peoples. While there was a consider­ able range of tribal a n d regional 'diversity', there was a clearly identifiable cultural homogeneity, expressed in a commonality of language a n d cus­ tomary practice. In a letter to the settlers of Hawkes Bay, a chief from Ngati K a h u n g u n u expressed it this way: 'Just as you are all English, t h o u g h one is a Bishop, o n e is a Governor a n d a n o t h e r is a soldier a n d a n o t h e r is a settler so we are all o n e , Maori is my n a m e ' (Kawepo 1860: 5). As a result of this history t h e r e are two ethnicities, namely, a tribal eth­ nicity a n d an all-inclusive Maori ethnicity. W h a t needs to b e kept in m i n d when considering tino rangatiratanga as a social reality as o p p o s e d to a political philosophy is that the two ethnicities coexist symbiotically a n d in a state of tension with each other. Re-engaging with Indigeneity Settler d o m i n i o n s such as Canada, Australia a n d Aotearoa are in the process of decolonisation. Yet structures of internal colonialism con­ tinue to tarnish the process of postcolonising from within (Bennett & Blundell 1995). Expansion of a unilaterally imposed economic paradigm has h a d the effect of co-opting indigenous peoples into a capitalist m o d e of p r o d u c t i o n that is little m o r e than an 'imprisoned internal exile' beyond the control of i n d i g e n o u s peoples (Frideres 1999). References to postcolonial renewal a n d reform notwithstanding, white settler domin­ ions r e m a i n suspicious of any fundamental restructuring, preferring instead to depoliticise indigeneity by throwing m o n e y at the p r o b l e m in the h o p e it will go away. Citizenship remains rooted in the espousal of universal individual rights r a t h e r than in recognition of indigeneity as a pre-existing right. E n t i d e m e n t p a t t e r n s are defined o n the basis of for­ mal equality before the law, in effect confirming liberal values that what we have in c o m m o n is m o r e i m p o r t a n t than what divides us, that what we accomplish as individuals is m o r e significant as a basis for reward or evalu­ ation than m e m b e r s h i p in a particular g r o u p , a n d that the c o n t e n t of o u r character r a t h e r t h a n the colour of skin should serve as the basis for j u d g e m e n t . Diversity is tolerated, b u t only to the extent that everyone is different in the same way. I n a s m u c h as the intent is to simply r e a r r a n g e the deck furniture without altering the floor plan of even a sinking ship, political a g e n d a tend to focus o n a p p e a r a n c e s rather than substance.

108

ROGER MAAKA A N D A U G I E FLERAS

By contrast, indigenous peoples are seeking innovative patterns of e n t i t l e m e n t a n d e n g a g e m e n t in the h o p e of securing a new kind of b e l o n g i n g in which legitimacy is vested in indigenous models of selfd e t e r m i n a t i o n . T h e challenge in dislodging the deeply ingrained cul­ tural assumptions of white settler d o m i n i o n s will be formidable. As Renwick notes: They have to think of Maori not as a minority - the largest and the most important one but still a minority - but as tangata whenua, the original peoples of the land, and of themselves as later arrivals. They have to think of tribes and tribal forms of organisation not as relics of the past but as vital, con­ temporary expressions of personal and group identity. They have to under­ stand that Maoridom is a form of society in which the ultimate authority - it's hard not to call it sovereignty - resides not in the nation-state but among many descent groups, all of them autonomous. They have to understand that rangauratanga is the expression of that autonomy and, furthermore, that, although tribal groups cooperate and make c o m m o n cause, they always retain their ultimate right to make their own decisions and, if that is the decision, to g o it alone. Pakeha have, in short, to imagine a very different political model. (Renwick 1993: 40)

Ascendancy of indigeneity has catapulted to the forefront in reshap­ ing the postcolonial society-building project (Fleras a n d Elliott 1992). In the space of o n e generation, indigenous peoples have moved from the margins to the centre of national stages, o n c e the cost of exclusion from society proved detrimental. Still it remains to be seen w h e t h e r innovative p a t t e r n s of working t h r o u g h differences can be incorporated in contexts where state sovereignty is normally t h o u g h t to be indivisible a n d unitary. Equally intriguing will be the extent to which political authorities can a c c o m m o d a t e indigenous claims to sovereignty as a basis for allocating scarce resources. Reference to indigenous sovereignty as shared yet sep­ arate rarely extends to c o m p l e t e separation; by the same token, it rejects a multicultural desire to celebrate diversity a n d achieve institutional equality. Advocated instead are patterns of belonging that accentuate a sovereignty without secession involving models of relative yet relational a u t o n o m y in non-coercive contexts. No less critical is the reconstitutionalisation of the first principles that govern indigenous peoples-state rela­ tions. As distinct c o m m u n i t i e s of a political nature, indigenous peoples are seeking to establish a post-sovereign political o r d e r in societies that historically d e n i e d or excluded indigeneity. Yet inclusion into nation­ h o o d is pivotal, without necessarily buying into the trappings of a fully fledged administrative unit known as a state. As H e n r y Reynolds (1996) points out, statehood may not be essential for cultural survival in the m o d e r n world; however, a sense of n a t i o n h o o d most certainly is in estab­ lishing living a n d lived-in realities.

T I N O RANGATIRATANGA IN A O T E A R O A

109

Society-building is a complex a n d arduous u n d e r t a k i n g at the best of times, a n d fraught with contradiction or conflict at the worst. Even m o r e formidable is the postcolonising of white settler dominions when sover­ eignty is openly contested. Clear breaks with the past are ideal, but diffi­ cult to i m p l e m e n t because of c o m p e t i n g discourses a n d vested interests (Weaver 1991). Indigenous people-state relations are imbued with an air of ambivalence as colonialist paradigms grind u p against postcolonial realities. Colonialist paradigms refuse to graciously exit since indigenous d e m a n d s interfere with a host of deeply e m b e d d e d privileges, power a n d values. I n d i g e n o u s paradigms may be gathering m o m e n t u m but confront powerful vested a n d national interests that remain resolutely opposed to power-sharing o n a people-to-people basis, each a u t o n o m o u s in jurisdic­ tion yet sharing in state sovereignty (Canada, Royal Commission o n Aboriginal Peoples 1996a, b ) . Instead of a paradigm shift we are left with a p a r a d i g m ' m u d d l e ' of messy p r o p o r t i o n s in which the old a n d new coex­ ist uneasily (Rotman 1997). Such a state of uncertainty a n d expediency is likely to persist until conventional thinking accepts a c o m m i t m e n t to white settler d o m i n i o n s as an e n g a g e m e n t between two consenting majorities, b o t h of w h o m are sovereign in their own right, yet inextricably interlocked as p a r t n e r s in jointly exploring postcolonising possibilities.

PART II

Identity

CHAPTER

6

Paths Toward a Mohawk Nation: Narratives of Citizenship and Nationhood in Kahnawake A u d r a Simpson

Political Theory and the Problem of Indigenous Nationhood Once remarkable for their distance from matters indigenous, political theorists are now considering the polidcal a n d historical issues of native people within their recent works o n consdtutionalism, citizenship a n d multiculturalism. T h e philosophical turn to matters indigenous has its history in the larger literature of liberal rights theory - theories that seek to u n d e r s t a n d , in philosophical terms, the reasons why certain injustices prevail. T r u e to that earlier work, the m o r e recent literature represents a point of convergence for challenges to a n d strengths of 'the just society' or the 'political good'. T h e question that drives m u c h of this work is as normative as it is obvious: how may a society operate in a just m a n n e r with­ out considering the claims of native people a n d other cultural groups? Within Canada, the consideration of questions posed by 'aboriginality', a m o d e of arguing a n d d e f e n d i n g one's collective identity based o n a temporal relationship to the land, posed such a challenge to the state and to those that theorise the state. O n c e coupled with well-publicised inquiries into residential school abuses a n d land claims, the strident nationalism of native peoples t u r n e d within political thinking into a d e e p , s u b t e r r a n e a n a n d theoretical m o v e m e n t for reconciliation. This philosophical m o v e m e n t a t t e m p t e d to move toward a space for dialogue, with the philosophy itself an enabling device for the development of new and m o r e substantive conversations between previously silent peoples. It is h o p e d that from this conversation will c o m e the construction of better and m o r e j u s t institutional practices. More than anything, perhaps, it is h o p e d that within this social space of listening a n d t a l k i n g - o n e that may be characterised in its barest form, as o n e of possibility - some of the vio­ lence, suffering, glory a n d guilt of colonialism that blankets c o n t e m p o ­ rary Canadian society may finally be shorn away. 1

113

114

AUDRA SIMPSON

W h e t h e r or not these philosophical desires can be fulfilled d e p e n d s on what the future holds. However, it is of some benefit to light u p o n one of the i m p o r t a n t works in this new literature to appreciate the process that is now underway. J a m e s Tully's Strange Multiplicity (1995) is p a r a m o u n t a m o n g those philosophical works that seek to move us toward a political field that is predicated u p o n a praxis of listening. Articulated to the crisis in native-settler relations, his work attempts to enable a meaningful con­ versation t h r o u g h a copious historical and philosophical reflection u p o n constitutionalism. With this rethinking a n d refashioning of a key philo­ sophical a n d political textual practice within the west, Tully reveals to us the ways in which its obtuse a n d ' h i d d e n ' languages have served to domi­ nate w o m e n , national minorities a n d native people. In revealing these languages to us, it is h o p e d that the 'difference' of Indians (or others) may be listened to a n d u n d e r s t o o d in substantive and meaningful ways. Strange Multiplicity is clearly articulated to the problems between Indi­ ans a n d the state (along with o t h e r 'minority' or subaltern peoples), and as such Tully's historical a n d decolonising a p p r o a c h to philosophical texts a n d history is c o m p l e m e n t e d by other works and approaches to simi­ lar p r o b l e m s . Will Kymlicka's recent empirical examination of the multiculturalism policy in C a n a d a (1998a) offers a n o t h e r reflection u p o n p r o b l e m s within the state. Although diverging in m e t h o d (Kymlicka's work is remarkably sociological rather than historical), both are united in their c o m m i t m e n t to 'difference' as the critical matter within their r u m i n a t i o n s . A n d with difference, t h e r e is a d e p e n d e n c e u p o n the n o t i o n of ' c u l t u r e ' to contain a n d then convey its content. A question attaches itself to these works: if 'culture' is the matter of difference, t h e n how is o n e to listen to a n d u n d e r s t a n d the particular 'difference' of indigenous peoples a n d their particular nationhoods? Both 'aboriginality' a n d n a t i o n h o o d are constituted (and constitutive o f ) political postures, experiences a n d discourses a n d these processes are inextricably j o i n e d to culture. As they are j o i n e d to culture they are articulated t h r o u g h the apparatii of history, power a n d experience. T h e very n o t i o n o f an indigenous n a t i o n h o o d , which demarcates identity and seizes tradition in ways that may be antagonistic to the encompassing frame of the state, may be simply unintelligible to the western a n d / o r imperial ear. O r is it not? In this chapter, I take u p the question of indigenous n a t i o n h o o d by e x a m i n i n g ' m e m b e r s h i p ' or citizenship-formation within Kahnawake, a Mohawk reserve c o m m u n i t y in Canada. In recent years Kahnawake has b e e n involved in the d e v e l o p m e n t of a custom code that is based on lin­ eage, r a t h e r than race, to d e t e r m i n e who its m e m b e r s or citizens should be. This new code, which has yet to be ratified, is the result of a commu­ nity consultation process that seeks to move Kahnawake away from the criterion o f ' b l o o d q u a n t u m ' to a m o r e cultural a n d kinship-based m o d e l

C I T I Z E N S H I P IN KAHNAWAKE

115

of descent. T h e 'blood q u a n t u m ' years span 1984 to the present, and marks o n e of t h e many m o m e n t s in Kahnawake's political history when the c o m m u n i t y spoke directly a n d obliquely to the tutelage of the state. 'Blood' a p p e a r e d in this conversation as a m e a n s n o t only of excluding others, b u t of defining t h e self, of choosing a m o n g political alternatives and visions for that definition, a n d for maintaining control over the means of d e t e r m i n i n g that process. I will provide some of the context that led to this i m p o r t a n t p e r i o d in the community's history. Recent works in this area have emphasised the fractured ' n a t u r e ' of the debate over m e m b e r s h i p criteria, t h e ways in which this speaks or does not speak to western citizenship theory, a n d the ways in which the community unsettles t h e individualism i n h e r e n t in western liberal theory of Taylor and Kymlicka (Dickson-Gilmore 1999a; Paine 1999). Both are important to u n d e r s t a n d i n g the ways in which institutional practices affect political m e m b e r s h i p within communities, b u t both would be well served by a discussion of the very lived cultural process of citizenship formation in the context of a nation-in-being. Before taking u p the specificity of Kahnawake's citizenship a n d t h e voices that convey this issue, however, I want to take u p some very elemental questions that attach themselves to the n o t i o n of indigenous n a t i o n h o o d .

Indigenous Nationhood What is it a b o u t i n d i g e n o u s peoples a n d their experiences that may con­ stitute t h e m as nations r a t h e r t h a n as peoples? Were they not 'tribes'just a short time ago? Is this use o f ' n a t i o n h o o d ' in political circles and main­ stream m e d i a a symbolic a n d semantic indulgence? O r is it some form of historical residue, a m a r k e r of colonialism's simultaneous beginning, e n d or c o n t i n u e d life? Is ' i n d i g e n o u s n a t i o n h o o d ' merely a perversion of signs a n d simultaneity r a t h e r than a set of concrete political objectives that are attached to collective experience? Is the notion of an Indian or indigenous n a t i o n h o o d merely a vagary of colonialism's living con­ sciousness? Is its use in C a n a d a a m o n g Indian peoples a n d Canadian intellectuals a curious case of appeasement? Is it an innocuous form of tolerance that precludes or sidesteps serious conversations and settle­ ments r e g a r d i n g land? As a c o n c e p t a n d a practice, indigenous n a t i o n h o o d is n o t an exercise in liberal a p p e a s e m e n t n o r an exercise in indigenous cultural invention. In this, particular indigenous peoples - such as those of the Iroquois Confederacy (the Seneca, Cayuga, Oneida, O n o n d a g a , Mohawk and Tuscarora nations) - have a long a n d well-documented historical selfconsciousness a n d recognition as peoples that constituted themselves and Were thus constituted by others as 'nations'. T h e self-consciousness and recognition (albeit historical a n d strangulated) of the nationhood that 2

116

AUDRA SIMPSON

the Iroquois enjoys is n o t only a matter of consciousness a n d oral history, it is o n e of a great d o c u m e n t e d history. Within that history we find the trappings of E u r o p e a n forms of n a t i o n h o o d : a past that is replete with treaties, diplomacy, p r o c e d u r e a n d political structure. And as with other indigenous peoples, this d o c u m e n t e d a n d experiential history lives within the present (Simpson 1998; 1999), a n d informs the particular con­ sciousness a n d attitude of Iroquois people toward each other, toward o t h e r Indian peoples a n d toward the state. In spite of the historically d o c u m e n t e d a n d thus, some would argue, epistemologically convenient case of Iroquois governmental practice, t h e r e is a m o r e i m p o r t a n t a r g u m e n t to be m a d e regarding indigenous n a t i o n h o o d , political a n d cultural theory, a n d the n e e d for some talking a n d listening between the two. In o r d e r to contribute to such a conver­ sation, the overarching a r g u m e n t regarding n a t i o n h o o d that will be pur­ sued h e r e is that, m u c h like the n a t i o n h o o d of western states (which we will take to b e the analytic n o r m a n d p r o c e e d to problematise), the n a t i o n h o o d of indigenous peoples is m a d e from the bare parts of con­ sciousness a n d history. However, unlike the n a t i o n h o o d of western states, the n a t i o n h o o d of indigenous peoples has b e e n bifurcated a n d disas­ sembled with global processes of colonisation. T h u s their n a t i o n h o o d enjoys a diversity of forms a n d experiences, b u t because of invasion, con­ quest a n d settlement, is necessarily o n e that is spatially within that of a n o t h e r d o m i n a t i n g society. So if theorists are to consider a n d take seri­ ously the 'matter' of difference they must pick u p where Tully has left off. They must c o n t i n u e to r e t h i n k the history a n d the vocabulary that is con­ stitutive of their own society a n d its relationship with others. As well, they must c o n t i n u e to consider the grey areas of history a n d vocabulary that i n d i g e n o u s peoples share with them. But their reflections a n d rumina­ tions u p o n difference, u p o n culture, a n d u p o n a ' g o o d ' within theory must be b r o u g h t into the same analytic frame of its referents. H e r e , I e x a m i n e the sociality a n d narrativity that constitutes indige­ n o u s n a t i o n h o o d in o r d e r to achieve larger, m o r e theoretical aims. T h e question p u r s u e d is the m a n n e r in which indigenous n a t i o n h o o d is u n d e r s t o o d , practised a n d n a r r a t e d by its own people. T h e data for this 'practice' resides with the Mohawks of Kahnawake a n d their everyday nationalism. In taking u p this everyday nationalism I am interested in illustrating the ways in which n a t i o n h o o d is constructed a r o u n d several axes, b u t most importantly, the way that nationalism (and thus, the sense a n d style of n a t i o n h o o d ) is localised a r o u n d the critical axis of 'mem­ b e r s h i p ' or citizenship within their community. This question of mem­ bership, of what the criteria shall be for obtaining, maintaining and exercising rights within the community (not the Canadian state) has o p e n e d u p internal conversations a n d contests over the very c o n t e n t of identity, of j u s t 'who' a Mohawk is, a n d in this, what a Mohawk 'should 3

C I T I Z E N S H I P IN KAHNAWAKE

117

be'. Discussions a n d debates s u r r o u n d i n g the criteria over m e m b e r s h i p in the c o m m u n i t y point to t h e many ways in which indigenous peoples (and p e r h a p s o t h e r n o n - s t a n d a r d / n o n - w e s t e r n nations) n e g o d a t e a n d construct their own b o u n d a r i e s a r o u n d self, c o m m u n i t y a n d rights, the ways in which they investigate a n d enact what their vision of the 'ideal cit­ izen' should be according to their own historical a n d epistemological experience. In placing indigenous n a t i o n h o o d within t h e social a n d political space that has b e e n cleared by activism, war a n d the r u m i n a t i o n s of recent philosophical works, this case study of Kahnawake offers narra­ tives of n a t i o n h o o d that speak from ' t h e g r o u n d u p ' . However, I will work from ' t h e o r y d o w n ' in o r d e r to appreciate the ways in which experience and t h e words that convey that experience converge in narrative. I will first contextualise Kahnawake's n a t i o n h o o d by reference to some anthropological a n d sociological theories of nationalism a n d nation­ h o o d . Nationalism energises a n d animates n a t i o n h o o d a n d , as such, requires some reflection in t h e context of the indigenous a n d the day-to­ day; two overlapping arenas of social life that enjoy n o critical attention in the literature of t h e anthropology of native peoples or theories of indigenous politics a n d power. I will then wed this body of theory to nar­ ratives with the m e t h o d of 'radical empiricism' p u t forward by the anthropologist Michael Jackson. Jackson's anthropological m e t h o d has heretofore u n e x p l o r e d analytical a n d political potential within indige­ nous a n d political study. As a stream within the anthropology of experi­ ence, his notions may b e b r o u g h t to bear on the kind of philosophy of listening that Tully a n d others are trying to bring into the literature of political theory. As well, these notions may b e p u t to work in o r d e r to enable, in some very m o d e s t ways, a desired conversation between Indi­ ans a n d others. This conversation o n the i m p o r t a n t issues of politics, his­ tory a n d power in settler societies is o n e that we all await. In these ways Jackson's methodological r u m i n a t i o n s may offer us some direction toward t h e larger project of reconfiguring the relationships of power that characterise native—state relations, at the very least, in text. I will cover this necessary literary terrain by way of some anthropological a n d socio­ logical theories of nationalism a n d n a t i o n h o o d to appreciate the ways in which t h e r e is a g r e e m e n t a n d disagreement between theory a n d lived practice as it relates to Kahnawake's history a n d narratives.

Achieving a 'Listening State' or a State that Listens: Recasting Nationalism and Nationhood What is t h e 'stuff, t h e n , of indigenous n a t i o n h o o d ? T h e nationalism of Kahnawake is a cultural articulation that occurs along t h e seams of colonialism in Canada, following the structural 'traces'

118

AUDRA SIMPSON

of the initial colonial e n c o u n t e r between settlers and Indians. We find within the m e t h o d s of domination that are the colonial legacy the prac­ tice of enframing Indian lives t h r o u g h the assumption of authority over personal agency. As well, we witness the forced cultural transformation of native culture t h r o u g h the b o u n d i n g of people a n d b o u n d i n g of space. These efforts at b o u n d e d n e s s are represented in the creation of reserves a n d the Indian Act, instruments of colonial control that are now funda­ mental in the construction a n d maintenance of the Mohawk nation, as it is expressed in Kahnawake. Mohawk nationalism, as it is expressed in Kahnawake, is replete then with colonial ironies. Mixing parts, it draws from Iroquois teachings, from the ancestral a n d immediate past, a n d from the neocolonial pre­ sent. T h e nationalist project in Kahnawake is a hybrid form in its impe­ tus a n d expression, a n d therefore transcends any u n d e r s t a n d i n g of its impetus or focus as 'resistance' to the Canadian state (or the American state). Rather, it appears on o n e level to be about maintaining for Kahnawakeromon ('People of Kahnawake') what they have in the present, while g u a r a n t e e i n g a space for t h e m in their future. This nationalism, like many others, necessarily privileges the past a n d looks to an uncertain future in a dialogue with the state that is by n o means exhaustively defined by that state (Wilmsen a n d McAllister 1996). In carrying a consciousness of themselves as m e m b e r s of a nation that pre-dates C a n a d a a n d the US, the contemporary a m o n g Mohawks is con­ j o i n e d to the p o s t m o d e r n , the colonial a n d pre-colonial - to an indige­ n o u s Iroquois past a n d present. H e r e , culture is both a self-conscious, deliberate a n d politically e x p e d i e n t formulation a n d a lived, and implicit, r a t h e r than c o n t e m p l a t e d , p h e n o m e n o n . The nation, similarly, is a collectively self-conscious, deliberate a n d politically e x p e d i e n t for­ mulation a n d a lived p h e n o m e n o n . Both constitute a terrain of consen­ sus, disagreement, discord a n d hopeful contemplation that connects the categorical 'Mohawk' to the individual, their family a n d the extension of their family to a living entity: their nation. In this context, as in any, ' t h e nation' receives its analytic particulari­ ties in the process a n d the place that it is articulated t h r o u g h . In other words, if it is industrial England that defines those processes u n d e r dis­ cussion, ' t h e n a t i o n ' will be positioned a n d defined in just that context. H e n c e , the nation will exhibit the characteristics of industrialisation, of c o n c o m i t a n t alienation from the m e a n s of p r o d u c t i o n , a n d is under­ stood as a form of social organisation that is arrived at t h r o u g h the false consciousness of its p e o p l e . ' T h e nation', then, will be something observ­ able a n d assertive, arrived at t h r o u g h an often bloody patrolling of clearly established a n d yet shifting boundaries. But m o r e importantly (anthropologically r a t h e r than journalistically), the nation is a p r o d u c t of 4

C I T I Z E N S H I P IN KAHNAWAKE

119

mystified process called 'nationalism'. Nationalism is the means to an end - the e n d b e i n g the formation of 'the n a t i o n ' a n d its political enclo­ sure, ' s t a t e h o o d ' . Toward an u n d e r s t a n d i n g of this process Ernest Gellner devised a m o d e l for nationalism where the conditions of modernity create the consciousness that would lead o n e to 'nation'. T h e nation, h e tells us, e m e r g e s from a marriage between the m o d e r n industrial division of labour a n d the Protestant work ethos (Gellner 1983: 3 9 - 4 2 ) . F u n d a m e n t a l for a Gellnerian theorisation of nationalism, then, are material conditions a n d global processes that restrain us from an under­ standing of nationalism as an awakening of d o r m a n t collectivities (an image that is key in some nationalist rhetoric) toward a m o r e c o n t i n g e n t and p l a n n e d project. Of this Gellner elaborates: a

Nations as a natural, God-given way of classifying men, as an inherent though long-delayed political destiny, are a myth; nationalism, which sometimes takes pre-existing cultures and turns them into nations, sometimes invents them, and often obliterates pre-existing cultures: that is a reality . . . Those who are its historic agents know not what they do, but that is another matter. (Gellner 1983: 48-9) H e r e , Gellner has taken the core complex of nationalism - self, iden­ tity a n d history - a n d treated the constituents as matters of manipulation for the historic agents of nationalism. T h e s e agents are 'nationalists', cul­ ture brokers who steward p e o p l e forward in their creative use of the past to m e e t the pressing a n d collective needs of the present. Gellner's analy­ sis is a solid sociological accounting of the conditions that beget nation­ hood, but dismisses or elides the collection of meanings (through event, history a n d p r e s e n t interaction) that distil into the consciousness of n a t i o n h o o d in a p e o p l e . Nationalism is m o r e than an attribute of m o d e r ­ nity or a fall-out from agrarian society; it is a process that is wedded to cul­ ture a n d must be treated so in analysis. I argue later that nationalism is a consciousness that is n o t limited to industrial or post-industrial society. Analytically, it is nested in the experience of statehood in E u r o p e , which serves at o n c e to prove the perspectivist a n d historically constructed nature of theory, a n d at the same time limit its use in analysis to o t h e r western or western-influenced societies. I c o n c u r with Gellner that nationalism is, for analysts, a political theory of legitimacy (Gellner 1983: 1), but as a t h e o r y nationalism should be e x t e n d e d to the aspirations a n d actions of those collectivities that d o n o t fit the template - those that are non-western, economically integrated a n d at times, a p p e a r to b e politi­ cally d o m i n a t e d . Nationalism is exhibited a n d expressed by collectivities that d o n o t fit Gellner's m o d e l . A m o n g o t h e r non-western people, but central to the discussion at h a n d , are the experiences of native peoples in Canada.

120

AUDRA SIMPSON

Much of the public culture of native peoples in Canada has b e e n stri­ dently, remarkably assertive on matters of territory, jurisdiction, bound­ aries a n d selfhood - d e m a n d i n g an u n d e r s t a n d i n g of their collective behaviour a n d aspirations as nationalist. They must be recentred in nationalist terms, as these are the terms (for some native peoples a n d not for others) that are their own. It is from the point of extending nationalism to other peoples that we move away from Gellner to Benedict Anderson. Anderson takes national­ ism a step further than Gellner, bringing it into the arena of cognition and creation, an exercise that serves to take nationalism out of E u r o p e (and the preconditions of industrialism) a n d into other cultural spaces. For Anderson, nationalism is an imaginative process that leads to the con­ struction of what h e calls a 'cultural artefact' - the nation. T h e nation, A n d e r s o n concludes neatly, is 'an imagined political community - and imagined as b o t h inherently limited a n d sovereign' (Anderson 1991: 6). By privileging the imagination rather than the salience of boundaries, A n d e r s o n o p e n s u p ' t h e nation' to diaspora and other transnational col­ lectivities, a n d in doing so h e centres the nationalist n o t as a clueless and stigmatised inventor or myth-maker, but as an agent actively involved in its p r o d u c t i o n of self a n d its people. From h e r e , Anderson critiques the logic that leads us to a juxtaposition of 'authentic' a n d 'false' nations in Gellner's m o d e l . H e argues that political communities are not to be distin­ guished by their 'falsity'/'genuineness' (or degree of nationness) but r a t h e r by the style of their imaginings - by their nationalism (6). Anderson brings us away from the restraints of industrialism through an emphasis o n the cognitive dimension of nationalism. However, as with Gellner, h e nests his discussion in the experiences of Europe, replacing the Protestant Ethos and industrialism with similar attributes of modernity: the novel a n d the newspaper (25). Each, he argues by taking u p Walter Ben­ j a m i n , is responsible for representing the kind of imagined community that is the nation, thereby shaping the style and the tenor of nationalism. Anderson assigns nationalism to a particular space in time, 'a simultaneity of past a n d future in an instantaneous present' (24), thus explaining the effervescence and naturalness of nation as something that always was. ' B o u n d a r i e s ' are implicit within this discussion of political legitima­ tion as a subject of nationalist energy, as they are an elemental means of separating p e o p l e from o n e another, a n d p r o d u c i n g personal and col­ lective identity. Like the people they identify a n d demarcate from others, b o u n d a r i e s must be situated within ' t h e c o n t e m p o r a r y ' . T h e c o n t e m p o ­ rary may be u n d e r s t o o d as modernity, radical modernity, postmodernity a n d postcolonialism - all signifying similar processes in different places. T h e s e processes may be u n d e r s t o o d as industrialism, alienation, the collapse of face-to-face interaction and, in simpler, Bhabhian terms, 5

C I T I Z E N S H I P IN KAHNAWAKE

121

'newness'. Nationalism e m e r g e s o u t of this newness as it has b o t h the veneer of timelessness itself a n d strikes us with its assertions. In appreci­ ating its simultaneous newness a n d timelessness, we may be able to locate its impetus a n d e x a m i n e the style that it takes - along rhetorical, artistic, political or o t h e r culturally expressive lines. Gellner a n d A n d e r s o n form some of the terrain of nationalism by m a p p i n g o u t causality: the reasons why, in historical and philosophical terms, p e o p l e start to assert themselves in certain ways. They share the perspective of nationalism as a t h e o r y of political legitimacy a n d at the same time as a western p h e n o m e n o n with its roots in hierarchy a n d industrialisation. H e r e , nationalism is a m e a n s to an e n d , a n d that e n d is statehood. T h e s e are i m p o r t a n t points in the discussion of nationalism as a collective e n d e a v o u r - as a m e a n s to s o m e t h i n g - b u t must nationalism always p o i n t to statehood? Is the e n d of statehood something that all nations share? Is it possible for peoples - a n d h e r e I am thinking of encapsulated c o m m u n i t i e s such as reserves a n d meaningful b u t dis­ persed associations such as ' t h e diaspora' - to behave as nations d o a n d not desire, at the e n d of their cultural labouring, statehood? Perhaps the desire may be for an abstraction - a principle, such as sovereignty, for moral victory, or simply for respect. We will c o n t i n u e this discussion then, with residual issues in Gellner and Anderson a n d take u p the i m p o r t a n c e that they place on state struc­ ture, a key institutional form in the era of modernity. We will take from t h e m the insight that state structure is essential for the production of identity a n d nationalism. However, we will examine the state for its role in b o u n d a r y making a n d identity construction rather than as a level of social organisation that groups pass t h r o u g h o n their way to industrialisation. Nationalism is shaped, t h e n , by a relationship with the state. Nations, as many p o i n t out, exist b o t h within states a n d without states. T h e state creates the image - A n d e r s o n ' s 're-presentation' of the essence of the nation, a process that is accelerated by rituals of the state such as national parades, coronations, m u s e u m s a n d exhibitions, all of which c o m m u n i ­ cate in some way what the essence of the nation is. More than simply sug­ gesting t h r o u g h iconic imagery who its p e o p l e are, the state has a crucial role in the classification a n d definition of those people t h r o u g h its monopoly over territorial b o u n d a r i e s a n d institutions. In this way, the state provides the inspiration as an institution of control a n d influence that suffuses nationalism (taken h e r e as a sentiment a n d expression writ large of identity) with its energy. How does nationalism apply in Canada today? What is the relationship between the state a n d the Indians in Canada - or, m o r e specifically, Canada a n d the Mohawks of Kahnawake a n d their nationalist project? In holding a m o n o p o l y over administration, official governance a n d control

122

AUDRA SIMPSON

over public a n d 'official' culture (such as the Canadian Broadcasting Corporation, m u s e u m s etc.), 'the state' is what Brackette Williams calls 'a context of analysis' (Williams 1989: 426), that is, directly related to the processes of ethnogenesis and nationalism. T h e state is o n e frame in which visibility is p r o d u c e d , creating the conditions u n d e r which differ­ e n c e becomes a p p a r e n t , political aspirations articulated, a n d culture, authenticity a n d tradition a p p e a r as politically expedient resources. By framing what is official, the state creates conditions of either affiliation or distance, association or disassociation. T h e affiliations arise from the state's project of homogenising heterogeneity, 'the construction of myths of homogeneity o u t of the realities of heterogeneity that characterise all nation building' that all nations u n d e r t a k e (Williams 1989: 429). In this context, Williams instructs us that: Seriously investigating the 'aura of descent' that surrounds ethnic group pro­ duction requires detailed attention to how, in the conjunction of race-making as nation building and the invention of purity which it entails, blood becomes a synecdoche for all things cultural. (Williams 1989: 431)

This is n o t to say that the state is the only frame a r o u n d which nation­ alism is found, or is the a u t h o r in the local investigations a n d discussions into the ' a u r a of descent'. A m o n g the co-authors in these investigations are narrative, experience a n d history. However, when articulating and analysing indigenous n a t i o n h o o d , we must account for a n d u n d e r s t a n d the foreignness that e m b e d s their aspirations - the machinery of settle­ m e n t that has h a r d e n e d into institutions of governance. T h e abstractions of 'nationalism', ' n a t i o n h o o d ' a n d 'the state' are d e p a r t u r e points for u n d e r s t a n d i n g these o t h e r frames of experience a n d identity.

Anthropology, Representation and Indians I want to move from theories of nationalism and n a t i o n h o o d to anthro­ pological practice into a discussion of what the 'culture' is that we all dis­ cuss, a n d what ' t h e matter' of the difference is that some wish to decipher. Anthropology is the traditional framework for representing a n d inter­ preting the culture a n d politics of native p e o p l e and, as such, has framed u n d e r s t a n d i n g s of b o t h ' t h e i n d i g e n o u s ' a n d their 'culture'. Some dis­ cussion of representation is thus in o r d e r before we can arrive at a point of listening to this culture, as the narratives that we will listen to are, in their barest form, representations of experience. But in o r d e r to listen to a n d u n d e r s t a n d these processes we have to u n d e r s t a n d something of the his­ tory of knowing a n d writing culture in anthropology. Much as it was in the past, anthropological discourse a n d practice is still s h a p e d by colonialism (Kuper 1996; Asad 1973; Said 1989). T h e field

C I T I Z E N S H I P IN KAHNAWAKE

123

however, has c h a n g e d (Wafer 1996: 259-61); ' t h e expedition', ' t h e mis­ sion' a n d ' t h e colony' have b e e n replaced by new structures a n d seman­ tics. In the wake of settler rule, e n t e r 'confederation', 'self-government' and ' t h e nation-state', each working in concert to n a m e , to make sense of a n d to m a n a g e the geographies of colonial inheritance. With its power base reconfigured to a c c o m m o d a t e the politics of decolonisation a n d globalisation, anthropology has n o t lost its p u r p o s e . More than merely maintaining a place in ' t h e field', the discipline is still c o m m i t t e d to e n g a g e m e n t with a n d exegesis o n social life. T h e question that t h e n con­ fronts a n d c o n f o u n d s some c o n t e m p o r a r y anthropologists is how to exe­ cute their p u r p o s e now that their ship appears to have lost its moorings. O n c e unaware of the power relations a n d contradictions implicit in conducting fieldwork in societies ' c o n q u e r e d by o u r own governments', anthropologists, for the most part, are now grappling with the history a n d politics that such a past has m a d e for them. Their awareness of the inces­ tuous relationship between colonisation, military power and knowledge production has been b r o u g h t o n in part by global, political a n d philo­ sophical factors. H e r e decolonisation movements and literature (Cesaire 1972; Fanon 1963), polemical a n d scholarly critique (Deloria 1969; Said 1978; Hymes 1969; Medicine 1971) as well as the conceptualisation of the discipline as a discourse, a n d the understanding that n o discourse is valuefree (Asad 1979; Foucault 1980) have fed into the radical reconstruction that is underway in anthropological literature. This reconstruction is marked by experimentation with form as well as the recasting of ethno­ graphy as cultural criticism (Marcus a n d Fischer 1986), calls for politically engaged and collaborative work (Biolsi and Z i m m e r m a n 1997: 17-18), ' r a p p r o c h e m e n t ' or collaboration across disciplines (Cohn 1980) a n d the overall feeling, for some, of an ongoing 'crisis' (Said 1989: 205-6; Marcus and Fischer 1986: 7-16), or a spell of debilitating experimentation with passing fads a n d fashions (Salzman 1994: 35). Much of c o n t e m p o r a r y anthropology, t h e n , issues from a tension between objective a n d m o r e subjective models of cultural analysis - the two models that are often invoked when explaining how anthropology 'should' be d o n e , now that the ship appears to have lost its moorings. Working within this tension - o n e that is an o n g o i n g a n d p e r h a p s end­ less source of d e b a t e in the social sciences - Michael Jackson, in Paths Toward a Clearing (1988), removes us from the disagreements a n d directs us instead to a new space a n d m e t h o d for anthropological inquiry. This space is cleared by Jackson's a r g u m e n t for a phenomenologically driven form of cultural analysis. Toward this e n d , h e reminds us, first, that t h o u g h t is a way into a n d t h r o u g h the world - that it is like a m o v e m e n t to a clearing. Taking u p A d o r n o , h e likens this m o v e m e n t to a ' h u m a n praxis' - a dialectic that carries us from o n e idea to the next, testing o u r

124

AUDRA SIMPSON

vocabulary against the exigencies of experience. This testing of vocabu­ lary against the living of life carries o n e to 'a clearing' - a space n o t yet specified by Jackson b u t o n e that may be u n d e r s t o o d in cultural a n d ulti­ mately political terms. T h e political hues to Jackson's clearing h e r e may b e i n t e r p r e t e d as an o p e n i n g into the poetics of possibility, of cultural creation - a space within a world whose horizons are o p e n , where Indian p e o p l e may be, finally, as we are. Jackson's central preoccupations in this text are those theories of knowledge a n d power that should inform anthropological analysis. His q u a r r e l is with the 'scientific' tradition in anthropology that purports to b e objective a n d value-free, affording us the ultimate a n d absolute final­ ities of t r u t h . This latter view of anthropology a n d its m e t h o d has been critiqued heavily by native a n d non-native scholars alike for making objects of living people, their culture, their place a n d their way in the world. In objectifying Indians a n d o t h e r anthropological subjects, anthropological discourse has r e p r o d u c e d a n d , some have argued, per­ p e t u a t e d colonial relationships of power (Deloria 1969; Hymes 1969; Asad 1973; Said 1978). Although Jackson's text is n o t p r o m p t e d specifi­ cally by the politics of knowledge or the relationships of power that char­ acterise the colonial legacy, his work offers some i m p o r t a n t channels for students of culture a n d others who desire a way into the world that is dif­ ferent a n d p e r h a p s m o r e just than it was in t h e past. It is for this reason that anthropology, colonialism a n d Michael Jackson serve as entry ways into this discussion of c o n t e m p o r a r y Mohawk political praxis.

Mohawk Nationhood and Narrativity Rather t h a n focus his efforts o n the style of anthropological discourse, as some c o n t e m p o r a r y anthropologists have d o n e (Crapanzano 1986; Clif­ ford 1986), Jackson maps o u t instead a p h e n o m e n o l o g i c a l a p p r o a c h to writing culture that a b a n d o n s the precepts of objectivity entirely a n d engages instead the flux of lived experience. His way into experience is 'radical empiricism', a methodology that has as its unit of study the ' p l e n u m of existence' in which all ideas a n d intellectual constructions are g r o u n d e d ' (Jackson 1988: 3). For Jackson, radical empiricism will be a m e t h o d with which o n e will experience, interpret a n d write culture. As such, Jackson's anthropological practice conjoins the intellectual ances­ try of the discipline to t h e discursive practice of the subject as well as the subjectivity of the analyst. In weaving these elements together in the writing of culture, the u n d e r s t a n d i n g a n d 'way of being in the world' of the anthropologist c o u n t as m u c h as that of the subject, as each shapes the o t h e r in the defining m o m e n t s of their exchange. T h e result of such an e x c h a n g e p r o d u c e s r e n d e r i n g s of social experience that lodge

C I T I Z E N S H I P IN KAHNAWAKE

125

'anthropological subjects' as active agents in the representation of their culture r a t h e r than static objects of scholarly contemplation. T h e r e is m u c h , t h e n , in Jackson's work that Indians should be con­ c e r n e d with. In placing an overall p r e m i u m on the dialectics of being the currency of exchanges between people - Jackson's a p p r o a c h to culture a n d his methodological suggestions may deliver us from the necessary essentialisms that beset Indian p e o p l e (and perhaps all former subject-peoples) in the representation of their c u l t u r e . As well, by engaging the flux of lived life, a n d having as its premise the untidiness and fluxist n a t u r e of culture, radical empiricism acknowledges the par­ tiality a n d shifting n a t u r e of knowledge, a partiality that Abu-Lughod likens to 'standing o n shifting g r o u n d ' (1991: 142) - a perspective that embraces the politics of honesty (and humility). This promise offers cultural analysts a n d Indians a way o u t of the static a n d necessarily reified representations of identities a n d cultures that earlier a p p r o a c h e s to cultural analysis d e m a n d e d . It is for that reason that I take radical empiricism toward the day-to-day politics of n a t i o n h o o d in Kahnawake. Although Jackson is not a Mohawk, nor is his work informed by the p l e n u m of their existence within the nation-state of Canada, his particular attention to lived experience has much to offer c o n t e m p o r a r y studies of Mohawk n a t i o n h o o d . Jackson's arguments a n d suggestions bear on the particular concerns of contem­ porary anthropological practice - a practice beset by a 'crisis in represen­ tation' - by placing experience at the very centre of his analysis. But m o r e importantly, perhaps, his analysis bears o n this o t h e r crisis in conversation issues pertaining to native-state relations, where the p r e m i u m is on rec­ onciling various solitudes a n d ways of being. T h u s we have an alternative to the integrating, as Kymlicka would have it, 'minority nationalist' model of ethnic relations within a b r o a d e r framework of the state, by listening in substantive ways to the voices a n d experiences within. H e r e is a philo­ sophically a n d sensorially t u n e d encounter, o n e that attempts an under­ standing t h r o u g h listening, observing, entering into a conversation with o n e a n o t h e r t h r o u g h an attempt at engaging what was commonly misun­ derstood a n d misconstrued - experience. This centring of experience in analysis by Jackson resonates with native claims for sovereignty (if we may talk as well about exercising control over representations of native culture as well as control over native land) as m u c h of our lives are lived with the knowledge that o u r experiences have simply n o t mattered m u c h . And other experiences clearly have mattered m o r e - witness canonical notions of history, literature a n d curricula. T h e marginalisation of certain expe­ riences a n d narratives over others alone 'tells us' that there are some sto­ ries that simply matter m o r e than others. If we were to argue, t h e n , from a generic 'native' perspective we might say (and rather simply at that) that 6

126

AUDRA SIMPSON

t h e r e are 'facts' that we own, knowledge that we share and, a m o n g these facts, that the land that we live on now is ours because (some of us believe that) w e c o m e from the earth. F u r t h e r m o r e , this land, which gave us o u r life a n d o u r subsistence a n d b r o u g h t us into being, belongs by the miracu­ lous interplay of history, luck, force, acquiescence a n d in some cases, out­ right battle, to outside p e o p l e who claim it now as their own. This is a fact to us a n d is fiction to far too many others. We live then in a tension that must be resolved. O u r questions are m o r e immediate a n d m o r e pressing p e r h a p s than the philosophical a n d practice-oriented issues of Jackson, but there is resonance still. It is because of these facts that we own, the history a n d knowledge that we share of this past, that nationhood is a terribly i m p o r t a n t c o n c e p t for Indians a n d academics alike. It is the prism t h r o u g h which many Indians view their historical experiences, themselves a n d their aspirations a n d t h o u g h t - ' n a t i o n h o o d ' in the c o n t e m p o r a r y native landscape may be u n d e r s t o o d as a m o v e m e n t toward a clearing. It is a Herculean gesture away from the enframing efforts of the Canadian state, toward a place a n d a state of b e i n g that is o u r own. As with culture a n d the analytical a p p r o a c h that Jackson is arguing for, the culture and issues of native p e o p l e s can best be e x a m i n e d in terms of the lived experience of nation­ h o o d . In o r d e r to appreciate that experience, o n e must take account of the s h a r e d set of m e a n i n g s that are negotiated t h r o u g h narrations t h r o u g h the voices a n d structural conditions that constitute selfhood. In o r d e r to appreciate these representations, analysts must examine the words a n d stories that p e o p l e share with each other; to the ways that Indi­ ans r e n d e r their own experiences into being; how they represent them­ selves a n d their p e o p l e to each other.

Kahnawake This c h a p t e r is c o n c e r n e d with narrations of n a t i o n h o o d a m o n g con­ t e m p o r a r y Indians in Canada. My research centred o n the volatile ques­ tion of citizenship or ' m e m b e r s h i p ' a m o n g Mohawks of Kahnawake. As a reserve c o m m u n i t y Kahnawake rests on land that is held in trust for the m e m b e r s of the c o m m u n i t y by the Canadian state (what is known as 'crown l a n d ' ) . It is t h r o u g h the provisions of the Indian Act that the Mohawks of Kahnawake, like those Indians belonging to o t h e r reserve c o m m u n i t i e s in Canada, receive their right to reside o n the 12 000 acres known as the Kahnawake Indian Reserve. T h e i r n a m e s a p p e a r o n a fed­ eral registry of Indians in Canada as well as a band-controlled registry that accords t h e m the rights of status Indians in C a n a d a . 7

8

As a reserve c o m m u n i t y of indigenous p e o p l e within a settler society Kahnawake is s u r r o u n d e d symbolically a n d materially by the govern-

127

CITIZENSHIP IN KAHNAWAKE

mental structures a n d peoples that inhabit the political landscape of Canada. Situated in the s o u t h e r n part of the f r a n c o p h o n e province of Q u e b e c , the municipalities that s u r r o u n d the community - St Constant, Delson a n d Chateauguay - are largely white a n d f r a n c o p h o n e c o m m u ­ nities. Montreal, a large multicultural city, is approximately ten minutes away from the c o m m u n i t y by vehicle. T h e proximity of non-native people to the c o m m u n i t y exacerbates a sense of urgency a b o u t the community's sovereignty a n d identity. Although Kahnawake has its own police force made u p of c o m m u n i t y m e m b e r s a n d native p e o p l e from o t h e r parts of Canada, the issue of policing a n d jurisdiction is a constant source of con­ cern, with c o m m u n i t y m e m b e r s a d a m a n t that neither the provincial police force n o r police forces from the s u r r o u n d i n g areas have a right to enter the b o u n d a r i e s of the c o m m u n i t y unless invited. Although s u r r o u n d e d by seemingly foreign peoples with governmen­ tal structures that have legal claim to their land a n d the operations of their community, Kahnawake behave as o t h e r nations d o a n d attempt, at every t u r n , to exercise authority a n d control over the affairs of the reserve. 'Behaving as o t h e r nations d o ' requires that Kahnawakeromon maintain a strong sense of themselves as a distinct people with rights a n d obligations that flow from their distinctiveness. To maintain a sense of themselves as a nation, Kahnawakero:non shape their historical a n d con­ temporary experiences t h r o u g h discursive practice - a practice that uses the key tropes o f ' b e i n g I n d i a n ' a n d having 'rights'. These tropes are tied to social a n d cultural praxis by working in the service of identity con­ struction a n d m a i n t e n a n c e for Mohawk individuals - a process that n o t only signals to individuals the social ideal, but suffuses everyday life with a sense of n a t i o n h o o d . 'Talking' n a t i o n h o o d a n d being Indian are n o t recent predilections or cultural inventions for Kahnawakero.non. As p a r t of the larger matrix of Iroquois e x p e r i e n c e in what is now the N o r t h e a s t e r n US, the Mohawks of Kahnawake are splintered from o n e of the Six (formerly five) Nations Confederacy, the Iroquois or Haudenosaunee ('People of the L o n g h o u s e ' ) . T h e Haudenosaunee are a confederated g r o u p of Indian nations that militarily d o m i n a t e d what is now the N o r t h e a s t e r n US before contact. T h e p e o p l e of Kahnawake, along with Mohawks in Akwesasne a n d Kanehsatake (two o t h e r Mohawk reserves in the Province of Q u e b e c ) , share a history of participation in the Confeder­ acy a n d use this e x p e r i e n c e to construct a n d maintain their collective identity as a distinct p e o p l e within the larger political a n d social geo­ graphies of C a n a d a a n d the US. Kahnawakeromon also draw from the Confederacy of the past to recreate alternative forms of religion a n d g o v e r n m e n t in t h e c o n t e m p o r a r y era (this structure is known today in the c o m m u n i t y as ' t h e L o n g h o u s e ' ) . 9

128

AUDRA SIMPSON

Kahnawakeroinon have a strong sense of themselves as a distinct nation that is based o n their pre-contact political experience a n d their m o r e r e c e n t interactions with the governments of settler societies in Canada a n d the US. This has b e e n d o c u m e n t e d in anthropological a n d histori­ cal research (Voget 1951; H a u p t m a n 1986), a n d has recently been the explicit focus of a c o n t e m p o r a r y study in political science (Alfred 1995). Although each of these works has d o c u m e n t e d or focused o n structural or institutional elements of Mohawk a n d Iroquois consciousness of self a n d society, analysis of Kahnawake's n a t i o n h o o d thus far has n o t exam­ ined the critical role of discursive or cultural practice of community m e m b e r s in constructing their identity a n d sense of being in the world. I focus h e r e o n discursive practice or 'what p e o p l e say' to each other. T h e focus o n discursive practice flows from the different premise that Mohawk n a t i o n h o o d is built u p o n . Ethnicity a n d structural inequality are often the starting points in analyses that e x a m i n e nationalism. Rather than use these as an entangled premise for all cultural activity a n d argu­ ing from t h e r e that ethnicity = ethnogenesis (and ethnogenesis = nation­ alism), I will e x a m i n e Kahnawake nationalism t h r o u g h the words of those p e o p l e who p r o d u c e it. Towards this e n d I will not be focusing wholly u p o n interactions with external forces (a precondition for the cre­ ation of ' e t h n i c consciousness'), or ignoring these interactions alto­ gether. By privileging the interactions that Mohawks are having with each other, r a t h e r than those that they have with the 'outside', I h o p e to r e t u r n nationalism to the web of meanings that comprise culture - the p l e n u m of experience, r a t h e r t h a n ethnicity. Citizenship, Blood and Belonging I n d i a n reserves in C a n a d a have only h a d control over their m e m b e r s h i p lists since 1985, when the federal g o v e r n m e n t r e t u r n e d the authority to d e t e r m i n e b a n d m e m b e r s h i p from Indian a n d N o r t h e r n Affairs Canada to reserve communities. Membership in an Indian community carries rights a n d obligations to that community. Band m e m b e r s have the right to build a h o m e o n the reserve, reside o n the reserve, vote in b a n d coun­ cil elections a n d have their social welfare m a n a g e d by the b a n d . In o r d e r to maintain their m e m b e r s h i p o n the b a n d list Kahnawakeromon are r e q u i r e d since 1981 to ' m a r r y in' (Alfred 1995: 163-77). 'Marrying in' m e a n s that in o r d e r to maintain their place o n the list of m e m b e r s in the community, individuals are required to m a r r y a n o t h e r person who has at least 50 p e r cent Indian blood. T h e 50 p e r c e n t blood q u a n t u m is replete with problems within Kah­ nawake. T h e s e are p r o b l e m s that revolve a r o u n d the dual axes o f ' r i g h t s ' a n d identity a n d are manifest as disagreements over what criteria should

C I T I Z E N S H I P IN KAHNAWAKE

129

be used for the g r a n t i n g of m e m b e r s h i p , o n who an Indian is a n d , m o r e specifically, what a Mohawk is a n d should be. Questions that t h e n con­ front Kahnawakero.non w h e n c o n t e m p l a t i n g m e m b e r s h i p include: what should be the criteria for d e t e r m i n i n g membership? To w h o m should it be given? Should m e m b e r s h i p be given to the children of two Indian parents? To children with o n e parent? What if that p a r e n t h a d o n e white parent? F u r t h e r m o r e , how far in o n e ' s lineage should the Mohawk Council of Kahnawake g o to calculate their q u a n t u m ? Why even use blood w h e n t h e r e are traditional Iroquois practices a n d o p t i o n s such as adoption a n d the clan system reckoning of descent? Should rights to m e m b e r s h i p b e given to a n y o n e who does n o t have a clan or a commit­ m e n t to Mohawk culture a n d community? T h e s e questions a n d the resulting discussions a r o u n d m e m b e r s h i p speak from a n d to the historical experiences that shape Kahnawake's col­ lective sense of self. H e r e we will find interactions with the Canadian state that provided Kahnawakeromon with an e n d u r i n g sense of mistrust and c o n c o m i t a n t enclosure. At the same time Kahnawakeromon have h a d friendships, marriages a n d alliances with non-natives that now make the matter of m e m b e r s h i p a politically a n d an emotionally loaded matter to c o n t e m p l a t e , let alone adjudicate. From h e r e , b o t h self a n d nation are braided into past experiences a n d stories of those experiences (Kerby 1991: 1; B h a b h a 1990: 1-7; 1994: 7; C o n n e r t o n 1989: 16-17). This past is tied to ways of seeing a n d being in the world that are n o t ' p u r e ' - m o d e s of being that enter b o t h indigenous a n d 'statist' notions of being into a dialogue, p r o d u c i n g the on-going, processual a n d syncretic culture that is used forcefully to construct a n d maintain o n e ' s self a n d nation. H e r e I have the e x p e r i e n c e a n d narrations of Kahnawakeromon that speak directly a n d sometimes obliquely to the issue of m e m b e r s h i p , b u t most definitely to notions of 'being I n d i a n ' a n d 'having r i g h t s ' . We will go first to a bingo hall, where o n e person's presence a n d identity was con­ tested in an indirect b u t forceful way by a n o t h e r c o m m u n i t y member. As well, we will g o to a b a n d council meeting, o n e of the monthly meetings of the elected council a n d c o m m u n i t y where the subject of m e m b e r s h i p was discussed. A text t h e n from Onkwarihwa 'shon: a, a monthly newsletter that is distributed by the Mohawk Council of Kahnawake to u p d a t e com­ munity m e m b e r s o n internal matters, which will provide a direct linkage m a d e by the elected council between law, m e m b e r s h i p a n d Mohawk sov­ ereignty. Finally, we will r e t u r n to a m e e t i n g of the elected council again as they share their platforms for the t h e n - u p c o m i n g elections in July 1996. Using a radically empirical m e t h o d , these narratives have b e e n provided to 'revalidate the everyday life of ordinary people, to tell their stories in their own words' (Jackson 1996: 36). 10

130

AUDRA SIMPSON

The Super Bingo It is the s u m m e r of 1993 a n d we are sitting at the e n d of a long table in the S u p e r Bingo. T h e hall has yet to fill u p a n d Daniel a n d Martha, who work at the bingo, are smoking cigarettes a n d we are talking. I am wait­ ing to play a n d killing time with them. T h e bingo is divided into service a n d security employees. T h e service employees, with the exception of R o b e r t a n d Daniel, are w o m e n . T h e security guards are all m e n a n d are mostly young. T h e y carry walkie-talkies a n d look for cellular phones, food b r o u g h t in against regulations a n d o t h e r offences. They seem m o r e interested, however, in checking out the young w o m e n who work there. T h e i r furtive glances to o n e a n o t h e r a n d the purple bruises on their necks (which are also against employee regulations) attest to r o m a n c e , a n d we are trying to figure o u t which security a n d which service staff are involved. We are watching for these signifiers while recalling the con­ tours a n d the taste of 'zeppoles' in Brooklyn a n d the future of David Dinkins after the u p c o m i n g mayoral elections in New York City. O u r con­ versation is redirected, however, to o n e service employee because she (in h e r thirties) has just walked in a n d is wearing an almost-againstregulations white leotard. We j o k e about the 'crack' security team a n d w h e t h e r they will be able to concentrate o n their work. A m a n c a m e n e a r o u r table a n d Daniel knows h e is close by. H e d i d n ' t want to t u r n his h e a d so h e asked Martha: 'Is that 135?' (the m a n ' s n a m e , as far as I know it). M a r t h a exclaimed: ' O h yes, it's that dirty, skinny son of a bitch - 30 per cent!' Now we are looking at her, trying not to laugh, listening, stealing glances at each o t h e r - where did that c o m e from? 'His m o t h e r wasn't I n d i a n a n d his father was barely Indian, h e is lucky if h e is even 30 p e r cent! Look at him in that "Warriors" jacket - who the hell does h e think h e is?! H e ' s n o t even an Indian a n d he's got his jacket on, walking a r o u n d h e r e like that.' Daniel a n d I are laughing o u t loud now, oblivious to the hickeys, David Dinkins a n d 135 himself. We are 'rolling', so to speak, a n d Martha is just catching h e r breath, she is excited with h e r information a n d the effect it is having o n us. She then pointed a jewelled finger at Daniel a n d then at me (now d a b b i n g a mess of make-up from u n d e r my eyes) a n d she said: ' D o n ' t worry, you t w o - 1 know your m o t h e r [points at Daniel] a n d I know your father [points at me] - a n d I know your halves are whole.' We suddenly stopped laughing a n d Martha continued, unfazed. She c o n t i n u e d with the details o f ' 1 3 5 ' s ' allegedly dubious family tree. I d o n ' t think either of us started to worry until t h e n .

C I T I Z E N S H I P IN KAHNAWAKE

131

Band Council Meeting T h e Knights of C o l u m b u s Hall is almost full. Families are positioned in their usual seats; m e n are standing by the e n t r a n c e to the hall with their hands in their pockets. People are smoking a n d drinking coffee out of styrofoam cups. T h e m e e t i n g has b e e n going o n for about half an hour. T h e chiefs are answering questions a b o u t m e m b e r s h i p . 'What are we going to d o ' , o n e w o m a n asks, 'with so a n d so? H e is with that white w o m a n a n d they have a child - a r e n ' t they supposed to leave? How c o m e so a n d so h a d to leave a n d h e gets to stay? They m a r r i e d after '81, h e knew what h e was getting in to; how c o m e the Peacekeepers d o n ' t go to his h o u s e ? ' O n e chief gets u p a n d says, T know who you are talking a b o u t a n d h e has b e e n told. H e knows h e is supposed to leave, h e has b e e n asked to leave b u t we have to as a c o m m u n i t y let him know the Law [Mohawk Law on M e m b e r s h i p ] . ' T h e r e are m o r e questions now, a b o u t individuals a n d who they are with, a b o u t the Law itself a n d how it is applied. Some people are stand­ ing when they ask their questions a n d voices are raised several times. O n e c o m m u n i t y m e m b e r says something a b o u t Council m e m b e r s a n d o n e of the Chiefs says: T know that this affects each a n d every o n e of you, each of us has s o m e o n e in their family . . . m e too, I have family in the States a n d they m a r r i e d o u t a n d they have children. I tell t h e m you can't come back h e r e , you have to know t h a t . . . so d o n ' t think I d o n ' t know.' H e sits down a n d somebody brings u p a Kahnauiakero:nonwho married a non-native m a n in 1983 a n d h e r legal case against the M C K O n e of the chiefs stands u p a n d elaborates o n the case. A m a n standing at the back of the Knights says: 'We d o n ' t have anything in place to take care of those people [C-31s] . W h o is g o n n a take care of them? If we h a d a Traditional g o v e r n m e n t in place they would b e taken care of, if we base things h e r e on anything else b u t the Kaienerakowa t h e n we will be racist.' A w o m a n seated n e a r the back of the hall r e m i n d e d us: ' T h e r e was a 1979 m a n d a t e towards Traditional g o v e r n m e n t . What h a p p e n e d to that? You know, t h e r e is n o stigma o n half-breeds whose fathers are Indian, b u t if you are a C-31 in this c o m m u n i t y you are stigmatised a n d n o b o d y talks about that. Why d o n ' t you p e o p l e [at the meeting] throw down The National Enquirer and. read the Indian Act? It's all there, why we are in this mess. How can we deal with these contradictions?' An older w o m a n t h e n stands u p . She is sitting by the chiefs at the front of the Knights. She speaks in Mohawk, h e r voice is loud a n d she seems angry. H e r voice is rising a n d I ask my auntie what she is saying. She shushes m e . u

12

AUDRA SIMPSON

132

T h e w o m a n says in English, wagging h e r finger a r o u n d : 'Did you ever see those white w o m e n c o m e on t h e reserve a n d ask [her emphasis] if they c o u l d m a r r y an Indian?! [ T h e n o n - I n d i a n w o m e n who m a r r i e d I n d i a n m e n before 1981.] S h o u l d o u r w o m e n have to d o that - have a p a p e r saying if they are widowed or divorced?!' [In o r d e r to get rights to residency on t h e reserve C-31s have to prove to t h e MCK that they are widowed or divorced.] T h e G r a n d Chief stands u p a n d says that the Mohawk Law on Mem­ b e r s h i p s h o u l d be a method [his e m p h a s i s ] , n o t a c o d e . H e t h e n says: 'If a traditional system is a p p r o p r i a t e , t h e n so be it.'

Onkwarihwa'shon:'a ('Our Affairs')

Racism. In recent times, we have been accused of outright racism whenever we made any attempt to deny certain rights to those who are simply not enti­ tled to those rights in the first place. Here, it has to be very clearly stated that there is a big difference between being backed into a corner and being guilty of racism. However, the tricky part is that, despite any such difference, the question of who is entitled to what must still be answered in terms of who is actually Indian. T h e aspect of the debate on membership is fixated on the term 'blood quantum' . . . Yes, race is involved in the matter Native Rights [sic]. And yes, it becomes a matter of who is entitled to those rights, by virtue of the kind of blood running through their veins. However, it is N O T about who is the purer of the species. It is about wrongs done through five hundred years of history to an entire race of people. It is about not allowing this to go o n any more, and it is about putting things right once and for all, before they get any worse and a whole race of people is eradicated. It is about justice, and if nothing else at all, it is about survival. Indeed, we have a long, long journey ahead of us, if we're ever going to get this mess cleaned up. At times, journeys can be agonising, and clean-ups can be as messy as the mess itself. In any case the Mohawk Council of Kahnawake and the Membership Committee are dutybound to follow the wishes of the Mohawk People of Kahnawake, and no-one else. In this, I can only ask that our own people contribute in any way they can, to the setting straight of the membership issue, and that for once, non-Native powers honor their part of the Two Row Wampum Treaty and stop meddling in our affairs. Nia:wen (thank you). (Chief Allen Paul 1995: 5 - 6 ) 13

Candidates Night It is C a n d i d a t e s Night a n d I am sitting with my a u n t i e , some cousins a n d my c o u s i n ' s wife in t h e Knights of C o l u m b u s . We a r e a little jittery because a family m e m b e r is r u n n i n g for Council. We got to t h e Knights early a n d w o r k e d o n his platform, feverishly j o t t i n g ideas o n i n d e x cards while his wife scolded h i m for waiting until t h e last m i n u t e to p r e p a r e his s p e e c h . T h e m e e t i n g begins with all b u t four of t h e c a n d i d a t e s present.

C I T I Z E N S H I P IN KAHNAWAKE

133

A n a m e is r a n d o m l y selected by the m o d e r a t o r of the evening a n d the platforms begin. T h e first candidate is a m a n in his thirties. This is his second time run­ ning for Council a n d h e is very p r e p a r e d . H e has a text that h e reads from a n d an obviously r e h e a r s e d platform. H e lost the last election by 40 votes a n d seems likely to win n e x t week. H e weaves the i m p o r t a n c e of education into his platform a n d shares his experience of having to bor­ row m o n e y a n d fundraise in o r d e r to go to school in the States. I make a note to myself to vote for him next week. T h e platforms c o n t i n u e with most candidates going over their allotted ten minutes. O n e talked about land, a n o t h e r talked a b o u t his past, a n o t h e r talked about reform a n d a n o t h e r talked a b o u t the curbs. I was tired, taking notes the whole time, my eyes bleary from cigarette smoke a n d I was losing the taste in my m o u t h because of too m u c h coffee. It was Sak's t u r n . H e walked to t h e mike a n d raised his h a n d , ' Kwe Kwe,' h e bellowed, a n d smiled while waving to the a u d i e n c e . I jolted upright. Much to my surprise, h e started to sing a song in Mohawk to the people. T h e words, although u n k n o w n to m e , were sung to the very recognisable t u n e by H a n k Williams, 'Hey Good Looking, W h a t ' c h a got Cooking?' Everybody started laughing, looking at him, glancing at each other - what was h e doing, what was he saying? Without giving us time to talk to each o t h e r h e started his platform. H e h a d n o paper, n o index cards a n d n o unifying t h r e a d that I could identify at the time. H e was telling stories, talking a b o u t language a n d the n e e d to speak Mohawk: 'Why d o n ' t o u r p e o p l e even try to speak their language, I m e a n , really try? It is n o t e n o u g h to tell your children "satien" [sit down!] or "tohsa" [stop it!]; make full sentences, for heaven's sake! I speak to y o u n g p e o p l e and I say "Kwe Kwe" a n d you know what they say back to me? They say "Hi" [at this point h e did an imitation of an uptight a n d affronted person, curled u p his a r m s a little a n d screwed u p his face into displeasure] a n d then they r u n away from m e . D o n ' t you want your children to be able to speak in full sentences? How c o m e these Chinese who c o m e h e r e speak their language to their children a n d their children speak two languages? How c o m e they can d o it a n d we can't d o it? They even c o m e to Kah­ nawake a n d speak our language.' H e now starts speaking Mohawk with a Mandarin accent - maybe alluding to the co-owners of Way Ta Le, a Chi­ nese restaurant a n d take-out that o p e n e d o n the reserve - h e milks it m o r e because everyone is laughing. I am thinking h e is like Charlie Chaplin a n d an ironworker all in o n e . And t h e n h e said, o u t of the blue: T d o n ' t like blood q u a n t u m , you could live o n the Farm [farmland off Highway 120 going towards St Con­ stant, r e m o t e in relation to 'Town' which is m o r e central, where the main highway a n d two iron crosses are] your entire life a n d t h e n c o m e into

134

AUDRA SIMPSON

Town a n d p e o p l e say "Kwal Who's that?! I d o n ' t know him!'" H e contin­ ues: ' T h e n next thing you know, h e is listed at 47 per cent because n o b o d y knows his face . . . Being an Indian isn't whose b a n d n u m b e r is lower [does an imitation of s o m e o n e bragging in a whiny voice, 'My band n u m b e r is lower than your b a n d n u m b e r ' ] , or how many beads you put in your ears - it's your ancestry . . . / could tell you a story about membership that would break your heart, but I won't.' Sak sings m o r e songs, a n d speaks in Mohawk. People are laughing and I ' m laughing too. I stop taking notes. I am listening to h i m a n d watching him. H e is imitating us - h e is making fun - a n d in d o i n g so, h e is teach­ ing us what being Mohawk is. H e is holding u p a m i r r o r to us a n d we are laughing at ourselves. Post-candidates Night: the Phone Call My g o o d friend is in Albany, New York, working at the Iroquois Indian Museum. H e called m e after the meeting a n d we are talking about the platforms. H e wanted to know what they said. H e wants to know who, if anybody, said anything a b o u t education. I tell him what h e wants to know a n d we agree that it is a good thing that t h e r e are so many young people running. 'We n e e d some young blood in there,' h e says, a n d I agree. I tell him a b o u t Sak's song a n d his platform. We are laughing at the platform and at m e trying to imitate Sak imitating everyone else. My friend says that it's so g o o d that h e is r u n n i n g for Council because h e will really push lan­ guage. Sak was a Mohawk language teacher a n d we like him for this. I ask my friend why Sak said that there was a story about m e m b e r s h i p that would break o u r hearts. Does h e know what Sak m e a n t by that? Does he know that story? H e answered: ' D o n ' t you know a b o u t his family?' And t h e n he told me the story. Now I know. This p a p e r began with an a r g u m e n t a n d e n d e d with a story. It was this a r g u m e n t : that political theory desires a conversation with Indians, that this conversation is s o m e t h i n g that might make Canada a better place to be. This conversation, we might all agree, should be predicated on lis­ tening, a n d so it was to the problematic of indigenous n a t i o n h o o d , an Indian m e a n s of expression, that we turned. We looked then at anthro­ pology a n d its structural a n t e c e d e n t s to arrive, some might say strangely, at a place where we could listen to indigenous voices that speak, walk and talk the stuff of n a t i o n h o o d . It was a r g u e d that anthropology is shaped still by colonialism - that the geo-political relationships that gave it pur­ pose, s h a p e d its language a n d gave it some authority have c h a n g e d , but

CITIZENSHIP IN KAHNAWAKE

135

the impetus for research has r e m a i n e d the same. Anthropology remains c o m m i t t e d to social e n g a g e m e n t a n d exegesis o n that e n g a g e m e n t . T h e effects of conquest, however, are now woven into its preoccupations a n d discourse. M u c h of the p r o d u c t i o n of text in the discipline is therefore articulated to the c o n c o m i t a n t 'crisis' in representation - the question of how anthropologists are to speak about p e o p l e without speaking for people - how the discipline is to m a n a g e its information a n d its identity in the face of m o v e m e n t s for native sovereignty at the level of scholarly representation. T h e result of this dialectic between anthropology a n d local life has created an anthropological praxis that is p u n c t u a t e d by introspection, reflexivity, revision, creativity, nervousness and, at dmes, reactionary discourses. T h e discussion of these issues b r o u g h t us to Kah­ nawake a n d these stories - stories that are laced together with hopes a n d desires for control a n d authority over life - in a n a m i n g a n d manage­ m e n t of the issues that are o u r colonial inheritance. T h e p o i n t of sharing these narratives was to contribute something to this conversation, to press into play the usefulness of a radically empiri­ cal m e t h o d when considering c o n t e m p o r a r y culture a n d n a t i o n h o o d . As well, to share the interior frontiers of Mohawk n a t i o n h o o d , to step u p o n the terrain of a g r e e m e n t , discord a n d hopeful contemplation that unites Kahnawakeromon in their search for a way t h r o u g h the mass of contra­ dictions that o n e interlocutor at a c o m m u n i t y m e e t i n g referred to. T h e intricacies of these stories - the names that Kahnawakeromon have for each other, the categories that they place o n each o t h e r ' s being - may be lost o n you, b u t that is fine. You have h e r e a sense that rights a n d con­ t e m p o r a r y Indian identity are e n m e s h e d - that they are tied to stories a n d these stories are tied to ourselves. T h e s e narratives illustrate that Mohawk n a t i o n h o o d is shaped t h r o u g h what p e o p l e say to each other, by what they say a b o u t each o t h e r - they illustrate how 'place' in the world is staked o u t a n d g u a r d e d t h r o u g h the defining m o m e n t s of shared expe­ rience a n d the words that t h e n give shape to this experience. Leaving the Knights of C o l u m b u s again, a n d only for a m o m e n t , I want to r e t u r n once again to polidcal theory, to anthropology, to Jackson, a n d ask if this praxis that h e talks a b o u t - the traffic from o n e c o n c e p t to another, o n e e m o t i o n to a n o t h e r - can this ever be a directed, a n d yet miraculously neutral, i n n o c e n t a n d value-free process? Can we ever go into o u r own reserves a n d political meetings a n d r e p o r t o n these events? Can we take into a c c o u n t the multiplicity of intentions that inform indi­ vidual a n d social action a n d o u r own experience of it all a n d then sud­ denly, by some miracle, disengage? Is it possible for us to move across the terrain of knowledge p r o d u c t i o n free from the constraints of specificity, locality a n d experience? And, is it possible to listen to each o t h e r in a sub­ stantive a n d meaningful way, as Tully a n d others are trying to do?

136

AUDRA SIMPSON

Can we liken the thinking a n d living of life m a p p e d out by Jackson to the path of Kahnawake's debates over membership? Each is a process that tests individual knowledge, e m o t i o n a n d vocabulary against the exi­ gencies of the present. Each is informed by the desire for a future that is in some ways better than the o n e we left b e h i n d . I n d e e d , I think that we can. Are Kahnawake's attempts at finding a way back into the world - to find a clearing - an objective a n d value-free affair? Can we liken their attempts to find this clearing, m u c h like the social a n d cultural analysis of the past, to shots that are fired into a universe of abstractions by a remarkably dispassionate marksman? O c c u r r i n g at the intersection of e x p e r i e n c e a n d cognition, thought, like n a t i o n h o o d , is a process, and as such is shaped from social interactions, sensorial deposits as well as per­ sonal a n d collective desires. It is n o t objective, n o r is it a r a n d o m praxis. Like the m a r k s m a n a n d the c o m m u n i t y m e m b e r s in Kahnawake, you too will take shots that are shaped by these lessons: memory, forgetting, the sense a n d specificity of life a n d those a r o u n d you. In these ways the m a r k s m a n a n d the Mohawk stand on c o m m o n g r o u n d with us. H e is like us - h e squares himself o n the g r o u n d that h e stands on, h e takes aim a n d h e fires. We watch the shot cut t h r o u g h the sky until it fades into sud­ d e n dissolution - we listen for a response from somewhere o u t there. He looks to the g r o u n d . We wait together for an answer.

CHAPTER

7

(De) Constructing the Politics of Indigeneity M a n u h u i a Barcham

These Maori today are not Maori any more I don't know what they are Apirana Taylor, 'Feelings and memories of a Kuia- (Taylor 1989)

O n e could easily b e forgiven, in light of the a p p a r e n t success of pro­ grams of reconciliation a n d r a p p r o c h e m e n t between i n d i g e n o u s peoples a n d settler g o v e r n m e n t s in r e c e n t years, for thinking that the worst of the colonial legacy has b e e n p u t b e h i n d us, a n d that - apart from the occasional deviation along the way - all that r e m a i n e d was mainly a m a t t e r of fine-tuning strategies of i m p l e m e n t a t i o n . Recent struggles over the allocation of pre-settlement Treaty assets a n d over the validity of e m e r g e n t forms of i n d i g e n o u s organisational form in New Zealand have, however, b r o u g h t this Utopian view into question. T h e tensions leading to the e m e r g e n c e of these struggles can b e traced to f u n d a m e n t a l d i s a g r e e m e n t s over issues of identity a n d authenticity, including t h e q u e s t i o n i n g of who a n d what constitutes a n ' a u t h e n t i c ' i n d i g e n o u s subject, a n d d e b a t e over the forms a n d configuration that 'legitimate' i n d i g e n o u s institutions can take. I n d i g e n o u s - s e t t l e r rela­ tions are thus an o n g o i n g dynamic, with many issues still r e m a i n i n g to be resolved, the most i m p o r t a n t of which at this point in time a p p e a r s to be t h e problematisation of i n d i g e n o u s identity. T h e s e p r o b l e m s of ' i n d i g e n o u s identity' are, in t u r n , symptomatic of a m o r e fundamental deficiency in c u r r e n t theories a n d praxis of i n d i g e n o u s rights: the recognition of difference only in terms of the m a i n t e n a n c e of prior identity. In their r u s h to a c c o m m o d a t e the n o t i o n of i n d i g e n o u s rights 1

137

138

MANUHUIA BARCHAM

- a n d its associated 'politics of difference' - theorists a n d practitioners alike have created a n d reified an ahistorical idealisation of the indige­ n o u s self whereby the constitution of oneself as an ' a u t h e n t i c ' indige­ n o u s self has b e e n conflated with specific ahistorical assumptions c o n c e r n i n g the n a t u r e of indigeneity, a process intricately linked to the c o n t i n u e d s u b o r d i n a t i o n of difference to identity. T h e prioritisation of identity over difference leads to the necessarily synchronic predication that bodies (be they concrete or abstract, singu­ lar or plural) exist in an ahistorical essentialism wherein reality is col­ lapsed into a timeless p r e s e n t such that what is now is the same as what was, which in turn is the same as what will be, thereby effectively exclud­ ing any c h a n c e of recognising notions of social transformation and c h a n g e . T h e inability of c u r r e n t political a n d judicial frameworks to recognise the legitimacy of difference n o t predicated u p o n the mainte­ n a n c e of a prior identity (Patton 1995a; 1995b) has m e a n t that the i m p l e m e n t a t i o n of official frameworks for the recognition of indigenous rights in New Zealand has led to the exclusion a n d delegitimisation of associational forms of Maori organisation. T h e atemporality of such offi­ cial recognitions of difference has led to the reification of certain neotraditional Maori organisational forms to a privileged position wherein they have c o m e to constitute the definitional m e a n s by which Maori are identified as 'authentically' indigenous. While this process has led to the creation of a voice for ' a u t h e n t i c ' indigenous claims, it has also led to the c o t e r m i n o u s silencing of the ' i n a u t h e n t i c ' (Griffiths 1994) a n d the alien­ ation of many Maori p e o p l e whose identity is shaped m o r e by the after­ m a t h of colonialism a n d their disadvantaged position in New Zealand society t h a n in terms of a tradition-orientated m o d e l of ' a u t h e n t i c ' iden­ tity. T h e prioritisation of identity over difference has led to the creation of an existential dichotomy of being a n d non-being that has effectively excluded recognition of the dynamic process of becoming. T h e r e is thus an u r g e n t n e e d for theorists a n d practitioners of indigenous rights to c o m e to terms with the c o n t i n u e d subordination of difference to notions of identity, b o t h in o r d e r to resolve the practical tensions i n h e r e n t in the c u r r e n t process, a n d to enable theories a n d policies to e m e r g e that take seriously the fact that cultures a n d societies necessarily c h a n g e over time, providing a firmer ontological foundation for a 'politics of difference'. This c h a p t e r argues that this new foundation can, ironically, be found within the very body of work known best for its anti-foundationalism poststructuralism. In d o i n g so I challenge the validity of political theory that speaks in terms of abstract rights without recognition, or regard to, the fact of the continually changing n a t u r e of the specific, situated expe­ riences of those individuals a n d groups whose plight led to the creation of those very same transcendental principles. 2

POLITICS OF INDIGENEITY

139

Theorising Difference: Temporal Anomalies T h e r e is a long tradition in Western t h o u g h t - from Platonic notions of i m m a n e n c e t h r o u g h to Kantian concepts of transcendental idealism wherein identity is prioritised over difference. T h e genesis for this tradi­ tion e m e r g e d from an a t t e m p t to escape the paradoxical situation that, while the identity of any given thing is d e p e n d e n t u p o n its differences from o t h e r things, t h e existence of those differences themselves is in turn d e p e n d e n t u p o n t h e possession of an identity by those things as par­ ticular things. In overcoming this p a r a d o x , Western t h o u g h t has, particu­ larly since t h e E n l i g h t e n m e n t , taken identity as the definitional e l e m e n t of t h e relationship. Difference was placed in a position of subordination to identity. This subordination, however, has led to problems in m o r e recent times, as various minority g r o u p s attempt to assert their right to difference. T h e e n s u i n g p r o b l e m s associated with t h e subordination of difference to identity are two-fold. T h e first complication arises from t h e fact that t h e atemporality of dif­ ference predicated o n t h e m a i n t e n a n c e of a prior identity implicitly, a n d p e r h a p s unintentionally, r e d u c e s g r o u p identity to a dichotomy of being or 'non-being', thereby effectively excluding recognition of the possibility of' becoming'. T h e prioritisation of identity leads to the construction of an ideal of c o m m u n i t y that fails to recognise the possibilities of alternative forms of c o m m u n i t y identity. This static notion of community t h e n pre­ cludes t h e right of c o m m u n i t i e s to u n d e r g o historical change. T h e inability of these theories to take into account changes in both the dis­ cursive outlines a n d c h a n g i n g substantive institutional a n d organisa­ tional forms that g r o u p s take over time leads to t h e second complication. In the transference of ideas of g r o u p identity to the level of policy imple­ mentation, an operational 'politics of difference' based o n this atemporal dichotomy of being/ non-being may lead - t h r o u g h the synchronic reification of c o m m u n i t y - to t h e exclusion a n d associated increase in levels of oppression a m o n g the very groups that the 'politics of differ­ e n c e ' were created to assist. T h e prioritisation of identity over difference thus acts to restrict the possible forms that identity can take, as identifi­ cation b e c o m e s a process structured a r o u n d the recognition of fixed selves - wherein lived existence is devalued as subordinate to the idea of an ahistorical ideal of c o m m u n i t y - a process therefore effectively limit­ ing the capacity of these theories to truly recognise difference. T h e practical p r o b l e m s associated with atemporal conceptions of dif­ ference are n o m o r e a p p a r e n t than in the field of indigenous rights, a field where academic a n d policy-orientated definitions of Maori a n d o t h e r F o u r t h World peoples are, m o r e often than not, derived from notions of indigeneity c o n t i n g e n t u p o n the possession of ' a u t h e n t i c '

140

M A N U H U I A BARCHAM

cultural n o r m s a n d traditions. It is with regard to these predicated con­ ceptions of indigeneity that the p r o b l e m lies, as these 'facts' are intri­ cately linked to the conceptualisation of identity as a state - an action that has, in turn, led to the creation of an implicit belief a m o n g many that t h e adaptation of an indigenous minority to social c h a n g e necessar­ ily lessens the indigenous character of that minority. T h e implications of this are p r o f o u n d , for the majority of theoretical a n d empirical work on F o u r t h World peoples is predicated o n this timeless, essentialised con­ ception of indigeneity, yet the diachronic n a t u r e of h u m a n institutions u n d e r m i n e s its foundation. T h e a p p a r e n t contradiction between the p o s t m o d e r n acceptance of the c o n t i n g e n t n a t u r e of m o d e r n identities a n d subjectivities a n d the essentialised basis to claims of indigeneity is an e x a m p l e of the manifold tensions underlying the c u r r e n t discourse on i n d i g e n o u s rights. Indigeneity is taken as a 'natural' a n d unproblematic category where in reality it is, as are all identities, socially constructed a n d historically c o n t i n g e n t . Indigenous rights are thus generally seen as being d e p e n d e n t u p o n an ahistorical, h e n c e synchronic, basis. Problems arise, however, w h e n this interpretation of indigeneity is used as the basis for policy creation, as has b e e n the case in New Zealand. While recognition by the New Zealand g o v e r n m e n t of the validity of the principle of tino rangatiratanga (indigenous rights) has resulted in the implementation of a wide variety of policies a n d legislative instruments an endeavour that has acted to empower many - it has also led to an unfortunate polarisation of Maori society between those who argue that the traditional institutions of iwi (the tribe) are the only ' t r u e ' institu­ tional bases of Maori identity, a n d those who argue that the diverse social circumstances that characterise m o d e r n Maori m e a n s that not all Maori aspirations can now be found totally within tribal agendas. Tensions i n h e r e n t within this ideological division have culminated in recent years in legal battles over the allocation of pre-settlement Treaty assets and the c o n t i n u i n g controversy over the funding opportunities available to noniwi Maori organisations. While at a superficial level these struggles are often dismissed as merely altercations over funding, a close reading of these disputes reveals a m u c h d e e p e r problem at work. T h e effective delegitimisation of non-iwi groups can therefore be read as an example of the practical problems i n h e r e n t in the privileging of identity over difference. 3

4

5

Indigenous Rights and the Iwi-isation of Maori Society T h e 1980s saw a period of considerable c h a n g e in New Zealand govern­ m e n t policy towards Maori. Policy then was characterised both by the m o r e formal recognition of the basis for indigenous rights in New Zealand a n d the accompanying re-interpretation of these indigenous

141

P O L I T I C S OF I N D I G E N E I T Y

rights as constituting a Treaty-based partnership between the Crown a n d iwi, an action that effectively excluded a n d delegitimised o t h e r forms of Maori community. T h u s , while the g o v e r n m e n t accepted that the posi­ tive recognition of difference was the basis of claims by Maori for indige­ nous rights, they nonetheless based this recognition u p o n the maintenance of earlier institutional a n d organisational identities. Govern­ ment reports released d u r i n g this period thus outlined the g o v e r n m e n t ' s new policy position as being that rangatiratanga (indigenous rights) was to be exercised t h r o u g h iwi (Minister of Maori Affairs 1989), and that increased focus was to be placed u p o n iwi as the major player in Maori economic d e v e l o p m e n t (Minister of Maori Affairs 1990) as they were seen by the G o v e r n m e n t as constituting part of an u n b r o k e n line of cul­ tural c o n t i n u a n c e as the legitimate receptacle of c u r r e n t Maori voices. The e m p o w e r m e n t of indigenous rights in New Zealand has m e a n t that indigeneity a n d i n d i g e n o u s identity there, as in N o r t h America, b e c o m e subsumed u n d e r the rubric of the 'tribe', wherein m e m b e r s h i p of a tribe has b e c o m e the 'foundation for the assertion of individual a n d g r o u p rights to land, services, or e x e m p t i o n s g u a r a n t e e d by treaty or legisla­ tion' (Cornell 1988: 4 1 ) . New Zealand g o v e r n m e n t policy has played a pivotal role in the iwiisation of Maori society as t h e conflation of Maori society with the insti­ tution of iwi was given legislative force t h r o u g h the codification in law of a n u m b e r of specific legislative acts t h r o u g h o u t the 1980s. O n e of the most i m p o r t a n t pieces of g o v e r n m e n t legislation in this iwi-isation of Maori society was the Treaty of"Waitangi Amendment Act (1985). While the Act e m p o w e r e d Maori by allowing claims u n d e r the Treaty of Waitangi to be backdated to 1840, its i m p l e m e n t a t i o n also m e a n t that the tribal groups, territories a n d institutional forms acknowledged by the law were those that existed in 1840. This legislative Act thus played an i m p o r t a n t part in defining m o d e r n iwi as the legitimate descendants of Maori soci­ ety in opposition to the perceived 'inauthenticity' of m o d e r n associational forms of Maori institutional organisation. Similarly, the passing of the Runanga Iwi Act (1990) m e a n t that Iwi b e c a m e strongly centralised in o r d e r to pass stringent g o v e r n m e n t accountability standards. And although the Runanga Iwi Act was repealed the same year it was passed, its legacy of iwi with a strong centralised structure remained. T h e passing of these various Acts to e m p o w e r Maori t h r o u g h the recognition of their status as i n d i g e n o u s p e o p l e s m e a n t , however, that by the beginning of the 1990s the New Zealand g o v e r n m e n t h a d r e a c h e d the conclusion that only traditional kin-based iwi were their Treaty partners, thereby creating a paradoxical process whereby the Crown construed the Treaty against 'Maori who are n o t organised in traditional tribal groupings, while at the same time acknowledging that such people have Treaty rights' (Waitangi 6

7

142

M A N U H U I A BARCHAM

Tribunal 1998: 210). In the 1990s difficulties have arisen because m o r e than 80 p e r c e n t of Maori live in u r b a n areas a n d for many of them, iwi affiliation n o longer plays an i m p o r t a n t part in their day-to-day lives (Maaka 1997; Metge 1964). 8

The Challenge of Urban Maori Maori society is generally perceived as being traditionally organised along a framework of kin-based descent groups. This 'traditional' organi­ sation consists of t h r e e major social classificatory units: whanau (imme­ diate a n d e x t e n d e d family), h a p u (clan) a n d iwi (confederation of h a p u ) . This standard m o d e l o f ' a u t h e n t i c ' Maori socio-political organi­ sation, from which iwi have (re)gained their c u r r e n t status is, however, c o n s t r u c t e d largely o n the basis of e t h n o g r a p h i c data collected m o r e t h a n a c e n t u r y after initial contact a n d which was in turn d e p e n d e n t u p o n the ahistorical a n d objectivist assumptions c o m m o n at the e n d of the n i n e t e e n t h c e n t u r y (Meijl 1994: 317; Webster 1975). These social units were n o t completely discrete groups: the lines between t h e m were b l u r r e d a n d a m o r p h o u s , with their size a n d functions varying widely from region to region (Walker 1989: 3 5 - 5 2 ) . T h e transformation of Maori organisational forms a n d traditions from a pre-bureaucratic situa­ tion of Heraclitian flux to o n e of n e o - P a r m e n i d e a n stasis a n d ahistoricity b e g a n from the very first point of contact with the west, wherein records were kept of customs of the newly discovered peoples. Tribal ter­ ritories a n d g r o u p s were later further crystallised a n d frozen in legisla­ tive space t h r o u g h their recording a n d subsequent reification in the p r o c e e d i n g s of the Native Land C o u r t in the late n i n e t e e n t h a n d early twentieth centuries. This process was further c o m p o u n d e d by the work of various E u r o p e a n scholars at the t u r n of the n i n e t e e n t h century, such as Elsdon Best a n d Percy Smith, who were h o p i n g to salvage ethno­ graphic histories of Maori traditions for the future, in their belief that the spread of E u r o p e a n modernity would lead to the gradual extinction and disappearance of these customs. Certain Maori elite, such as Sir Apirana Ngata a n d Sir Peter Buck, also played a key part in this process of tem­ poral freezing with their c o n c e r n to collect records of 'traditional' Maori life at the t u r n of the c e n t u r y to d e m o n s t r a t e that these traditions were eternally essential for Maori identities - past, present a n d future (Meijl 1996: 3 2 9 - 3 0 ) . Maori traditions a n d organisational forms were thus objectified a n d reconstituted in a timeless asynchronicity. Iwi institutions can therefore be said to be n o m o r e authentic than other forms of Maori associational organisation, a historical fact high­ lighted by Angela Ballara (1998) who demonstrated in a well-researched

P O L I T I C S OF I N D I G E N E I T Y

143

book that h a p u were the primary political and economic organisations of pre-European Maori society. Ballara asserted that the notion of iwi as an active political body wielding tribal sovereignty was a comparatively mod­ ern p h e n o m e n o n that was n o t at all in keeping with the historical reality of the decline of the political power of Maori kin-based organisational forms from the point of colonisation onwards. Following the signing of the Treaty of Waitangi, the loss of their military power in the 1860s, a n d an unsuccessful attempt to establish a separate parliament, iwi and hapu found themselves at the e n d of the nineteenth century facing an everdecreasing power base (Maaka 1997: 3 ) . T h r o u g h o u t most of the twenti­ eth century iwi were thus relatively weak politically, and m o r e a cultural institution than a political o n e . T h e massive migration of Maori to the cities in search of jobs in the years following World War II further com­ p o u n d e d the decreasing importance of traditional kin-based organisations to the everyday life of the majority of Maori. T h r o u g h o u t this period, however, Maori maintained a distinct group identity, even in the face of the radical social restructuring that the shift to the urban environment entailed, a n d the n e e d to create their own support networks in the absence of support from traditional social networks. T h e situation presented by urbanisation was thus the catalyst for the development of new forms of social institutions a n d organisational n o r m s for Maori (Walker 1995a: 5 0 1 ) . It has b e e n argued that urban Maori have b e e n able to reconcile their new u r b a n environment with the attachments of their past, with nei­ ther being to the exclusion of the other (Barcham 1998). However, the e m e r g e n c e of these strong u r b a n Maori institutions has been at odds with official g o v e r n m e n t interpretation of the ways in which indigenous rights will be exercised, d u e to the fact that the legislative environment u p to this point in time has asserted that Treaty rights, apart from those of equal citi­ zenship, are valid only for iwi - an assumption d u e to atemporal percep­ tions of difference that have manifested themselves in prejudicial funding decisions in favour of 'authentic' kin-based Maori organisations and against 'inauthentic' associational forms of Maori organisation. 9

1 0

11

12

Two r e c e n t disputes between Iwi Maori, the Crown a n d non-Iwi Maori d e m o n s t r a t e the practical p r o b l e m s i n h e r e n t in a p p r o a c h i n g the recognition of difference in an a t e m p o r a l m a n n e r . T h e s e two cases over the allocation of social welfare s p e n d i n g a n d the allocation of pre-sett l e m e n t Treaty fishery assets illustrate the ways in which the practical i m p l e m e n t a t i o n of policies of i n d i g e n o u s e m p o w e r m e n t based o n this a t e m p o r a l recognition of difference have led to the exclusion of large n u m b e r s of the very p e o p l e they were supposed to help, t h r o u g h the inability of this c u r r e n t framework to address n o t i o n s of social c h a n g e a n d transformation.

144

M A N U H U I A BARCHAM

Social Welfare Spending and the 'Te Whanau o Waipareira' Trust In accord with the New Zealand g o v e r n m e n t ' s official policy of bi-culturalism, the g o v e r n m e n t ' s Central F u n d i n g Agency (CFA) developed protocols in the late 1980s a n d early 1990s for consultation with 'iwi' (whom they defined as traditional kin-based tribal groups) over social welfare funding decisions in recognition of their rangatiratanga - which they, as a p a r t of the institution of the Crown, were sworn to uphold. Problems arose when certain Maori organisations who did not fit the restrictive legislative criterion of an iwi, yet who felt they were entitled to funding o p p o r t u n i t i e s as Maori, were d e n i e d funding. O n e of these organisations d e n i e d funding, the 'Te W h a n a u o Waipareira Trust' - a non-iwi based organisation r u n by a n d for Maori in West Auckland a r g u e d that the CFA h a d established inappropriate policies a n d funding p r o c e d u r e s for m e e t i n g the needs of the Maori population of West Auck­ land because of the absence of any negotiation a n d consultation with t h e m - the representative body of West Auckland Maori. This absence of negotiation a n d consultation, the Te W h a n a u o Waipareira Trust argued, d e m o n s t r a t e d that the Crown was n o t properly serving Maori interests in West Auckland. Dissatisfied with their t r e a t m e n t by the CFA, the Trust took their claim to the Waitangi Tribunal for a r b i t r a t i o n . T h e Te W h a n a u o Waipareira Trust claimed that they possessed rights u n d e r the Treaty of Waitangi as a Maori g r o u p exercising rangatiratanga. T h e m e m b e r s of the Trust did not claim to be an iwi - defined as a 'tra­ ditional' tribal body - as it was not kin-based a n d did n o t possess a cus­ tomary territory over which it exercised mana whenua (suzerainty), a l t h o u g h it did claim to be an iwi if this t e r m was defined merely as 'a p e o p l e ' . T h e Trust based its claim instead o n the a r g u m e n t that its exis­ tence, a n d the c o m m u n i t y that it r e p r e s e n t e d in its present form, were the result of the efforts of West Auckland Maori over the last fifty years to m a n a g e their affairs in a Maori way in an u r b a n environment. T h e Trust claimed to have gained the m a n d a t e to represent the non-tribal popula­ tion of Maori in the West Auckland area t h r o u g h the operation of nontribal m a r a e , a n d t h r o u g h a n n u a l general meetings which m a d e the trust fully accountable to the c o m m u n i t y . T h u s , the Trust argued, the nontribal Maori c o m m u n i t y of West Auckland h a d c o m e together to exercise rangatiratanga for its own purposes, a n d as the communities' chosen institutional body, the Trust exercised 'a m a n d a t e in respect of a com­ munity of Maori w h o have c o m e together for the p u r p o s e of maintaining cultural integrity in an u r b a n e n v i r o n m e n t ' (Waitangi Tribunal 1998: H). In contrast to the case p u t forward by the Trust, the Crown argued, on behalf of the CFA, that the Trust was not an 'iwi' as the agency under13

14

P O L I T I C S OF I N D I G E N E I T Y

145

stood the t e r m , a n d therefore n o t considered a Treaty p a r t n e r of the Crown, a n d so n o t entitled to consultation or special consideration. This a r g u m e n t was based u p o n the official stance of the CFA that (for the pur­ poses of the Children, Young Persons, and Their Families Act 1989 at least) only traditional kin-based g r o u p i n g s of Maori were in Treaty p a r t n e r s h i p with the Crown (Waitangi Tribunal 1998: 5). T h e Te W h a n a u o Waipareira Trust was disqualified u n d e r the Children, Young Persons, and Their Families Act 1989 from being treated as an 'iwi social service' because it was n o t kin-based, a n d was only able to b e treated as a charitable trust for funding purposes a n d n o t as a Treaty partner. T h e Crown thus explicitly d e n i e d the Trust recognition as the legitimate representatives of the Maori c o m m u n i t y of West Auckland. This restrictive interpretation by the New Zealand g o v e r n m e n t of the recognition of difference, such that the recognition of indigenous rights was only accepted t h r o u g h the m a i n t e n a n c e of prior identities, has resulted in the effective exclusion of o n e of the largest Maori organisa­ tions in the c o u n t r y from representation as a legitimate ' i n d i g e n o u s ' institution. Moreover, this interpretative exclusion has the potential for even greater political, social a n d e c o n o m i c ramifications for the New Zealand Maori population, as hinted at in the massive a m o u n t s of monies now b e i n g m a d e available in the treaty-settlement process.

Pre-settlement Treaty Fisheries Assets In September 1992 the g o v e r n m e n t signed a deal giving Maori $150 mil­ lion worth of commercial fisheries assets a n d 20 per cent of future fisheries quota allocations. T h e deal allowed for the Waitangi Fisheries Commission to distribute $200 million worth of assets it held before the settlement to various Maori organisations. In return, Maori fishing rights as recognised u n d e r earlier fisheries legislation were to be wiped off. T h e Fisheries Com­ mission held the view, however, that since the settlement was in exchange for fishing rights that belonged to iwi, the setdement could only go to iwi. It was u p to iwi to decide how those assets were distributed. Iwi g r o u p s also a r g u e d that since the fisheries assets were a Treatybased property right they must therefore remain in iwi h a n d s . Non-iwi g r o u p s however, particularly u r b a n based Maori organisations, claimed that all Maori have ownership rights t h r o u g h the Treaty of Waitangi a n d so should b e free to choose to claim t h e m however they wanted, a n d t h r o u g h the institutional a n d organisational forms they chose. T h e legal effort by these two g r o u p s has seen the iwi-based decision of the Treaty of Waitangi Fisheries Commission o v e r t u r n e d by the C o u r t of Appeal who r u l e d that the Sealord deal was i n t e n d e d to benefit all Maori, a n d that u r b a n Maori were therefore entitled to a share of the cash a n d assets. 15

146

M A N U H U I A BARCHAM

This decision itself was later o v e r t u r n e d by a Privy Council ruling in early 1997 that the Appeal C o u r t h a d g o n e beyond its m a n d a t e . T h e Privy Council o r d e r e d that the case be sent back to the New Zealand High C o u r t to make a new ruling. In this new case the presiding j u d g e , Justice Paterson, h a d to rule on two decisions: should Treaty assets go only to iwi? If the answer was yes, does iwi m e a n only traditional tribes? T h e fundamental p r o b l e m underlying this new case was whether or n o t iwi m e a n t 'a p e o p l e ' or was defined merely as a specific 'traditional' form of Maori social institution. In a long a n d detailed decision, Justice Paterson ruled, following the wording of the Maori Fisheries Act (1989), as a m e n d e d by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, that all assets held by the Commission before the settlement date can only be allocated to iwi a n d / o r bodies representing iwi. Justice Paterson further ruled that in terms of the allocation of these assets, only 'tradi­ tional' Maori tribes qualified as iwi (Paterson 1998: 82). This decision was then appealed, but in late O c t o b e r 1999, the New Zealand Court of Appeal u p h e l d Justice Paterson's interpretation of iwi. T h e case of noniwi Maori in New Zealand d e m o n s t r a t e s that, while the recognition of dif­ ference is reconfiguring the space of politics, the atemporal basis of this recognition m e a n s that political repositioning is not necessarily a change for the better for many Maori. Non-iwi Maori, specifically represented in the examples above by u r b a n Maori, thus act to destabilise the currently accepted bases of indi­ geneity. While Maori embody a plurality of self - with their composite selves positioned simultaneously along multiple social axes - the impor­ tance of the interplay of these multiple a n d shifting identities has been i g n o r e d in the recognition of atemporal difference t h r o u g h the reification of indigeneity to an ideal of immutability. Claims of the inauthenticity of ' u r b a n ' indigenous subjects are often linked to the notion of special rights available to indigenous people; rights that some argue that ' u r b a n ' individuals have lost. T h e realisation must be m a d e , however, that r e c e n t changes in the shape and form of indigenous identities d o not necessarily signal the demise of their indigeneity. Instead, it should be viewed as the signal of a transition of indigenous society toward a dynamic phase of growth a n d reawakening - a dynamic act of decoloni­ sation from within. T h e p r o b l e m , however, lies in a c c o m m o d a t i n g trans­ formations of indigenous society without losing the distinctiveness of i n d i g e n o u s culture. For, as Roger Maaka has cogently noted: minority indigenous peoples in post-colonial situations struggle to balance a desire to modernise their cultures while retaining those institutions from the past which foster and perpetuate their distinctive identity. (Maaka 1993: 213)

P O L I T I C S OF I N D I G E N E I T Y

147

T h e p r o b l e m s faced by Maori in the exclusion of various forms of indigenous institutional organisation by the implementation of policies designed to e m p o w e r indigenous rights act to demonstrate the very real problems of exclusion that the implementation of policies constructed u p o n an atemporal recognition of difference make manifest, while simul­ taneously highlighting the theoretical deficit in c u r r e n t work o n minority rights a n d g r o u p identity. T h e problem facing us, then, is how to con­ struct a theory of difference that is n o t d e p e n d e n t on the subordination of identity to difference, a n d h e n c e able to adequately take account of notions of change. T h e genesis of this answer, I argue, can b e found within the b r o a d body of work commonly known as poststructuralism. 16

Poststructuralism and a N e w 'Politics of Difference' Western metaphysics has a long history of structuring reality in t e r m s of dichotomies a n d binary oppositions. These binary pairs are not gener­ ally r e g a r d e d , however, as r e p r e s e n t i n g two equal terms, for while the first t e r m is usually defined positively, the second is customarily defined negatively as the absence of the first. T h e d o m i n a n t term defines the ter­ rain of the other, placing the second term within a position of subordi­ nation. In the case of New Zealand, non-iwi Maori have b e e n defined negatively in t e r m s of the ( p r e s u m e d ) authenticity of iwi Maori. Derridean d e c o n s t r u c t i o n can be seen to provide a way to escape this trap of logocentrism. T h e definition of Maori identity a n d culture that has gained currency in the iwi-isation of Maori society relies implicitly o n a colonial c h i m e r a of race a n d innate cultural a n d linguistic knowledge that virtually ignores the realities of the lived experiences of the majority of Maori, in favour of a small minority g r o u p who speak Maori natively and are knowl­ edgeable a b o u t what is assumed to be 'traditional' culture (Webster 1989: 35). This view is mistaken for a n u m b e r of reasons. First, iwi never were the organisational level at which kin-based Maori communities h a d o p e r a t e d to deliver what would b e classed as social a n d welfare services (Ballara 1998). Secondly, pre-contact Maori c o m m u n a l forms had e b b e d a n d flowed across historical landscapes, constantly shifting their defini­ tions over time (Ballara 1998; Webster 1975). Thirdly, because of the traumatic experiences of colonisation a n d urbanisation, many Maori n o longer identify with iwi; their identity is currently shaped m o r e by their disadvantaged position in New Zealand society than by interaction with 'traditional' frameworks, yet no-one can deny their Maori-ness, as their physical characteristics a n d day-to-day interactions confirm their Maori identity. In New Zealand, the representation of Maori difference has thus led to Maori identity e n t e r i n g a hyper-real state in which the organisa­ tional m o d e l c h o s e n to r e p r e s e n t Maori identity - iwi - has b e c o m e a sim-

148

MANUHUIA BARCHAM

u l a c r u m , a copy of a copy, m o r e real than the reality it supposedly rep­ resents (Baudrillard 1983). Representation has thus b e e n conflated with the thing-in-itself. Representation, however, is always indeterminate because the definition of what is r e p r e s e n t e d must necessarily be consti­ tuted o n the basis of difference between what is being represented and everything else (Baudrillard 1981; 1983). Similarly, Derrida's notion of differance suggests that m e a n i n g can never c o m e to rest o n an absolute presence, as its d e t e r m i n a t e specification is deferred from o n e substan­ tive linguistic interpretation to another, ever-changing a n d ever-moving. T h u s , wherein 'differance is also the e l e m e n t of the same (to be distin­ guished from the original)' (Derrida 1981: 9) difference can never be established before definition - it is forever postponed. Representation of Maori difference has thus assumed a clear distinction between the 'indigenous' a n d the 'non-indigenous'. Reflection on poststructural notions of becoming, however, leads to the erasure of the founda­ tions of this distinction. Organisations such as the Te W h a n a u o Waipareira Trust are n o t indigenous in that they d o not possess the definitional leg­ islative a n d organisational elements associated with representations of 'indigeneity', yet they are not in themselves 'not indigenous'. Non-iwi Maori, specifically urban Maori, thus collapse into contemporaneity spatio-temporal oppositions such as indigenous and non-indigenous, mod­ ern a n d traditional, through their occupancy of the indeterminate third space of 'becoming. While each of these terms is constitutive of the whole, n o n e is o n its own complete: they are i m m a n e n t to each other. It is this cre­ ation of a space of 'becoming, wherein neither notion of identity nor difference is prioritised over the other, that opens u p the possibility of cultural identity that entertains difference without the assumption of a temporal hierarchy. So, while some have claimed that the infinite sliding of the Derridean signifier means that poststructuralism collapses reality into a constantly shifting, nihilistic state of chaotic flux (Graff 1983), I see this shifting characteristic of Derridean play as a strength. T h e supposed n e e d , in theoretical a n d practical terms, to define and to d e t e r m i n e the b o u n d a r i e s of bodies (be they concrete or abstract, sin­ gular or plural) led to the e m e r g e n c e of the very problem of synchronic reification bedevilling c u r r e n t indigenous rights discourse. T h e need to specify a n d d e t e r m i n e in precise terms was the genesis for the exclusion of bodies that refused (in passive or active terms) to fit within boundaries so defined. Just as Heisenberg's Uncertainty Principle argues that we c a n n o t ever precisely know both the position a n d m o m e n t u m of a parti­ cle, so poststructuralism shows us we can never fully know the determi­ nate characteristics of a body. Instead, 'the m a p is o p e n a n d connectable in all its dimensions; it is detachable, reversible, a d a p t e d to any kind of m o u n t i n g , reworked by an individual, g r o u p , or social formation'

POLITICS OF INDIGENEITY

149

(Deleuze a n d Guattari 1987: 25). We can therefore d o away with the impossible d r e a m of precisely defining existence, a n d instead e m b r a c e the indeterminacy in which D e r r i d e a n play, while n o t celebrated, is at least recognised. In any discourse of identity is always present the d a n g e r that identities will be dogmatised into s o m e naturalistic or i m m u t a b l e essence that could in t u r n lead to the g e n e r a t i o n of destructive resent­ ments a n d fears; for while all identities are f o r m e d t h r o u g h difference, all identities are simultaneously t h r e a t e n e d by these same differences. These destructive impulses can, however, b e held at bay by a politics of mutual challenge a n d disruption in which we are constantly r e m i n d e d of the c o n t i n g e n t n a t u r e of o u r identities. T h e success of this politics in turn d e p e n d s o n the successful p e r m e a t i o n of all involved with a 'culture of genealogy' that helps us to recognise the c o n t i n g e n t a n d contestable nature of o u r identities (Connolly 1991: 64—8). T h e recognition of the necessary contingency of identity allows for the e m e r g e n c e of an ethical sensibility wherein accounts of morality that d o n o t accept this inevitable contingency merely for the sake of efficient g o v e r n m e n t are contested (Connolly 1998). In the public policy field, for example, the use of peri­ odic reviews, a n d the official recognition of the legitimacy of the process of self-definition in the construction of official policies, would approxi­ mate the d e g r e e of self-reflexivity that this a p p r o a c h endorses, a n d thereby allow for the creation of policies that engage with, r a t h e r than suppress, difference. We should thus n o t 'speak of a dualism between two kinds of "things", b u t of a multiplicity of dimensions, of lines a n d direc­ tions in the h e a r t of an assemblage' (Deleuze a n d P a r n e t 1987: 133). In practical a n d theoretical terms we cannot, n o r should not, d o away with representation; instead we should modify its praxis t h r o u g h the inclusion of the realisation of its necessarily contingent n a t u r e . While the short-term costs of such an i n d e t e r m i n a t e self-reflexivity may be high, the long-term gains of a temporally sensitive basis for recognising and accommodating difference will far outweigh these earlier costs. In addressing the idea of indigenous rights we should appeal n o t to an atemporal a n d juridically (pre) conceived subject, b u t focus o n the reali­ sation that the subject of rights is n o t a juridical subject; rather it is a sub­ j e c t formed o u t of specific processes a n d sites of struggle (Ivison 1998). We should look to the processes that shape o u r lives, r a t h e r than the organisations that r e p r e s e n t us, for guidance o n how to construct a m o r e ontologically s o u n d politics of difference. T h e ruling by the Waitangi Tribunal o n the case p r e s e n t e d by the Te W h a n a u o Waipareira Trust is a promising practical e x a m p l e of this process.

150

MANUHUIA BARCHAM

Prospects for a New Beginning It is a c o m m o n l y acknowledged fact that the Treaty partnership in New Zealand arose o u t of the transferral of the Maori right of governance (kawanatanga) to the Crown, in exchange for the promise of the Crown to protect Maori rangatiratanga. With respect to this, the Te W h a n a u o Waipareira Trust a r g u e d that: ' T h e adoption of an exclusive Iwi para­ digm . . . is to deny that Maori can be Maori outside that paradigm and to deny treaty rights to Maori who d o n o t fit within it' (Waitangi Tribunal 1998: 163), a n d that while 'kinship a n d descent provide ready-made net­ works of relationships a m o n g Maori . . . it is rangatiratanga that deter­ mines which of those relationships have c u r r e n t significance' (214). In response to these a r g u m e n t s , the Waitangi Tribunal found that ran­ gatiratanga lay with Maori people, n o t with some specific institutional or organisational form such as the tribe. T h e Tribunal went o n to conclude that while devolution itself had n o t b e e n detrimental to the Treaty rela­ tionship between Maori a n d the Crown, the restricting of the devolution to tribal authorities h a d been. In ruling on the Waipareira claim, the Wai­ tangi Tribunal therefore found that the Te W h a n a u o Waipareira Trust was established to address the results of the Crown's Treaty breaches and to reconstruct traditional Maori structures a n d patterns in an u r b a n con­ text, a n d therefore should be considered as a legitimate Treaty p a r t n e r r e p r e s e n t i n g the West Auckland Maori community. T h e Tribunal thus found that the Trust exercised rangatiratanga o n behalf of a Maori com­ munity in West A u c k l a n d . In accord with this finding, the Tribunal rec­ o m m e n d e d that the g o v e r n m e n t should aim to apply the principles of the Treaty of Waitangi to protect the rangatiratanga of all Maori in con­ t e m p o r a r y situations, kin-based or not, where evidence points to the exercise of rangatiratanga; as iwi, while being modern descendants of earlier forms of kin-based Maori institutional form, did not provide a complete explana­ tion of Maori identity. Arguing that Maori perform best when the princi­ ples of rangatiratanga are maintained, when a community is empowered to d e t e r m i n e its own needs a n d resolve its problems in its own ways (Wai­ tangi Tribunal 1998: 236), the Tribunal suggested that section 396 of the Children, Young Persons, and Their Families Act 1989be a m e n d e d by substi­ tuting the t e r m 'Maori social service' for the term Twi social service'. T h e release of the Te Whanau o Waipareira Report therefore sent a clear sig­ nal to the New Zealand g o v e r n m e n t that Maori are the Crown's Treaty partner, n o t iwi, h a p u or whanau. 17

'Aboriginality' and 'indigeneity' were originally constructed to acknowl­ edge a specific form of difference and to overcome certain forms of discrimination. T h e problem remains, however, of 'continually recon-

P O L I T I C S OF I N D I G E N E I T Y

151

structing a previously absent general identity, while devising strategies that accommodate the diverse Aboriginal identities associated with place and region' (Stokes 1997: 170). I have argued that the prioritisation of identity over difference has led to the synchronic reification of identity in the case of indigenous New Zealanders. Also, any engagement with notions of indigeneity must take seriously the realisation that indigenous cultures and societies necessarily change over time - a realisation enabled by the embracing of poststructuralist notions of differance and play. In practical terms, the realisation that the institutional forms t h r o u g h which i n d i g e n o u s cultures manifest themselves necessarily c h a n g e over time would lead to the recognition that new urban-based indigenous social institutions are n o t any m o r e or less authentic than older forms of kin-based social institutions, as b o t h can act as appropriate mechanisms for the recognition a n d exercise of indigenous rights. W h e n institutional structures are set u p to force p e o p l e to fit into prescribed tribal divisions, old values c o n c e r n i n g respect a n d notions of inclusiveness are p u t at risk. T h e spirit of Maori society lies n o t in its organisational structures, but in the o n g o i n g , dynamic relationships between its m e m b e r s . If this realisa­ tion is n o t m a d e soon, then the institutional structures a n d practices which were constructed to e m p o w e r indigenous peoples such as Maori may e n d u p ultimately destroying the very cultures they were m e a n t to protect. It is time, both in theory a n d in practice, to a c c o m m o d a t e the diachronic n a t u r e of indigenous social institutions a n d relationships in order to avoid the possibility of the continuation of the case wherein: Aboriginality in European eyes is reduced to the immediately observable and the primitive. Where manifest aboriginality in these terms does not exist, people are perceived as empty vessels, drained of their content by European contact, and capable only of echoing the loud noises from European society. (Chase 1981: 24)

As the world continues to c h a n g e at an exponential rate there is an ever greater n e e d for the theorising of indigenous culture a n d society to catch u p with the events of the 'real' world, a world in which the dynamic char­ acter of Maori, a n d other Fourth World cultures, has never been lost. For only when the realisation is m a d e that identity is not a state but a dynamic process can the Fourth World be said to have been truly decolonised.

CHAPTER 8

On Display for its Aesthetic Beauty: How Western Institutions Fabricate Knowledge about Aboriginal Cultural Heritage Sonia Smallacombe Aboriginal art a n d culture have b e c o m e a key focus of Australian national identity a n d now represent a core part of what is distinctive a b o u t Australia. Unfortunately, these cultural symbols are used without recognition of their source or displayed in a way that offends indigenous peoples. Consequently, t h e r e is growing c o n c e r n a m o n g Aboriginal and Torres Strait Islander peoples that appropriation of o u r culture by the wider c o m m u n i t y fails to benefit the communities that have ownership of the artistic a n d cultural symbols. T h e protection of indigenous peoples' intellectual and cultural prop­ erty rights has b e c o m e a major concern for the world's indigenous popu­ lation. In recent years the rise in interest in indigenous groups has led to a greater d e m a n d for indigenous cultural products. Until a few years ago the idea that indigenous peoples 'owned' o u r own intellectual and cul­ tural property did not exist as such property was seen to belong to anthro­ pologists a n d m u s e u m s who preserved a n d studied indigenous groups 'to add to western knowledge' (Marcus 1990: 4). Indigenous peoples are con­ c e r n e d that any unauthorised use a n d reproduction of o u r cultural mate­ rial, particularly secret or sacred items, may result in its disclosure to individuals who are not authorised to know or view such material. T h e r e is a general feeling a m o n g indigenous groups that most m u s e u m legislation in Australia has a tendency to focus on the anthropo­ logical a n d scientific significance of indigenous cultural products rather than o n their cultural a n d spiritual m e a n i n g to indigenous peoples (Janke 1998: 14). This was evident during my visit to the Royal Museum of Scotland in Edinburgh in 1996, where I had the opportunity to meet m u s e u m staff who were keen to show me the Aboriginal a n d Torres Strait Islander collection. In the basement storeroom I was shown an amazingly large collection of cultural products such as the usual boomerangs, spears and shields. According to their tags they had been taken from many areas 152

FABRICATION A N D A B O R I G I N A L C U L T U R A L HERITAGE

153

a r o u n d Australia, including the area known as the Port Phillip district, dating back to the 1890s. Later, I walked a r o u n d the public area of the museum and, to my shock a n d horror, an Aboriginal sacred item was on full public display. I was told the item was displayed for its 'aesthetic beauty'. This experience has led m e to believe that the cultural signifi­ cance of cultural products a n d their connections with the living commu­ nities from where they originate have little or n o relevance to m u s e u m staff or p e o p l e who visit them. Exclusion of Australia's Indigenous Population T h e idea that indigenous cultures can ' a d d to western knowledge' pro­ vides a clue as to why t h e r e is such an interest in indigenous peoples. It raises the issue of w h e t h e r this anthropological view still remains within the minds of the d o m i n a n t culture a n d f u r t h e r m o r e raises the question of w h e t h e r t h e r e is a g r a n d plan to a p p r o p r i a t e a n d c o n s u m e the 'primi­ tive'. Or, alternatively, are p e o p l e beginning to appreciate a n d accept aspects of i n d i g e n o u s cultures in the same way that indigenous peoples themselves view their own cultures? Indigenous Australian cultural products were in d e m a n d long before the 1788 invasion. In the n o r t h of Australia, Macassan fishermen and Aboriginal peoples developed trading relationships long before Captain Cook claimed this c o u n t r y for the British crown. T h e first known incident of looting took place in 1623, when E u r o p e a n explorer Jan Cartenz stole ethnographic items from a Cape York beach after shooting the Aboriginal owners (Mulvaney 1985: 87). During the n i n e t e e n t h and early twentieth centuries, Aboriginal a n d Torres Strait Islander cultural products and ancestral remains were r o b b e d from Aboriginal graves and left the colonies in large quantities. They either have found their way into private collections or are used as g o v e r n m e n t gifts or m u s e u m exchanges. In 1925 Pope Pius XI organised a missionary exhibition to applaud missionary work in the non-western world. About 100 000 items were sent to the exhibition a n d only half were r e t u r n e d . T h e remaining items were subsequently placed in the new Vatican museum, which o p e n e d in Rome in 1927. T h e m u s e u m would, according to the Pope, demonstrate that the 'dawn of faith a m o n g the infidel of today can be c o m p a r e d to the dawn of faith which . . . illuminated pagan R o m e ' (Greenfield 1989: 10). Included a m o n g the 1925 exhibits were cultural property from Papua New Guinea a n d over 200 Aboriginal materials that were sent by missionaries in Aus­ tralia. T h e Vatican's portrayal of indigenous cultures as h e a t h e n s was a jus­ tification for imposing Christianity o n indigenous populations. Australia was founded on the popular a n d political (mis)conception of nineteenth-century social Darwinism that asserted the natural superiority of the 'white race' underlying British colonial expansion. This ideology

154

SONIA SMALLACOMBE

justified the violence, dispossession a n d incarceration of Australia's indigenous population, as it was d e e m e d necessary to clear the way for the 'white nation'. Not surprisingly, Aboriginal a n d Torres Strait Islander peoples were effectively excluded from the emerging nation not only t h r o u g h o u r displacement a n d confinement to reserves a n d mission sta­ tions a n d o u r inferior legal status, but also t h r o u g h the nation's collective amnesia, which systematically removed us from the images and language of the new nation. Aboriginal and Torres Strait Islander peoples were con­ structed as ' t h e O t h e r ' in that o u r placement outside the nation and out­ side humanity was d u e to our supposed 'primitiveness' a n d our inevitable demise in accordance with social Darwinism. Aboriginal a n d Torres Strait Islander cultures have often b e e n por­ trayed 'as fragile, finely balanced, irretrievably shattered t h r o u g h con­ tact with whites'. T h e p r o t e c t i o n policies i n t r o d u c e d by the various state a n d federal g o v e r n m e n t s in the late 1800s a n d early 1900s g e n e r a t e d a m o r b i d fascination with an 'exotic culture d o o m e d to extinction' ( P e t t m a n 1988: 3). As part of the fascination with ' t h e O t h e r ' , indige­ n o u s Australians were taken to E u r o p e 'as the living spoils of E u r o p e a n p l u n d e r ' (Langton 1994: 13-14) a n d displayed as e n t e r t a i n m e n t in cir­ cuses, vaudeville tent shows, sideshows a n d carnivals. Not surprisingly, the showcasing of Aboriginal a n d Torres Strait Islander peoples a n d o u r cultures to the outside world did n o t diminish the underlying motivation to exclude i n d i g e n o u s peoples from participating in the Aus­ tralian n a t i o n . Since the 1970s indigenous issues have r e m a i n e d distinct from 'multi­ cultural affairs' but have been incorporated into the state's notion of cultural pluralism. As a result, Aboriginal a n d Torres Strait Islander peoples have b e e n relegated to the rhetorical status of'First Australians', a n d aspects of o u r art a n d culture are appropriated to play a p r o m i n e n t role in constructing the spirit of the Australian nation. T h e use of Aboriginal designs in the construction of the Australian nation is promi­ n e n t n o t only in the main e n t r a n c e to Parliament House, but also within the tourist industry. Aboriginal designs a p p e a r on T-shirts, wine bottles, Q a n t a s jets, as logos for major companies a n d advertisements for Aus­ tralian events. This d e m a n d has g e n e r a t e d an e n o r m o u s o u t p u t of i n d i g e n o u s art, film, video, music, literature a n d p e r f o r m i n g art, a n d will n o d o u b t reach its peak in the forthcoming 'Aboriginal-flavoured' Sydney Olympics in 2000 (Janke 1996: 13). T h e significance attached to the use of Aboriginal designs raises serious questions as to whether there is a gen­ u i n e desire o n the part of the Australian nation to c h a n g e the present social, e c o n o m i c a n d political position of indigenous Australians or if it is simply a b o u t incorporating a n d containing us within the 'culture' areas of Australian society.

FABRICATION AND ABORIGINAL CULTURAL HERITAGE

155

T h e incorporation of Aboriginal a n d Torres Strait Islander cultures into Australian identity was evident in 1996 when Governor-General Bill Hayden used his final Australia Day speech to advance the view that the power of indigenous art could b e harnessed to uncover ' e n d u r i n g spiri­ tual t r u t h s ' a b o u t national identity. H e stated: Aboriginal creativity has taken its place as a major influence in our national consciousness. We're receptive to what Aboriginal artists, dancers, writers and performers have to say. In a very real sense they are helping to reshape our own concept of self and of country - of the way we see and feel things as Aus­ tralian - and as others see us. (Rothwell 1996: 1) It is interesting that any m e n t i o n of Australia's indigenous population is restricted to the area o f ' c u l t u r e ' a n d 'national identity'. While intending to be complimentary, Hayden's speech reinforces the view that only cer­ tain aspects of indigenous culture are acceptable to the Australian nation. H a y d e n ' s speech also gives the impression that the distinctive cultural practices of indigenous peoples c o n t i n u e to be a source of w o n d e r for non-indigenous audiences. T h e h u n g e r for the 'exotic', 'primitive' a n d 'the u n k n o w n ' , which is part of the fascination of ' t h e O t h e r ' , is very m u c h evident in Australian society. This observation was m a d e by Djon M u n d i n e , an Aboriginal art expert, who p o i n t e d o u t that gallery owners a n d curators often refuse to see classical indigenous art such as bark painting, sculptures a n d dot paintings in a c o n t e m p o r a r y sense. T h e idea that the category 'Aboriginal' or ' t h e O t h e r ' is a fixed position is also obvious as M u n d i n e stated that these same gallery owners a n d curators d o n o t accept non-classical, urban-based c o n t e m p o r a r y art as ' t r u e ' or ' a u t h e n t i c ' indigenous art (Langton 1994: 13-14). T h e perception of Aboriginal art as ' a u t h e n t i c ' or the p r o d u c t of the 'noble savage', u n t o u c h e d by 'civilisation', is o u t of step with reality, particularly with regard to the conditions in which such artwork is p r o d u c e d . A n o t h e r pri­ mary c o n c e r n is that while some non-Aboriginal art c o m m e n t a t o r s see links between u r b a n Aboriginal art a n d black artists in Europe a n d Ameri­ ca, t h e r e is still a fear of e n t e r i n g into critical d e b a t e because the work of u r b a n Aboriginal artists is intensely political (Gray 1996: 25).

Aboriginality T h e colonial construction a n d definition of Aboriginal cultural heritage is part of the wider creation of a particular form of knowledge about Aboriginal and Torres Strait Islander peoples. T h e construction of Aborigi­ nality occurs at a n u m b e r of levels: in the work of researchers or those who write a b o u t Aboriginal p e o p l e , which is often based on their assump­ tions of the ' a u t h e n t i c Aborigine', a n d t h r o u g h power relationships of

156

S O N I A SMALLACOMBE

d o m i n a t i o n a n d subordination that are manifest between Aboriginal a n d white Australians. T h r o u g h o u t the twentieth century the discipline of anthropology has d e t e r m i n e d how Aboriginal a n d Torres Strait Islander peoples were to be perceived by the g o v e r n m e n t a n d Australian society at large. Distinctions were m a d e between Aboriginal people living in the remote areas who were destined to 'die out', but at the same time were the 'authentic Aborigi­ nes', a n d Aboriginal people living in urban areas, particularly in the south-east of Australia, who were somehow 'less Aboriginal' and thought to have 'lost their culture'. This anthropological construction of Aboriginality has b e e n extremely powerful and is very m u c h evident in legislative a n d political t h o u g h t today. Such a construction is continually reinforced because a majority of Australians only occasionally interact directly with Aboriginal a n d Torres Strait Islander people, a n d therefore rely o n the accounts of 'expert c o m m e n t a t o r s ' . These commentators, who still rely o n anthropological constructions, are often found in academia where they create Aboriginal Australia for the majority of non-Aboriginal Aus­ tralians. As a consequence, in every academic discipline, the representa­ tions of Aboriginal people have occurred without any reference to the voices of Aboriginal people (Harris 1996: 29; Anderson 1993: 24).

Western Constructions of Cultural Heritage In the past, knowledge a b o u t Aboriginal a n d Torres Strait Islander sites, art a n d cultural property was classified as 'western scientific' discourse a n d a p p r o p r i a t e d as the property of white academics to e n h a n c e their careers. A small g r o u p of academics, consisting mainly of archaeologists a n d anthropologists, lobbied for legislation (to protect Aboriginal her­ itage) that was introduced in all Australian states in the late 1960s and 1970s. This lobby g r o u p did not have any input from or the support of Aboriginal people. Archaeologists were preoccupied in protecting their sites from indiscriminate destruction and from unscientific, amateur and destructive research. These sites were considered to have important her­ itage a n d scientific value, and rock-art sites were seen in terms of their aes­ thetic a n d public value. They were often c o m p a r e d in quality with, and held u p as rivalling those of, Europe, which were highly valued as part of the E u r o p e a n cultural a n d archaeological tradition. Not surprisingly, white academics ignored the connections a n d relationships between these cultural sites a n d the living Aboriginal communities, particularly in the south-east of Australia, because of the belief that there were n o 'real' Aboriginal people left in this part of the country (Sullivan 1985: 141). Cultural heritage is a western construct that focuses generally on material culture a n d subjective j u d g e m e n t s about what is historically,

FABRICATION A N D A B O R I G I N A L C U L T U R A L HERITAGE

157

artistically a n d 'archaeologically' significant. Because cultural heritage is a collective right a n d not adequately protected by c o m m o n law doctrines in Australia, any form of protection must c o m e from specifically designed legislation that has to be sensitively interpreted by the courts. Advocates of c o m m o n law argue t h e r e is the opportunity for creative development of c o m m o n law doctrine, which has been demonstrated t h r o u g h the acceptance of the existence of'native title' by the High Court of Australia. T h e recognition of 'native title' is seen to represent a general recognition of Aboriginal cultural heritage as well as having the potendal to protect particular sites t h r o u g h land claims (Puri 1993: 159; Gray 1993: 10-11). T h e c u r r e n t m a n a g e m e n t of cultural heritage is integrally related to issues of property a n d environmental law that relate both to real property such as land, and to chattels such as cultural property (Laws of Australia: Aborigines 1995: 7-11). Therefore cultural heritage, as a western con­ struct, enshrines E u r o p e a n archaeological and scientific values and, as such, protects Aboriginal cultural heritage on that basis. T h e c o n c e p t of Aboriginal a n d Torres Strait Islander cultural heritage is based o n the political a n d e c o n o m i c autonomy of E u r o p e a n colonisa­ tion a n d its d o m i n a t i o n . As previously stated, there was little involvement by indigenous Australians themselves (Laws of Australia: Aborigines 1995: 7; Boer 1991: 88). Mick Dodson, the former Aboriginal a n d Torres Strait Islander Social Justice Commissioner, has this to say about the way west­ ern society views indigenous cultures: Our values have been filtered through the values of others. What has been considered worthy of protection has usually been on the basis of its scientific, historic, aesthetic or sheer curiosity value. Current laws and policy are still largely shaped by this cultural distortion and fail to extend protection in terms which are defined by our perspective. (International Alliance of Indige­ nous-Tribal Peoples of the Tropical Forests and International Work Group for Indigenous Affairs 1996: 78)

Conflicts between Western and Indigenous Concepts of Cultural Heritage D o m i n a n t colonial ideologies are i n h e r e n t in Australian institutions, which is reflected in the difficulty the latter have in u n d e r s t a n d i n g the experiences of many marginalised groups. T h e K u m a r a n g k / H i n d m a r s h Island bridge affair is a n e x a m p l e . T h e fact that i n d i g e n o u s knowledge systems give power to w o m e n is i n c o m p r e h e n s i b l e to Anglo-Australian institutions because of the assumption that Aboriginal w o m e n ' s knowl­ e d g e holds little value in their own society, in the same way as w o m e n ' s knowledge d o e s within most western societies. T h e devaluation of

158

SONIA SMALLACOMBE

Aboriginal w o m e n ' s knowledge was highlighted by the South Australian G o v e r n m e n t ' s Royal Commission, which sought n o t only to question the validity, b u t to d e n i g r a t e the religious practices of a g r o u p of Aboriginal w o m e n (Bin-Sallik 1996: 207). My reference to the K u m a r a n g k / H i n d m a r s h affair is not a b o u t the Ngarrindjeri w o m e n ' s business of which I have n o knowledge, b u t a b o u t the way that debates a b o u t Aboriginal cultural knowledge take place within a d o m i n a n t colo­ nial discourse. As a result, indigenous rights to intellectual a n d cultural p r o p e r t y go u n r e c o g n i s e d , despite the application of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), designed specifi­ cally to p r o t e c t areas a n d objects that are of particular cultural signifi­ cance to Aboriginal a n d Torres Strait Islander peoples. For many Australians, the spiritual and political beliefs of Aboriginal a n d Torres Strait Islander peoples in regard to cultural heritage are diffi­ cult to c o m p r e h e n d because they are outside the political a n d economic realm of colonialism. Many Australians believe there is only one law, British law, operating in this country, which holds that all Aboriginal spir­ itual beliefs are ' n o m o r e than fairytales'. T h e c o n t e m p t toward Aborigi­ nal beliefs was evident when a former Coalition front-bencher, Ian McLachlan, questioned the validity of the Ngarrindjeri women's claim to sacred sites within the area of the proposed K u m a r a n g k / H i n d m a r s h Island bridge. H e stated it was ridiculous that fewer than thirty-five women could be the custodians of sacred spiritual beliefs a n d asked 'why can't o t h e r Australians be told the [secret] stories that Aboriginal people has miraculously m a n a g e d to pass on to generation to generation' (Chamberlin 1995: 6 ) . McLachlan's criticism, supported by the South Australian g o v e r n m e n t , developers a n d m e m b e r s of the public, including some sec­ tions of the Ngarrindjeri community, has resulted in bitter conflict that has never b e e n satisfactorily resolved. McLachlan's intention to invade the secrecy of w o m e n ' s business was evident in March 1995, when it was revealed in Parliament that h e h a d a copy of the secret material regarding Ngarrindjeri w o m e n ' s business, a n d that it h a d b e e n p h o t o c o p i e d in his office. What transpired was that an entire box of materials destined for the then Minister for Aboriginal Affairs Robert Tickner's office h a d mistakenly b e e n delivered to McLach­ lan's office, a n d a male staff m e m b e r had p h o t o c o p i e d its contents a n d sent copies to interested parties. Subsequently, McLachlan was forced to resign from the Opposition front b e n c h , admitting h e h a d inadvertently misled Parliament when h e claimed that the envelopes (consisting of material that his staff h a d p h o t o c o p i e d ) were n o t sealed or m a r k e d 'secret' or 'confidential' (Aboriginal Law Bulletin 1996: 22). What is unpalat­ able a b o u t this issue is that the fact that McLachlan had violated the sen­ sitivities of a g r o u p of Aboriginal w o m e n a p p e a r e d to be of n o major c o n c e r n for any of the Members of Parliament. 1

FABRICATION A N D A B O R I G I N A L C U L T U R A L HERITAGE

159

It would seem that Australians have n o t learned any of the lessons from the controversial debates of 1991 when Aboriginal peoples opposed the proposal by BHP to mine Coronation Hill in the N o r t h e r n Territory. In this case, the Jawoyn people, the traditional owners, opposed m i n i n g o n their land because Coronation Hill is located within an i m p o r t a n t place called Bulajang, or Sickness Country. This area is c o n n e c t e d with Bula, a major creation figure that would wreak havoc if disturbed. According to a Jawoyn elder, if Bula were awakened, 'the whole c o u n t r y would shake, everyone going to die; bullock, white man, black m a n ' (Land Eights News 1989: 2, 16; C h a m b e r l i n 1995: 6). Bula quickly b e c a m e the object of ridicule a n d the Jawoyn p e o p l e were fur­ ther exploited by the m i n i n g industry when they p a r a d e d , before the media, some twenty-five relatively j u n i o r Aboriginal people who wanted jobs at the p r o p o s e d new m i n e site. T h e Jawoyn people were successful in their bid to stop mining because of support from the then Prime Minister, Bob Hawke, who broke ranks with most colleagues a n d carried Cabinet to ban mining on Coronation Hill. Prime Minister Hawke defended his decision by raising the issue of why whites (Anglo-Australians) should be so p r e s u m p t u o u s as to question Aboriginal beliefs 'simply because they are outside the intellectual frame­ work with which we are comfortable'. H e went on to say 'it would be just as preposterous, in my j u d g m e n t , for spokespersons for the Aboriginal people to question the Chrisdan mysteries' (Chamberlin 1995: 6). Many Australians, particularly developers, are contemptuous of Aborigi­ nal a n d Torres Strait Islander spiritual beliefs. It can b e argued, however, that there are various levels of c o n t e m p t operating, a n d this can b e seen in the differences between C o r o n a t i o n Hill a n d K u m a r a n g k / H i n d m a r s h Island. T h e differences are based on g e n d e r and concepts of Aboriginality. Coronation Hill is located in the r e m o t e areas of the N o r t h e r n Territory a n d it is the Jawoyn m e n who have knowledge of the stories - w o m e n are forbidden from knowing the details. T h e Jawoyn m e n also fit the com­ m o n stereotypes that most Australians hold a b o u t 'traditional' Aborigi­ nal p e o p l e . In contrast, it is the Ngarrindjeri w o m e n who are the custodians of the sacred sites at K u m a r a n g k / H i n d m a r s h Island. Further, K u m a r a n g k / H i n d m a r s h Island is situated in the rural districts of South Australia, where the indigenous population were dispossessed of their lands in the 1850s when they were removed to nearby Port McLeay Mission (Tehan 1996: 12). It would seem that many Australians are willing to entertain the idea that Aboriginal m e n living in the r e m o t e n o r t h would b e able to retain their spiritual beliefs. At the same time, they are dismissive of the idea that Aboriginal women in the rural a n d u r b a n south possess spiritual beliefs, especially after having h a d e x p o s u r e to western forms of knowledge. In o t h e r words, the Jawoyn elders portrayed in the m e d i a coverage fit within the colonial ideals of

160

S O M A SMALLACOMBE

patriarchy a n d r e p r e s e n t a t i o n s of the ' a u t h e n t i c ' Aboriginal p e r s o n , while the Ngarrindjeri w o m e n of ' m i x e d ancestry' are at variance with this r e p r e s e n t a t i o n . In the K u m a r a n g k / H i n d m a r s h Island case, the western legal and politi­ cal institutions were called u p o n to balance the interests of developers and the Ngarrindjeri claimants. In performing this task, the interests of the developers were clearly definable and hence there was the compulsion to find a clear concept of 'heritage'. However, the K u m a r a n g k / H i n d m a r s h Island case b r o u g h t out the widely differing views of the Ngarrindjeri peoples as well as the differences between the experts arrayed on the opposing sides of the case. While the often conflicting views of witnesses a n d experts are c o m m o n p l a c e in western legal institutions, and the court­ r o o m has the function of balancing these interests, this case was highly con­ troversial. T h e wider context of the dispute involved the place of indigenous peoples within the Australian state and the demands of western institutions to establish what is clearly impossible; that is, the one 'true' ver­ sion of the religious beliefs and cultural system of the Ngarrindjeri peoples. T h e categorising of indigenous cultural knowledge, including reli­ gious beliefs, to the heritage of h u m a n k i n d relegates this i m p o r t a n t issue to western concepts of heritage. Consequently, while the western legal system may find ways to deal with disputes over buildings, objects a n d environmental heritage, a n d experts may be able to verify authentic p r o v e n a n c e , t h e r e is an assumption that disputes involving indigenous ' h e r i t a g e ' (cultural values) can also be resolved by the same processes. Western concepts of heritage are based on the construction of hierar­ chies a n d classifications that are imposed, t h r o u g h the colonising process, o n the knowledge a n d cultural systems of indigenous peoples, thus r e n d e r i n g t h e m subordinate to western systems. For example, the idea that Ngarrindjeri people may possess a religious belief system com­ parable to western religious beliefs was never acknowledged by the legal system. It is therefore hardly surprising that there has not been a satis­ factory legal solution to the K u m a r a n g k / H i n d m a r s h Island case. T h e debates a r o u n d ownership of the past and the d e m a n d s for the r e t u r n of cultural property, including ancestral remains, affect national a n d international laws and conventions. At the core of the debates is the privileging of western 'science' above all else. T h e generalised model of western science is based on control, technical rationality, order, discipline a n d m e a s u r e m e n t (Davis 1996: 2). Science and its technologies have been i m p o r t a n t tools of colonisation, a n d employed extensively in measuring, surveying, medically dissecting, classifying and controlling indigenous peoples. It is often assumed that science is objective a n d value-free, and the exclusive domain of non-indigenous populations. Consequently, indigenous peoples a n d their knowledge systems are subordinated to

FABRICATION A N D A B O R I G I N A L C U L T U R A L HERITAGE

161

western science. T h e idea that indigenous knowledge could be regarded as indigenous 'science' is viewed with some scepticism by some academics, even t h o u g h 'science' is designated as 'knowledge' (Davis 1996: 2). Attempts by Aboriginal a n d Torres Strait Islander people to protect their cultural property t h r o u g h land rights claims, to ask western institu­ tions to return indigenous cultural property, or to assert custodianship over sites have been met with incredulity, resentment and denigration of these claims. As illustrated previously, in Australia, there has been a gen­ eral lack of recognition toward indigenous cultural heritage. Further, any indigenous feelings and connections toward our own heritage have not been accepted as legitimate. As a result, white academics have been able to operate in a vacuum that enables them to provide Eurocentric interpreta­ tions a n d fabrications of indigenous intellectual a n d cultural property that harms a n d insults us (Davis 1996: 144-47). Disputes s u r r o u n d i n g the d e m a n d for recognition a n d respect of indige­ nous peoples' cultural practices a n d the appropriation of indigenous cultures are contentious, a n d emotionally a n d politically charged. What seems to b e at the core of these disputes is that western perceptions have, to a large d e g r e e , failed to recognise that indigenous conceptual systems have their own internal logic a n d rationality, which are n o t always trans­ latable into the d o m i n a n t western legal a n d political system. This is par­ ticularly evident in the policy-making areas, where western terminology a n d concepts are imposed as a way to define, categorise a n d evaluate con­ cepts in indigenous societies. Such action often serves to legitimate the interests of the existing legal a n d e c o n o m i c system of the state, denying, misrepresenting or fabricating the concepts or categories of indigenous peoples. As a result, colonialism is p e r p e t u a t e d , because indigenous sys­ tems are subjugated to a lesser o r d e r within the d o m i n a n t framework. T h e intellectual a n d cultural property of indigenous Australians pro­ vides the foundation of o u r personal identity a n d ancestral a n c h o r a g e . It offers a distinctive world view that outsiders can rarely grasp. W h e n o u r knowledge is fabricated by outsiders, a wedge is thrust between the object a n d its m e a n i n g a n d , as a result, the world view a n d cultural matrix of o u r societies are attacked. Protecting o u r cultural property a n d knowledge systems from exploitation has b e c o m e part of o u r agenda. However, it c a n n o t b e c o m e a question of how to fit indigenous culture a n d knowledge systems into western legal a n d conceptual frameworks, b u t that o u r systems a n d concepts should guide the debates. It is when we decide how we define o u r knowledge a n d cultural property rights that we may b e able to protect ourselves from the exploitation a n d fabrication of o u r culture that is widespread in o u r communities today. This may also e n a b l e us to control a n d challenge the myths regarding o u r Aboriginal-

162

SONIA SMALLACOMBE

ity. As i n d i g e n o u s peoples, we n e e d the protection a n d the right to say ' n o ' to commercialisation, exploitation, misuse a n d abuse of o u r cultural resources. If we choose to commercialise, d o n a t e or share o u r knowl­ edge, t h e n o u r interests n e e d to be protected, a n d we must also be com­ p e n s a t e d where exploitation has o c c u r r e d (Greaves 1996: 2).

CHAPTER 9

On the Plurality of Interests: Aboriginal Self-government and Land Rights J o h n B e r n a n d Susan Dodds

In this chapter, we examine some concerns about the way in which recog­ nition of Aboriginal self-determination or self-government within Aus­ tralia is significandy shaped by legislative a n d other institutional forces that frame Aboriginal claims. We also examine some problems in identifying national or g r o u p interests i n d e p e n d e n t of these external influences. Debate about Indigenous Self-government, Self-determination and Land Rights A n u m b e r of models for indigenous people's self-government have b e e n advanced within Australia. O n e recurring concern is how indigenous selfg o v e r n m e n t a n d representation should be structured, given the array of goals that self-government is supposed to meet, and the diversity of Aboriginal communities. For example, should self-determination be u n d e r s t o o d in terms of a bi- or tri-national confederation, m a d e u p of the non-indigenous nation, the Aboriginal nation a n d the Islander nation? O r should it be realised m u c h m o r e locally a n d pluralistically, to reflect the vast array of indigenous peoples a n d traditions within Australia? H e n r y Reynolds has suggested that self-determination be u n d e r s t o o d as a 'single Aboriginal n a t i o n ' . This brings together the political force of Aboriginal or Torres Strait Islander solidarity with a notion of a geo­ graphically diffuse nation (Reynolds 1996). A limitation of this model is that the moral force of the self-government of a p e o p l e becomes diluted because the nation in question is composed of a large n u m b e r of smaller groups with distinct languages, histories a n d cultural practices. Local or regionally focused a p p r o a c h e s to self-government may be m o r e promis­ ing, a l t h o u g h their success may d e p e n d on the national political will to s u p p o r t greater Aboriginal a n d Torres Strait Islander self-government, 16S

164

J O H N BERN A N D SUSAN D O D D S 1

given t h e small indigenous populations involved. Michael Mansell's a p p r o a c h to indigenous self-government, by contrast, highlights the i m p o r t a n c e of local Aboriginal control over the g o v e r n m e n t of commu­ nities (Mansell 1994). Delegates from those communities would come together u n d e r t h e umbrella of the Aboriginal nation. T h e interests of local c o m m u n i t i e s are given centrality, without loss of the political force of indigenous identity within a b r o a d e r Aboriginal nation. Each a p p r o a c h that may be considered, however, involves a different balanc­ ing a n d shifting of the various goals that are h o p e d to be achieved by greater political autonomy. O n e potential source of tension between indigenous peoples is the absence of a compelling m o d e l of political representation. What form of representation of Aboriginal groups will best capture both the diverse institutions a n d values of Aboriginal cultures a n d the democratic d e m a n d for non-discriminatory, effective representation? Further, any move towards recognising group-specific entitlements - including rights of self-government - involves some discrimination a m o n g possible bene­ ficiaries of such rights, including discrimination a m o n g indigenous p e o p l e . In t h e area of native title, for example, regulatory mechanisms for d e t e r m i n i n g recognition of native title holders or traditional owners can lead to tensions within Aboriginal communities seeking greater selfg o v e r n m e n t , between communities, a n d between communities a n d regional bodies such as land councils. T h e formal recognition of indigenous entitlements to land con­ tributes to at least two goals: first, recognition of distinct indigenous interests in land (that is, interests based on prior occupation a n d cultur­ ally specified rights a n d responsibilities), a n d second, e n h a n c e d selfd e t e r m i n a t i o n of indigenous groups. In arguing for the particular rights of i n d i g e n o u s peoples to land or o t h e r resources, c o n t e m p o r a r y politi­ cal theorists must use conceptions of g r o u p identity to pick out those who can claim these group-specific rights. Further, mechanisms for iden­ tifying the interests of the groups which are to be protected or p r o m o t e d by recognition of indigenous rights to land must be articulated. For e x a m p l e , should the relevant groups be identified in terms of location who lives, or has lived, on or n e a r the land in question? O r in terms of their relation to each o t h e r a n d their collective, spiritual connection with the land? O r in terms of w h o uses the land for subsistence a n d / o r farm­ ing? O r by some combination? T h e s e different ways of carving o u t the scope of the g r o u p entitled to make land claims will n o t always pick o u t the same set of people. Some Aboriginal people who have been long separated from their land may retain relations with a local family g r o u p b u t may n o t necessarily have

A B O R I G I N A L L A N D RIGHTS

165 2

knowledge of spiritual or o t h e r connections with the l a n d . Children of the stolen generations, taken from their Aboriginal families, may n o t even know of their Aboriginal descent (Bringing Them Home 1997: 296-301, 419-20). Finally, recognition of land rights may p r o m o t e or protect an array of interests in land; these may reflect the (sometimes overlapping) difference in interests held by different g r o u p s within particular Aborigi­ nal communities. In o t h e r words, there are questions of the appropriate representation of indigenous identity a n d of indigenous peoples' inter­ ests. Within a single Aboriginal c o m m u n i t y t h e r e may be those: • w h o have special spiritual responsibilities with regard to the land a n d / o r sites o n the land; • w h o wish to see t h e c o m m u n i t y gain greater control over their own use and control of the land to achieve greater e c o n o m i c i n d e p e n d e n c e ; • who wish to have their historic claim to the land a n d their subsequent unjust dispossession formally recognised; a n d • who use t h e land to h u n t a n d to g a t h e r food in a traditional m a n n e r , a n d wish to have c o n t i n u e d access to the land for those purposes. Political theorists, arguing for greater recognition of indigenous inter­ ests, frequently focus o n t h e differences between indigenous a n d nonindigenous interests, downplaying or ignoring any differences between a n d a m o n g indigenous g r o u p s a n d interests. This a p p a r e n t dichotomy between indigenous a n d non-indigenous interests can serve to mask the diversity of interests that i n d i g e n o u s people have, silence debate a m o n g indigenous peoples, a n d / o r s u p p o r t a r g u m e n t s against greater selfdetermination. In this chapter, we focus o n internal community effects a n d illustrate this by outlining some of the different kinds of interests in land o n e g r o u p of Aboriginal p e o p l e may have. We e x a m i n e t h e ways in which t h e various Australian regulatory structures for recognising Aboriginal inter­ ests in land may fail to recognise that diversity of Aboriginal interests a n d the plural bases for those interests. T h e assumption of a single, c o h e r e n t set of indigenous interests may exclude i n d i g e n o u s people from debate in a way that reduces their selfd e t e r m i n a t i o n . Regulatory m e c h a n i s m s for recognition of land interests may, paradoxically, fail to recognise certain kinds of interests in land. In particular, the emphasis o n continuity of physical association in the Native Title Act, a n d o n descent a n d spiritual responsibility in the Aborigi­ nal Land Rights (NT) Act, discriminates against p e o p l e whose historical associations are post-contact, a n d those who retain an affinity to their traditional territory b u t n o t a physical presence. If t h e goals of greater

166

J O H N BERN A N D S U S A N D O D D S

recognition of indigenous land rights include e n h a n c e d self-determina­ tion, it is i m p o r t a n t that the legal a n d political mechanisms used to pro­ vide for that recognition d o n o t frustrate g e n u i n e self-determination. T h e Aboriginal Land Rights (NT) Act sets out criteria for people to be recognised as traditional owners and for making claims to the traditional ownership of certain types of land in the N o r t h e r n Territory. Land claims b r o u g h t u n d e r this Act a n d challenges to it have framed much of the debate about rights of traditional ownership in that jurisdiction. We discuss certain aspects of the land claims of people living in the Roper River region to draw out the diversity of interests that an Aboriginal group may hold with regard to an area of land. We also look at the ways in which the regu­ latory mechanisms shape and privilege some kinds of interests over others. 3

Contemporary Group-specific Entitlement Accounts in Political Theory Iris Young (Young 1990) a n d J a m e s Tully (Tully 1995; 1997) have argued for pluralistic a p p r o a c h e s to political institutions a n d for formal recog­ nition of group-based entitlements to e n h a n c e self-determination within c o n t e m p o r a r y states. Will Kymlicka (Kymlicka 1995) has argued for a recognition of cultural pluralism within a single set of state institutions as a way of acknowledging the potential for disadvantage where pluralism is d e n i e d , a n d the value of cultural m e m b e r s h i p for individuals' life-plans. In o r d e r to advocate political pluralism in the functioning a n d shape of political institutions, or to advocate recognition of cultural pluralism within the state, theorists n e e d to be alive to the ways in which political a n d regulatory institutions shape the interests of g r o u p s within the state a n d shape the b o u n d a r i e s of those groups. If legislation identifies some set of interests as the recognised interests of a g r o u p , it gives priority to those interests over o t h e r interests which m e m b e r s of the g r o u p may have. Similarly, if a regulatory mechanism recognises o n e set of people within a g r o u p as the legitimate authority for p r o n o u n c i n g the interests of the g r o u p , it gives the voice of those people stronger claims to recog­ nition than those of others within the g r o u p .

Tully on Nations and Negotiation In his a r g u m e n t s c o n c e r n i n g indigenous self-government in Canada, J a m e s Tully's pluralism takes the form of plural political institutions within a confederation of distinct nations: those institutions of the First Nations of Canada, those institutions of the Metis nation a n d those insti­ tutions of the Canadian nation. In the realm of land rights Tully argues for p r o p e r recognition of the distinct a n d pre-existing set of relations

A B O R I G I N A L L A N D RIGHTS

167

with land enjoyed by indigenous peoples before expropriation, a n d the need to avoid seventeenth to nineteenth-century cultural biases in u n d e r s t a n d i n g b o t h the n a t u r e of indigenous nations a n d the systems of property characteristic of those nations (Tully 1994). In d o i n g so h e uses a framework of three conventions: recognition, continuity a n d consent. P r o p e r recognition is recognition by all Canadi­ ans of the diverse nations to which indigenous people belong as well as the non-indigenous nation. It is also recognition of the continuity of the nations, their traditions a n d law - that is, their on-going existence a n d sig­ nificance. Further, it is recognition of the democratic n o r m shared by indigenous a n d non-indigenous people of consent to those things that affect each g r o u p in a society (Tully 1995: 116). As such, the kind of plu­ ralism Tully advocates is a pluralism of national institutions a n d structures as federated within o n e over-arching, plural, Canadian confederation. O n e benefit of this a p p r o a c h is that it shifts the discussion of land rights from a d e b a t e a b o u t distributive justice within a set of supposedly shared state institutions to a debate a b o u t justice between nations. Between these nations the t h r e e conventions are t h e n applied to frame negotiation a n d debate, a n d to carve out the scope for group-specific rights of self-government. In the Australian context, however, it is unlikely that this federalist a p p r o a c h is available, given the general absence of a history of treaties or recognition of pre-contact Aboriginal sovereignty before the 1992 Mabo decision. In lifting the d e b a t e to the level of relations between nations, a n d arguing for greater self-government of the affairs of each nation by the nation, t h e r e is a risk of h o m o g e n i s i n g the diversity within each nation. Tully uses a c o n c e p t of sovereignty that h e envisages as a move away from o n e u n d e r s t o o d as absolute authority over a uniform polity: Sovereignty in this non-absolute sense means the authority of a culturally diverse people or association of peoples to govern themselves by their own laws and ways free from external subordination. (Tully 1995: 195) While Tully envisages a r a n g e of cross-cutting interests, especially as these relate to the specific interests of indigenous women, it is unclear how his a p p r o a c h protects m e m b e r s of each nation from internal sub­ ordination or exclusion from the political institutions (Tully 1997: 30; 1995: 193). For example, what are the criteria for m e m b e r s h i p in o n e or a n o t h e r nation, a n d who sets those criteria? How are representatives of each nation d e t e r m i n e d , a n d which interests are the central, 'defining' interests of each nation? Tully's answer appears to b e that each nation should d e t e r m i n e these for themselves. However, the construction of each is going to b e shaped by the institutions of the wider state a n d the specific set of interests that

168

J O H N BERN A N D S U S A N D O D D S

the nations view as central at the time of negotiation for the federation. Tully argues that ' t h e condition of democracy must be met' a n d that Aboriginal g o v e r n m e n t s must b e answerable in a m a n n e r appropriate to their way (Tully 1995: 193). It is difficult to see, within his account, how the basic institutions are constituted to ensure that the interests of all are given a voice, or how self-definition is to be achieved, given the influence of external structures. 4

Young on Groups and Special Representation Iris Young's pluralism takes the form of recognising group-based differ­ ences within the state a n d the need for special representation of oppressed groups in o r d e r to give those groups a political voice. H e r goal isjusdce u n d e r s t o o d , not simply asjust distribution, but m o r e as the devel­ o p m e n t of 'institutional conditions necessary for the development and exercise of individual capacities and collective communication and co­ o p e r a t i o n ' (Young 1990: 39). Specific representation of oppressed groups ensures effective democracy (Young 1990: 184). Oppressed groups have b e e n silenced in democratic debate because they have relatively fewer of the opportunities to shape debate and to be heard that d o m i n a n t groups have historically enjoyed. For Young, groups are neither aggregates of individuals n o r associations of chosen members. Rather, to be a m e m b e r of a g r o u p is to find o n e ' s identity as (partly) constructed by one's mem­ bership of a g r o u p (for example, woman, Jew, Native American, black). While o n e can attempt to reject or reinforce one's g r o u p membership, it is not usually something separable from who o n e is - it constitutes an aspect of one's identity. As Young puts it: A social group is a collective of people who have affinity with one another because of a set of practices or way of life; they differentiate themselves from or are differentiated by at least one other group according to these social forms. (Young 1990: 186)

For Young, an oppressed g r o u p is o n e whose m e m b e r s suffer disad­ vantage relative to others as the result of the institutions a n d structures of the state (not limited to those which are i n t e n d e d to cause disadvan­ tage) . As such, oppressed g r o u p s are subject to systemic constraints, con­ stituted by the state's institutions (Young 1990: 4 1 - 3 ) . Young argues that within representative bodies, oppressed groups o u g h t to have special representation rights, at least in those areas that specifically affect those oppressed groups. This special representation is a i m e d at e n s u r i n g a democratic voice for oppressed g r o u p s so that they can shape the institutions that affect their lives:

A B O R I G I N A L L A N D RIGHTS

169

The principle of group representation applies to all such democratised publics. It should apply, for example, to decision making bodies formed by oppressed groups that aim to develop policy proposals for a heterogenous public. Oppressed groups within these groups should have specific represen­ tation in such autonomous forums. T h e Black caucus should give specific rep­ resentation to women, for example, and the women's caucus to Blacks. (Young 1990: 197)

But what of p e o p l e within a social g r o u p whose interests a n d ways of life within the group are shaped by their role or status within the group? Must they c o u n t as oppressed by or within the g r o u p for their interests to merit special representation? Are their specific interests certain to be represented by the group? Most social g r o u p s contain h e t e r o g e n e o u s mixes of people. Groups are m a d e u p of subgroups whose m e m b e r s h i p in the s u b g r o u p may be constituted by the n a t u r e of the wider g r o u p : within a diverse community there will be different roles for different people. Some subgroups may be oppressed relative to the wider g r o u p in some areas (for example, indige­ nous w o m e n w h o are m e m b e r s of a women's representative body), but other subgroups may n o t b e oppressed simply by virtue of their mem­ bership of the s u b g r o u p (for example, Aboriginal elders or those who live in town r a t h e r t h a n o n the mission) but they may nonetheless have distinct interests from those which are d o m i n a n t in the wider g r o u p . How are these interests to b e recognised? Two things n e e d to be acknowledged properly. First, representative bodies of indigenous people are g e a r e d toward some aspect of self-determination or of nego­ tiation with the wider state. To a certain extent, then, the agenda is set from the outside a n d that a g e n d a will often set criteria for identifying which kinds of interests are given priority a n d which m e m b e r s of the g r o u p are representatives of the g r o u p ' s interests. Secondly, t h e r e may be a diversity of interests within a g r o u p that are n o t so m u c h o p p o s e d to o n e a n o t h e r as they are to all aspects of the rich complexity of a shared way of life. As such, it is n o t a case of an oppressed subgroup's interest against the interests of the wider g r o u p but, rather, an array of partially overlapping b u t different interests that, together, form the full array of g r o u p interests. T h a t full array of interests may not be h e a r d or recognised by a regulatory m e c h a n i s m that seeks o u t one kind of g r o u p interest.

Kymlicka and State Recognition of Cultural Pluralism In Multicultural Citizenship, Will Kymlicka seeks formal recognition of the plurality of cultural m e m b e r s h i p s within a single set of state institutions. Kymlicka argues that the liberal c o m m i t m e n t to equality a n d individual

170

J O H N BERN A N D S U S A N D O D D S

pursuit of the good d e m a n d institutional recognition of some groupbased rights a n d protections. Employing the liberal democratic ideal of self-determination, Kymlicka challenges the claimed neutrality of liber­ alism a n d overturns m u c h of the orthodoxy about liberal citizenship. He argues o n two fronts, b o t h of which attempt to reconcile ideals of uni­ versal citizenship with political recognition of cultural difference. Kym­ licka challenges the view that liberalism is inherently atomistic, insisting that cultural m e m b e r s h i p a n d cultural participation are necessary con­ ditions of each individual's pursuit of the g o o d life. In a pluralistic demo­ cratic society, individuals whose cultural identification is associated with a minority culture will, in the absence of special protections, be disad­ vantaged in the pursuit of their conception of the good, relative to mem­ bers of d o m i n a n t majority cultures. C o n c e r n to protect the equal rights of each to the pursuit of the good g r o u n d s three kinds of rights that recognise difference between groups in a state, by protecting the g r o u p from the actions of o t h e r groups: polyethnic rights, which protect cul­ tural practices while e n h a n c i n g inclusion in civic life; group-specific rights of self-government; a n d special g r o u p representation rights (Kymlicka 1995: 3 7 - 8 ) . Of particular relevance to o u r c o n c e r n s h e r e is Kymlicka's a r g u m e n t for recognition of the threat posed by forced inclusion in the state to the c o n t i n u a t i o n of some cultural groups. H e argues for greater political a u t o n o m y for forcibly a n n e x e d groups t h r o u g h indigenous groupspecific representation rights or rights of self-determination within state b o r d e r s . T h e s e may be necessary for indigenous national groups to have the same freedom to p u r s u e their preferred cultural life a n d conception of the g o o d that m e m b e r s of the d o m i n a n t cultural groups enjoy by virtue of their shared linguistic, cultural, spiritual a n d institutional history. Kymlicka maintains that there are circumstances in which indigenous g r o u p s should be g r a n t e d regional political a n d legal self-determination, n o t j u s t legal ownership of (parts of) their historical territories. In rare cases, secession a n d full self-government rights may be the only means of protecting rights to cultural identity (Kymlicka 1995: 173-92). While Kymlicka provides a strong defence of cultural m e m b e r s h i p a n d the n e e d for differential rights within a single state to protect the cul­ tural participation a n d identity of m e m b e r s of minority cultural groups, his discussion stays within liberalism because it is based on formal justice, equality of participation in cultural life, a n d removal of disadvantage. H e d o e s n o t a r g u e for indigenous a u t o n o m y a n d land rights o n the basis of historical injustice alone. Reference to historical injustice, including forced state m e m b e r s h i p , provides the causal explanation for the c u r r e n t disadvantage. It is n o t a n i n d e p e n d e n t g r o u n d for differential rights. Kymlicka argues that historic treaties provide some evidence of what

A B O R I G I N A L L A N D RIGHTS

171

those indigenous p e o p l e who took part in the treaty h a d agreed to at the time of the treaty, a n d that this is a reason to maintain the status a n d ben­ efits g r a n t e d to indigenous p e o p l e in treaties. H e does n o t a p p e a r to argue, however, that unjust historic dispossession or invasion is an inde­ p e n d e n t basis for indigenous group-specific rights within the state. Rather, it is a g r o u n d for secession, as the g r o u p never agreed to federate with the colonisers (Kymlicka 1995: 116-20). For most national minorities, however, secession comes at a very high cost; for indigenous peoples, secession may be equivalent to a b a n d o n i n g d e m a n d s against the state for justice a n d c o m p e n s a t i o n as recognition of prior occupation. T h e r e are some problems in attempting to apply Kymlicka's a p p r o a c h to the issues s u r r o u n d i n g the Australian land rights debates. First, although the relative disadvantage of Aboriginal people is a legitimate g r o u n d for some land rights claims, Kymlicka's a p p r o a c h c a n n o t recog­ nise specific i n d i g e n o u s interests which can be advanced t h r o u g h land rights, but which are n o t g r o u n d e d in disadvantage or recognised fea­ tures of cultural m e m b e r s h i p . Second, t h e r e is n o clear answer to the question of how group-specific representation rights are to be identified, given they a p p e a r to simply reflect ' i n d i g e n o u s interests', although it is the d o m i n a n t culture that d e t e r m i n e s which interests are indigenous interests and, at the same time, the recognition of group-specific representation rights themselves shape i n d i g e n o u s interests a n d cultural m e m b e r s h i p . Third, disadvantage a n d cultural m e m b e r s h i p form the basis for dif­ ferent group-specific rights a n d / o r will identify potential claimants for such rights differently. I n d i g e n o u s identity will be constituted d e p e n d i n g on w h e t h e r the focus for group-specific rights is relative disadvantage or cultural m e m b e r s h i p . A disadvantage basis for rights might well b r o a d e n the scope of indigenous identity by b r o a d e n i n g the range of p e o p l e who are entitled to claim group-based rights, while a focus o n the preserva­ tion of cultural pluralism a n d cultural m e m b e r s h i p might justify rights that limit the potential claimants of indigenous identity a n d the groupspecific rights attached to that identity. It is unclear if Kymlicka's a p p r o a c h can take account of the dynamic aspect of these ascriptions of rights a n d rights claimants. Tully, Young a n d Kymlicka each seek to develop mechanisms for e n h a n c i n g i n d i g e n o u s peoples' self-determination. However, we have raised a n u m b e r of questions a b o u t how differences between g r o u p m e m b e r s are to be given a d e q u a t e h e a r i n g within an indigenous g r o u p seeking to achieve self-determination, given the role that outside institu­ tions have in the construction of those interests. Tully invokes the idea of indigenous n a t i o n h o o d as the basis for self-determination without articulating the representative structures required to give all indigenous

172

J O H N BERN A N D SUSAN D O D D S

interests political voice. Young provides an account of representation for minority groups, b u t o n e that is u n a b l e to recognise internal g r o u p dif­ ferences except where they are structured within oppressive relation­ ships. Kymlicka's focus o n the significance of disadvantage a n d cultural m e m b e r s h i p for individual citizens limits his ability to respond to histori­ cal injustice against indigenous groups; his a p p r o a c h to t h e g r o u n d i n g of group-specific rights e x p a n d s the problems of recognising indigenous peoples a n d indigenous interests. Must we accept that the only interests that can be properly recognised are those associated with elite or d o m i n a n t m e m b e r s of the g r o u p , as defined by external institutions a n d structures, or those of subgroups, acknowledged to be oppressed or disadvantaged within the group? How can i n d i g e n o u s peoples' self-determination resist the external constitu­ tion of their interests a n d the singularity of this constitution? O n e of t h e virtues of the Mabo native title decision was that it did not specify a u n i q u e set of rights of native title. Native title rights are to be specified by reference to local Aboriginal law (Mabo and Others v. Queens­ land (No. 2) (1992)). However, within particular communities, there may b e a n u m b e r of different, overlapping a n d sometimes inconsistent sets of interests in the land at issue. As indicated earlier, these interests may include: t h e spiritual/cultural significance of the particular land or parts of that land; t h e opportunity to exercise a degree of community selfd e t e r m i n a t i o n over an area of land; the opportunity to use the land for increased c o m m u n i t y self-sufficiency; the opportunity to negotiate m i n i n g rights over t h e land to provide the community with income, infrastructure a n d services; recognition of distinct bases for the group's ownership of the land or recognition of individual ownership of the land. While t h e r e is n o conceptual difficulty with attempts to realise some of these different interests simultaneously, it is i m p o r t a n t to assess if legis­ lation a n d policies c o n c e r n i n g indigenous rights to land are framed so they can recognise the diversity of interests in land a n d their relations to the different ways of identifying potential claimants. Clearly t h e self-determination of indigenous people requires that it be indigenous p e o p l e w h o identify a n d articulate indigenous interests. How­ ever, political theorists a n d all those pursuing an ideal of indigenous selfd e t e r m i n a t i o n as the r o u t e to Aboriginal justice should be alert to two general p r o b l e m s of articulating g r o u p interests a n d group-based rights g r o u n d e d in those interests. First, institutional structures which are designed to h e a r claims of interests privilege certain kinds of interests a n d , second, these institutional structures can define who, of t h e indigenous p e o p l e , are those recognised as entitled to these group-based rights. T h a t is, t h e r e may be n o way of identifying the pre-existing or i n d e p e n ­ d e n t interests of any g r o u p , including Aboriginal groups, because the

ABORIGINAL LAND RIGHTS

173

very institutions that recognise those interests already shape - even con­ stitute - those interests. As such, institutional responses to the injustices b o r n e by i n d i g e n o u s people should be treated warily and, at least some­ times, with resistance to the ways in which these responses constitute indigenous interests. How Institutional and Regulatory Structures Shape and Identify Interests As applied to Australia, the issues we raise are best a p p r o a c h e d t h r o u g h concrete practices of Aboriginal self-government a n d control of land rather t h a n the m o r e abstract notion of Aboriginal sovereignty. T h e framework of Aboriginal claims to land is set by g o v e r n m e n t legislation. In the case of the Aboriginal Land Rights (NT) Act (1976 a n d after) a n d the Native Title Act (both before a n d after the 1998 a m e n d m e n t ) , the testing of a claim sets different interests in opposition to each other. This is shaped by the dichotomy of indigenous a n d non-indigenous interests. T h e effects are many, b u t o n e we shall focus on h e r e is the propensity to write out any diversity within the indigenous interests or, alternatively, to construct these in destructive a n d disintegrative modes. While there is a strong political imperative to provide a unified voice in arguing for a land claim, we argue that in seeking to find that single voice, i m p o r t a n t interests may b e silenced, or at least muffled.

Land Rights and Governance C o n t e m p o r a r y l a n d rights claims focus political as well as e c o n o m i c a n d cultural d e m a n d s . Claims to land have two main facets that highlight the dual (not to say contradictory) n a t u r e of Aboriginal self-government claims. O n t h e o n e h a n d , e a c h claim is an expression of parochial p r o p ­ erty rights, while o n the other, each is an instance of the m o r e abstract claim for the recognition of Aboriginal sovereignty. T h e N o r t h e r n Ter­ ritory legislation gives primacy to the former. T h e i m p o r t a n c e of spiri­ tual affiliation a n d a s i t e / g r o u p - b a s e d tradition for land claim success n o t only favours n a r r o w local interests, b u t may also pit site-anchored kinship g r o u p s against otherwise constituted residential g r o u p s in the same locality. Already, the right to decide priorities a n d d e t e r m i n e their imple­ m e n t a t i o n o n the major issues of land rights, health, education a n d the forms a n d processes of the institutions themselves are formulated a n d d e c i d e d u p o n at state or national levels, namely Mabo, Wik, federal, state a n d territory land rights legislation. O n the whole, m a n a g e m e n t of these affairs is in the h a n d s of s t a t e / t e r r i t o r y a n d c o m m o n w e a l t h

174

J O H N BERN A N D S U S A N D O D D S

g o v e r n m e n t s . However, t h e r e are significant Aboriginal-controlled extra-local organisations. T h e most notable are the regional land coun­ cils, b u t t h e r e are o t h e r significant ones. T h e c o m m e n c e m e n t of the Aboriginal a n d Torres Strait Islander Commission (ATSIC) in 1990 was seen by some as e x t e n d i n g this d e v e l o p m e n t a n d providing a basis for the national integration so far absent. Nonetheless, the land councils a n d ATSIC d e p e n d o n state, territory or federal legislation. They are, in effect, derivative rights of self-government. T h e specifically Aboriginal polity is constituted, through the Aboriginal Land Rights (NT) Act, within three main domains in the N o r t h e r n Terri­ tory: the land councils, the local communities and the kinship/languagerelated groups. In the context of the Aboriginal Land Rights (NT) Act, however, each of these groups has its form mediated through the criteria of the Act. Only the last of these polities claims its origins in traditional societies of the past. Local communities are m o r e complex, but in their sedentary present they are largely based on pastoral containment a n d / o r g o v e r n m e n t / m i s s i o n institutions. T h e land councils are established u n d e r commonwealth government statute. Any concept of Aboriginal autonomy is necessarily limited by state or territory and commonwealth sovereignty, welfare a n d fiscal d e p e n d e n c e and the absence of treaty obligations. In the N o r t h e r n Territory a significant proportion of the Aboriginal population has certain rights and entidements through the Aboriginal Land Rights (NT) Act, which, arguably, gives its beneficiaries, collectively, a status in the soci­ ety that contains elements of self-government. T h e land councils of the N o r t h e r n Territory are established u n d e r the Aboriginal Land Rights (NT) Act. Their statutory functions relate to Aborigi­ nal land a n d land that may be subject to a land claim. T h e areas of com­ p e t e n c e include access to the land, m a n a g e m e n t schemes, protection of sacred sites, lodging land claims o n behalf of Aboriginal people, and negotiating m i n i n g a n d o t h e r uses of Aboriginal land by non-owners. In these matters they are the buffer between Aboriginal groups a n d outside interests, many of which have major e c o n o m i c a n d political as well as social significance. T h e two principal land councils also play an i m p o r t a n t coordinating role in the formulation a n d presentation of Aboriginal peoples' political claims at b o t h Territory a n d national levels. They are a m o n g the central lobbying bodies for the representation of Aboriginal views. While the basis for their activity is Aboriginal land interests, these are so pervasive in their social, e c o n o m i c a n d political effects as to involve the land coun­ cils in the m a i n t e n a n c e a n d d e v e l o p m e n t of a very wide spectrum of affairs affecting Aboriginal peoples' social a n d political lives. These range from national policy in relation to mining a n d national parks to many aspects of c o m m u n i t y decision-making and m a n a g e m e n t , includ­ ing conflict m a n a g e m e n t a n d distribution of resources.

ABORIGINAL LAND RIGHTS

175

Land councils have two overlapping constituencies within their char­ ter. O n the o n e h a n d , they r e p r e s e n t a n d must consult with traditional owners of the lands within their jurisdiction, while o n the other, Council m e m b e r s are elected by a n d from the local communities. These two groups generally overlap, b u t are rarely identical. T h e Aboriginal Land Rights (NT) Act defines traditional Aboriginal owners as a local descent g r o u p of Aboriginals who: (a) have c o m m o n spiritual affiliations to a site o n the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and (b) are entitled by Aboriginal tradition to forage as of right over that land . . . (Aboriginal Land Rights [NT] Act 1976 (REPA028) Consolidated to No. 7 5 / 1987)

Traditional owners are l a n g u a g e / p l a c e / k i n s h i p groups whose property rights over particular territories are recognised through the Aboriginal Land Rights (NT) Act a n d are g r o u n d e d in their spiritual responsibilities. T h e structure of local communities, o n the other hand, is variable and ranges from small family groups to rural towns with indigenous popula­ tions of over a thousand people. This overlap can and has become a source of conflict, particularly where the recognised traditional owners of an area are not the same g r o u p as the residents of the local community within that area. T h e most persistent of these conflicts has occurred where the Aboriginal leadership of the local community is not made u p of the tradi­ tional owners of the land o n which their town is situated. Broader regional indigenous geographical a n d language g r o u p inter­ ests d o exist a n d have an impact o n the political scene. T h e Yolngu-speaking people of north-east A r n h e m Land a n d the Pitjantjatjara people of the Western Desert are two such groupings that have been successful in representing themselves as specific interest groups in the wider political arena. T h e Tiwi of Bathurst a n d Melville Islands a n d the Groote Eylanders each have their own land council. So far, only these few strong language and geographical groupings have b e e n able to organise effectively above the level of the local community. However, even here, the bases of organi­ sation is k i n / l a n g u a g e / s p i r i t u a l associations, t h o u g h a broader integrity has b e e n maintained, at least partly, as a result of particular historical a n d geographical circumstances. In the case of the Yolngu a n d Pitjantjatjara, Australian political control has b e e n recent a n d was applied u n d e r a regime having a relatively benign impact. In the case of the Tiwi a n d Groote Eylanders there is also the insular island location a n d subjugation to a single mission authority in the pre-citizenship period. Interests that are poorly a c c o m m o d a t e d within the N o r t h e r n Territory Aboriginal Land Rights Act's structure are those distinguished by age, gen­ der, r u r a l / u r b a n location, individuals a n d class. Women, in particular, are 5

176

JOHN

BERN AND SUSAN

DODDS

marginalised t h r o u g h the emphasis on traditional male spiritual attach­ ments. T h e r e are circumstances where male authority has b r o k e n down a n d only adult w o m e n have the c o h e r e n c e to represent the community a n d m a n a g e its affairs. In these cases they d o so as the (temporary) hold­ ers of those male-focused traditions. T h e Aboriginal Land Rights (NT) Act is o n e of the key institutions that has shaped Aboriginal self-determination a n d identity in the N o r t h e r n Territory. T h e recognised interests of Aboriginal groups is at times con­ stituted in ways that may cause tensions within those groups. While some could b e addressed by giving internally oppressed subgroups greater voice, as Young argues, the core of the p r o b l e m lies in the ways in which the regulatory structures for recognising Aboriginal land rights consti­ tute Aboriginal land interests. Roper River Land Tenure We p r e s e n t h e r e aspects of decision-making concerns a m o n g the Ngalagan a n d related p e o p l e of the Katherine a n d Gulf District of the North­ e r n Territory to illustrate the ways in which Aboriginal interests can conflict in the a r e n a of land rights claims a n d the benefits that may flow from such rights. We argue that some of these differences are shaped externally, t h r o u g h the Aboriginal Land Rights (NT) Act, the functioning of the Aboriginal land commissioner u n d e r that Act, a n d the adminis­ tration of decisions flowing from the granting of a land claim. D u r i n g the 1980s the land t e n u r e system of the people of the middle a n d lower R o p e r River area in the N o r t h e r n Territory has been the sub­ j e c t of investigation in four land claims u n d e r the Aboriginal Land Rights (NT) Act (Aboriginal Land Commissioner 1981; 1982; 1985; 1988). In each of these cases the Aboriginal land commissioner m a d e different findings c o n c e r n i n g the constitution of the g r o u p of traditional owners of the land in question. T h e land commissioner n e e d e d to deliberate on t h r e e key issues in deciding the constitution of the groups to be awarded traditional ownership u n d e r the Act. They are that the g r o u p constituted a local descent group who have common spiritual affiliations to a site on the land, a n d that these affiliations place the g r o u p u n d e r a primary spiritual respon­ sibility for that site and for the land. T h e differences we are c o n c e r n e d with h e r e arise from difficulties in reconciling these three e l e m e n t s . T h e r e is potential in each to arrive at a m o r e or less inclusive result. In the 1982 claim to the R o p e r Bar Police Reserve, the land commis­ sioner, after finding that a broadly based local g r o u p formed the Local Descent G r o u p , found that the mingirringgi (those people related t h r o u g h their father a n d father's father) alone were the traditional own­ ers (Aboriginal Land Commissioner 1982: 7). It is i m p o r t a n t to n o t e that 6

ABORIGINAL LAND RIGHTS

177

in his r e p o r t o n R o p e r Bar, the Commissioner (Justice Toohey) leaned toward the inclusion of junggayi (those related t h r o u g h their m o t h e r a n d father's m o t h e r ) . However, in the e n d , the Commissioner was swayed by the claimants' assertions of the differences in the roles of the two categories with regard to responsibilities for sites a n d the land (Aboriginal Land Commissioner 1982: 12-14). In a land claim o n behalf of a related g r o u p in the same year, to the former Cox River pastoral lease, a n o t h e r L a n d Commissioner (Justice Kearney) found that mingirringgi, junggayi a n d darlnyin (the last being related t h r o u g h their m o t h e r ' s m o t h e r ) t o g e t h e r f o r m e d b o t h the local descent g r o u p a n d the traditional owners. T h e Mataranka Land Claim, h e a r d in 1986, includes c o u n t r y associated with many of the p e o p l e participating in the Roper Bar land claim. T h e finding of the L a n d Commissioner (Justice Maurice) in that case was consistent with the findings in the Cox River land claim: that mingirringgi, junggayi a n d darlnyin together formed b o t h the local descent g r o u p a n d the traditional owners. T h e discrepancy between the findings as to the composition of tradi­ tional owners has o u t c o m e s in the polidcs of the indigenous c o m m u n i ­ ties in that region. T h e r e c e n t history of relations between the people identified as traditional owners in the Roper Bar land claim a n d the pre­ dominantly indigenous c o m m u n i t y at N g u k u r r township (population circa 900) is p e r t i n e n t h e r e . N g u k u r r is only a few kilometres down river from R o p e r Bar. A significant n u m b e r of the Roper Bar traditional own­ ers live t h e r e a n d most of the rest of the c o m m u n i t y are closely related to them. Part of the town is a sacred site o n the totemic path identified with o n e of the traditional owner g r o u p s at Roper Bar. T h e traditional owners have, at times, used this to press their rights within the town as against the rights of the wider c o m m u n i t y a n d its elected local g o v e r n m e n t . For example, they were successful, using their traditional owner status, in gaining the right to receive rents for the lease of the local general store. Traditional ownership status a n d the rights that flow from it have b e e n challenged o n a variety of g r o u n d s from within the local c o m m u ­ nity, including that the traditional owner g r o u p should include the junggayi a n d darlnyin, as well as the mingirringgi. This view gained strength in the light of o t h e r land claim results. For the N g u k u r r com­ munity leadership, it was a b e t t e r fit with the practices of responsibility a n d for the g e n e r a l r a n g e of social relations. It was also the position a d o p t e d by the c o m m u n i t y in negotiations with outside interests over various c o m m e r c i a l a g r e e m e n t s , such as m i n i n g exploration, rights of way a n d so o n (Bern 1989: 165-76). T h e r e was a n o t h e r type of disagreement c o n c e r n i n g the very efficacy of the local descent g r o u p , w h e t h e r exclusively or inclusively structured. This is a c o m p l e x matter, for those arguing against the primacy of the 7

178

J O H N BERN A N D SUSAN D O D D S

descent g r o u p accept the i m p o r t a n c e of kinship, co-residence, long-term association a n d ties to the land, while rejecting the singular importance of descent. T h e main points of division within the region have often been articulated in terms of this issue. This dispute is fraught with difficulties as t h e r e has b e e n extensive intermarriage a n d long-term co-residence a m o n g the disputants o n each side. T h e N g u k u r r community, including the R o p e r Bar traditional owners a n d their local descent groups, has resided in the area for m u c h of this century a n d has developed a strong a t t a c h m e n t to the place in traditional a n d o t h e r historical ways, includ­ ing c o m m o n spiritual attachments a n d responsibilities. T h e a r g u m e n t from these critics is for an inclusive ownership regime based on the N g u k u r r community, which gives d u e regard to the range of particular interests, b u t primacy to n o n e of them. T h e view is o n e that might be consistent with the aspirations of local self-government. T h e foci of these differences are n o t contained locally. T h e N o r t h e r n L a n d Council, charged with responsibility to administer the Act, has obligations to local descent groups a n d local communities. Such obliga­ tions have the capacity to p u t the Council in contradictory positions, and thus an object for attack by the perceived disadvantaged parties. A sec­ tion of the N g u k u r r community leadership regarded the N o r t h e r n Land Council as b o u n d to s u p p o r t the local descent g r o u p a n d sought support from o t h e r quarters. T h e N o r t h e r n Territory government, aiming to c o u n t e r land council influence in indigenous communities, has devised a n d s u p p o r t e d its own local governance m o d e l t h r o u g h the Community G o v e r n m e n t S c h e m e . While this model places weight o n local commu­ nity identity u n d e r the NT Local Government Act, it does so without a sig­ nificant devolution of control to the community. Territory g o v e r n m e n t s u p p o r t for the primacy of present-day local ties also includes support for smaller, regionally based breakaway land councils, including o n e based o n the town of N g u k u r r (Bern 1989; 1990). In e x a m i n i n g the workings of the Aboriginal Land Rights (NT) Act in its application to t h e R o p e r Bar traditional owners a n d the N g u k u r r com­ munity, we have shown some of the ways in which the N o r t h e r n Terri­ tory l a n d rights r e g i m e constructs b o t h Aboriginal interests in land a n d those w h o have authority to r e p r e s e n t those interests. L a n d interests n o t reflected in the legislation can be overlooked a n d u n d e r v a l u e d . As such, the legislation is limited in its ability to recognise the array of Aboriginal interests in land a n d to provide for g e n u i n e Aboriginal selfg o v e r n m e n t . T h o s e w h o view land rights legislation as a vehicle for r e c o g n i t i o n of Aboriginal interests a n d a u t o n o m y should be con­ c e r n e d to e x a m i n e if it is possible to create legislation that does n o t c o n s t r u c t Aboriginal interests externally a n d can be sensitive to the diversity of Aboriginal c o n c e r n s .

ABORIGINAL LAND RIGHTS

179

To m a k e sense of a r g u m e n t s about representative recognition of g r o u p differences within complex societies, the diversity of interests within the g r o u p must be properly recognised. At the same time, there must be recognition of the ways in which regulatory structures shape a n d privilege interests. It may t u r n o u t to be impossible to express, in the abstract, what interests an Aboriginal g r o u p or community has as all g r o u p interests are partly constituted by the internal a n d external insti­ tutions to which the g r o u p is r e s p o n d i n g at a particular time. O u r a r g u m e n t a n d conclusions connect direcdy with positions raised in other parts of this book. O u r concerns about the constitution of identity being mediated by c u r r e n t and historical external institutions a n d laws echo Audra Simpson's account of the internal a n d external debates about Mohawk identity in her chapter. T h e r e she highlights both the political force to be found in the language of indigenous n a t i o n h o o d a n d the social costs of using cultural identity criteria that have been heavily shaped by his­ torical legislative regimes (The Indian Act). Sonia Smallacombe's critique of the ways in which Aboriginal culture is constituted by the d o m i n a n t cul­ ture in Australia a n d by the d o m i n a n t culture's understanding of'cultural heritage' connects directly with o u r discussion of the ways in which the Aboriginal Land Rights (NT) Act constitutes both who traditional owners are and the scope of indigenous interests to be realised through land rights. And M a n u h u i a Barcham's account of the shifting nature of Maori identity and social institutions in the context of wider social changes connects with our concerns about the construction of indigenous identity a n d the ways in which indigenous interests are sometimes treated as historical constants. Barcham draws attention to the problems of recognising what is distinctive about Maori culture while acknowledging the changing, 'evolutionary' notion of social relations a n d institutions. O u r conclusions a b o u t the i n t e r d e p e n d e n c e of identity, interests a n d state institutions are n o t u n i q u e to Aboriginal self-determination, b u t are e n d e m i c to all a p p r o a c h e s to democratic representation. T h u s , rather than assuming that all Aboriginal interests can be articulated in the abstract, it is worth e x a m i n i n g critically the institutional structures which shape Aboriginal interests a n d which can silence the diversity of Aborigi­ nal c o n c e r n s . This might be d o n e by addressing the construction of Aboriginal c o n c e r n s at a m o r e concrete level. To d o so would involve treating all institutional attempts to recognise Aboriginal interests as o p e n to o n g o i n g negotiation, in light of what Aboriginal constituencies find to be the limitations of the institutional m e c h a n i s m to r e s p o n d to their articulated c o n c e r n s . At the same time t h e r e is a n e e d for on-going internal d e b a t e a n d examination by Aboriginal constituencies of the impact of the institutional m e c h a n i s m s o n their various interests. Those constituencies will b e able to articulate their resistance to having the g r o u p ' s interests constituted externally.

PART III

CHAPTER

10

The Liberal Image of the Nation William E. Connolly

My aspirations in this c h a p t e r are, first, to consider the adverse effects o n Aboriginal peoples of the pursuit of the nation in liberal states; second, to u n d e r c u t the claim that the liberal nation provides a necessary condi­ tion of civilisation a n d democracy; and, third, to sketch elements in an ethos of e n g a g e m e n t that enables democratic governance, scrambles the nation a n d o p e n s u p new possibilities of negotiation a n d improvisation between minorities of several types. T h e Elementary Latin Dictionary says that nation means 'a birth, origin', also 'a breed, stock, kind, species, race, tribe' and 'race of people'. T h e OED seconds this, saying that in early European uses race or stock was pri­ mary to the idea of nation, while in later usage a people formed t h r o u g h a c o m m o n history takes on m o r e salience. These two definitions may b e connected. It is n o t that the image of the nation is always that of a race occupying the same territory. Sometimes the imagination of national unity is g r o u n d e d in race; but at o t h e r times, when a c o m m o n constitution, lan­ guage, religion or set of memories is invoked as the m o d e of unity, the degree of unity projected into each element is drawn from the imagination of race. So even when race does not provide the explicit basis of the nation it symbolises the degree of unity to be embodied in the other principles of nationhood. This subterranean connection explains how, when the going gets tough for the nation, invocations of racial unity often return to shore u p its pursuit. And, as we shall see, the irreducible instability of the national imaginary means that the going often gets tough for the nation. This double connection between the imagination of race a n d the image of the nation exposes a problem. For today, race is widely held to be a fable rather than the exemplar of national unity to which other dimensions of national unity might refer when their degree of unity is being gauged. Even Ernst Renan, the nineteenth-century idealist of the nation, agreed 183

184

W I L L I A M E. C O N N O L L Y

that race could n o longer provide the exemplar: 'The truth is that n o race is p u r e , a n d . . . to base politics on ethnographic analysis is tantamount to basing it o n chimera' (Renan 1995: 148). But if race loses its role as exem­ plar of natural unity, what is the model to which the drive to national unity might refer? I suspect there is n o n e . T h e terms identity, commonality, unity a n d sameness which shape the very imagination of the nation lack both a close definition and a stable model to emulate. T h e nation is e x p e r i e n c e d by many as an imperative that must be achieved if cultural belonging is be secure, or if public morality is to be intact, or if democratic governance is to be possible, or if sovereignty is to be stable. But the nation is also an imagination of unity or wholeness that has never b e e n actualised. T h a t is the p a r a d o x of the nation: it never simply exists in the present; it is always represented as something from the past that has b e e n lost or s o m e t h i n g projected into the future yet to b e realised. At any particular m o m e n t between past a n d future it either fades into the b a c k g r o u n d of cultural imagination or is invoked as a lack that must be filled by some desperate m e a n s or other. As both imperative a n d lack the nation creates a reserve of cultural energy to be activated when things b e c o m e difficult in any domain of life. Its absence is invoked, t h e n , to explain the inefficacy of the state, or the insufficiency of moral life, or the troubles of the economy, or the n e e d to discipline selective constituencies. But the imperative of the nation is not exactly like o t h e r absent imperatives. For the historical standard of its realisation is b o u n d u p with the idea of race in o n e or both of the ways a d u m b r a t e d above. T h e absence of the nation, then, becomes an acute experience when things are going wrong in any domain, a n d its historical association with a unity g r o u n d e d somehow or o t h e r in race sets u p a particular set of constituencies to be treated as the source of the defect. It is n o t only that the nation is a d a n g e r o u s chimera. But liberalism is m o r e implicated in nostalgia for this chimera than many liberals tend to acknowledge. A shift in the relation between liberalism a n d the nation could have salutary effects o n the political improvisation of new relations between Aboriginal peoples a n d the rest of the territorial state. The Tocqueville Model of Nationhood Alexis d e Tocqueville is generally treated as o n e who celebrated plural­ ism, locality a n d federation in nineteenth-century America while worry­ ing that majority tyranny will destroy this combination by giving too m u c h power to the state. T h a t reading is correct. But it also misses the national imaginary in which these themes are set. It does so because most of Tocqueville's interpreters participate in his imagination of the nation, for Tocqueville sets a minimal state within a dense territorial nation. T h e

T H E LIBERAL IMAGE OF T H E N A T I O N

185

dictates of the nation must be b r a n d e d into the instincts a n d mores of the p e o p l e for Tocquevillian democracy to function well. Tocqueville: What keeps a great number of citizens under the same government is much less a reasoned desire to remain united than the instinctive and, in a sense, involuntary accord which springs from like feelings and similar opinions; only when certain m e n consider a great many questions from the same point of view and have the sam«opinions on a great many subjects and when the same events give rise to like thoughts and impressions is there a society. Although there are many sects a m o n g the Anglo-Americans, they all look at religion from the same point of view. (Tocqueville 1966: 373)

For a democratic civilisation to flourish, two fundamental accords must b e b u r n e d into the instincts of the territorial people. First, they must c o n c u r instinctively o n the fundaments of Christianity a n d its role as authoritative source of public morality. Second, they must till the soil agriculturally r a t h e r than r o a m over its surface like ' n o m a d s ' . Toc­ queville knows that n o m a d s w a n d e r e d over America before E u r o p e a n s arrived. But because they, at least as he represents them, differ from the settlers o n these two f u n d a m e n t a l points, they c a n n o t be included within the American civilisation. Atheists, whose restless a n d unstable minds also r e m i n d Tocqueville of t h e n o m a d s , form an internal constituency that must b e marginalised in public life. Let's set Tocqueville's charac­ terisation of the internal n o m a d s aside h e r e , even t h o u g h it is p e r t i n e n t to n o t e that the definition of a foreign threat to the integrity of the nation almost always solicits identification of an internal constituency posing corollary d a n g e r s of its own. It is n o t quite that Tocqueville first has an image of the American territorial nation a n d then notes that there are p e o p l e o n the land who d e p a r t from it. Rather, it is m o r e that his identification of the n o m a d s already there helps him to define a couple of elements they lack a n d h e d e e m s essential to the unity of the Ameri­ can nation. Consider a sample of Tocqueville's utterances: These vast wilderness were not completely unvisited by man; for centuries some nomads had lived under the dark forests of the meadows of the prairies The Indians occupied but did not possess the land. It is by agriculture that man wins the soil . . . North America was only inhabited by wandering tribes who had not thought of exploiting the natural wealth of the soil. O n e could still properly call North America an empty continent, a deserted land waiting for inhabi­ tants . . . In this condition ['watery solitudes', 'limitless fields never yet turned by the plowshare'] it offers itself not to the isolated, ignorant, and barbarous man of the first ages, but to man who has already mastered the most impor­ tant secrets of nature, united to his fellows, and taught by the experience of fifty centuries. (Tocqueville 1966: 27, 30, 280)

186

WILLIAM E. C O N N O L L Y

Tocqueville weaves Christianity, morality, agriculture and the mastery over n a t u r e into the territory of American democracy. In doing so, he generates an image of the nation that requires the displacement of n o m a d s already there. You w o n d e r what h e would say today, for instance, a b o u t the c o n t e m p o r a r y capitalist form that is now n o m a d i c in finance, trade, m a n a g e m e n t , c o m m u n i c a t i o n and travel a n d has left agriculture in the Tocquevillian sense far b e h i n d . Perhaps h e would adjust his image of the nation to encompass this development. O r p e r h a p s h e would join those o n the Christian Right who invoke his n a m e today to re-nationalise the state in every o t h e r respect while supporting the conversion of agri­ culture into agri-business. But in the n i n e t e e n t h c e n t u r y Tocqueville found agriculture and Christianity to be closely intercoded, a n d thought both were essential to a public morality conducive to democracy. It is the internal connection between agriculture, Christianity, public morality a n d n a t i o n h o o d that propels this democratic moralist to accede to massive violence against Amerindians. Put a n o t h e r way, the democratic nation does embody morality of peace a n d justice in itself, but the territorial formation of the moral nation unfortunately requires massive violence against the n o m a d s who p r e c e d e d its formation. Such a violence is to be regretted a n d c o n s t r u e d as unfortunate. Tocqueville takes n o pleasure at all in vio­ lence. H e is n o t a bellicose nationalist. But because a nation of agricul­ ture a n d Christianity sets two key conditions of possibility for moral liberty, violence against Amerindians is not opposed by Tocqueville as intrinsically immoral or r e p u d i a t e d as u n d e m o c r a t i c .

The Liberal Image J o h n Stuart Mill is a little too close for comfort to Tocqueville. Mill hon­ ours individuality, tolerance a n d the agitation of public opinion by cre­ ative minorities. But h e also endorses an image of civilisation, progress a n d n a t i o n h o o d in which the shape and limits of the first three disposi­ tions are set. Civilisation, for Mill, is an advanced m o d e of living a n d governance. Generally growing o u t of a Christian culture, it equips p e o p l e with the discipline, character, disposition to regular obedience a n d appreciation for rule of law necessary to representative government. T h e world is m a d e u p , for the most part, o f ' p e o p l e s ' , but n o t all 'peoples' are equally susceptible to the civilising process: Nothing but foreign force would induce a tribe of North American Indians to submit to the restraints of a regular and civilised government. The same might be said, though somewhat less absolutely, of the barbarians who overran the

187

T H E LIBERAL IMAGE OF T H E N A T I O N

Roman Empire. It required centuries of time, and an entire change of cir­ cumstances, to discipline them into regular obedience even to their own lead­ ers, when not actually serving under their own banner. (Mill 1958: 6)

Mill does n o t follow Tocqueville in legitimating as necessary the holo­ caust against Amerindians. But the trace of such a sentiment might hover over the first sentence. Civilisation is something given to 'peoples', o n e people at a time, over 'centuries of time'. A long, slow, progressive process of discipline forges a p e o p l e into a civilisation capable of regular obedience, 'forbearance', respect for law a n d a streak of i n d e p e n d e n c e . While Mill is a secularist, his secularism is set in the h e g e m o n y of the C h r i s t e n d o m from which it emerges. T h u s the 'most melancholy cases in history' are those peoples who advanced civilisation to a certain point a n d t h e n proved incapable of c o n t i n u i n g its advance: The Egyptian hierarchy, the paternal despotism in China, were very fit instru­ ments for carrying those nations up to the point of civilisation they attained. But having reached that point, they were brought to a halt through want of mental liberty and individuality. (Mill 1958: 35)

What in J u d a i s m , a n d t h e n in Christianity, prepares a p e o p l e to b e c o m e a civilised, democratic nation? T h e Jews h a d 'an absolute m o n a r c h a n d h i e r a r c h ' . But the c o u n t e r ' o r d e r of p r o p h e t s ' provided a creative minority which, t h r o u g h its very ethical energy a n d political dissidence, kept p u s h i n g the nation to a h i g h e r level of achievement (Mill 1958: 34). Restrained conflict between the priests a n d the p r o p h e t s installed an 'antagonism of influences which is the only real security for c o n t i n u e d progress' (Mill 1958: 34). Christianity continues this creative antagonism of influences within the nation. Creative minorities in each monotheistic p e o p l e provide critical impulses that propel the nation toward 'further i m p r o v e m e n t ' . It is very p e r t i n e n t to n o t e , t h e n , that a 'creative minority' for Mill is typically a constituency above the general r u n of p e o p l e culturally, morally a n d educationally, b u t it is part of the people in its major ethnic, linguistic, religious a n d moral heritage. T h e p r o p h e t s a n d intellectuals Mill invokes to advance civilisation belong to the ' p e o p l e ' or the ' n a t i o n ' they agitate. T h e r e is a cartoon with two welldressed wall-street financiers walking down the street. O n e says, 'John Stuart Mill taught that the happiness of the individual is p a r a m o u n t . H e d i d n ' t n a m e names, but I suspect that you a n d I are the sort of the indi­ viduals h e h a d in m i n d . ' Mill's conception of minority shows both how this cartoon is off the mark a n d how close it is to the mark it misses. According to Mill, we live for the most p a r t in a world of territorial nations already t h e r e . Mill's territorial maps are two-dimensional a n d national r a t h e r t h a n three-dimensional and, well, rhizomatic. For when 1

188

WILLIAM E. C O N N O L L Y

you i n c o r p o r a t e diversities a n d struggles from the past o n t o the territor­ ial m a p of the p r e s e n t the history of violence u p o n which the project of territorial nationalisation is based becomes very visible. But when you r e d u c e the three-dimensional m a p to the two dimensions of longitude a n d latitude, that history easily b e c o m e s b u r i e d u n d e r the Millian idea of a pre-existing world of peoples. In the film ' T h e Man W h o Fell to Earth', David Bowie, the guy who d r o p s in, sees the shadows a n d feels traces of pain from past violences as h e walks over the g r o u n d of Texas. Such a t e m p o r a l sensitivity, e m b o d i e d in Bowie as the r e t u r n of Jesus to Texas, can be debilitating to h u m a n s if it overwhelms all o t h e r experience. But Millian liberalism needs to incorporate a dose of it into its territorial maps. For, as the example of creative minorities suggests, only a particu­ lar type of territorial nation n u r t u r e s the growth of freedom and indi­ viduality. This m e a n s the b o u n d a r i e s of liberal individuality, rights and justice are set in advance by the parameters of the liberal nation. It is this latent t h e m e within liberalism that makes it so difficult for many defend­ ers of liberal freedom to negotiate new forms of property, freedom and rights involving patterns of land use a n d ownership at odds with the image of the nation with which they begin. This connection between the liberal nation a n d the shape of the indi­ viduality n o t only encourages liberals to misread the past violences upon which construction of a nation is based, it also sets the stage for later strug­ gles within liberalism itself over the limits to diversity in the liberal state. Today, protectionist liberals, insisting u p o n the priority of the nation dur­ ing a time when its realisation meets with even m o r e obstacles than heretofore, dismiss as 'special rights' any constituency claims not already g r o u n d e d in the nineteenth-century image of the liberal nation. They thus marginalise the claims of indigenous peoples, gays a n d atheists from the start. Meanwhile, m o r e g e n e r o u s liberals, inspired by liberal impulses that exceed the liberal image of the nation, seek to extend rights into new domains. But they seldom rethink the image of the nation in which they participate as they d o so. This latter combination, as we shall see, thins liberalism out. It simultaneously opens u p space for new rights and invites the charge that the liberal expansion of rights thins out the public resources a political culture needs to sustain itself. Since the generous lib­ erals d o n o t actively explore a positive m o d e l of democratic politics that transcends the image of the nation, such charges place t h e m in a defen­ sive position. They have n o vibrant, positive image with which to counter when it is said that they have 'weakened' the nation or 'depleted its moral c e n t r e ' . They can only sink defensively into a proceduralism or 'delibera­ tive democracy' of o n e sort or a n o t h e r that eventually lends further cred­ ibility to the charges levelled against them. An i n t e r c o d e d vocabulary of civilisation, progress, peoples, nations a n d races is p r o m i n e n t in Considerations on Representative Government. Mill,

T H E LIBERAL IMAGE OF T H E N A T I O N

189

who views t h e world t h r o u g h t h e eyes of a recent administrative officer for Indian Affairs (1856-58) a n d a potential tourist, supposes t h e world of his time to be divided already a n d for t h e most part into territorially separate peoples. H e speaks, in various inflections, of ' a race who have b e e n trained in energy a n d c o u r a g e ' , of how foreign rulers can some­ times b e 'of t h e greatest advantage to a people, of 'uncivilised races . . . averse to c o n t i n u o u s labor of a n exacting kind', of 'a rude people', of ' t h e form of g o v e r n m e n t which is most effectual for carrying a people t h r o u g h the next stage of progress' a n d of 'a h u n d r e d o t h e r infirmities or short­ comings in a people... which m i g h t disqualify t h e m from making t h e best use of representative g o v e r n m e n t ' (Mill 1958: 59, 59, 32, 24, 7, 63 respec­ tively). It is only because t h e Millian world already comes e q u i p p e d with territorial p e o p l e s that representative g o v e r n m e n t can h o p e to consoli­ date itself o n a few spots o n t h e earth. Both t h e generosity a n d the limits of t h e Millian vision express this fantastic imaginary. T h u s : ' W h e r e t h e sentiment of nationality exists in any force t h e r e is a prima facie case for uniting all of t h e m e m b e r s of t h e nationality u n d e r t h e same govern­ m e n t ' (Mill 1958: 230). But what is a p e o p l e or a nation to Mill? 'A portion of m a n k i n d ' , Mill says, 'may be said to constitute a nationality if they are united a m o n g themselves by common sympathies which d o n o t exist between themselves a n d o t h e r s ' . It is this unity a n d commonality that makes t h e m 'desire to be u n d e r t h e same g o v e r n m e n t ' (Mill 1958: 229, my emphasis). Notice how m u c h weight t h e i n d e t e r m i n a t e ideas of unity a n d commonality are asked to bear. T h e uncertainty in these heavy ideas b e c o m e s even m o r e conspicuous when you notice how often they a r e invoked without elabo­ ration. Listen to their invocation again, then, even as Mill explains how n u m e r o u s t h e sources of n a t i o n h o o d might be: Sometimes it is the effect of identity of race and descent. Community of lan­ guage and community of religion greatly contribute to it. Geographical limits are o n e of its causes. But the strongest of all is identity of political antecedents: the possession of a national history and consequent community of recollections; collective pride and humiliation, pleasure and regret, connected with the same incidents in the past. (Mill 1958: 229)

T h r e e points h e r e . First, Mill invokes the language of commonality, identity, community, sameness a n d collective to imagine nationality, b u t h e never explains how tight, centred o r close identity must be to be iden­ tity. It is this combination of indispensability a n d uncertainty that sets t h e nation u p as something to be r e m e m b e r e d b u t never known, pursued b u t always absent, absent b u t never eliminable as measure a n d imperative. Second, a n d closely c o n n e c t e d , Mill says that sameness of race, reli­ gion or language may n o t each always be crucial to t h e unity of the nation, for its unity may be drawn from o t h e r sources. But t h e examples

190

W I L L I A M E. C O N N O L L Y

h e actually gives of nationalities as advanced states, of peoples illp r e p a r e d to b e c o m e democratic states and of dispersed populations u n p r e p a r e d for statehood are very often delineated by some mixture of race, language a n d religion. T h i r d , Mill employs the nation to explain political rule by a state, but h e also refers to a long period of political rule on the same territory to explain the formation of a nation. This appears most dramatically when h e uses the phrase 'national history' to help explain how a nation comes into being. His r e n d e r i n g of the temporal dimension of n a t i o n h o o d does n o t discriminate carefully e n o u g h (for me) between two possibilities: a series of interactions between diverse constituencies on several registers (for e x a m p l e , ethnicity, religion, first language, g e n d e r performance, sexuality, relation to the land, the moral source h o n o u r e d the most etc.) forming an ethos of e n g a g e m e n t across lines of difference o n the same territory; a n d a series of interactions that becomes consolidated into a territorial nation u n i t e d by the c o r r e s p o n d e n c e s Mill lists. In the first m o d e l , you have a diversity of religious faiths, g e n d e r prac­ tices a n d so on, informed by an ethos of engagement; o n the second you have pluralism along o n e or two dimensions, with unity on the others. T h e first is what you might call multi-dimensional (or rhizomatic) plu­ ralism; t h e second national pluralism. And Mill does n o t sufficiently dis­ tinguish between t h e m . His emphasis u p o n identity in religion, language a n d m e m o r y is n o t vigorously complicated by reference to political forces of pluralisation that might: • expose violences built into the pursuit of these historical identities; • mark the c o n t e m p o r a r y violences u p o n which they c o n t i n u e to rest; • o p e n u p d o m i n a n t constituencies to c o m e to terms m o r e robustly with the historically contingent, shifting a n d uncertain character of the unity they r e p r e s e n t themselves to embody; or • p r o b e critically the u n e x a m i n e d idea of unity itself so that subterranean diversities, pluralities a n d hybridities already circulating through it might be drawn u p o n to inspire a n o t h e r image of the democratic state. T h e d o m i n a n t tendency in Mill's orientation to the nation can be con­ d e n s e d into a sentence: 'For the p r e c e d i n g reasons, it is in general a nec­ essary condition of free institutions that the boundaries of governments should coincide in the main with those of nationalities' (Mill 1958: 232). But t h e r e is a n o t h e r strain in Mill's thinking, already intimated by the clauses 'in g e n e r a l ' a n d 'in the main'. It e m e r g e s most sharply when Mill b u m p s into 'parts even of E u r o p e ' , in which the territorial conditions of n a t i o n h o o d are absent: T h e p o p u l a t i o n of H u n g a r y is composed of Magyars, Slovaks, Croats, Serbs, R o m a n i a n s and, in some districts, G e r m a n s , so mixed u p as to be

T H E LIBERAL IMAGE OF T H E N A T I O N

191

incapable of local separation; a n d there is n o course o p e n to t h e m but to make a virtue of necessity a n d reconcile themselves to living together u n d e r equal rights a n d laws (Mill 1958: 233). Mill imagines that ' H u n ­ gary' is an exceptional case r a t h e r than a dramatic exemplification of the typical case - his vision of liberal representative g o v e r n m e n t pushes h i m in that direction. But then Mill notices that several 'nations' have a majority p o p u l a t i o n p u n c t u a t e d by significant minorities on the same territory. T h e r e are the Basque in Spain and France, ' t h e Welshman or the Scottish H i g h l a n d e r ' a n d so forth. What can a liberal d o in these cases? Mill says: Whatever really tends to the admixture of nationalities and the blending together of their attributes and peculiarities in a c o m m o n union is a benefit to the human race. Not by extinguishing types, of which, in these cases, suffi­ cient examples are sure to remain, but by softening their extreme form and filling up the intervals between them (Mill 1958: 234, my emphasis)

O n e tendency in this formulation is to pursue a politics of b l e n d i n g a n d assimilation. But the formulation - expressing a tension between Mill's general image of a world of pre-existing territorial peoples a n d his secondary recognition of several places that d o n o t fit the image - can also be inflected in a different direction. If you c o n n e c t the idea of ' n o t extinguishing types' to that of 'filling u p the intervals' with multiple dif­ ferences that increase the n u m b e r of constituencies by creating points of c o n n e c t i o n between t h e m you move to the e d g e of a multi-dimensional conception of pluralism. If Mill were to recognise ' H u n g a r y ' as an e x t r e m e case that reveals how most politically organised territories are in fact 'so mixed u p as n o t to be capable of local separation', h e would be e n c o u r a g e d to ask m o r e carefully why some territories are able to nego­ tiate multi-dimensional diversity effectively while others are not. H e might t h e n be pressed to transfigure his image of national democracy into a network m o d e l of pluralism informed by a g e n e r o u s ethos of e n g a g e m e n t between the parties involved. A multi-dimensional pluralist culture contains several religious orien­ tations, ethnicities, orientations to g e n d e r experience, m o d e s of sensual affiliation, final sources of moral guidance, m o d e s of property use a n d so forth. So t h e r e is, first, a plurality of dimensions, a n d , second, consider­ able diversity within each dimension. Wherever multi-dimensional plu­ rality already exists o n a politically organised territory, democracy either becomes g r o u n d e d in negotiation of an ethos of e n g a g e m e n t between multiple constituencies h o n o u r i n g different moral sources or it degen­ erates into majoritarian suppression of minorities. T h e r e are n o o t h e r options, really, except civil war, cultural war or cultural gridlock. T h e multiplication of differences across several dimensions itself creates o n e

192

W I L L I A M E. C O N N O L L Y

of the pressures for each constituency to p r o m o t e lines of connection to others. T h e best way to displace the liberal image of the nation, then, is to enact a multi-dimensional pluralism in which the attempt by any sin­ gle constituency to claim that it embodies in itself the essential virtues of the nation is stymied by multiple constituencies b a n d i n g together to resist t h e outrageous presumptiveness of that claim. Multi-dimensional pluralism sets a necessary b u t insufficient condition of non-national democracy. W h a t else is n e e d e d ? An Ethos of Engagement T h e liberal image of t h e nation is ruled by the idea that a layered centre is crucial to t h r e e collective goods: to a sense of belonging to something larger than self, c h u r c h , j o b a n d family; to an indispensable logic of polit­ ical communication; a n d to the possibility of collective enactment of general policies by democratic means. T h e idea is that belonging, communica­ tion a n d e n a c t m e n t are possible only when each passes t h r o u g h the vital centre of t h e nation. C o n t e m p o r a r y revisions of the Millian image of the nation are advanced by secular theorists such as Rawls a n d H a b e r m a s . They retain the idea of an indispensable centre, b u t t h e n , because they are generous souls, they r e s p o n d to each newly recognised evil of enforced religious conformity, racial purity, Aboriginal displacement, linguistic uniformity a n d compulsory heterosexuality by pulling m o r e elements of cultural life o u t of t h e centre. T h e centre now b e c o m e s r e d u c e d to a practice of jus­ tice, o r a d h e r e n c e to a written constitution, o r a set of procedures, or a m o d e l of public deliberation, or some combination thereof. Such strate­ gies to secularise the nation d o n o t seem entirely wrong to m e . They are just misleading a n d radically insufficient. To cling to the logic of the nation while shucking off its religious, eth­ nic, g e n d e r a n d sensual core is to present yourself to its virulent defenders as an unreliable a n d weak advocate of the centre you p u r p o r t to support. So whenever people e n c o u n t e r both uncertainty at the centre a n d the insufficiency of proceduralism, the vacated centre now becomes the com­ pelling site to revitalise t h r o u g h occupation. T h e black hole at the centre is then occupied by a bellicose constituency which insists on restoring the vital essence of the nation. T h e instability of the centre is now covered over by the narcissistic self-representations of those who occupy it. To the extent such a drive succeeds, every other interest, faith a n d moral orien­ tation now becomes a minority to be tolerated or corrected by the selfproclaimed occupants of the centre. T h e national culture becomes o n e with an u n m a r k e d constituency at the centre, s u r r o u n d e d by various minorities whose space to manoeuvre d e p e n d s increasingly u p o n the

T H E LIBERAL IMAGE O F T H E N A T I O N

193

level of tolerance or intolerance felt by the u n m a r k e d constituency. These minorities - sometimes n u m e r o u s e n o u g h to b e a numerical majority are now set u p to b e c o m e objects of vilification, discipline, regulation a n d violence when things go wrong anywhere in the state. Liberal nationalists protect t h e image of a national centre by subtract­ ing each ugly e l e m e n t from it. But the logic of subtraction they follow not only creates a shallow centre a n d places t h e m o n the defensive politically, it also discourages t h e m from e x p e r i m e n t i n g with a n o t h e r m o d e l that unites cultural density with cultural diversity. I pursue, then, a counterimage of a dense, rhizomatic political culture that draws selective suste­ n a n c e from the secondary strain in Mill's thinking. In this image n o cultural constituency sits at the centre s u r r o u n d e d by diverse minorities. N o r does proceduralism provide a sufficient basis of communication, belonging a n d public e n a c t m e n t . Rather, the public culture of the terri­ torial state itself b e c o m e s pluralised. T h e image of a tolerant or intolerant public centre now inclines toward the regulative ideal of a public culture itself populated by several zones of plurality, with each zone containing a range of diversities in it. You now live in a world of multiple minorities with n o d o m i n a n t cultural majority a r o u n d which they are ranged. Each minority brings large pieces of its particular orientation with it into pub­ lic contests a n d negotiations, d e p e n d i n g u p o n the issues raised. T h e 'unity' of the public s p h e r e is now replaced by an ethos of e n g a g e m e n t between multiple constituencies drawn from multiple sources. T h e key to such a transition involves a glacial shift in the governing m o d e l of public morality. In Tocqueville, a n d to some extent in Mill, the image of n a t i o n h o o d is b o u n d to the idea that a p e o p l e must share the same final source of morality if civilisation a n d governance are to flour­ ish. Morality a n d n a t i o n h o o d are interwoven so that each b e c o m e s a pre­ condition of the other. But today it is i m p o r t a n t to the viability of public ethics itself to insist that n o single religious or philosophical source of public morality has established itself as universal a n d u n c o n t e s t a b l e . If a n d as a variety of constituencies c o m e to accept this condition of possi­ bility for g e n e r o u s political e n g a g e m e n t the pursuit of a single source of morality to which all give obeisance dissolves into negotiation of an ethos of e n g a g e m e n t between multiple constituencies h o n o u r i n g different moral sources. T h e r e are already expressions a n d glimmers of such an ethos of e n g a g e m e n t in several places, even t h o u g h the image of the nation tends either to blur these forces or to treat t h e m as lacks a n d defects to over­ c o m e . Its further elaboration is r e t a r d e d by political theorists who are e n r a p t u r e d by the democratic nation, by philosophers a n d priests who persist in claiming that their particular religious or secular moral source is so firm or necessary that all others must consent to it, by m e d i a talking 2

194

W I L L I A M E. C O N N O L L Y

heads who invoke simple models of public virtue, by nervous con­ stituencies which sanctify themselves by p u r p o r t i n g to occupy the absent centre of the nation, a n d by n u m e r o u s gentle souls who are wary of the previous orientations b u t n o t yet b e e n engaged by an alternative model of public life strong e n o u g h to challenge t h e m . But when each constituency, first, h o n o u r s the moral source that inspires it, second, acknowledges the contestability of the source it hon­ ours the most, a n d , third, addresses the history of violences enacted to universalise the source it h o n o u r s , conditions b e c o m e ripe to negotiate an ethos of e n g a g e m e n t between a n d across constituencies. W h e r e such an ethos is fashioned, a t t a c h m e n t across the space of distance insinuates forbearance into strife a n d generosity into i n t e r d e p e n d e n c e . T h e cul­ ture remains dense, but that density is now forged t h r o u g h n u m e r o u s lines of c o n n e c t i o n across multiple lines of difference. It becomes a rhi­ zomatic or networked density rather than a national density in which each c o n n e c t i o n must pass t h r o u g h a national centre. Now it may no longer seem that the essence of the nation is j e o p a r d i s e d if, for instance, multiple orientations to land a n d property are improvised o n the same territorial space. Sharp lines of division between individual a n d commu­ nal rights or individual a n d collective ownership may b e c o m e susceptible to pluralisation t h r o u g h renegotiation. T h e most i m p o r t a n t thing stalling the formation of multi-dimensional pluralism g r o u n d e d in a generous ethos of e n g a g e m e n t is persistence of the political instinct that a dense, free and effective political life requires the production of a national culture. O n e obstacle to the correction of that mistake is the c u r r e n t reduction of the terms of public debate to two alternatives: a debate between transcendental narcissists who insist upon occupying the vital centre themselves, a n d defensive liberal secularists w h o p r e t e n d that proceduralism (or o n e of its surrogates) can suffice to govern public life. I think both of these perspectives are mistaken and n e e d to b e challenged by a third possibility: a thick public culture of multi­ dimensional pluralism well oiled by an ethos of e n g a g e m e n t between diverse constituents who reciprocally relinquish the narcissistic d e m a n d to occupy the national centre. W h e n multi-dimensional pluralism is informed by a g e n e r o u s ethos of e n g a g e m e n t it is false to say that t h e r e is n o possibility of collective action t h r o u g h the state. Rather, several constituencies now have a lot to go on in building general assemblages for particular purposes. Indeed, a gen­ erous ethos of e n g a g e m e n t defeats the single most powerful source of stalemate or fragmentation in the state. For the most virulent cultural war occurs when c o n t e n d i n g partisans struggle over the right to occupy the authoritative centre of the nation. Disaggregating the imperative of the nation does n o t suffice to stymie drives by particular constituencies

THE LIBERAL IMAGE OF THE NATION

195

to occupy the vacancy at its centre. But to the extent such an ethos becomes installed it p r e p a r e s a variety of constituencies to b a n d together in opposition whenever such a hostile take-over is attempted. But isn't this j u s t too c o n v e n i e n t to b e true? D o e s n ' t a rhizomatic, non-national d e m o c r a c y r e q u i r e m u c h more? Might n o t the d e b a t e over p r o c e d u r e s b e c o m e too intense in multi-dimensional pluralism? O r isn't the c o n t e m p o r a r y radicalisation of divisions too intense to r e n d e r such a rhizomatic image viable? Perhaps. But by giving preliminary voice to a positive counter-image, it becomes possible to explore new m o d e s of political improvisation without falling right into the black hole of the n a t i o n . For the above objections are i n t r o d u c e d to restore pursuit of the national c h i m e r a when in fact the impossible drive to n a t i o n h o o d has itself h e l p e d to p r o m o t e the most severe racial divisions a n d eco­ n o m i c inequalities. Now, were such a pluralised ethos to b e c o m e p r o m i n e n t , it could be said to reoccupy the old centre. A n d it would p r o d u c e a new set of limits and exclusions, limiting, for instance, the expansionary impulses of con­ stituencies which are discontented unless they e m b o d y the authoritative centre. This formal equivalence issues in a predictable charge: 'Connolly, you p r e s u p p o s e , what you protest against.' Or: 'You c a n n o t avoid the lan­ guage of unity a n d identity even as you attack it' etc. T h e point is not to deny these formal(istic) rejoinders. It is, rather, to explore how the ethos fostered by a pluralisedwe b o t h supports a dense public culture a n d keeps o p e n the possibility of improvising new settlements as new constituencies come into being. For you never reach a point at which the politics of pluralisation is over. T h e crucial thing is not, as reductionists insist, that both imaginaries set limits a n d e n c o u n t e r closures. Everybody u n d e r ­ stands that e l e m e n t a r y point. It is that u n d e r c o n t e m p o r a r y conditions of political being, the limits of multi-dimensional pluralism speak m o r e profoundly to the political n e e d for peaceful coexistence between inter­ d e p e n d e n t constituencies than the limits set by the models of the regu­ lar individual, secular proceduralism, or the nation. Such changes in the grain a n d fibre of politics are n o m o r e or less imaginable today than the modus vivendi of secular liberalism was in sev­ eral Christian nations a few centuries ago. T h a t modus vivendi provides an inspiration of sorts, even if it has now b e c o m e insufficient. For its terms were only vaguely imagined before its consolidation; a n d it curtailed destructive civil wars while o p e n i n g u p cultural space to negotiate a new public ethos. We urgently n e e d new improvisations today, those that rework received representations of majority rule, minorities, progress, dissent, rights, sympathy, property, tolerance, secularism a n d creative dissidence. T h e eventual shape of such a complex can only be glimpsed, partly because it must e m e r g e t h r o u g h negotiation between multiple

196

WILLIAM E. C O N N O L L Y

constituencies relieved of the necessity of conforming those negotiations to an impossible image of the nation. Consider an example that speaks to the c o n t e m p o r a r y politics between 'settler' states a n d the indigenous populations displaced by them. Before the advent of capitalism, the idea of acquiring mining or oil rights over land farmed by others was absent. But today oil and mining companies can acquire mining rights to land owned in other respects by farmers. In a capitalist state new forms of property are constantly emerging and new divisions often arise within the property form. Thus, to take another example, the privately incorporated, non-profit university provides a legal forum of governance over property that modifies the typical practices of individual or corporate ownership. So does the a p a r t m e n t collective. If people yell about inalienable property rights whenever the question of distinctive forms of governance over lands previously wrested from Aboriginal peoples comes up, they might be pressed to consider these examples of creativity in the property form. And they might be encour­ aged to c o m e to terms with the fact that such creativity in the past has b e e n reserved mostly for those who already control economic resources. Tocqueville, for example, suspected the American nation would fall apart if it moved away from an agricultural economy, and that served as one of his two major reasons to rule the ' n o m a d s ' out of the democratic civilisa­ tion. But now the progeny of these n o m a d s are being ruled out because their practices are, well, considered to be too agricultural a n d not suffi­ ciently in t u n e with new forms of advanced capitalism. It is fascinating to recall that Tocqueville worried about the future effects of 'new manufac­ turing aristocracy' o n the property form. But h e did not take this assault against agriculture to require the exclusion of that aristocracy. To recall that property practices in c o n t e m p o r a r y capitalist states were n o t themselves o r d a i n e d by a national imaginary that p r e c e d e d t h e m is to release the m i n d to legitimise forms of land governance that speak m o r e generously to claims indigenous peoples have to the places wrested from their ancestors by force a n d trickery. Today new land practices must b e forged in generously defined areas, a n d the negotiations must take into account the violence t h r o u g h which control over the lands was pre­ viously wrested from p e o p l e still inhabiting them. W h e n large tracts of land are set aside for Aboriginal governance, o t h e r use rights within those d o m a i n s can be acquired only t h r o u g h negotiation with the gov­ e r n i n g b o a r d involved. Now mining, grazing a n d oil interests are oblig­ ated to negotiate with indigenous occupants to gain selective access to these resources. Entering into such agreements allows the governing b o a r d to set conditions of use, acquire capital for c o m m u n a l use a n d p r o t e c t the integrity of the land practices they cherish most. Properly organised, such m o d e s of governance can enable indigenous peoples to

T H E LIBERAL IMAGE OF T H E NATION

197

overturn the p r e t e n c e to be stationary peoples with u n c h a n g e a b l e ancient customs a n d to sustain relations to the land that expresses the spirituality they h o n o u r the most. T h e history of interactions between settlers a n d indigenous peoples is i m p o r t a n t h e r e . For while the idea of the nation, with its ineliminable racial overtones, has b e e n a primary c o n c e p t t h r o u g h which indigenous peoples have b e e n marginalised by populations of E u r o p e a n descent, it is also o n e t h r o u g h which i n d i g e n o u s peoples have forged counteridentities within settler societies. T h e history of adverse t r e a t m e n t itself generates special rights for indigenous peoples. It can also e n c o u r a g e d e s c e n d a n t s of settlers to think m o r e creatively about elements in their traditions that exceed capitalist conceptions of property a n d c o n n e c t affirmatively to i n d i g e n o u s practices. T h e ideas of 'place', ' l a n d ' a n d , particularly, ' e a r t h ' provide promising possibilities h e r e . Today, for instance, an increasing n u m b e r of people in settler societies such as Aus­ tralia, C a n a d a , New Zealand a n d the US identify the earth as simultane­ ously a vibrant source of life, a resource exceeding o u r possible knowledge a n d mastery of it, a n d a fragile planet to b e n u r t u r e d a n d pro­ tected as a source of sustenance a n d creative evolution. While multi­ dimensional pluralism operates to displace the nation, the earth now emerges as a t r a n s c e n d e n t place u p o n which to relocate those guttural experiences of identification traditionally reserved to the nation. Consider the irony. In 1968 Apollo 8 sent back pictures of a vivid blue planet s u s p e n d e d in the middle of the solar system, a stunning, bright s p h e r e unlike any o t h e r planet observable from the earth itself. This pic­ ture, taken from a site beyond the earth, underlines how u n i q u e the earth is by c o m p a r i s o n to o t h e r planets so far e n c o u n t e r e d . T h e others c a n ' t even hold water, while the fine balance the earth maintains between evaporation a n d precipitation is sustained to a considerable d e g r e e by the behaviour of life o n the p l a n e t . Today states a n d corporations collide a n d collude to j e o p a r d i s e bal­ ances favourable to life. But the image of the planet r e t u r n e d to us by Apollo 8 a n d the e x p e r i e n c e of the earth n u r t u r e d by indigenous peoples m i g h t today e n t e r into a promising assemblage. An assemblage in which divergent, yet overlapping, c o m m i t m e n t s to n u r t u r e the e a r t h / p l a n e t set new limits to c o n c e p t i o n s of property, mastery a n d n a t i o n h o o d previ­ ously p r o m u l g a t e d by capitalist states. An assemblage in which an ethos of multi-dimensional pluralism is set in a general c o m m i t m e n t (drawn from multiple sources) to protect the e a r t h / p l a n e t in which we are set. It is because this general c o m m i t m e n t is drawn from multiple sources that it has a c h a n c e to gain a m o r e secure foothold in c o n t e m p o r a r y cul­ ture. Of course, the obstacles are severe a n d the chances of success are limited. E v e r y o n e k n o w s that. But the stakes are also high. And, again, 3

198

W I L L I A M E. C O N N O L L Y

the irony of the late-modern age is that part of the inspiration to acknowl­ e d g e new limits a n d m o d e s of connection comes from enterprises origi­ nally conceived to transcend them. I p r e s e n t these ideas as premonitions. Premonitions of how creative extrapolations from already existing forms of property governance in capitalist states might generate m o d e s of land use, governance and respect for the earth a p p r o p r i a t e to the c o n t e m p o r a r y conditions of b o t h i n d i g e n o u s peoples a n d the new n o m a d s of the space age. In a nonnational, rhizomatic state it is possible to pluralise m o d e s of land identi­ fication as well as the experience of cultural identity. These two objectives are in fact interwoven to the extent that respect for the earth emerges from b o t h traditional a n d late-modern experiences. T h e specific shape such settlements m i g h t assume can only e m e r g e t h r o u g h good faith negotiations as Aboriginal peoples achieve full rights of participation in a culture of multi-dimensional pluralism. T h e formation of a post-national ethos of e n g a g e m e n t c a n n o t be willed into place. T h e political m o m e n t u m for it might e m e r g e from a historical conjunction between the moral exhaustion of nationalising constituencies, the sense of s h a m e felt by others over the history of vio­ lence against indigenous peoples in the n a m e of the nation, the energi­ sation of yet others seeking to pluralise the public culture, a n d a few propitious c o u r t decisions that press stalemated constituencies to nego­ tiate u n d e r new conditions. To p r e p a r e ourselves for the possibility of such a conjunction it is wise to rethink the relations between liberalism, diversity, the imagination of the nation a n d o u r connections to the earth.

CHAPTER

1 1

Minority Claims under Two Conceptions of Democracy Philip Pettit

T h e r e are two different conceptions of democracy - two conceptions of what it is for g o v e r n m e n t to be controlled by the people - a n d my aim h e r e is to consider the likely fate of special minority claims u n d e r each of these. A thin c o n c e p t i o n of democracy equates it with p o p u l a r electoral control of g o v e r n m e n t ; a richer conception equates it with what I shall describe as electoral-cum-contestatory control. I argue that only the richer c o n c e p t i o n of democracy is hospitable to special minority claims, a n d that it o u g h t to appeal, therefore, to those who think that it is impor­ tant to establish such claims o n a firm institutional basis. Special minority claims c o m e in various forms. They include rights that might reasonably b e g r a n t e d to minority nations such as the Quebecois in C a n a d a , or indigenous, Aboriginal peoples in Australia a n d N o r t h America. And they include rights that minority, immigrant groups can reasonably claim against a g o v e r n m e n t that represents a distinct, mainstream culture. T h e rights in question range from exemptions from certain m a i n s t r e a m laws a n d regulations to claims on public s u p p o r t for minority languages a n d cultural practices; a n d from rights of special rep­ resentation in p a r l i a m e n t to rights of collective l a n d h o l d i n g a n d limited self-government (Kymlicka 1995: c h a p t e r 2). Special minority rights serve to protect certain minorities in the way various general rights may also d o : for example, rights of free speech, association a n d m o v e m e n t . W h a t makes t h e m special - what distin­ guishes t h e m from such general, protective rights - is that they are group-differentiated or group-specific, as Will Kymlicka (1995: 46) puts it. They are a c c o r d e d o n the basis of g r o u p identity or g r o u p m e m b e r ­ ship; they are special to the minorities in question. Some are collectively exercised by those g r o u p s - for example, in the m a n n e r of a right to selfg o v e r n m e n t - while others are exercised n o t by the groups as such, b u t 199

200

PHILIP PETTIT

by their individual m e m b e r s : an example would be the right of a male Sikh to wear his traditional head-dress, a n d n o t a safety helmet, while rid­ ing a motorcycle. But w h e t h e r they be rights of groups or individuals, the c o m m o n feature is that they are exclusive to the minorities they favour. In the first p a r t of this chapter, I outline the electoral conception of democracy a n d show why it is n o t particularly hospitable to special minority claims. In the next I introduce the electoral-cum-contestatory c o n c e p t i o n . And in the third I indicate why this two-dimensional con­ ception of democracy naturally makes r o o m for the possibility of special minority claims. I have a r g u e d elsewhere in s u p p o r t of the two-dimensional concep­ tion of democracy. O n e a r g u m e n t in its favour is that only such a con­ ception promises to protect the freedom of citizens, in the neo-Roman republican sense of freedom: that is, in the sense in which freedom m e a n s n o t living in subjection to arbitrary power, private or public (Pet­ tit 1997; 1999). And another, so I maintain, is that it gives a satisfactory interpretation to the idea that g o v e r n m e n t should be guided by all and only the c o m m o n perceived interests of the people (Pettit 2000). I have n o t h i n g m o r e to say in this chapter, however, o n the republican defence of two-dimensional democracy, a n d will only sketch the o t h e r defence. My principal aim is n o t to defend the two-dimensional conception but to show that it does m u c h better than the standard, one-dimensional view in a c c o m m o d a t i n g the possibility of special minority claims. Neither will I have m u c h to say o n the detail of the minority claims that might b e established u n d e r such a democracy. T h e two-dimensional conception of democracy does have implications on this front, as should b e c o m e clear, but I will n o t p u r s u e t h e m h e r e . T h u s I will not be com­ m e n t i n g o n the debate between different theorists like Will Kymlicka a n d C h a n d r a n Kukathas (1997a); n o r shall I be a n n o t a t i n g the m o r e rad­ ical perspective for which J i m Tully looks (Tully 1995).

The Electoral Conception of Democracy and Minority Claims W h a t is t h e r e in c o m m o n to those systems of g o v e r n m e n t that we would be happy to describe as democratic (Przeworksi 1999)? We would expect any democracy worthy of the n a m e to allow for the periodic, popular election of certain authorities: at the least, the legislators. We would expect the periods between elections n o t to be very long a n d we would expect the elections to be p o p u l a r in the sense that all c o m p e t e n t adults would have electoral standing a n d be able to make their voting decisions without u n d u e pressure. This pattern of usage does not tie down the word 'democracy' in any very d e t e r m i n a t e way but it still points us toward some minimal assumptions that we spontaneously make about any system we would be happy to describe in that term; it points us toward a

M I N O R I T Y CLAIMS A N D DEMOCRACY

201

conception of democracy that informs o u r ordinary speech. I describe this as the electoral conception of democracy. Regimenting that conception a litde, we can break it down into t h r e e principles: • g o v e r n m e n t is elected by the p e o p l e o n a periodic basis: certain key g o v e r n m e n t authorities are elected by the p e o p l e at intervals of n o t m o r e than a stipulated, generally agreeable m i n i m u m ; • the p e o p l e enjoy full a n d equal electoral standing: no-one is excluded without generally agreed g o o d reason to d o with age, c o m p e t e n c e or incarceration, for example, from standing or voting or speaking o u t in such elections; t h e r e is n o systematic intimidation b r o u g h t to b e a r on those who stand or vote or speak out; a n d no-one's vote is weighted m o r e heavily than anyone else's, except where t h e r e is generally agreed g o o d reason - say, to d o with ensuring regional r e p r e s e n t a t i o n or maintaining a federal system - for such a weighting; • the p e o p l e are collectively sovereign: subject to the constraint of pro­ m o t i n g p e o p l e ' s equal electoral standing, the rules u n d e r which gov­ e r n m e n t authorities are elected a n d act are subject to d e t e r m i n a t i o n or a m e n d m e n t either by the collective people directly - say, in a refer­ e n d u m - or by their elected representatives. This c o n c e p t i o n may n o t apply fully in every system that is generally recognised as democratic; it may be that there are small d e p a r t u r e s from o n e or o t h e r of the principles. But the principles are certainly going to be a p p r o x i m a t e d , I think, by any system of g o v e r n m e n t that makes a per­ suasive claim to be described as democratic. T h e electoral c o n c e p t i o n of democracy that they r e p r e s e n t is a widely applicable, real-world n o t i o n of what democracy involves; it is n o U t o p i a n d r e a m . Some will say, of course, that a democratic system n e e d s to involve m o r e than just t h e electoral elements described, but I will c o m e to that misgiving in the n e x t section when I i n t r o d u c e the richer electoral-cum-contestatory c o n c e p t i o n . T h e question with which we must now deal is this. How plausible are special minority claims going to look in the light of the p u r e , electoral conception of democracy? What I want to point out is that they are not going to have m u c h plausibility if they are viewed in that light alone. S o m e will object that special minority rights, as envisaged h e r e , d o not treat all citizens equally a n d that they offend to that e x t e n t against the second principle in the electoral conception. But I think that that is a rel­ atively m i n o r p r o b l e m . T h e m o r e serious issue is that special minority rights a p p e a r to conflict with the third - the sovereignty of the p e o p l e . T h e less serious equality p r o b l e m can be raised for a r a n g e of rights that most of us find u n p r o b l e m a t i c , such as the right of t h e mentally h a n d i c a p p e d to special educational a n d informational provision; the right of those with renal failure to dialysis treatment; a n d t h e right of

202

PHILIP PETTIT

those who live in r e m o t e areas to the special resources necessary for pro­ viding t h e m with services that are standard in cities a n d towns. In the case of these latter rights, we think that while their implementation may provide u n e q u a l t r e a t m e n t for people, it still treats people as equals (Dworkin 1978). While their implementation only benefits people in cer­ tain conditions, the rights can still be r e p r e s e n t e d as general in charac­ ter: each has the right, should the conditions in question apply to them, to receive the t r e a t m e n t offered. It is clearly going to be possible to maintain a similar line with special minority rights, or at least with any plausible examples of such rights. If they are justifiable, then special minority rights presumably accrue to people or groups o n the g r o u n d s of their having certain needs that the state should try to help t h e m meet. In that case the claims can each be r e p r e s e n t e d as a general right that everyone or every g r o u p has: the right, should the individual or g r o u p suffer the need in question, to be treated in the m a n n e r required by the minority right. Kymlicka provides o n e can­ didate for the n e e d that underlies such minority rights when he argues that a liberal democracy should be committed to everyone's enjoying a certain kind of personal autonomy; that if people are each to enjoy this autonomy, then their local culture must provide t h e m with a robust framework a n d perspective from which to make their choices; a n d that if a liberal democracy is to cater for this general need on the part of the m e m b e r s of minority cultures, then it will often have to grant them spe­ cial rights (Kymlicka 1995). But the really serious problem with special minority rights, as I said, is n o t that they offend against the second, equality principle; it is rather that they conflict with the third principle of the sovereignty of the collective people. T h e p r o b l e m h e r e is that if we embrace the n e e d for special minority rights then we a p p e a r to say that the sovereignty of the people should be restricted in a way that is inconsistent with that principle. T h e r e is an obvious contrast in this r e g a r d between special minor­ ity rights a n d t h e sorts of rights that we canvassed in discussing cases of h a n d i c a p , r e n a l failure a n d rural isolation. T h e r e is n o reason to t h i n k t h a t these latter rights would n o t b e acceptable to a majority: after all, a n y o n e may have a h a n d i c a p p e d child or g r a n d c h i l d ; anyone may suffer r e n a l failure; a n d a n y o n e may find themselves forced to move to the country. Insisting that a legal-political system o u g h t to i n c o r p o r a t e such rights, t h e n , will n o t m e a n a d o p t i n g a p o s t u r e w h e r e o n e puts the sovereignty of the p e o p l e , as e n c o d e d in d e m o c r a t i c insti­ tutions, i n t o q u e s t i o n . For all that the insistence suggests, o n e may happily a c c e p t that sovereignty; o n e may believe that majority will o u g h t to prevail. T h e a r g u m e n t may simply be that this is the p a t h that t h e p e o p l e a n d their representatives - in effect, the majority - o u g h t to take in m a k i n g policy.

MINORITY CLAIMS A N D DEMOCRACY

203

But insisting that a legal-political system ought to incorporate certain special minority rights is rather different. It comes from a policy of pro­ tecting minorities against 'economic a n d political decisions m a d e by the majority' o n the grounds, for example, that 'They could be outbid or out­ voted o n resources and policies that are crucial to the survival of their soci­ etal cultures' (Kymlicka 1995: 109). It means arguing that whatever the majority wants, certain rights should still be accorded to minorities; and so it means suggesting that the sovereignty of the people is not sacrosanct. Special minority rights are i n h e r e n d y countermajoritarian in character. This aspect raises a p r o b l e m for providing a democratically robust vin­ dication of special minority rights: that is, a vindication that we might expect to b e able to u p h o l d in a fair a n d o p e n discussion that is struc­ tured by a shared c o m m i t m e n t to democracy. Any democratically robust vindication must be able to show that the tension between special minor­ ity rights a n d t h e democratic sovereignty principle is n o t a straight-out inconsistency. A n d it is n o t clear that this can be d o n e u n d e r the electoral c o n c e p t i o n of democracy. T h e p r o b l e m can b e appreciated by the contrast between special minority rights a n d the countermajoritarian rights that are generally c o u n t e n a n c e d in c o n t e m p o r a r y political a n d constitutional practice. T h e s e are those general rights - say, of freedom of speech, association, m o v e m e n t a n d the like - that are invoked as protections that everyone enjoys, n o t just against individual others, b u t even against majority, politi­ cal will. Some have a r g u e d that we have to accept that such rights are o p p o s e d to democracy a n d recognise that democracy is not the be all a n d e n d all (Riker 1982), while others have c o u n t e r e d that the authority of the rights derives from a democratic will that has s u p p o r t e d t h e m at critical, constitutional m o m e n t s (Ackerman 1991). But the striking thing a b o u t such rights - or at least many such rights - is that even if we d o n o t find a n electoral origin for t h e m , they still can be justified in terms that the electoral c o n c e p t i o n of democracy itself provides. Such a justification is o u t l i n e d by those a u t h o r s who a r g u e that while the g e n e r a l rights in question are i n d e e d c o u n t e r m a j o r i t a r i a n - while they d o constrain the electoral will - they are essential for the func­ t i o n i n g of electoral democracy. T h u s S t e p h e n H o l m e s argues in this spirit t h a t any feasible m o d e of d e m o c r a t i s a t i o n that does n o t place an impossible b u r d e n o n public decision-making will have to take issues of private life off t h e public a g e n d a a n d give p e o p l e the rights associated with negative liberty ( H o l m e s 1995: 206). A n d J u r g e n H a b e r m a s urges that a p r o p e r , deliberative form of d e m o c r a c y is b o u n d to give such rights to the citizenry, since they are a sine qua non of deliberative par­ ticipation in g o v e r n m e n t : they are as essential to the working of such a d e m o c r a c y as t h e rights associated with equal electoral standing ( H a b e r m a s 1996: 142).

204

PHILIP PETTIT

According to this style of a r g u m e n t , regular countermajoritarian rights c a n n o t be overridden by electoral will without the very prospect of an electoral democracy disappearing. T h e r e c a n n o t be a rule of majority will, such as the electoral conception of democracy envisages, unless paradoxically - majority will operates within the countermajoritarian constraints of those rights. Like the constraints of g r a m m a r on ordinary speech, these constraints o n electoral democracy make possible the very activity that they regulate. Unlike general countermajoritarian constraints, however - and unlike the rights associated with equal electoral standing - special minority rights c a n n o t be defended on the grounds of being themselves essential to democracy. So long as we think of democracy in the image of the electoral conception, we must see special minority rights as countermajoritarian constraints that are themselves unnecessary to the working of democracy a n d that are visited u p o n democracy from outside. And this means that it will be difficult to uphold such rights in a discussion where the guiding framework is the electoral conception of democracy. T h e rights may have a powerful moral appeal but they will not be democratically robust. They will b e o p e n to the charge of representing a form of special pleading that is inconsistent with letting democracy r u n its natural course. The Electoral-cum-Constestatory Conception of Democracy At the most abstract level where n o o n e will disagree, the concept of democracy is that of a system u n d e r which the people control govern­ m e n t . T h e electoral assumptions presented in the last section offer a par­ ticular interpretation of what this involves: a particular conception of democracy. H e r e , I try to make the case for a richer, two-dimensional conception of the sort of system that would best answer to the abstract concept. U n d e r this conception, a democracy must certainly have an electoral dimension, but this has to be c o m p l e m e n t e d by a second, con­ testatory dimension. My introduction to the richer conception of democracy will be in three stages. I argue, first, that a second dimension is n e e d e d if government is to be b r o u g h t properly u n d e r the people's control; second, that an extra dimension of control is available a n d even partially i m p l e m e n t e d in cur­ rent institutional structures; a n d third, that these observations point us towards a two-dimensional conception of the democratic ideal. A Second Democratic Dimension is N e e d e d Democracy is a system u n d e r which the process of government - the process of public decision-making - is subject to popular control. By almost all accounts, the guiding idea is that unless the governors are controlled in

M I N O R I T Y CLAIMS A N D DEMOCRACY

205

this way by the governed, then the relevant interests of the governed - how­ ever they are interpreted - n e e d not be taken into account and respected. Unless g o v e r n m e n t is controlled by the people, so the radonale goes, there is n o guarantee that government will be for the people: there is n o guar­ antee that it will advance the relevant interests of the governed. T h e relevant interests of the g o v e r n e d are n o t their special or sec­ tional interests, b u t rather, their shared or c o m m o n interests. If a com­ munity has n o c o m m o n interests - in defence, security, health or education, for e x a m p l e , or provision against emergency n e e d - then t h e r e is n o obvious case for unifying it u n d e r a single g o v e r n m e n t . Assuming that a g o v e r n m e n t is desirable, then, that g o v e r n m e n t o u g h t to take its g u i d a n c e from the c o m m o n interests of its people. But how to define such c o m m o n interests? T h e a r g u m e n t I make can abstract from any particular answer to this question but it may be useful if I indicate the sort of a p p r o a c h that I favour. A certain g o o d will repre­ sent a c o m m o n interest of a population, as I see things, just so far as coop­ eratively avowable considerations s u p p o r t its collective provision (Pettit 2000). Cooperatively avowable considerations are those considerations such that were the m e m b e r s of the population h o l d i n g discussions a b o u t what they o u g h t to c o o p e r a t e in collectively providing, t h e n they could n o t b e dismissed as irrelevant (Elster 1986; H a b e r m a s 1984; 1989). They are those considerations to which n o participant in a cooperative scheme could d e n y relevance or weight u n d e r ordinary standards of conversa­ tional practice. T h e y are n o t selfish or sectional considerations, for e x a m p l e , n o r considerations that some parties to the discussion would see as calls for special t r e a t m e n t a n d , in particular, as calls that they had n o particular reason to h e e d . If the rationale of democracy is to force g o v e r n m e n t to take its guid­ ance from p e o p l e ' s c o m m o n interests, then this has an immediate impli­ cation for how democracy should b e organised. It m e a n s that democracy should i n c o r p o r a t e institutions that give salience a n d standing to all c o m m o n interests, a n d that democracy should incorporate institutions that r e d u c e or eliminate the influence of o t h e r interests: say, interests that are particular to certain individuals or g r o u p s within the community. Institutions of the first sort would guard against the possibility of cer­ tain c o m m o n interests n o t getting articulated or empowered. They would r e d u c e 'false negatives': that is, the non-identification of certain com­ m o n interests. Institutions of the second would guard against the possibil­ ity of inappropriate interests affecting what government does. They would reduce 'false positives': that is, the misidentification of certain interests as c o m m o n interests. Institutions of the first sort would police the social world in such a way that a c o m m u n i t y of interest is established a m o n g p e o p l e . Institutions of the second kind would police it in such a way that n o individual or g r o u p has a lesser place within that community: each

206

PHILIP PETTIT

counts for o n e , a n d n o n e for m o r e than o n e . Institutions of the first sort would p r o m o t e democratic effectiveness; institutions of the second would p r o m o t e democratic equality. Electoral institutions of the kind that satisfy the principles presented in the last section may be expected to d o as well as any institutions can be expected to d o in identifying a n d empowering candidates for the status of c o m m o n interests. They allow individuals a n d groups of individuals to c o m e forward with policy proposals about what is purportedly in the c o m m o n interest, they ensure that such proposals will be submitted to public examination a n d discussion, a n d they enable the people to deter­ m i n e , o n the basis of majority vote, w h e t h e r a given policy p r o g r a m will be selected or not. T h e process is fallible a n d subject to c o r r u p t i n g pres­ sures, b u t it promises to d o better than almost any conceivable alterna­ tive, making it likely that all c o m m o n interests are recognised and that 'false negatives' are avoided. O r so at least I am happy to c o n c e d e here. But electoral institutions are unlikely to work as successfully on the second democratic front. T h e y are unlikely to d o as well in ensuring that only c o m m o n interests will be recognised a n d empowered, a n d that 'false positives' will be avoided. They may serve to weed out the intrusion of foreign interests into the a g e n d a of policy-making. But they may allow the interest of a majority to be represented as a c o m m o n interest, given reliance o n majority voting. And, even m o r e importantly, they may allow all sorts of special interests to have an impact on the way policies are spec­ ified a n d i m p l e m e n t e d in the course of day-to-day government. Electoral institutions are vulnerable both to majoritarian a n d to manipulative con­ trol. They d o not d o e n o u g h to ensure that only c o m m o n interests have an influence o n g o v e r n m e n t a n d that n o individual or g r o u p gets privi­ leged access to power. This observation suggests that democracy should encompass more t h a n electoral institutions. Not only should t h e r e be electoral institu­ tions that serve, however imperfectly, to give salience a n d standing to what are allegedly c o m m o n interests, t h e r e should be institutions in place that try to guard against interests m a s q u e r a d i n g as c o m m o n interests a n d , m o r e generally, against interests having an impact on how g o v e r n m e n t is c o n d u c t e d . Democracy needs a second, non-electoral dimension.

A Second Democratic Dimension is Available T h e r e are two distinct ways in which any process can be controlled and, in particular, in which the people might be given control over govern­ m e n t . Consider the process whereby the c o n t e n t of a newspaper or mag­ azine is d e t e r m i n e d . O n e way of controlling this process is t h r o u g h the

M I N O R I T Y CLAIMS A N D DEMOCRACY

207

contribution of a u t h o r s who write the different columns. T h e o t h e r way is by the m o n i t o r i n g of the editors who object to certain passages a n d make suggestions for revisions. T h e authorial m o d e of control exists so far as t h e r e are always a u t h o r s at the origin of the text that presents itself for publication. T h e editorial m o d e of control exists so far as there are editors who stand poised, ready to intervene a n d initiate changes in the event that the text d o e s n o t satisfy t h e m . T h e authorial m o d e of control is essentially causal or generative: the a u t h o r s d e t e r m i n e the input to the process. T h e editorial m o d e of control is essentially selectional: the edi­ tors only allow text that satisfies t h e m to survive that process. T h e most striking thing about the electoral conception of democracy, as e n c o d e d in the principles presented, is that it mainly seeks to give the people an authorial form of control over the process of public decision­ making. And the authorial control it gives the people is very limited. Only the majority have a say on any issue; there is always a defeated minority. Except in the case of referenda, the majority d o not themselves g e n e r a t e the laws a n d o t h e r reguladons that will rule in public life. They merely select those who will oversee a n d orchestrate the authorial process. But o n c e we see the possibility of editorial as well as authorial control, then the limitations of p o p u l a r a u t h o r s h i p o u g h t to raise the question of w h e t h e r we c a n n o t e n h a n c e democracy - e n h a n c e people's control over g o v e r n m e n t - by making provisions for s o m e t h i n g analogous to editor­ ial control. Can we see a way to e n s u r e that the c o m m o n p e o p l e are able to stand over the process of public decision-making, ready to intervene in the event of what they see as objectionable decisions c o m i n g u n d e r consideration or being i m p l e m e n t e d ? In particular, can we see a way to ensure this sort of control, short of going to the unworkable e x t r e m e of giving everyone a veto on public decisions? I believe we can. Imagine you are the editor of a newspaper a n d you want to exercise your control to effect a general result. What steps might you take? O n e obvious step would b e to m a k e clear that if you are u n h a p p y with some text that is p r e s e n t e d for publication then you will see that it is c h a n g e d to suit your line. You may be able to d o this peremptorily, as in the case of most c o n t e m p o r a r y newspaper editors. O r you may have the power to refer your objection to an editorial board: a board, presumably, that sup­ ports your general line a n d that can be expected to u p h o l d any reason­ able objection. But it might n o t b e a very effective way of p r o m o t i n g your editorial con­ trol just to rely o n your right to object to any text presented for publica­ tion. You could be swamped, for example, by unsatisfactory texts so that your task would b e c o m e almost impossible. T h e r e are two o t h e r steps, therefore, that you would d o well to contemplate as well: these involve putting in ex ante controls, a n d n o t just relying on ex post objection.

208

PHILIP PETTIT

T h e first ex ante step would be to present your authors with guidelines o n your editorial policy, or to e n u n c i a t e constraints on how text is cleared before it comes for your inspection, a n d to make clear to them that you are likely to object to anything that breaches those guidelines or constraints. You may n o t make yourself the j u d g e of whether a breach has o c c u r r e d ; you n e e d only assert the right to refer any alleged breach to the editorial b o a r d for adjudication. But in either case this first step o u g h t to r e d u c e the n e e d for resorting to ex post objection; it o u g h t to allow your editorial control to r u n on s m o o t h e r paths. T h e o t h e r ex ante step that you could take to establish your regime is to insist that if a u t h o r s are worried about w h e t h e r they may be breaching editorial policy, or if they are writing in an area where such policy is par­ ticularly i m p o r t a n t or at risk, t h e n they should follow certain routines. In particular, they should consult with you or with certain parties that you designate as your agents in consultation. I spell o u t the steps that you m i g h t take to establish editorial control over a newspaper because they point us to steps whereby the governed in a democracy m i g h t establish a second, non-electoral form of control over g o v e r n m e n t . T h e first ex ante measure, c o r r e s p o n d i n g to the editorial guidelines a n d constraints, would involve the imposition of restrictions, formal or informal, on how g o v e r n m e n t can act. Examples of potential constraints are various: the recognition of restrictions o n the e n d s that g o v e r n m e n t can legitimately pursue, such as the principle that only acts harmful to others should be criminalised by government. T h e institutionalisation of rule-of-law conditions that any legislation must satisfy. T h e r e q u i r e m e n t that those who support a law, or impose any govern­ m e n t decision, give a deliberative justification of the line taken. T h e sep­ aration ofjudicial from executive a n d legislative power. T h e introduction of a bicameral structure that requires legislation to be e n d o r s e d by dif­ ferent sorts of representative bodies. T h e a p p o i n t m e n t of certain statu­ tory officers a n d bodies - officers like an Auditor General, an Electoral Commissioner, a Director of Public Prosecutions, a Central Bank Direc­ tor - who must be involved in the making of certain decisions. And of course the e n d o r s e m e n t of a constitution, or a bill of rights, or a set of laws or conventions that enjoy a certain e n t r e n c h e d status. T h e second ex ante measure would be to insist that at least in certain areas g o v e r n m e n t should p u t out its p r o p o s e d initiatives for public con­ sultation, a n d seek to ascertain the opinions of those of the public gen­ erally a n d in particular of those likely to be affected by a proposed decision. A g o v e r n m e n t might consult the public without a c o m m i t m e n t to take the consultation seriously, but this d a n g e r can be reduced by r e q u i r i n g the g o v e r n m e n t to place submissions on the public record and

M I N O R I T Y CLAIMS A N D D E M O C R A C Y

209

to take a c c o u n t of the points m a d e in its own justification of what it even­ tually does. Is t h e r e also an ex post m e a s u r e , c o r r e s p o n d i n g to the e d i t o r ' s power of objection, that might be taken to e m p o w e r the interests of the gov­ e r n e d ? Many institutional provisions fall into this category: the possibil­ ity of seeking judicial review of g o v e r n m e n t legislation. T h e possibility of seeking administrative review of g o v e r n m e n t decisions ( C a n e 1996). T h e possibility of appealing to an o m b u d s m a n against such decisions or of triggering an internal review of s o m e sort. And the informal possibilities of attracting the interest of an opposition party or a p a r l i a m e n t a r y com­ mittee, or the attention a n d criticism of the m e d i a or of s o m e relevant social m o v e m e n t . Two-dimensional Democracy It should b e clear that the s e c o n d dimension that d e m o c r a c y properly requires has a g o o d c h a n c e of b e i n g advanced by the editorial measures briefly reviewed. T h e provisions outlined all r e p r e s e n t ways in which it may b e possible for different g r o u p s a m o n g the g o v e r n e d to b e reassured that they are p r o t e c t e d in some m e a s u r e against u n e q u a l t r e a t m e n t . If the ex ante a n d ex post measures can b e suitably designed, t h e n they should h e l p to e n s u r e that w h e n the elected g o v e r n m e n t makes deci­ sions, it d o e s n ' t systematically neglect the ways in which those decisions impact negatively o n certain p e o p l e . They s h o u l d h e l p to e n s u r e that g o v e r n m e n t treats the g o v e r n e d as equals - that only the c o m m o n inter­ ests of the g o v e r n e d shape g o v e r n m e n t policy - even as it makes deci­ sions that will b e m o r e welcome in some q u a r t e r s t h a n in others. This is n o t the place to review the likely effectiveness of these differ­ e n t measures, or to explore t h e ways in which they m i g h t be strength­ e n e d a n d s u p p l e m e n t e d (Waldron 1999). T h e only p o i n t that we n e e d to register is that t h e r e are institutions imaginable, there are i n d e e d insti­ tutions in existence, that promise to give p e o p l e a power of contesting what g o v e r n m e n t does that parallels their collective power to d e t e r m i n e who shall b e in g o v e r n m e n t . T h e measures serve a n u m b e r of contestatory purposes: they r e n d e r contestation less likely to b e n e e d e d ; they make clear the bases o n which contestation can occur; a n d they serve to i m p l e m e n t contestation, w h e t h e r in or after t h e p e r i o d of decision-mak­ ing. If it is desirable a n d feasible to give democracy a second, contestatory dimension, t h e n we should e x t e n d the principles outlined in the first sec­ tion to characterise an e n r i c h e d , electoral-cum-contestatory conception of the democratic ideal. T h e r e are four principles that the conception

210

PHILIP PETTIT

would seem to require. T h e first two principles are as before; the third, which introduces the contestatory element, is new; a n d the last is a m e n d e d to give recognition to that novel element: • g o v e r n m e n t is elected by the p e o p l e o n a periodic basis: certain key g o v e r n m e n t authorities are elected by the p e o p l e at intervals of not m o r e than a stipulated, generally agreeable m i n i m u m ; • the p e o p l e enjoy full a n d equal electoral standing: no-one is excluded without generally agreed good reason to d o with age, c o m p e t e n c e or incarceration, for example, from standing or voting or speaking out in such elections; t h e r e is n o systematic intimidation b r o u g h t to bear on those who stand or vote or speak out; a n d no-one's vote is weighted m o r e heavily than anyone else's, except where there is generally agreed good reason - say, to d o with ensuring regional representation or maintaining a federal system - for such a weighting; • the p e o p l e enjoy full a n d equal contestatory standing: there are a vari­ ety of measures in place whereby people, individually a n d collectively, can be reasonably well assured of being treated as equals in govern­ m e n t decision-making; in particular, there are measures available whereby anyone w h o has doubts about being treated as equals can con­ test g o v e r n m e n t decisions a n d have a reasonable level of confidence that discriminatory decisions will be reversed; • the p e o p l e are collectively sovereign: subject to the constraints of pro­ m o t i n g people's equal electoral a n d contestatory standing, the rules u n d e r which g o v e r n m e n t authorities are elected a n d act are subject to d e t e r m i n a t i o n or a m e n d m e n t either by the collective people directly say, in a r e f e r e n d u m - or by their elected representatives. T h e electoral conception of democracy outlined in the earlier set of principles is an intuitive ideal of democracy, even if it does n o t exactly cor­ respond to any actual practice. T h e fact is, we would expect any democracy worthy of the n a m e to approximate to the satisfaction of those principles. I would say s o m e t h i n g similar is true of the e n r i c h e d conception. While we are n o t in the habit of associating the abstract ideal of democ­ racy - the abstract ideal of p o p u l a r control of g o v e r n m e n t - with matters to d o with how g o v e r n m e n t is constrained in its operations, few of us would be happy to apply the t e r m 'democracy' to any regime that deprived p e o p l e of contestatory standing. Imagine a regime in which g o v e r n m e n t is entitled to legislate o n any matter, n o matter how per­ sonal; or where g o v e r n m e n t is n o t required to formulate decisions in a rule-of-law m a n n e r a n d can act by n a m e against certain individuals or groups; or where the executive or legislature controls judicial decision­ making; or where t h e r e is n o r o o m whatsoever for consultation between elections with the populace; or where there is n o possibility of appealing

M I N O R I T Y CLAIMS A N D DEMOCRACY

211

against g o v e r n m e n t decision in any area. Few, if any, of us would feel comfortable a b o u t describing such a regime as 'democratic' in charac­ ter; we would feel that the t e r m was b e i n g abused. T h a t b e i n g so, I think we can be happy e n o u g h a b o u t taking the prin­ ciples just given to characterise an intuitive conception of democracy a n d a c o n c e p t i o n that we would expect real-world democracies to a p p r o x i m a t e in some measure (Shapiro 1996). If t h e r e is any e l e m e n t of controversy in the proposal to characterise democracy in this electoralcum-contestatory way, it comes of the fact that contestatory constraints on what a democratically elected g o v e r n m e n t can d o are often described as limitations o n democracy, r a t h e r than aspects of a democratic regime. But this habit of speech o u g h t n o t to inhibit us, particularly in view of the fact that the constraints in question can serve to give editorial control of g o v e r n m e n t to o r d i n a r y p e o p l e . O n the contrary, I would say, we o u g h t to seize u p o n the fact that while t h e r e is an obvious contrast between electoral a n d contestatory action, they b o t h r e p r e s e n t m o m e n t s in the assertion of the interests of the governed: they r e p r e s e n t ways in which the g o v e r n e d can h o l d the governors to account.

Minority Claims under the Electoral-cum-Contestatory Conception It remains to show that whereas special minority rights are vulnerable u n d e r an electoral conception of democracy - they look like democrati­ cally unmotivated constraints o n majority will - they are n o t similarly vul­ nerable u n d e r the e n r i c h e d way of conceiving democracy. Let democracy be seen as involving two dimensions - o n e electoral, the other contesta­ tory - a n d it b e c o m e s quite natural to think that in many circumstances it will require the recognition of special minority claims. T h e m o d e l for how special minority claims might be established u n d e r the two-dimensional conception of democracy is provided by the way in which H a b e r m a s , H o l m e s a n d others try to establish the claims of certain general, minority-protecting rights u n d e r the purely electoral conception. T h e y argue that unless majority will is constrained by those rights t h e n , paradoxically, majoritarian, electoral democracy will n o t be able to function properly. I argue, in parallel, that unless special minor­ ity rights are p u t in place t h e n in many circumstances electoral-cumcontestatory democracy will n o t b e able to function properly either. T h e circumstances that are likely to call for special minority rights are readily specified: • t h e r e is a robust minority or set of minorities p r e s e n t in the popula­ tion, where robustness m e a n s that the g r o u p is n o t unified just by a sin­ gle issue; its unity comes of a c o m m o n culture or creed or whatever;

212

PHILIP PETTIT

• the minority or minorities in question have a c o m m o n set of interests that can b e jointly advanced for all m e m b e r s ; • those interests are at least partially distinctive: they conflict with the interests of p e o p l e outside the g r o u p in question; • those interests are vulnerable to collective, majoritarian decision­ making: it is quite possible for a majority to s u p p o r t a line that is inimi­ cal to the g r o u p ' s interests, even as it advances interests that are s h a r e d in c o m m o n by all; • all of these things are a matter of c o m m o n awareness in the society at large, particularly within the g r o u p . Almost everyone believes that almost everyone believes this. And so on, in this sense: at n o level is t h e r e a general disbelief in the belief at the level below; it is n o t the case, for example, that almost everyone disbelieves in the belief m e n ­ tioned in the last sentence. Almost everyone believes in the existence of a culturally distinctive, democratically vulnerable minority or set of minorities in the population that the state governs. W h e r e circumstances like these obtain, then m e m b e r s of the minority will naturally be sensitive to the question of how far their interests are going to b e taken equally into account - of how far they are going t o b e treated as equals - in the process of democratic g o v e r n m e n t . T h e con­ tours of diversity will be so n u m e r o u s , a n d some will r u n at such variance from the general landscape, that there will be a salient possibility that many g o v e r n m e n t decisions are directed by majority interests, to the neglect a n d d e t r i m e n t of the minority. If the overall state is to have any justification, t h e n there must b e cer­ tain substantive interests that are c o m m o n to the minority a n d t h e major­ ity cultures, a n d the state must serve to advance those interests. T h e c o m m o n interests may include interests in defence, law a n d order, envi­ r o n m e n t a l soundness, e c o n o m i c prosperity; a n d we may assume t h a t the electoral process can serve - at least as well as any feasible alternative to identify a n d advance those interests. But given the cultural diversity that obtains, t h e r e will often be a question as to w h e t h e r the state really treats minorities as equals in this process. T h e r e will be a question as to w h e t h e r it is only such c o m m o n interests that dictate g o v e r n m e n t policy. U n d e r conditions of cultural diversity there is great scope for p e o p l e n o t to be treated as equals by the state. In the monocultural state, you a n d I may have rival interests in matters to d o with where an a i r p o r t will b e constructed, where a prison will be built a n d the like. But in the multi­ cultural state, the r o o m for rivalry of interests expands dramatically. You a n d your culture may have interests that conflict with m i n e across a spec­ t r u m that ranges from language to religion to symbolic practices; a n d from conventions of family life to habits of economic activity to t h e cus-

MINORITY CLAIMS A N D DEMOCRACY

213

toms u n d e r which land is held a n d used. And if you a n d your culture are in t h e minority, t h e n you have a very b r o a d base for c o n c e r n that you a n d yours will n o t b e treated as equals in the exercise of public power. In a m o n o c u l t u r a l society the existence of an i n d e p e n d e n t p l a n n i n g b o a r d may b e sufficient to assure you that you were just unlucky to have a new a i r p o r t or prison situated in your n e i g h b o u r h o o d . But if conditions of cultural diversity obtain t h e n it may take m u c h stronger institutions of contestation to assure you that decisions you a n d your minority culture d o n o t like are really just the p r o d u c t of bad luck. T h e fact that a society is multicultural, then, m e a n s that the d e m o c r a ­ tic state is going to have to take special steps to try a n d establish t h e equal a n d full contestatory power of those in minority groups. Otherwise the m e m b e r s of those g r o u p s will n o t be g u a r a n t e e d of b e i n g treated as equals a n d of living in a proper, two-dimensional democracy. T h e y will live u n d e r the t h u m b of those in the majority a n d the mainstream. T h e only recourse in such a p r e d i c a m e n t is to require the recognition of minority claims of various sorts. T h e p r e d i c a m e n t may be m o r e or less severe, but n o m a t t e r what the level of severity, the obvious r e s p o n s e will be to establish minority rights of a c o r r e s p o n d i n g kind. I shall m a k e the p o i n t by considering t h r e e possible levels of severity at which t h e multi­ cultural challenge may arise. S u p p o s e that a minority culture is m u c h respected in a society, a n d that while t h e r e is a rivalry of interests between its m e m b e r s a n d those in the m a i n s t r e a m , still it is a m a t t e r of m o r e or less c o m m o n awareness that n o - o n e is likely to resent those interests being taken fully into a c c o u n t by g o v e r n m e n t . In such a situation t h e r e might n o t be any n e e d to restrict g o v e r n m e n t formally in o r d e r to e n s u r e that the minority m e m b e r s are t r e a t e d as equals. It m i g h t be e n o u g h to establish the minimal right of those in the minority to be specifically consulted a b o u t legislation and decision-making, where appeal could be m a d e - say, in an administrative appeals tribunal - against any decision taken without consultation, or in defiance of consultation. But it d o e s n o t take m u c h imagination to recognise that in many cases the divergences between the minority a n d the majority will b e so d e e p that a satisfactory response must involve s o m e t h i n g m o r e besides. It may r e q u i r e n o t j u s t that the minority have a right of consultation a n d appeal, but also that specific e x e m p t i o n s or provisions are m a d e in their favour by t h e g o v e r n m e n t . This sort of case will arise wherever the way things h a p p e n in the society, in particular the way g o v e r n m e n t behaves, is almost b o u n d to impact negatively o n the minority, a n d w h e r e t h e only way in which the minority can be treated as equals is for t h e m to receive special t r e a t m e n t of some kind.

214

PHILIP PETTIT

T h e r e are many examples of where special minority t r e a t m e n t will be required. T h e society a n d the state tend to privilege the language of the majority, so t h e r e must be provision for furthering minority language a n d for m a k i n g it possible to use that language in certain forums: say, in c o u r t hearings. T h e majority religion is naturally given recognition in the public holidays a n d in the public symbols a d o p t e d by the state, so t h e r e should be provision for the minority religion to be given some c o m p e n s a t o r y recognition a n d for minority m e m b e r s n o t to have major­ ity practices thrust u p o n t h e m . T h e majority culture is inevitably repre­ sented in the educational practices prevalent in the society, particularly in state-supported schools, so t h e r e o u g h t to be provision for substitute, or supplementary, education in matters relating to the minority culture. T h e r e is also a further level of severity at which multiculturalism may m a k e a challenge for democracy: a level such that n e i t h e r rights of con­ sultation n o r rights of special t r e a t m e n t will be sufficient to ensure that the minority are treated as equals by the state in which they are incorpo­ rated. In this situation the cleavage between the minority a n d the main­ stream is so d e e p that the minority will n o t be assured of being treated as equals j u s t because they must be consulted in the process of decision­ m a k i n g or j u s t because the decisions taken must make special provisions in their favour. T h e cleavage is so d e e p that the only recourse possible is for the state to give over its decision-making powers on a range of issues that affect the minority to their own representatives a n d , as it will be, their own g o v e r n m e n t . T h e case where such special rights of minority self-government will be most plausible arises when a minority nation, in particular an indigenous o n e , is i n c o r p o r a t e d in a democratic state. H e r e the rivalry of interests may e x t e n d to differences in the significance accorded to land a n d tra­ dition, in the view taken of the n a t u r e of landholding a n d group-mem­ bership, in the rules u n d e r which certain claims are adjudicated, a n d so on; it may e x t e n d beyond any limits envisaged in mainstream tradition (Tully 1995). W h e r e the difference goes this d e e p , then it is h a r d to see how the m e m b e r s of such a minority could possibly think that they were treated as equals - quite apart from any issue of historical justice - unless they were given suitable powers of self-government in relation to the mat­ ters in question. It is natural to speak of the radically distinct minority g r o u p envisaged in this third case as a nation that is separate from the majority nation; i n d e e d I have already d o n e so. After all, how can traditions come apart as radically as they are imagined without the minority constituting a distinct nation? But t h o u g h the case involves two or indeed m o r e nations, it is i m p o r t a n t that the rationale for minority self-government c o n t i n u e s to derive from the n e e d to give p e o p l e equal contestatory

MINORITY CLAIMS A N D DEMOCRACY

215

standing within o n e a n d the same democratic system. If the case for minority self-government is m a d e to derive from the distinctness of the nations as such, a n d n o t from the contestatory problems to which the distinctness gives rise, then it may be too strong for comfort. It may sug­ gest that it is a p p r o p r i a t e for the majority nation to present the minority with a dilemma: b e c o m e a separate state (and suffer the consequences of living in o u r shadow) or j o i n us on o u r terms, without any special recog­ nition of your separateness. T h e s e c o m m e n t s are m e a n t only to be illustrative a n d I apologise for the sketchy n a t u r e of the examples. But my main claim, I h o p e , is clear. If we think that democracy requires a regime u n d e r which p e o p l e have equal a n d full contestatory as well as electoral standing, then we should have n o difficulty in seeing special minority claims as a natural part of the b r o a d democratic package. We should have n o hesitation a b o u t asserting that multicultural democracy is b o u n d to make r o o m for establishing such rights, w h e t h e r at a minimal or at an intensive level. To r e t u r n to the t h e m e s of the first section, I think that this is an i m p o r t a n t claim to b e able to defend. Special minority rights are inher­ ently countermajoritarian in character a n d it is of the greatest impor­ tance to be able to show that that does n o t make t h e m antidemocratic. T h e ideal of democracy is the guiding light in most c o n t e m p o r a r y polit­ ical discussion - it is the o n e ideal that no-one ever questions - a n d spe­ cial minority claims would be very fragile i n d e e d if they were inconsistent with the democratic vision of a society where g o v e r n m e n t is p u r s u e d in the interests of the governed. They are certainly inconsistent with a purely electoral conception of democracy. But, as I tried to show in the last section, most of us are c o m m i t t e d to a richer, electoral-cum-contestatory c o n c e p t i o n . Far from being inconsistent with it, special minority rights will often be required u n d e r the richer conception: they will often p r e s e n t themselves as essential for the p r o p e r functioning of democracy.

CHAPTER

12

American Multiculturalism and the 'Nations Within' Will Kymlicka

Like citizens in many other countries, Americans have been vigorously debating issues of multiculturalism for the last few years. But the debate in the US has a special importance because of the profound influence of American ideas a r o u n d the world. This influence is greater than ever before now that the US is the world's only superpower. Moreover, Ameri­ can foundations a n d government agencies are a m o n g the leading funders of scholars, non-governmental organisations and research projects a r o u n d the world, particularly o n issues of ethnicity and democracy, and this inevitably encourages the tendency to view the US as the 'model' by which ethnic relations in other countries should be understood a n d assessed. But the American debate a b o u t ethnic relations would be important even without this superpower status. For, as David Hollinger notes, the US has b e e n a multi-ethnic democracy 'for a longer period of time than any of the comparably multi-ethnic societies [and] it has d o n e so with a p o p u l a t i o n m o r e ethno-racially diverse' than most o t h e r democracies (Hollinger 1995: 140). So it is natural that o t h e r countries pay close attention to American models of ethnic relations. As a result, even those books which are written solely for 'my fellow Americans' are influential in international debates. Unfortunately, I believe that the international influence of American debates has n o t b e e n entirely a happy o n e . To be sure, it has b e e n bene­ ficial on some issues, but has b e e n unhelpful on others, serving to exac­ erbate r a t h e r t h a n r e m e d y i m p o r t a n t injustices, particularly for i n d i g e n o u s p e o p l e s a n d o t h e r 'nations within'. I'll try to explain why. American Multiculturalism A wide r a n g e of views has b e e n expressed in the American debate about multiculturalism, a n d I won't make any effort to summarise t h e m h e r e . 216

AMERICAN M U L T I C U L T U R A L I S M

217

But I think we can see an e m e r g i n g consensus, or at least a d o m i n a n t para­ digm, c e n t r e d o n the following t h r e e claims: • that some or o t h e r form of multiculturalism is now unavoidable - 'we are all multiculturalists now', as N a t h a n Glazer puts it (Glazer 1997) a n d that the interesting d e b a t e is n o t w h e t h e r to a d o p t multicultural­ ism, b u t r a t h e r what kind of multiculturalism to adopt; • that the appropriate form of multiculturalism must be fluid in its con­ ception of g r o u p s a n d g r o u p b o u n d a r i e s (that is, it must accept that new g r o u p s may e m e r g e , older g r o u p s may coalesce or disappear); vol­ untary in its conception of g r o u p affiliation (that is, it must accept that individuals should b e free to decide w h e t h e r a n d how to affiliate with their c o m m u n i t y of descent); a n d non-exclusive in its conception of g r o u p identity (that is, it must accept that being a m e m b e r of o n e g r o u p does not preclude identification with a n o t h e r g r o u p , or with the larger American n a t i o n ) . Only such an o p e n - e n d e d , fluid a n d voluntary con­ ception of multiculturalism fits with the fluid and o p e n nature of Ameri­ can society, a n d its d e e p respect for individual freedom a n d choice; • that the greatest challenge to creating such a fluid conception of mul­ ticulturalism r e m a i n s the disadvantaged a n d stigmatised status of African-Americans. Being 'Black' is a n ascribed identity that is very dif­ ficult for most African-Americans to escape or r e n o u n c e . T h e child of a Greek-Arab mixed m a r r i a g e can c h o o s e w h e t h e r to think of himself or herself as a Greek-American or Arab-American or b o t h or neither; the child of a Greek-Black m i x e d m a r r i a g e will be seen by others as 'Black', w h e t h e r or n o t t h a t is how s / h e wants to be seen (Waters 1990). Moreover, the result of this ascribed identity is a greater degree of social exclusion a n d segregation t h a n for o t h e r ethnic groups (that is, Blacks are m o r e likely to live in segregated n e i g h b o u r h o o d s , attend segregated schools, pray in segregated c h u r c h e s a n d so o n ) . T h e main challenge for American multiculturalism, therefore, is to r e d u c e the ascriptive, stigmatising a n d segregating e l e m e n t s of'Black' identity, so that being Black can c o m e to r e s e m b l e t h e o p e n , voluntary a n d fluid n a t u r e of o t h e r ethnic identities in America. 1

I will n o t dispute any of these t h r e e claims - on the contrary, I share t h e m . However, I worry a b o u t the way in which they have typically b e e n d e f e n d e d by American writers, a n d the influence these defences are hav­ ing in o t h e r countries. T h e p r o b l e m , from an international perspective, is that this o p e n , fluid a n d voluntary c o n c e p t i o n of American multicul­ turalism is typically explained a n d d e f e n d e d in contrast to minority nation­ alism. T h a t is, when A m e r i c a n a u t h o r s explain what a closed, static and involuntary c o n c e p t i o n of multiculturalism would look like, they typi­ cally point to cases of g r o u p s (like m a n y i n d i g e n o u s peoples) which view themselves as 'nations within' a n d which mobilise along nationalist lines.

218

WILL KYMLICKA

In the rest of this essay, I explain why I think this contrast is mistaken a n d unhelpful. I d o n ' t think that this contrast is helpful as a way of think­ ing a b o u t multiculturalism even within the US. My main concern, how­ ever, is with the influence of this a r g u m e n t abroad. I believe it is having a pernicious influence in o t h e r countries, inhibiting efforts to under­ stand a n d a c c o m m o d a t e the minority nationalisms they face, including the legitimate claims of indigenous peoples. Hollinger's Postethnic America I will take as my example the recent work of David Hollinger, whose Postethnic America is the most subtle a n d sophisticated p r o p o n e n t of the consensus view I discussed earlier (Hollinger 1995). Hollinger distin­ guishes two kinds of multiculturalism: a 'pluralist' model that treats g r o u p s as p e r m a n e n t a n d e n d u r i n g , a n d as the subject of g r o u p rights; a n d a 'cosmopolitan' m o d e l that accepts shifting g r o u p boundaries, mul­ tiple affiliations a n d hybrid identities, which is based o n individual rights. H e summarises the distinction this way: pluralism respects inherited boundaries and locates individuals within one or another of a series of ethno-racial groups to be protected or preserved. Cos­ mopolitanism is more wary of traditional enclosures and favours voluntary affiliations. Cosmopolitanism promotes multiple identities, emphasises the dynamic and changing character of many groups, and is responsive to the potential for creating new cultural combinations. (Hollinger 1995: 3)

Hollinger strongly defends the latter cosmopolitan form - with its 'ideal according to which individuals decide how tightly or loosely they wish to affiliate with o n e or m o r e communities of descent' (Hollinger 1995: 165) - while criticising the former. H e argues that this cosmopoli­ tan m o d e l has worked well for white E u r o p e a n immigrants in the past, a n d that it continues to work well for m o r e recent immigrants from Latin America, Africa a n d Asia. H e recognises that it will be m u c h m o r e diffi­ cult to bring African-Americans (the descendants of the slaves, as distinct from new immigrants from Africa or the Caribbean) u n d e r this 'posteth­ nic' umbrella. However, h e insists that this is what most Blacks want, and what justice requires, a n d that it remains an achievable goal, although certain special measures may be required (for example, m o r e targeted forms of affirmative action) (Hollinger 1996). As I n o t e d earlier, I share these basic views about the appropriate and desirable form of multiculturalism in the American context. But how d o Hollinger's a r g u m e n t s apply to o t h e r countries? Consider my own coun­ try, C a n a d a . T h e r e are two quite different forms of'multiculturalism' in

AMERICAN

MULTICULTURALISM

219

Canada, c o r r e s p o n d i n g to two different kinds of ethno-cultural groups. Like the US a n d Australia, C a n a d a is a British settler society, formed by the u n i o n of f o r m e r British colonies. In addition to the descendants of these British settlers, we have two kinds of ethno-cultural minorities. First, we have those groups which emigrated as individuals or families to Canada after the British established their dominion. Until quite recently, these immigrants were expected to shed their disdnctive heritage and assimilate almost entirely to existing British cultural n o r m s (this was known as the 'Anglo-conformity m o d e l ' of integrating immigrants). How­ ever, in the 1970s, the Canadian government rejected the assimilationist model of immigration, a n d instead adopted a m o r e tolerant policy that accepts the public expression of immigrant ethnicity. This change was for­ malised in 1971 with the adoption of an official 'multiculturalism policy' by the federal government. T h e policy acknowledges the inevitability and desirability of the public expression of immigrant ethnicity, a n d makes a c o m m i t m e n t to reform public institutions (for example, schools, hospitals, media) to a c c o m m o d a t e the distinctive identities and practices of immi­ grant groups (so long as these d o not violate the rights of others). However, this policy works alongside other policies (such as naturalisation policies, education policies), which encourage the long-term linguistic and institu­ tional integration of immigrants into mainstream society. Second, we have those g r o u p s which were o n Canadian soil before the British arrived, a n d which were c o n q u e r e d or colonised by the British. These are the i n d i g e n o u s peoples, a n d the Quebecois. These 'nations within' were originally self-governing, a n d like o t h e r c o n q u e r e d or colonised peoples a r o u n d the world, have consistently fought to gain (or r a t h e r regain) their autonomy, so as to maintain themselves as separate a n d self-governing societies. T h e y call themselves 'nations', a n d assert national rights. And i n d e e d b o t h the indigenous peoples a n d the Q u e b e ­ cois d o have substantial a u t o n o m y within Canada: the former t h r o u g h the system of self-governing Indian bands; the latter t h r o u g h the system of federalism. In the C a n a d i a n context the t e r m 'multiculturalism' is only used to refer to the first category. T h e federal multiculturalism policy c o n c e r n s the a c c o m m o d a t i o n of i m m i g r a n t ethnicity. T h e a c c o m m o d a t i o n of o u r 'nations within' is dealt with by o t h e r policies, u n d e r o t h e r g o v e r n m e n t d e p a r t m e n t s , a n d i n d e e d u n d e r separate sections of the Canadian con­ stitution. However, for the purposes of this paper, I will describe t h e m as two forms of multiculturalism: o n e focused o n immigrant ethnicity; the o t h e r o n minority nationalism. How does Hollinger's theory apply to the Canadian case? Some com­ m e n t a t o r s have a r g u e d that b o t h kinds of multiculturalism in C a n a d a fall

220

WILL KYMLICKA

into Hollinger's 'pluralist' category, treating immigrant groups and national minorities as fixed a n d self-contained entities. However, on inspection, it is clear that the immigrant multiculturalism policy in Canada, in its intentions a n d consequences, is m u c h closer to Hollinger's ' c o s m o p o l i t a n ' version. It explicitly treats ethno-cultural affiliation as vol­ untary, a n d e n c o u r a g e s m e m b e r s of different ethnic groups to interact, to share their cultural heritage a n d to participate in c o m m o n educa­ tional, e c o n o m i c , political a n d legal institutions. T h e long-term result of this a p p r o a c h has b e e n a b r e a k i n g down of the barriers between ethnic groups, including a significant increase over the last thirty years in rates of inter-ethnic friendships a n d inter-marriages - higher than in the US a n d to the proliferation of shifting, multiple and hybridic identities. Like Hollinger, I think that the integration of immigrants into this fluid a n d hybridic form of multiculturalism is desirable, a n d indeed is quite a success story. And, like Hollinger, I think that this process can work n o t only for the older white immigrants from E u r o p e , but also for newer Arab, Asian a n d Caribbean immigrants. I wouldn't use the term 'cosmopolitan' to describe this form of multi­ culturalism, for reasons I will explain later. But I agree that it is a good m o d e l for thinking about the integration of immigrants groups, and I have defended it in Canada (where it is already fairly strongly entrenched) and in E u r o p e (where it remains strongly resisted). So on this issue I think that Hollinger's account of a postethnic America is a good model for other countries. Countries such as Austria or Belgium could learn a great deal from the US about the successful integration of immigrants. My worry, however, is a b o u t the applicability of this model to non­ i m m i g r a n t groups, a n d in particular to the 'nations within', that is, to those g r o u p s that have b e e n c o n q u e r e d or colonised, like the Quebecois or i n d i g e n o u s peoples in Canada. Hollinger never explicitly addresses the question of the rights of colonised or c o n q u e r e d peoples within lib­ eral democracies, or the legitimacy of the forms of minority nationalism a d o p t e d by such groups. But it is fairly clear that h e does not support minority nationalism. For example, he says that his model rejects 'the notion of legally pro­ tected territorial enclaves for nationality groups' (Hollinger 1995: 91), a n d that pluralism differs from cosmopolitanism 'in the degree to which it endows with privilege particular groups, especially the communities that are well-established at whatever time the ideal of pluralism is invoked' (Hollinger 1995: 85). These passages implicitly reject the essence of minority nationalism in Canada or elsewhere. After all, the Quebecois a n d indigenous peoples in Canada claim legally recognised rights of selfg o v e r n m e n t over their traditional territories, and the justification for these claims is precisely that these societies were 'well-established' before 2

AMERICAN MULTICULTURALISM

221

British d o m i n i o n . Hollinger's theory implicitly seems to rule such nation­ alist claims o u t of court. Hollinger is n o t just implicidy rejecting minority nationalism, he explic­ itly criticises it as well. For example, h e describes Quebecois nationalism as the extreme form of 'pluralist' multiculturalism, since it treats the Quebe­ cois as a p e r m a n e n t and e n d u r i n g group, a n d as the bearer of group rights. Indeed, h e says it is a form o f ' e t h n i c nationalism' (Hollinger 1995: 134), which is logically equivalent to racial segregation in the US (131). And while h e singles out the claims of stateless nations for criticism, his objections seem to apply to indigenous peoples as well, and one suspects that h e views their national claims as forms of illiberal racism. I think this is wrong, o n several levels. First, Hollinger's views are out of step with the e m e r g i n g practice of o t h e r Western democracies; sec­ o n d , they are out of step with the US's practice itself; a n d third; they are based o n a m i s u n d e r s t a n d i n g of the n a t u r e of minority nationalism. I will discuss each of these p r o b l e m s in turn, a n d e x a m i n e the impact they have h a d o n the recognition of the claims of indigenous peoples a n d o t h e r 'nations within' a r o u n d the world. Accommodating Minority Nationalism How have o t h e r Western democracies dealt with their 'nations within'? By 'nations within' (or 'national minorities'), I m e a n groups that formed c o m p l e t e a n d functioning societies o n their historic h o m e l a n d before being i n c o r p o r a t e d into a larger state. T h e incorporation of such national minorities has typically b e e n involuntary, d u e to colonisation, c o n q u e s t or the c e d i n g of territory from o n e imperial power to another, b u t may also arise voluntarily, as a result of federation. T h e category of national minorities (or what others call ' h o m e l a n d minorities') includes indigenous peoples like the Inuit in Canada, Maori in New Zealand or Sami in Scandinavia, but also includes other incorpo­ rated national groups, like the Catalans in Spain, Scots in Britain or Quebe­ cois in Canada. These latter groups are sometimes called 'stateless nations' or 'ethno-national groups', to distinguish them from indigenous peoples. T h e r e is n o universally a g r e e d criteria for distinguishing indigenous peoples from stateless nations, b u t o n e criteria c o n c e r n s the role these g r o u p s played in the process of state-formation. As a rule, stateless nations were c o n t e n d e r s b u t losers in the process of E u r o p e a n state-for­ mation, whereas indigenous peoples were entirely isolated from that process until very recently, a n d so retained a p r e - m o d e r n way of life until well into this century. Stateless nations would have liked to form their own states, b u t lost in the struggle for political power, whereas indige­ n o u s peoples existed outside this system of E u r o p e a n states. Within the

WILL KYMLICKA

222

western democracies, t h e n , the Catalans, Basques, Puerto Ricans, Flem­ ish, Scots, Welsh a n d Quebecois are stateless nations, whereas the Sami, G r e e n l a n d e r s , Australian Aborigines, Maori, Inuit a n d American Indians are indigenous p e o p l e s . In most of the sociological literature on ethnic relations, and the international law literature o n minority rights, these two categories of national minorities are discussed in isolation from each other. And of course t h e r e are many i m p o r t a n t differences between stateless nations a n d i n d i g e n o u s peoples, b o t h in the n a t u r e of their cultural and social organisation a n d in the n a t u r e of their incorporation into larger states. However, I want to e x a m i n e t h e m together h e r e for a variety of reasons. First, there are important similarities in the ways both types of national minorities have r e s p o n d e d to their incorporation into larger states. State­ less nations a n d indigenous peoples have typically sought to gain or regain their self-governing powers in their traditional territory to maintain them­ selves as separate and distinct societies alongside the majority. T h a t is, they have typically sought to maintain or e n h a n c e their political autonomy. At the e x t r e m e , this may involve claims to outright secession, but more usually it involves some form of territorial autonomy. And they typically mobilise along nationalist lines, using the language of ' n a t i o n h o o d ' to describe a n d justify these d e m a n d s for self-government. Both stateless nations a n d indigenous peoples reject any idea that they are simply 'minorities' within the larger political community, and insist instead that they form their own distinct a n d self-governing political c o m m u n i t y within the boundaries of the larger state. As fames Tully argues, the sort of relationship desired by indigenous peoples in Canada must b e o n e based o n the recognition of Aboriginal people as 'peoples' or ' n a t i o n s ' . This 'nation-to-nation' relationship is sought by most stateless nations a n d i n d i g e n o u s peoples a r o u n d the world. While the ideology of nation­ alism has typically seen full-fledged i n d e p e n d e n c e as the ' n o r m a l ' or ' n a t u r a l ' end-point, e c o n o m i c or d e m o g r a p h i c reasons may make this unfeasible for some national minorities, particularly for indigenous peoples. Moreover, the historical ideal of a fully sovereign state is increas­ ingly obsolete in today's world of globalised economics a n d transnational institutions. H e n c e t h e r e is a growing interest a m o n g stateless nations a n d indigenous peoples in exploring o t h e r forms of self-government, such as federal or quasi-federal forms of regional autonomy. T h e precise n a t u r e of these a r r a n g e m e n t s will certainly differ for indigenous peoples a n d stateless nations, as I discuss later, but they raise some c o m m o n chal­ lenges to the theory a n d practice of Western statehood. Second, discussing indigenous peoples in isolation from other 'nations within' can reinforce the perception that they are somehow 3

4

5

6

AMERICAN MULTICULTURALISM

223

exotic a n d exceptional; of interest to a few specialists, perhaps, but n o t a central issue for political life a n d political theory in the m o d e r n world. If we e x a m i n e stateless nations a n d indigenous peoples together, we can see that the p r o b l e m of the 'nations within' is truly universal in scope, of e n o r m o u s urgency a n d of staggering proportions. As Walker C o n n o r notes, the list of countries affected by minority nationalism is global, a n d includes countries: in Africa (for example, Ethiopia), Asia (Sri Lanka), Eastern Europe (Roma­ nia), Western Europe (France), North America (Guatemala), South America (Guyana), and Oceania (New Zealand). The list includes countries that are old (United Kingdom) as well as new (Bangladesh), large (Indonesia) as well as small (Fiji), rich (Canada) as well as poor (Pakistan), authoritarian (Sudan) as well as democratic (Belgium), Marxist-Leninist (China) as well as militantly anti-Marxist (Turkey). The list also includes countries which are Buddhist (Burma), Christian (Spain), Moslem (Iran), Hindu (India), and Judaic (Israel). (Connor forthcoming)

T h e s e conflicts are n o t only pervasive, they are deadly serious. Ethnocultural conflict has b e c o m e the main source of political violence a r o u n d the world, a n d studies show that the single most i m p o r t a n t cause of these ethno-cultural conflicts is struggles between states a n d nations within, particularly over land a n d settlement policies (Gurr 1993). Given the ubiquity a n d severity of these conflicts, some scholars have called it the ' T h i r d World War', which has ' p r o d u c e d millions of casualties a n d mas­ sive forced dislocations of [national minorities] who make u p the major­ ity of the world's refugees'. Put in this light, the p r o b l e m of how states deal with 'nations within' is n o t a marginal issue: it is o n e of the key issues, p e r h a p s even the cen­ tral issue, for states in the twenty-first century. How should liberal democracies r e s p o n d to such minority nation­ alisms? In the rest of this section, I will examine the general trends in Western democracies toward greater recognition of minority national­ ism, a n d t h e n in the next section consider whether the US diverges from this general trend. Historically, liberal democracies have tried to suppress minority nationalisms, often ruthlessly, w h e t h e r advanced by stateless nations or indigenous peoples. At various points in the eighteenth a n d n i n e t e e n t h centuries, for e x a m p l e , France b a n n e d the use of the Basque a n d Breton languages in schools or publications, a n d b a n n e d any political associa­ tions that aimed to p r o m o t e minority nationalism. In the n i n e t e e n t h c e n t u r y C a n a d a stripped the Quebecois of their French-language rights a n d institutions, a n d redrew political b o u n d a r i e s so that the Quebecois did n o t form a majority in any province. 7

WILL KYMLICKA

224

Similar policies were a d o p t e d toward indigenous peoples. Canada a n d Australia prohibited the use of indigenous languages in schools and public institutions, a n d e n c o u r a g e d the massive settlement of indige­ n o u s lands. C a n a d a also m a d e it illegal for Aborigines to form political associations to p r o m o t e their national claims. All of these measures were i n t e n d e d to disempower national minorities a n d to eliminate any sense of their possessing a distinct national identity, justified partly o n the grounds that minorities which viewed themselves as distinct 'nations' would be disloyal a n d potentially secessionist, and partiy on the g r o u n d s that national minorities are 'backward' a n d 'uncivilised', a n d that their languages and cultures were not worthy of respect and pro­ tection. But the attitude of liberal democracies toward minority national­ ism has c h a n g e d dramatically in this century. It is increasingly recognised that the suppression of minority nationalism was mistaken, for empirical a n d normative reasons. Empirically, the evidence shows that pressuring national minorities to integrate into the d o m i n a n t national group simply will not work. Western states badly misjudged the durability of minority national identities. T h e character of a national identity (for example, the heroes, myths a n d traditional customs) can change quickly. But the iden­ tity itself - the sense of being a distinct nation, with its own national culture - is m u c h m o r e stable. Liberal democratic governments have, at times, used all the tools at their disposal to destroy the sense of separate identity a m o n g their national minorities, from the prohibition of tribal customs to the b a n n i n g of minority-language schools. But despite centuries of legal discrimination, social prejudice a n d indifference, national minorities have maintained their sense of forming distinct nations with a desire for national autonomy. As a result, when the state attacks a minority's sense of distinct nation­ hood, the result is often to promote rather than reduce the threat of disloy­ alty and secessionist movements. Indeed, recent surveys of ethno-nationalist conflict a r o u n d the world show that self-government arrangements dimin­ ish the likelihood of violent conflict, while refusing or rescinding self-gov­ e r n m e n t rights is likely to escalate the level of conflict (Gurr 1993; H a n n u m 1990; Lapidoth 1996). In the experience of Western democracies, the best way to ensure the loyalty of national minorities has been to accept, not attack, their sense of distinct nationality. This is a striking t r e n d visible in most Western democracies contain­ ing national minorities. In the mid-nineteenth-century, Switzerland was the only democratic c o u n t r y with a federal system that enabled national minorities to b e self-governing. Today, however, Switzerland has been j o i n e d by several o t h e r federal countries which grant extensive language rights a n d regional a u t o n o m y to their stateless nations. These include Canada, Spain, Belgium a n d the e m e r g i n g federalism of Britain. O t h e r western democracies have a d o p t e d quasi-federal forms of territorial 8

AMERICAN

225

MULTICULTURALISM

autonomy, including Finland (for the Swedes of the Aaland Islands) a n d Italy (for the G e r m a n s in South Tyrol). We see the same trend with respect to indigenous peoples. After d e c a d e s of assimilationist policies, virtually all western democracies con­ taining i n d i g e n o u s peoples have shifted toward recognising the rights of indigenous self-government. I n d i g e n o u s peoples have fought for, a n d increasingly won, respect for their land rights, a n d for their right to be self-governing o n their lands. This is reflected in section 35 of the Cana­ dian Constitution, in the formation of the Sami parliaments in the Scan­ dinavian countries, the h o m e rule provisions for G r e e n l a n d a n d the new-found respect for the Treaty of Waitangi in New Zealand. Unlike stateless nations, federalism has rarely been the mechanism for ensuring self-government for indigenous peoples. With few exceptions, indigenous peoples currently form a small minority even within their tra­ ditional territory, a n d n o redrawing of the boundaries of federal sub-units would create a state, province or territory with an indigenous majority. For most indigenous peoples, therefore, self-government is being achieved outside the federal system, typically through some system of reserved lands. Indigenous communities in several countries have been gaining (or m o r e accurately, regaining) substantial powers over health, education, family law, policing, criminal justice a n d resource development in their reserved lands. They are becoming, in effect, a kind of 'federacy', to use Daniel Elazar's term, with a collection of powers that is carved out of both federal a n d provincial jurisdictions (Elazar 1987: 2 2 9 ) . As the term sug­ gests, a 'federacy' has important analogies with federalism - in particular, both involve a territorial division of powers, and both involve an ideal of shared sovereignty a n d a partnership of peoples. While the form of a u t o n o m y differs between stateless nations a n d indigenous peoples, the trend is the same. T h r o u g h o u t the west, the goal of eliminating minority national identities has b e e n a b a n d o n e d , a n d it is now accepted that b o t h stateless nations and indigenous peoples will c o n t i n u e into the indefinite future to see themselves as distinct a n d selfgoverning nations within the larger s t a t e . T h e r e was a time when eliminating this sense of n a t i o n h o o d a m o n g national minorities was a realistic possibility. After all, France was m o r e or less successful in integrating the Basques a n d Bretons (but n o t the Corsicans) into the majority French national g r o u p in the n i n e t e e n t h century. But this is n o longer a realistic possibility for western democra­ cies. T h e evidence suggests that any national g r o u p that has survived into this century with its sense of national identity intact c a n n o t be pressured into relinquishing its desire for national recognition a n d national autono­ my. France was only successful in the n i n e t e e n t h century because it employed a level of coercion against the Basques a n d Bretons which would be inconceivable now. A n d even where a similar level of coercion 9

10

11

12

226

WILL KYMLICKA

has b e e n employed in this century (for example, against some indige­ n o u s peoples), it has failed to eliminate the minority's national identity. Few, if any, examples exist of recognised national groups in this century accepting integration into a n o t h e r culture, even t h o u g h many have faced significant e c o n o m i c incentives and political pressures to d o so. As A n t h o n y Smith notes, 'whenever a n d however a national identity is forged, o n c e established, it becomes immensely difficult, if not impossi­ ble (short of total genocide) to eradicate' (Smith 1993: 131). So earlier attempts to suppress minority nationalism have b e e n aban­ d o n e d as u n w o r k a b l e a n d i n d e e d counter-productive. But they have also b e e n rejected as morally indefensible. After all, o n what basis can liberal-democratic t h e o r y justify the suppression of minority nation­ alisms? National minorities typically want to regain powers a n d institu­ tions that were unjustly taken from them, a n d they d o so in o r d e r to be able to live a n d work in their own language a n d culture, something which the majority takes for g r a n t e d . For p r u d e n t i a l a n d moral reasons, therefore, an increasing n u m b e r of Western democracies that contain national minorities accept that they are ' m u l t i n a t i o n ' states rather than 'nation-states'. They accept that they contain two or m o r e nations within their borders, a n d recognise that each constituent nation has an equally valid claim to the language rights a n d self-government powers necessary to maintain itself as a distinct societal culture. And this multinational character is often explicitly affirmed in the country's constitution. This shift is reflected not just at the domestic level, but in interna­ tional law as well. T h e last d e c a d e has witnessed a remarkable shift in international n o r m s regarding both stateless nations a n d indigenous peoples. T h e most striking d e v e l o p m e n t regarding indigenous peoples is the Draft UN Declaration on the Rights of Indigenous Peoples, which is working its way t h r o u g h the labyrinthine structure of the United N a t i o n s . But o t h e r international bodies, such as the Inter-American Commission o n H u m a n Rights, have also h e l p e d to codify and imple­ m e n t e m e r g i n g international n o r m s regarding indigenous rights. We also see major developments regarding stateless nations. For exam­ ple, the Organisation for Security a n d Cooperation in E u r o p e adopted a declaration on the Rights of National Minorities in 1991, a n d established a High Commissioner on National Minorities in 1993. T h e UN has been debating a Declaration on the Rights of Persons Belonging to National or Ethnic, Religious a n d Linguistic Minorities (1993); a n d the Council of E u r o p e a d o p t e d a declaration o n minority language rights in 1992 (the E u r o p e a n Charter for Regional or Minority Languages), and a Frame­ work Convention on the Rights of National Minorities in 1995. In short, t h e r e is a c o m m o n trend to codify a n d strengthen the rights of national minorities, although this has taken the form of two parallel 13

14

AMERICAN M U L T I C U L T U R A L I S M

227

developments: o n e set of conventions a n d declarations c o n c e r n i n g indigenous peoples, a n d a n o t h e r set of conventions a n d declarations con­ cerning stateless nations. While often discussed separately, they clearly reflect a c o m m o n trend toward rethinking the status of the 'nations within', accepting the legitimacy of minority nationalism a n d therefore acknowledging the e n d u r i n g reality that we live in ' m u l t i n a t i o n ' states. An increasing n u m b e r of m u l t i n a t i o n states are also r e c o g n i s i n g that these national rights are best p r o t e c t e d t h r o u g h s o m e form of federal or quasi-federal power-sharing which involves the c r e a t i o n of regional political units, controlled by the national minority, with substantial (and constitutionally p r o t e c t e d ) powers of self-government. W h a t we see e m e r g i n g within several western democracies, t h e r e f o r e , is a new form of 'multinational federalism' - that is, a m o d e l of t h e state as a federa­ tion of regionally c o n c e n t r a t e d p e o p l e s or nations, in which b o u n d a r i e s have b e e n drawn, a n d powers distributed, in such a way as to e n s u r e that each national g r o u p is able to maintain itself as a distinct a n d selfgoverning society. I believe this t r e n d is o n e of the most i m p o r t a n t d e v e l o p m e n t s in western d e m o c r a c i e s in the twentieth century. We talk a lot ( a n d rightly so) a b o u t the role of the extension of the franchise to w o m e n , the work­ ing class a n d racial a n d religious minorities in d e m o c r a t i s i n g western societies. But in its own way, this shift from suppressing to a c c o m m o d a t ­ ing minority nationalisms has also played a vital r o l e in consolidating a n d d e e p e n i n g democracy. I n d e e d , it is i m p o r t a n t to stress that these m u l t i n a t i o n federations are, by any reasonable criteria, successful. They have n o t only m a n a g e d the conflicts arising from t h e i r c o m p e t i n g national identities in a peaceful a n d d e m o c r a t i c way, b u t have also secured a high d e g r e e of e c o n o m i c prosperity a n d individual freedom for their citizens. This is truly r e m a r k a b l e w h e n o n e considers the i m m e n s e power of nationalism in the twentieth c e n t u r y . Nationalism has torn a p a r t colonial e m p i r e s a n d C o m m u n i s t d i c t a t o r s h i p s , a n d rede­ fined b o u n d a r i e s all over the world. As we've s e e n , the pervasive a n d violent conflicts between states a n d 'nations w i t h i n ' have b e e n described as t h e T h i r d World War. Yet d e m o c r a t i c m u l t i n a t i o n federa­ tions have s u c c e e d e d in taming this conflict. D e m o c r a t i c federalism has domesticated a n d pacified nationalism, while r e s p e c t i n g individual rights a n d freedoms. It is difficult to imagine any o t h e r political system that can m a k e the same claim. 15

16

Minority Nationalism in the US So Hollinger's critique of minority nationalism seems o u t of step with the e m e r g i n g d e v e l o p m e n t s in o t h e r democracies. But we d o n ' t n e e d to look too far abroad: his m o d e l d o e s n ' t apply to national m i n o r i t i e s in the US.

228

W I L L KYMLICKA

By national minorities, I d o not m e a n African-Americans, the descen­ d a n t s of slaves b r o u g h t to America. Hollinger argues, a n d I agree, that most Blacks in the US have never t h o u g h t of themselves as a separate nation, but r a t h e r have fought for inclusion into the American nation. Whites have promised to make this possible, a n d it is time to make good o n this promise. Hollinger d o e s n ' t say m u c h about how exactly this is to b e achieved, but I share his h o p e a n d belief that, with concerted efforts, Blacks in the US can be b r o u g h t into the postethnic society. My c o n c e r n , however, is with those colonised groups who do think of themselves as 'nations within' - for example, Puerto Rico, the Chamoros of G u a m a n d American Indians. These are the paradigm cases of minor­ ity nationalism within the US. And in each of t h e m , the American gov­ e r n m e n t has basically followed the same pattern we have seen in other Western democracies. In the n i n e t e e n t h a n d early twentieth centuries several efforts were m a d e to suppress these minority nationalisms. For e x a m p l e , when the US c o n q u e r e d P u e r t o Rico, it tried to replace Spanish-language schools with English-language schools, a n d m a d e it illegal to join political par­ ties p r o m o t i n g i n d e p e n d e n c e . Similarly, Indian tribes e n d u r e d a long series of policies (for e x a m p l e , the Dawes Act) aimed at u n d e r m i n i n g their traditional institutions, a n d at breaking o p e n Indian lands for colonising settlers. Today, however, the situation is very different. These national minori­ ties are now treated in effect as 'nations'. Political units have been cre­ ated in such a way as to enable t h e m to form a local majority, and to exercise substantial rights of self-government on a territorial basis. They all possess a distinct political status (for example, the 'Commonwealth' of P u e r t o Rico; the 'domestic d e p e n d e n t n a t i o n ' status of Indians) not exercised by, or offered to, o t h e r territories or sub-units of the U S . " In short, t h e r e is n o distinctively American way of dealing with minor­ ity nationalisms. T h e US has dealt with minority nationalisms in much the same way o t h e r western democracies have: first by attempting to sup­ press t h e m , then by a c c o m m o d a t i n g t h e m t h r o u g h various forms of territorial self-government a n d special political status. Hollinger says very little a b o u t these cases of minority nationalism in the US. N o r is his book u n i q u e in this respect: national minorities are also invisible in all the o t h e r best-selling books on American multi­ c u l t u r a l i s m . In o n e sense, this is u n d e r s t a n d a b l e , since national minori­ ties are relatively peripheral, b o t h geographically a n d numerically, in the American context. Yet they are i m p o r t a n t theoretically, because they rep­ resent the clearest cases where the US has confronted a minority nation­ alism. A n d with respect to these groups, the US is i n d e e d a multination 18

AMERICAN MULTICULTURALISM

229

state, a federation of distinct nations. T h e US treats these groups as p e r m a n e n t a n d e n d u r i n g , a n d as the subject of g r o u p rights. Is Postethnic Multiculturalism Incompatible with Minority Nationalism? Why have liberal democracies shifted toward accommodating minority nationalisms if, as Hollinger claims, these nationalisms are 'ethnic nation­ alisms' based on the primacy of blood a n d descent, which operate o n the same logic as racial segregation? T h e short answer is that Hollinger is simply wrong about the n a t u r e of these nationalist movements. Consider Q u e b e c . Q u e b e c accepts immigrants from all over the world; it has roughly the same p e r capita rate of immigration as the US. Control over immigration is o n e of the powers Q u e b e c nationalists have sought a n d gained, a n d the province administers its own immigration p r o g r a m , actively recruiting immigrants, most of w h o m are non-white. These immigrants are not only g r a n t e d citizenship u n d e r relatively easy terms, but are e n c o u r a g e d by Q u e b e c ' s own 'interculturalism' policy to interact with the m e m b e r s of o t h e r ethnic groups, to share their cultural heritage a n d to participate in c o m m o n public institutions. T h e result is just the sort of fluid hybridic multiculturalism within Q u e b e c that Hollinger endorses. (Indeed, the level of acceptance of inter-racial marriage is considerably h i g h e r in Q u e b e c than in the US.) Far from trying to preserve some sort of racial purity, Q u e b e c national­ ists are actively seeking p e o p l e of o t h e r races a n d faiths to c o m e join t h e m , integrate with them, i n t e r m a r r y with them, a n d jointly help build a m o d e r n , pluralistic distinct society in Q u e b e c . Q u e b e c is not u n i q u e in this. Consider Catalonia or Scotland, or i n d e e d Puerto Rico. All of these minority nationalisms are 'postethnic' in Hollinger's sense, defining m e m b e r s h i p in terms of residence and par­ ticipation in the national culture, n o t in terms of blood or d e s c e n t . To be sure, not all minority nationalisms are postethnic: Basque and Flemish nationalism both have a strong racialist c o m p o n e n t . Similarly, indigenous peoples differ in the extent to which they are defined in terms of r a c e / d e s c e n t . Some indigenous communities in the US and Canada have a d o p t e d 'blood q u a n t u m ' m e m b e r s h i p rules; other communities d e n o u n c e these rules as a violation of the traditional practices of indige­ n o u s peoples (which were generally o p e n to the integration of outsiders). It also violates their self-understandings of themselves as 'nations' and 'cultures', rather than races. In short, the e x t e n t to which a particular form of minority nationalism is racialist or postethnic can only be d e t e r m i n e d by examining the facts, 19

20

230

1

W I L L KYMLICKA

n o t by c o n c e p t u a l fiat or a r m c h a i r speculation. And the clear trend t h r o u g h o u t most western democracies is toward a m o r e o p e n a n d nonracial definition of minority nationalism. In the case of Q u e b e c , for e x a m p l e , the overwhelming majority of Quebeckers forty years ago believed that to be a true 'Quebecois', o n e h a d to be d e s c e n d e d from the original F r e n c h settlers; today, fewer than 20 p e r cent accept this view (Crete a n d Zylberberg 1991). Hollinger's a r g u m e n t h e r e implicitly rests o n a series of widely shared myths a n d misconceptions a b o u t the n a t u r e of minority nationalism. It is worth trying to m a k e t h e m m o r e explicit, so I will identify four such com­ m o n mistakes. Since these myths t e n d to be implicit, it is difficult to d e t e r m i n e to what e x t e n t a particular a u t h o r adopts t h e m , b u t I think that o n e or m o r e of these mistakes underlies many American discussions, including Hollinger's. First, t h e r e is a tendency in the literature to assume that the conflicts raised by minority nationalisms within western democracies are conflicts between a 'civic' (postethnic) nationalism p r o m o t e d by the state, and an ' e t h n i c ' (racialist) nationalism p r o m o t e d by the national minority. In real­ ity, however, in most western democracies, these conflicts are between two c o m p e t i n g forms of civic/postethnic nationalism. Both state national­ ism a n d minority nationalism are defined in postethnic, non-racial t e r m s . And insofar as these are conflicts between two forms of posteth­ nic nationalism, I can see n o reason why liberals should automatically privilege majority or state nationalism over minority nationalism. Second, t h e r e is a tendency to assume that if the majority nation is not defined in ethnic terms, b u t rather is a nation o p e n to all regardless of ethnic descent, t h e n minority nationalisms b e c o m e inherently unneces­ sary a n d pointless, except for those g r o u p s obsessed with racial purity. For e x a m p l e , Rogers Brubaker claims that: 21

22

it is difficult to assert a status as national minority in states such as the United States that do not have clear dominant ethno-cultural nations. If the nation that legitimates the state as a whole is not clearly an ethno-cultural nation but a political nation, open, in principle, to all, then the background condition against which the claim of national minority status makes sense is missing. (Brubaker 1996: 60, n. 6) T h e examples of P u e r t o Rico in the US, Q u e b e c in Canada, Scotland in Britain, Corsica in France or of indigenous peoples t h r o u g h o u t the western world show that this analysis is deeply flawed. National minori­ ties d o n o t seek to maintain themselves as distinct societies because they are excluded o n ethnic g r o u n d s from m e m b e r s h i p in the d o m i n a n t nation. Rather, they mobilise as nations because they cherish their own national identity a n d national institutions, a n d wish to maintain them

AMERICAN

MULTICULTURALISM

231

into the indefinite future. National minorities organise to defend their distinct society a n d culture w h e t h e r or n o t they are eligible for inclusion in the d o m i n a n t nation. We c a n n o t make any headway in understanding minority nationalism within western democracies unless we understand that it is not necessarily, or even typically, adopted as a compensation for exclusion from the major­ ity nation. Rather, it is adopted because of an intrinsic c o m m i t m e n t to the maintenance of the minority's own national identity, culture a n d institu­ tions. H e n c e the fact that the majority nation is postethnic does nothing, in a n d of itself, to resolve or eliminate the claims of national minorities. T h i r d , t h e r e is a tendency to assume that minority nationalism is the e x t r e m e form of what Hollinger calls 'pluralist' multiculturalism (that is, based o n a static, descent-based a n d exclusive conception of g r o u p iden­ tity a n d m e m b e r s h i p ) , a n d h e n c e diametrically o p p o s e d to what h e calls 'cosmopolitan' or ' p o s t e t h n i c ' multiculturalism (where g r o u p identities a n d m e m b e r s h i p are fluid, hybridic a n d multiple). In reality, however, minority nationalism a n d cosmopolitan multiculturalism o p e r a t e at dif­ ferent levels. Nationalism is a doctrine a b o u t the b o u n d a r i e s of political community, a n d a b o u t who possesses rights of self-government. Minority nationalists assert that as 'nations within', they have the same rights of self-government as the majority, a n d form their own self-governing polit­ ical community. It is perfectly consistent with that view to insist that all nations - minority a n d majority - should be postethnic nations. This i n d e e d is o n e way to u n d e r s t a n d the idea of liberal nationalism: liberal nationalism is the view that nations have rights of self-government, b u t that all nations, majority or minority, should be postethnic. Minority nationalism n e e d not, therefore, b e the opposite of cos­ mopolitan multiculturalism. Insofar as it is guided by a liberal concep­ tion of n a t i o n h o o d , minority nationalism does not reject cosmopolitan multiculturalism. R a t h e r it is a doctrine about the unit within which cos­ mopolitan multiculturalism should o p e r a t e . Should cosmopolitan multi­ culturalism o p e r a t e within C a n a d a as a whole or Quebec? Within Spain as a whole or Catalonia? Within Britain as a whole or Scotland? Within the US as a whole, or P u e r t o Rico? In n o n e of these cases is the debate a b o u t the merits of postethnic multiculturalism; n o r is it a debate between 'civic' a n d ' e t h n i c ' nationalism. All of these nations, majority a n d minority, share a postethnic m o d e l in Hollinger's sense. T h e d e b a t e is w h e t h e r t h e r e is j u s t o n e postethnic nation within the state, or m o r e . Hollinger's view seems to be that cosmopolitan multiculturalism should operate at the level of the state as a whole, not Puerto Rico, Quebec or Catalonia. But h e offers n o reasons (that I can see) for this preference, perhaps because h e has never considered the possibility that minority nations can also p r o m o t e a n d embody a postethnic form of nationalism.

WILL KYMLICKA

232

O n e might think that there is an obvious reason to prefer the state as a whole over sub-state regions as the unit of multiculturalism: namely, freedom a n d choice is increased if fluid, hybridic multiculturalism oper­ ates at the largest possible level. But Hollinger himself rejects that argu­ m e n t . T h e logical c o n s e q u e n c e of that view is that cosmopolitan multiculturalism should o p e r a t e at the level of the world. O n such a view, states should have o p e n borders, a n d p u t n o obstacle to the mixing of peoples across state lines. This would be a genuinely 'cosmopolitan' form of multiculturalism. Hollinger rejects that view on the g r o u n d s that Americans form a nation, cherish their national identity, a n d have a right to maintain it into the indefinite future (Hollinger 1998). T h a t is, h e treats Americans as a p e r m a n e n t a n d e n d u r i n g g r o u p that exercises rights of self-government, a n d insists that his 'cosmopolitan' conception of multiculturalism operate within the stable a n d e n d u r i n g boundaries of American nationhood. (In this respect, his preferred model of fluid multiculturalism would more accurately be called 'pan-American' than 'cosmopolitan'.) H e denies that t h e r e is any contradiction in affirming a fluid a n d shifting form of multi­ culturalism within the stable a n d e n d u r i n g boundaries of a nation. I agree with Hollinger that ' t h e cosmopolitan e l e m e n t in multicultur­ alism is compatible with a strong affirmation of American nationality' (Hollinger 1995: 151). But it is also compatible with the strong affirma­ tion of P u e r t o Rican nationality, or Quebecois nationality, or Navajo nationality. If Hollinger thinks that P u e r t o Rican nationalism embodies the static a n d illiberal 'pluralist' m o d e l because it implies that multi­ culturalism should o p e r a t e within the stable a n d e n d u r i n g boundaries of a P u e r t o Rican nation, t h e n so too is the American nationalism that Hollinger defends. Minority nationalism in Western democracies is n o m o r e inherently 'pluralist' t h a n majority nationalism - they can both involve the same c o m b i n a t i o n of fluid multiculturalism within stable national b o u n d a r i e s . And so there is n o possible liberal justification that I can see for saying that Americans have a right to national existence, but n o t P u e r t o Ricans, Catalans or Quebecois. Finally, t h e r e is a tendency in the literature to conflate two separate claims. T h e first claim is that in o r d e r to be consistent with liberal values, nationalisms must be postethnic. I agree with this claim, and have d e f e n d e d it myself. It is o n e of the defining features of a liberal nation­ alism. T h e second claim, however, is that a postethnic model of civic nationalism is inherently incompatible with the recognition of minority nationalism. This is conceptually mistaken, a n d inconsistent with the practice of most western democracies, including the US. As I see it, Hollinger a n d many o t h e r c o m m e n t a t o r s have conflated these two very distinct claims. 23

AMERICAN MULTICULTURALISM

233

D o e s it Matter? But why does this matter? After all, minority nationalism is peripheral to the main debates in the US, a n d to Hollinger's a r g u m e n t . Indeed, h e only refers to it in a few passing references in his book. These references may b e misleading or inaccurate, b u t why make such a fuss a b o u t them? I have focused o n these passages because they are just o n e example of a m u c h larger t r e n d in post-war American thinking. American theorists a n d statesmen have consistently attacked minority nationalism, not only in their writings, b u t also in international forums (for instance, by oppos­ ing international efforts to codify the rights of national minorities a n d of indigenous p e o p l e s , a n d by advising o t h e r countries n o t to accommo­ date minority n a t i o n a l i s m ) . What explains this trend? O n e explanation, I think, is that American lib­ erals have b e e n deeply committed to the postethnic integradon model for Blacks a n d for immigrants (a c o m m i t m e n t I share). And for some reason, American writers have felt that the best way to defend this model for these groups is to say that it is the only acceptable model for any group. Rather than saying that Blacks a n d immigrants d o not see themselves as distinct nations, a n d that minority nationalism is therefore inappropriate for such groups, American liberals say that minority nationalism is unacceptable in principle, even for those groups that d o see themselves as nations. 24

25

I think it is a serious mistake, in theory and practice, to defend one group's claims by rendering invisible a n o t h e r group. I'm not saying that questions c a n n o t be raised about the legitimacy of minority nationalism: not everyone will agree with my interpretation and defence of liberal forms of minority nationalism. But I d o think that it is inappropriate to reject minority nationalism unless or until o n e has carefully studied the issues. For example, what does justice require for involuntarily incorpo­ rated national groups like the American Indians, Hispanics in Puerto Rico or Albanians in Kosovo? If minority nationalism is an unjustified response to such an involuntary incorporation, what is a legitimate response? These are difficult a n d complex questions. Rather than tackling these issues directly or in depth, however, post-war American writers have consistently rejected minority nationalism without any serious analysis. But why think that any of this has h a d a pernicious influence on o t h e r countries? After all, Hollinger's book was written for a domestic a u d i e n c e , a n d the same is t r u e of many o t h e r recent American books that make passing references to minority nationalism. Is there any reason to think that these references have affected how o t h e r countries deal with their ethnic relations? I believe that American models of ethnic relations have indeed had a p r o f o u n d influence o n o t h e r countries. Let m e give two examples:

234

W I L L KYMLICKA

Canada a n d Eastern Europe. English-speaking Canadians have been heav­ ily influenced by American models of liberalism, a n d o n e consequence of this has been a reluctance to accord the Quebecois the sort of public recognition of their national identity they seek, which most other Western democracies have given to their national minorities. I believe that the influence of American liberalism has m a d e it m u c h m o r e difficult to c o m e to an acceptable settlement with Q u e b e c , even though, as I noted earlier, the US itself was quite willing to extend this sort of national recog­ nition to Puerto R i c o . If American writers had emphasised that it was a part of the American practice (even if only a peripheral part) to accom­ m o d a t e minority nationalisms, then I am sure that Quebeckers today would not be so perilously close to seceding from Canada. Despite the ever-present threat of secession in Canada, the situation in Eastern E u r o p e is in many ways m o r e serious. As the old saying goes, the situation in C a n a d a is critical, b u t not serious. For even if Q u e b e c were to secede, the result would probably be two relatively stable liberal democracies in the n o r t h e r n half of the continent, instead of one. In Eastern E u r o p e , the inability to a c c o m m o d a t e minority nationalism is a threat, n o t j u s t to existing boundaries, b u t to democracy itself, and to the existence of a peaceful civil society. T h e inability remains the major obstacle to democratisation in Eastern E u r o p e . T h e r e is almost a direct correlation between democratisation a n d minority nationalism: those countries without significant minority nationalisms have democratised successfully (Czech Republic, Hungary, Slovenia); those countries with powerful minority nationalisms are having a m u c h m o r e difficult time (Slovakia, Ukraine, Romania, Serbia, Macedonia). A n d in this context, the influence of American models of ethnic rela­ tions has b e e n distinctly unhelpful. You might w o n d e r who in these countries pays any attention to American liberals. In fact two groups pay close attention to these American debates. First are the liberal intellec­ tuals within these countries, who naturally look to American liberals for g u i d a n c e (a tendency reinforced by the fact that many of t h e m receive funding from American organisations). Liberals are thin on the g r o u n d in most of these countries, a n d the influence of American liberalism has b e e n to marginalise t h e m even further. Guided by American models, these liberals have h a d little to say a b o u t the a c c o m m o d a t i o n of minor­ ity nationalism, except to c h a n t the m a n t r a that the solution to ethnic conflict is 'individual rights n o t g r o u p rights'. This is an unhelpful slogan since it tells us n o t h i n g a b o u t how to resolve the issues raised by minor­ ity nationalism. T h e conflict in Kosovo, for example, centred on whether political power should be centralised in Belgrade or whether the regional g o v e r n m e n t in Kosovo should have extensive autonomy. T h e 26

AMERICAN MULTICULTURALISM

235

slogan 'individual rights n o t g r o u p rights' provides n o guidance for u n d e r s t a n d i n g this conflict. T h e second g r o u p paying close attention is the majority nationalists. Nationalist g o v e r n m e n t s in these countries have n o t only studied, but also largely a d o p t e d , the American rhetoric that a good liberal democracy should be a 'civic nation'. T h e y a d o p t the language of liberal democracy a n d civic nationalism partly to impress foreign observers, but also for a m o r e i m p o r t a n t reason: it provides an excuse to crush minority national­ ism, a n d to strip national minorities of their separate public institutions a n d rights of self-government. We see this trend in Slovakia, Romania, Serbia a n d in Russia. You m i g h t b e surprised to h e a r that majority nation­ alists in these countries a d o p t t h e language of civic nationalism, but they do. And they d o so precisely because it legitimises policies that inhibit national minorities from expressing a distinct national identity or from d e m a n d i n g national rights. What we see in many of these countries, therefore, is an unholy alliance of liberal intellectuals a n d majoritarian nationalists, both of w h o m invoke American m o d e l s to justify rejecting the claims of national minorities. As I n o t e d earlier, t h e s e attempts to suppress minority nation­ alism can only be achieved by extensive coercion, a n d the result has b e e n to create fear a m o n g the minorities, to exacerbate inter-ethnic relations, a n d to s t r e n g t h e n a u t h o r i t a r i a n t e n d e n c i e s within both the majority a n d minority nationalist m o v e m e n t s . Americans are n o t the only culprits h e r e . French liberals (who are also quite influential in some of these countries) are even worse in their d e n u n c i a t i o n of minority nationalism. And whereas pragmatic Ameri­ cans have always b e e n willing to qualify their principles when confronted with the reality of minority nationalism (such as in P u e r t o Rico), the F r e n c h t e n d to take their principles very seriously, a n d so have b e e n m u c h less a c c o m m o d a t i n g of minority nationalisms (for example, the Bretons, Basques, Corsicans). Neither American n o r F r e n c h writers have e n d o r s e d or e n c o u r a g e d the a d o p t i o n of coercive policies a i m e d at suppressing minority nation­ alism in Eastern E u r o p e . T h e y emphasise the necessity of peaceful dia­ logue a n d the m a i n t e n a n c e of d e m o c r a c y a n d the rule of law. But these subtleties often get lost in t h e translation. W h a t majority nationalist lead­ ers like Milosevic h e a r is A m e r i c a n a n d French liberals saying that a civic nation does n o t accord rights of self-government to national minorities. H e hears that message b e c a u s e it is what h e wants to hear. I should emphasise that A m e r i c a n foreign policy has often encour­ aged states to accept some m i n o r i t y claims. I n d e e d , the American gov­ e r n m e n t has used military force to press Serbia to accord autonomy to 27

236

WILL KYMLICKA

Kosovo. But Milosevic sees this as hypocrisy. H e sees it as yet a n o t h e r case of America trying to impose a settlement on weaker countries that it would never accept at h o m e . After all, d o n ' t American liberals say that we should fight against ethnic minority nationalism and instead seek to build a single, shared civic nation within each state? T h e American position on Kosovo isn't hypocrisy, since Americans have m a d e a similar a c c o m m o d a t i o n with their minority nationalisms in P u e r t o Rico, or American Indian tribes. Indeed, these accommodations are in many ways a g o o d example to the world. Many countries could learn a great deal from the o n g o i n g evolution of the 'domestic depen­ d e n t n a t i o n ' status of American Indian t r i b e s . But the American position o n Kosovo does contradict the official ' m o d e l ' of American ethnic relations, a n d so it will be perceived as hypocrisy unless or until Americans emphasise that the accommodation of minority nationalism is a part of American democracy. I strongly believe that the transition to democracy in the multination states of East­ e r n E u r o p e would have b e e n s m o o t h e r h a d this aspect of the American e x p e r i e n c e b e e n emphasised by American writers a n d statesmen. If Americans want to u n d e r s t a n d a n d contribute to the resolution of ethnic conflict a r o u n d the world, they n e e d to u n d e r s t a n d better their own practices of minority rights. As Benjamin Schwarz puts it, in explaining why Americans misunderstand minority nationalism overseas, 'We get the world wrong because we get ourselves wrong' (Schwarz 1995: 58). I am n o t suggesting that American theorists of multiculturalism put issues of minority nationalism at the front and centre of their theories; the situation of Blacks is, a n d should be, at the centre of American debates a b o u t multiculturalism. But I wish that, if only in a footnote or passing ref­ erence, Americans would admit that accommodating minority national­ ism, far from being un-American, illiberal or undemocratic, is one (small) part of the American experience. In practice, the US has m a d e important strides in securingjustice for its 'nations within': it is time now to build this into o u r theoretical models of American multiculturalism. 28

CHAPTER

13

Hybrid Democracy: Iroquois Federalism and the Postcolonial Project Iris Marion Young

O n the eve of the bicentenary of the Constitution, the US Congress passed a resolution c o m m e m o r a t i n g the influence of the Iroquois Con­ federacy o n the f o u n d i n g institutions. A year later a New York state pub­ lic school c u r r i c u l u m review panel r e c o m m e n d e d teaching that the Iroquois system of governance h a d an impact o n the d e v e l o p m e n t of the institutions a n d practices of the state of New York and the US. These are n o b l e a n d overdue gestures of recognition of Native Americans. It seems that most historians of the period, however, flatly reject the claim that Indian g o v e r n a n c e forms influenced the American Constitution. Critics of multiculturalism regularly p o i n t the finger at the Iroquois influence claim to d e m o n s t r a t e the m a d excesses of the movement. N o less a g u a r d i a n of historical pedagogy than N a t h a n Glazer, however, asserts that teaching children that Indians contributed to the founding of Amer­ ican institutions may be a g o o d thing even if scholars contest a claim to direct influence o n the Constitution (Glazer 1997: 40). Clearly passions r u n high o n this question, o n e that splinters American identity itself. In this c h a p t e r I situate this d e b a t e in the postcolonial project. Anyone interested injustice today must face the project of u n d o i n g the legacies of colonialism. U n d e r s t o o d as a project, postcoloniality does not n a m e an e p o c h at which we have arrived, o n e where colonialism is in the past. O n the contrary, precisely because the legacies of colonialism persist, progressive intellectuals a n d activists should take o n the task of u n d o i n g their effects. T h e postcolonial project has an interpretive a n d institu­ tional aspect. Institutionally, postcoloniality entails creating systems of global democratic g o v e r n a n c e that can m e e t the d e m a n d s of the world's indigenous peoples for self-determination. Because the existing interna­ tional system of nation-states c a n n o t m e e t those d e m a n d s , c o m m i t m e n t to justice for indigenous peoples entails calling those state-systems into 237

238

IRIS MARION YOUNG

question. In the last two sections of this essay I will review other reasons for questioning the system of state sovereignty, a n d offer instead a model of g o v e r n a n c e based o n d e c e n t r e d diverse democratic federalism. This institutional condition presupposes the interpretive aspect of the postcolonial project. Development of the institutional imagination and com­ m i t m e n t to confront the colonial legacy d e p e n d s partly o n rereading the history of modernity, democracy a n d the building of nation-states from the point of view of colonised peoples considered as actors and not merely as those acted u p o n (see Ivison 1997: 154-71). Drawing on the m e t h o d s of postcolonial interpretation offered by Homi Bhabha, particu­ larly his notion of 'hybridity', I use the Iroquois influence debate to reread some e l e m e n t s of the history of colonial a n d republican America for the sake of o u r c o n t e m p o r a r y self-understanding. A m o n g o t h e r things, I find in this r e r e a d i n g an example of the interaction of distinct peoples without sovereign borders that can help us imagine a post-sovereign alternative to the existing states system. Hybridising Historical Consciousness H o m i B h a b h a suggests that narratives of national identity are predicated o n the obligation to forget the multi-dimensional cultural interaction p r o d u c i n g societies a n d institutions, especially in the colonialist interac­ tions of E u r o p e a n peoples with o t h e r peoples of the world: The anteriority of the nation, signified in the will to forget, entirely changes our understanding of the pastness of the past, and the synchronous present of the will to nationhood . . . To be obliged to forget - in the construction of the national present - is not a question of historical memory; it is the construc­ tion of a discourse on society that performs the problem of totalising the people and unifying the national will. (Bhabha 1994: 161)

T h e postcolonial critic can confront colonial power's disavowal of its situatedness and multiplicity by reinterpreting m o d e r n history as hybrid. O n e story of world history describes a lineal progression where universal values of liberty, democracy, technology and economic development b o r n in Western E u r o p e spread a r o u n d the world through the power and knowledge of E u r o p e a n nations. In this story the colonised peoples of the world usually a p p e a r as objects of action, those u p o n whom the power a n d influence of the west is exercised, usually for good, sometimes for illWhile the story includes the e n c o u n t e r a n d conflict of cultures, it does not depict the ideas, practices, institutions a n d events of the Europeans as objects of a n d influenced by the subjectivity of the non-European Others. U n d e r s t a n d i n g colonial history as hybrid, according to Bhabha, m e a n s reversing the linearity of the official story, and allowing 'strategies

239

I R O Q U O I S FEDERALISM

of subversion that t u r n the gaze of the discriminated back u p o n the eye of power' ( B h a b h a 1994: 112). Events a n d institutions in any locale may a p p e a r as p r o d u c t s of cultural interaction where E u r o p e a n s are as m u c h influenced as influencing, a n d the temporality a n d spatiality of action themselves are multi-dimensional: If the effect of colonial power is seen to be the production of hybridisation rather than the noisy command of colonialist authority or the silent repression of native traditions, then an important change of perspective occurs. The ambivalence at the source of traditional discourses on authority enables a form of subversion, founded on the undecidability that turns the discursive condi­ tions of dominance into the grounds of intervention. (Bhabha 1994: 112) 1

T h e furnaces of m o d e r n national a n d empire building either absorb cultural difference in their alchemy or expel them. A hybridising strategy inserts the subjectivity of colonised people into the imperial narrative, allowing the reflective e m e r g e n c e of a 'time lag' between the m o m e n t of signification a n d its hearing. History becomes then not the narrative of a single subject or national identity, b u t the e n c o u n t e r of cultural differ­ e n c e . Neither o n e n o r the Other, the pluralised stories enact intersubjectivity, subjects as relationally constituted, with an interactively constituted world in between (Patton 1995b: 153-71). A m o n g other things, this inter­ pretive strategy upsets colonial dualities reiterated still today: self/Other, inside/outside, civilised/savage, citizen/alien, m o d e r n / p r i m i t i v e . B h a b h a ' s ideas are inspired partly by a Lacanian theory of discourse that I d o n o t feel entirely c o m p e t e n t to interpret or apply. I d o n o t think that I d o his work violence, however, to carry a somewhat simplified ver­ sion into a reflection o n the interaction between indigenous peoples a n d the thirteen British colonies in N o r t h America a n d the m e a n i n g of this interaction for a postcolonial project that can d o justice, a m o n g o t h e r p e o p l e , to the living descendants of N o r t h American indigenous p e o p l e . Hybridising the story of that relationship, as I see it, involves affirming colonial N o r t h America as a terrain of interaction, constructing Ameri­ can subjectivity as ambiguous, a n d fashioning a relational u n d e r s t a n d i n g of g o v e r n m e n t jurisdictions. It could be argued that indigenous p e o p l e have always related colonial history as hybrid in this sense. T h a t is o n e reason to attend to indigenous voices in the effort to generalise a hybrid story to E u r o p e a n s a n d their descendants.

Iroquois-Colonial Interaction and the Influence Thesis Several c o n t e m p o r a r y scholars have contributed to the a r g u m e n t that the founders of the political institutions of the United States were influenced by Native American ideas a n d institutions, including Jack Weatherford

240

IRIS M A R I O N Y O U N G

(1988), Robert Venables (1992) a n d Jose Barriero (1988). I find the work of Donald G r i n d e a n d Bruce J o h a n s e n the most comprehensive, a n d rely primarily o n it for an account of the relationship between British colonists a n d Native Americans. T h e i r book, Exemplar of Liberty (1991), has b e e n amply d o c u m e n t e d a n d the subject of serious criticism by other historians of the period. Contact between Native peoples a n d British settlers in North America p r o d u c e d p r o f o u n d changes on both sides. Each g r o u p found the others strange, a n d they m a d e war on each o t h e r often e n o u g h , but some mem­ bers of both Native American a n d colonial groups also learned from and a d m i r e d the strangers. Roger Williams, for example, learned several Indian languages a n d m u c h about Indian culture and politics. Grinde a n d J o h a n s e n suggest that this knowledge contributed to Williams's design of the g o v e r n m e n t of R h o d e Island in the mid-seventeenth cen­ tury. While conflict between Indians a n d colonists e r u p t e d repeatedly in the two centuries before the American revolution, the same epoch also saw widespread cooperation, trade a n d treaty negotiation. Colonists felt obliged to reach treaties with Indians about land a n d resource use, mili­ tary alliance a n d o t h e r affairs because they recognised the Indians as wellorganised self-governing peoples. Daily life activities were commonly governed by village councils and all g r o u p meetings. Many groups of N o r t h American Indians were organised into complex confederated gov­ e r n a n c e systems, each of which might have included tens of thousands of people inhabiting a n d moving across vast u n b o u n d e d territories. Long before E u r o p e a n settlers a p p e a r e d at the shores of North Ameri­ ca, five nations of the Iroquois - Mohawk, Oneida, O n o n d a g a , Cayuga a n d Seneca - formed a federation that espoused peace a n d brother­ h o o d , unity, balance of power, the natural rights of all people, impeach­ m e n t a n d removal, a n d the sharing of resources. (The Tuscarora people j o i n e d the confederacy in the e i g h t e e n t h century.) They developed an o p e n set of decision-making practices that relied on deliberation, public o p i n i o n , checks a n d balances, a n d consensus. People in any o n e of the federated groups might raise an issue to the confederacy, a n d t h e n the O n o n d a g a chiefs would m e e t to d e t e r m i n e w h e t h e r the issue should be considered by the G r a n d Council of the Confederacy. O n e of the chiefs o p e r a t e d as keeper of the council fire, with the power to call a council. Debate of an issue began with the Mohawk representatives. After they agreed o n a position the issue was discussed by the Senecas, a n d then by the O n e i d a and Cayuga people. O n c e the O n e i d a s a n d Cayugas reached a position, the issue was dis­ cussed again by the Mohawks a n d the Senecas. Finally the issue was sent back to the O n o n d a g a , who at this stage h a d power analogous to judicial review. They could raise objections to a proposal if they believed it was

I R O Q U O I S FEDERALISM

241

inconsistent with the Great Law of Peace. Iroquois principles included relative equality a n d participation. Male chiefs were chosen by w o m e n leaders, who also h a d the power to impeach a n d replace them. W h e n issues were u n d e r discussion by the G r a n d Council the people in the sep­ arate regions a n d villages often e n g a g e d in public discussion a n d debate. T h e p e o p l e could p r o p o s e laws to the council o n their own. W h a t federalism m e a n t to the Iroquois, then, was an assumption of selfd e t e r m i n a t i o n for the m e m b e r nations at the same time as a commit­ m e n t to p r o c e d u r a l unity with the o t h e r five nations and the willingness to have any issue considered for federal decision making. Indian gover­ n a n c e can be considered democratic, moreover, at least because of the fol­ lowing attributes: leaders were chosen o n merit, although they usually came from designated families; they were expected to r e s p o n d to public opinion, a n d in e x t r e m e cases could b e i m p e a c h e d if they abused their power; issues a n d policy proposals could c o m e from anywhere in the fed­ eration; decision-making relied o n deliberation b o t h within a n d a m o n g m e m b e r nations a n d included m e c h a n i s m s of review. As I read it, G r i n d e a n d J o h a n s e n construct a broad a n d a narrow frame for a story of the hybrid constitution of American democracy. While it is n o t certain how m u c h Americans knew of the details of Iro­ quois or o t h e r Indian g o v e r n a n c e systems, many did observe Indian meetings a n d h a d to adapt to Indian protocol in their trading or treaty negotiation. S o m e colonists a n d E u r o p e a n visitors described the Indians as living without law because they lacked formally written principles a n d p r o c e d u r e s , a n d they variously i n t e r p r e t e d this as a sign of either back­ wardness or blissful freedom. Others, however, observed a complex gov­ e r n m e n t , a n d c o m p a r e d I n d i a n oratorical powers to those of the Romans. Some a d m i r e d the consultation, participation a n d search for consensus they observed in Indian decision-making bodies, a n d some saw in the Iroquois Confederacy the virtues of united strength that pre­ served a high level of local self-determination. G r i n d e a n d J o h a n s e n argue that the agency a n d political intelligence of Indians h a d an impact n o t only o n colonists, b u t also on some of those in the h o m e E u r o p e a n countries. Colonists a n d E u r o p e a n visitors wrote detailed e t h n o g r a p h i e s a n d travelogues a b o u t diverse Indian peoples. While these may n o t have b e e n terribly accurate in their descriptions of Indian institutions, they were influential in Europe. Some c o m p a r e d Iro­ quois a n d o t h e r Indian political practices to those of the Greeks, a n d c o m m e n t e d o n Indian statecraft a n d regard for individual autonomy. J o h n Locke c o n s t r u c t e d his image of the state of n a t u r e partly with the lives of these native peoples in mind; that state is o n e without civil soci­ ety, on Locke's account, b u t also o n e of natural liberty a n d the light of natural reason. E n l i g h t e n m e n t fathers of m o d e r n constitutionalism a n d

242

IRIS MARION Y O U N G

democracy such as Montesquieu a n d Rousseau constructed their roman­ ticised fantasies of Indian lives in their effort to p r o m o t e ideas of liberty a n d equality a n d criticise the c o r r u p t i o n a n d subjection of European societies. In ' H u r o n , or Pupil of N a t u r e ' , for example, Voltaire, the prerevolutionary French republican, p u t a scathing critique of French aris­ tocracy a n d hypocrisy into the m o u t h of a H u r o n leader. In the broad frame of G r i n d e a n d J o h a n s e n ' s story, then, the E n l i g h t e n m e n t political p h i l o s o p h e r s that influenced the American founders to establish a democratic republic were themselves conditioned by real a n d imagined interaction with Native Americans. Grinde a n d J o h a n s e n argue that i n d e p e n d e n c e - m i n d e d colonists looked to Indian imagery a n d practices in their project of distancing their loyalty from England and developing the symbols of patriotic American loyalty. By the time of the American revolution, many British colonists had only a distant feeling for England. By examining engravings and paint­ ings, as well as records of patriotic societies, a n d written accounts of revo­ lutionary meetings a n d rallies, Grinde a n d J o h a n s e n d o c u m e n t the significant d e g r e e to which the British colonists sought to construct an American national identity t h r o u g h the use of Indian imagery. T h e rebels of the Boston tea party dressed as Indians less in o r d e r to disguise themselves, G r i n d e a n d J o h a n s e n argue, than to signify their assertion of liberty. Pamphlets a n d b a n n e r s d u r i n g the revolutionary and republican p e r i o d repeatedly used images of Indians or symbols derived from Indian visual art to signify American freedom, equality a n d democ­ ratic self-government. T h e famous snake of the New H a m p s h i r e flag is an original Indian symbol, for example, as is the eagle grasping a cluster of arrows that a p p e a r s o n the dollar bill of the US. Most conspicuous in this story of Euro-American appropriation of Indian imagery, however, are the T a m m a n y societies. F o u n d e d as a secret b r o t h e r h o o d of revolution­ ary patriots, these clubs took their n a m e from a Delaware leader. Their ' m e e t i n g s ' frequently consisted of Euro-Americans dressing as Indians, singing songs a n d d a n c i n g in their own fashion 'as' Indians, and pledg­ ing their loyalty to the American republic. T h e Tammany societies con­ tinued as patriotic associations until well into the n i n e t e e n t h century. T h e story that G r i n d e a n d J o h a n s e n construct of an influence of the Iroquois confederacy o n the evolution of American political institutions goes like this. T h e British colonists relied o n the Indians' support in their military confrontations with the French in the mid-eighteenth century. At a treaty m e e t i n g in 1744 the Iroquois leader Canassteago recom­ m e n d e d to the colonists that they form a federation of their govern­ ments, as the Iroquois p e o p l e had d o n e . An a d m i r e r of the Iroquois p e o p l e a n d their federation, Benjamin Franklin, published a r e p o r t of this meeting, including this speech, which was widely distributed. Ten

I R O Q U O I S FEDERALISM

243

years later the S e n e c a leader Tryonoga, also called Hendrick, a t t e n d e d the c o n f e r e n c e in Albany w h e r e the British colonies drew u p their first Plan of U n i o n . Benjamin Franklin was o n e of the main designers of the Albany Plan. While the C o n t i n e n t a l Congress sat in Philadelphia in 1775 a n d 1776, delegations of Iroquois c a m e to observe a n d delegations of colonists went to m e e t with t h e Iroquois several times. T h e e m e r g i n g Euro-Amer­ ican nation s o u g h t a n d received a pledge of neutrality from the Iroquois in their war with Britain. D u r i n g many meetings the colonists discussed political a n d e c o n o m i c affairs with these a n d o t h e r Indian groups. O n G r i n d e a n d J o h a n s e n ' s account, the Articles of Confederacy which were a d o p t e d by the Continental Congress h a d an earlier iteration in the Albany Plan of U n i o n , which in turn was influenced by the Iroquois Great Law of Peace. W h e n they d e b a t e d what provisions the new American Constitution should contain, the American revolutionaries discussed ideas of the Iroquois federation a m o n g others. J o h n Adams, for example, included a discussion of Indian political institutions in his comprehensive survey of g o v e r n m e n t s of the world. Adams urged the framers of the Con­ stitution to study I n d i a n governance systems thoroughly. Some speeches to the Continental Congress in the years leading u p to the passage of the Constitution invoked Iroquois ideas a n d imagery. T h u s Grinde a n d J o h a n s e n claim that the ideas a n d practices of Iroquois federalism had an indirect influence o n the founding, as o n e of the many streams that flowed into the A m e r i c a n democratic current. Critics of the claim that American political institutions have a hybrid history focus almost exclusively o n the claim that specific elements of the final American Constitution can be directly or indirecdy traced to the Iroquois Great Law of Peace. These critics a p p e a r to take as the historical question w h e t h e r some of the representatives to the Constitutional Con­ gress have the structure or p r o c e d u r e s of the Iroquois confederacy in m i n d when they d e b a t e d the structures a n d procedures of the US. What­ ever the founders knew of the Indian governance systems, they argue, this knowledge h a d n e x t to n o t h i n g to d o with their debates. Some who seemed to m e n t i o n Iroquois institutions positively, such as J o h n Adams, were o n the losing side of the federalist debate. While Benjamin Franklin may have t h o u g h t well of Iroquois political institutions a n d these may have influenced his writing of the Albany Plan of U n i o n , that Plan was merely a military alliance, n o t the constitution of a government. T h e founders were most influenced by E u r o p e a n ideas, including E u r o p e a n models of federation. Much as I want to believe that American democracy is a hybrid p r o d u c t of E u r o p e a n a n d Native American ideas, the broad consensus of historians of the period seems to b e that the thesis has n o basis (Tooker 1988; Levy P. 1996; Payne 1996).

IRIS M A R I O N Y O U N G

244

In light of the strong disagreement over whether a n d how to assign influence of Native American governance systems in the formation of the American Constitution, it is surprising that the two sides appear to agree o n so many o t h e r claims. T h e r e is little question, for example, that from the time of first settlement many Europeans had significant contact with Native Americans, learned m u c h about their ways of life, and many a d m i r e d as well as feared or loathed them. In many regions of North America, British a n d French settlers, along with African slaves, created a hybrid society from the complex e n c o u n t e r of very different cultures (White 1991). N o t an insignificant n u m b e r of Europeans j o i n e d Indian g r o u p s over the course of the two centuries before the American found­ ing, a n d n o t an insignificant n u m b e r of Indians adopted European dress, language a n d ways of living, a n d some were educated in colonial or Euro­ pean institutions of higher learning. Colonists and British officials negoti­ ated h u n d r e d s of treaties with Indian groups, evidence that the Europeans regarded Indians with a certain level of respect, even as in many cases they succeeded in manipulating the treaty process to their own advantage. O n e of the most a d a m a n t critics of the claim that the Iroquois federation influenced the American Constitution, Elisabeth Tooker, nevertheless agrees that at the time of seeking i n d e p e n d e n c e from England the colonists looked to images of Indians to help inspire c o m m i t m e n t to inde­ p e n d e n c e a n d nation-building. Treaty a n d other diplomatic negotiations between colonies a n d Indians indicate that each regarded the other as distinct political formations, b u t unified sovereign states in the m o d e r n sense did not exist on the c o n t i n e n t (Koenigsberger 1989; Tully 1995). A m o n g o t h e r things, the founding of the US began the process of creat­ ing such a m o d e r n unified sovereign state, a process that spelled disaster for the Indians (Countryman 1996). Most of the scholarly a n d journalistic reaction to work like that of G r i n d e a n d J o h a n s e n focuses o n the truth or falsity of the Iroquois influ­ e n c e thesis. T h a t focus, it seems to m e , avoids the i m p o r t a n c e of the a c c o u n t G r i n d e a n d J o h a n s e n make, a n d the evidence they supply of the hybrid play of political ideas a n d symbols r u n n i n g between Native Amer­ icans a n d E u r o p e a n s a n d colonists. From the perspective of a hybrid interpretation of colonial history, a n d for the purposes of the a r g u m e n t for a post-sovereignty global democratic polity that I will make later, I summarise the significance of work like that of G r i n d e a n d J o h a n s e n as follows. By proposing that Indians served for American revolutionaries as exemplars of liberty, G r i n d e a n d J o h a n s e n deconstruct the m o d e r n western discourse that positions the Native Americans as the excluded O t h e r in comparison with which the E u r o p e a n s confirmed their cultural superiority. O n this hybrid interpretation, the Indians regard the Euro­ peans as obsequious servants to distant lords a n d social conventions, while they know freedom. O n this interpretation, Native Americans 2

I R O Q U O I S FEDERALISM

245

stand for an alternative to monarchist E u r o p e a n structures, an alterna­ tive internalised in a plural European-American discourse. Even if evidence does n o t s u p p o r t the claim that the Iroquois federa­ tion directly a n d specifically influenced the evolution of American g o v e r n m e n t , the question of a relationship between the Iroquois govern­ m e n t a n d the US g o v e r n m e n t remains i m p o r t a n t for the way it hybridises the idea of democracy. Many people in E u r o p e a n or European-settled countries implicitly a n d sometimes explicitly construct democracy as a specifically western value. In their struggle for i n d e p e n d e n c e a n d selfd e t e r m i n a t i o n , some colonised a n d formerly colonised peoples of Africa a n d Asia themselves p r o m u l g a t e the claim that democracy is a specifically E u r o p e a n set of institutions n o t appropriate to truly i n d e p e n d e n t nonwestern states. If democracy m e a n s institutions of formal legislatures, elected by citizens in a multi-party competition, a system of administra­ tive bureaucracies to apply the laws, a n d a system of courts to interpret a n d enforce t h e m , then democracy is a specifically m o d e r n a n d western invention. But even the western lineage of democracy is not confined to this image. A t h e n i a n democracy, for example, for centuries romanticised as the most authentic of all democracies, fits this description in almost n o respect. By asking the question, in what ways are the ideas and practices of American democracy similar to the governance system of the Iroquois federation, we pluralise o u r possible u n d e r s t a n d i n g s of democracy. In today's search for new h u m a n possibilities of self-government, partic­ ipation a n d societal cooperation, we o u g h t to look to Indian governance practices, some of which have a living legacy in c o n t e m p o r a r y govern­ m e n t institutions of indigenous N o r t h a n d South Americans, a m o n g o t h e r indigenous peoples. N o r is it absurd for new democracies in Africa to reflect o n some traditional village practices as alternatives to m o d e r n western forms of democracy that offer resources for forging postcolonial African democracies (Wiredu 1997; Eze 1997). Iroquois institutions in particular valued deliberation, an orientation to collective problem-solv­ ing, a n d local self-governance in the context of a strong federation. Con­ t e m p o r a r y democratic theory is m u c h occupied with each of these democratic values, a n d in the next section I will elaborate on the last. T h e project of rethinking democracy for a postcolonial age, I am sug­ gesting, benefits from a hybrid vision of the history of societies a n d gov­ e r n m e n t s that refuses the t r a d i t i o n a l / m o d e r n , savage/ civilised dichotomies. T h e Iroquois influence d e b a t e encourages a p o p u l a r reinterpretation of E u r o p e a n Americans as not only the agents of American history, but also as those in relation to w h o m Native Americans have acted. In this hybrid m o d e , we think of American society a n d identity as a p r o d u c t of the interaction of Native a n d E u r o p e a n cultures; the very m e a n i n g of being American becomes d e c e n t r e d a n d relational. I shall argue that

246

IRIS M A R I O N Y O U N G

such a relational a n d d e c e n t r e d notion of subjectivity and polity con­ tributes to reconceptualising self-determination a n d global governance. T h e story of interaction between settlers a n d indigenous people in the mid- a n d late-eighteenth century in America, finally, provides a concrete image of federated a n d political interaction a m o n g distinctly identifying g r o u p s without the developed centralising a n d disciplinary institutions of the m o d e r n nation-state. While the postcolonial project does not advocate recreating such plural intercultural conditions, it can learn from t h e m . Mid-eighteenth c e n t u r y America was the site of a bloody war of sovereign supremacy between two E u r o p e a n states, France a n d Eng­ land, affecting b o t h Indians a n d colonists. In the midst of the conditions of war, however, the thirteen colonies negotiated interaction with each o t h e r a n d with diverse Indian governments. T h e Indian peoples had complex negotiated a n d federated interactions with o n e a n o t h e r as well. T h e Great Law of Peace spelled o u t a complex set of rules for decision­ m a k i n g a b o u t those matters m e m b e r s of the federation t h o u g h t con­ c e r n e d t h e m all, such as war a n d peace or territorial dispute. These rules were designed in part to ensure the equality a n d c o n t i n u e d autonomy of the federation m e m b e r s as they participated in the wider decisions. O t h e r Indian peoples on the c o n t i n e n t also t h o u g h t of themselves as selfgoverning, a n d many participated in o t h e r federated relationships. At this time each of the thirteen colonies had their own system of gover­ n a n c e ; the seat of g o v e r n m e n t of each was quite far from the others, and settlers outside the cities were quite dispersed. While colonists a n d Indi­ ans considered themselves as dwelling in distinct territories, there were n o strict b o r d e r s separating t h e m . Instead, the places where jurisdiction was clear s h a d e d into wider b o r d e r l a n d s of c o m m o n use a n d sometimes dispute. Colonial territories, moreover, might be 'within' Indian territo­ ries and vice versa. Some of the Lenni Lenape (or Delaware), for exam­ ple, dwelt o n either side of some of the settlements of the Commonwealth of Pennsylvania. So it was with the Seneca a n d the Pennsylvanians and the New Yorkers. U n d e r these circumstances of territorial ambiguity, political autonomy, relative equality of power and interfusion, coopera­ tive relations a m o n g the Indian groups, the colonial groups, and between Indians a n d colonial groups, when they existed, relied on dia­ logue a n d negotiation. I d o not wish to romanticise the relations a m o n g native peoples of this period, or between the native peoples a n d the European-descended set­ tlers. T h e n , as now, there was plenty of violence, exploitation a n d cor­ r u p t i o n in inter-group affairs. T h e point is only to find in the past grounds for bracketing ossified assumptions about jurisdiction, governance and the relation of self-determining peoples. To the extent that indigenous

I R O Q U O I S FEDERALISM

247

peoples a n d o t h e r peoples who reject the state sovereignty model of gov­ e r n m e n t today live out this recollection in their c u r r e n t governance a n d intercultural relations, these g r o u n d s may also lie in the present. Moral Challenges to Sovereignty T h e postcolonial project begins after World War II, when o n e after a n o t h e r the international community of states recognised new sovereign states in the territories of former E u r o p e a n colonies. T h e borders of many of these states were relatively arbitrarily drawn, often gathering peoples who considered themselves distinct u n d e r the rule of o n e state d o m i n a t e d by o n e of the groups. It can be argued that m u c h of the vio­ lence on the Asian a n d African continents is traceable to this process of sovereign state creation. Ideals a n d practices of a global regime consti­ tuted by sovereign states, however, are coming u n d e r increasing norma­ tive a n d practical challenge. As I discussed earlier, an institutional aspect of the postcolonial pro­ j e c t consists in conceiving a n d bringing a b o u t a post-sovereignty global g o v e r n a n c e system. T h e legitimate claims of indigenous peoples today for self-determination c a n n o t be fully m e t within the existing system of global g o v e r n a n c e that assumes the nation-state as the primary interna­ tional actor. C o n s o n a n t with these claims, we n e e d to envision a m o r e federated system of global g o v e r n a n c e with both stronger global regula­ tion than currently exists a n d m o r e regional a n d cultural autonomy. Before sketching some principles for such a global federated democracy, I will review some o t h e r reasons for challenging the principle of sover­ eignty in international affairs. I distinguish the c o n c e p t of sovereignty from that of state institutions. States are public authorities that regulate the activities of those within their jurisdictions t h r o u g h legal a n d administrative institutions backed by the power to sanction. While only states can be sovereign, they n e e d n o t be, a n d many strong state institutions currently exist at a jurisdic­ tional level smaller than sovereign states. State institutions are capable of being subject to review or overriding without losing their status as states. They can share jurisdiction with o t h e r states, a n d their jurisdiction need n o t encompass all the activities in a territory. A sovereign state wields central a n d final authority over all the legal and political matters within a d e t e r m i n a t e a n d strictly b o u n d e d territory (Morris 1998; Pogge 1992) . Sovereignty entails a clear distinction between inside a n d outside. Within a sovereign state there are often partial and lesser g o v e r n m e n t s a n d jurisdictions, but the sovereign g o v e r n m e n t exercises a h i g h e r a n d final authority over them. T h e sovereignty of the 3

248

IRIS M A R I O N

YOUNG

state is partially constituted by the states outside it, moreover, who recog­ nise it as a legitimate sovereign state. This recognition entails a principle of non-intervention; for a state to have final authority implies that n o o t h e r state a n d n o transnational body has the authority to interfere with the actions a n d policies of a sovereign state (Philpott 1995). Some writers claim that states today n o longer have sovereignty in the sense I define h e r e , a n d p e r h a p s never did. It is questionable if states today really exercise centrally coordinated power that is systematically c o n n e c t e d over d o m a i n s of g o v e r n m e n t , a n d that they exercise it as a final authority. State power today, some claim, is in fact m u c h m o r e frag­ m e n t a r y a n d limited than the c o m m i t m e n t to sovereignty would have o n e believe (Morris 1998). Whatever the factual situation of state powers, however, the idea of sovereignty still carries m u c h weight a m o n g political leaders a n d scholars, both regarding the relation of states to internal organisation a n d jurisdictions, a n d international relations. Many today c o n t i n u e to believe that states ought to be sovereign, a n d that to the d e g r e e that their sovereignty is u n d e r challenge or in a process of frag­ m e n t a t i o n , that steps should be taken to reinforce a system of strong sov­ ereign states. O t h e r s disagree, a n d p r o m o t e either internal devolution or the external evolution of transnational authorities. I shall argue that a principle of state sovereignty lacks moral legitimacy, both regarding external a n d internal affairs.

External Challenges

Considerations of global justice call into question the legitimacy of claims by states that they alone have the right to attend to affairs within their bor­ ders a n d have n o obligations to peoples outside their borders. Charles Beitz (1979), T h o m a s Pogge (1992) and O n o r a O'Neill (1996), among others, argue that there are n o privileged grounds for limiting the scope of evaluations of justice to relations between people within nation-states. Moral evaluation of social relations in terms of justice a n d injustice apply wherever social institutions connect people in a causal web. To the extent that people assume the actions of distant others as background to their own, they stand with t h e m in relations of justice. T h e scope and com­ plexity of economic, communication a n d many other institutions in the world today constitute a sufficiently tight web of constraint and interde­ p e n d e n c e that we must speak of a global society. Principles ofjustice apply to relations a m o n g persons, organisations and state institutions in diverse reaches of global society. These claims of justice constitute a double chal­ lenge to the moral boundaries of states. Agents outside of states have some claim to j u d g e and regulate the activities of states over affairs within their jurisdictions, on the o n e hand; states and their members, on the 4

IROQUOIS FEDERALISM

249

o t h e r h a n d , have obligations to people outside their borders. Considera­ tions of economic regulation, h u m a n rights intervention, environmental protection a n d migration are a m o n g those that raise profound issues of justice that challenge sovereignty in this double way. T h e principle of sovereignty gives to states the right a n d power to regu­ late for the benefit of their own m e m b e r s . States ought positively to pursue economic gain for their own citizens at the expense of other people in the world if necessary, so long as they d o not forcefully invade a n d c o n q u e r the territories of o t h e r sovereign states. They have the right to exclude persons from entry into their territory in o r d e r to preserve the privileged access their m e m b e r s have to resources a n d benefits there. States or their citizens owe n o general obligation to others outside, whatever their needs or level of relative deprivation. Any efforts states or their m e m b e r s make to help needy people elsewhere in the world are supererogatory. Several m o r a l a r g u m e n t s can b e offered against this view of the right of non-intervention in states' policies a n d their right to be indifferent to the circumstances of those outside their borders. Charles Beitz questions the moral right of states to k e e p for themselves all the benefits derived from the natural resources that h a p p e n to lie within their borders. Resources such as fertile land, economically valuable minerals a n d so o n are by n o m e a n s evenly distributed a r o u n d the globe. Because the place­ m e n t of resources is morally arbitrary, n o state is entitled to treat t h e m as its private property to b e used only for its own benefit. Because certain resources are necessary for the productive capacity of all societies, they must be considered a global c o m m o n s . Their use a n d the benefits of their use should thus be globally regulated u n d e r a cooperative frame­ work of global justice (Beitz 1979). T h e global resources a r g u m e n t is o n e example of a challenge to the sovereignty claim that outside agents have n o claim to regulate the actions of states over activities that take place within their jurisdiction. T h e state of p r o d u c t i o n , finance a n d c o m m u n i c a t i o n s in the world has evolved in such a way that many actions a n d policies internal to a state nevertheless sometimes have p r o f o u n d effects o n others in the world. A moral challenge to a principle of non-intervention has c o m e most obvi­ ously from environmental c o n c e r n s . States' internal forestry policies, their kind a n d level of industrial pollution regulation, a n d similar poli­ cies, p r o d u c e c o n s e q u e n c e s for the air quality a n d climate of many out­ side their b o r d e r s . Economic a n d communicative i n t e r d e p e n d e n c e , moreover, g e n e r a t e certain international moral claims over o t h e r kinds of internal policies. Financial policies of the G e r m a n or J a p a n e s e states, for example, can seriously affect the stability of many o t h e r economies. Such i n t e r d e p e n d e n c i e s as these call for some form of international regulatory scheme that aims for stable a n d just cooperation.

250

IRIS M A R I O N Y O U N G

Many a r g u e , f u r t h e r m o r e , that c u r r e n t distributive inequality across the globe raises questions of justice that require a globally enforced redistributive r e g i m e . T h e fact that some peoples live in wasteful afflu­ e n c e while many m o r e in o t h e r parts of the world suffer from serious deprivation itself stands as p r i m a facie g r o u n d s for global redistribu­ tion. But these facts of distributive inequality alone d o not make a very s t r o n g case for global e c o n o m i c regulation. More i m p o r t a n t is the his­ tory of d e p e n d e n c e a n d exploitation between the now p o o r a n d now rich regions of the world, a n d the c o n t i n u a n c e of institutional struc­ tures that p e r p e t u a t e a n d even h e l p enlarge global privilege and depri­ vation. Many scholars argue that the c u r r e n t wealth of E u r o p e and N o r t h America c o m p a r e d to societies of Africa, Latin America and South Asia is d u e to a significant d e g r e e to the colonial relations a m o n g these regions that looted for three centuries. While the p o o r e r regions of the world today are c o m p o s e d of i n d e p e n d e n t states with the same for­ mal sovereignty rights as any o t h e r states, many argue that the colonial e c o n o m i c relations between North a n d South persist (Cardoso 1993). T h e e c o n o m i e s of the South d e p e n d on capital investment controlled from the N o r t h , a n d most of the profits r e t u r n to the N o r t h . T h e i r work­ ers are often too poorly paid by multinationals or their local contractors to feed their families, a n d farmers a n d miners of the South obtain very unfavourable prices on a global resource market. Such deprivation has forced most g o v e r n m e n t s of the s o u t h e r n h e m i s p h e r e into severe debt to n o r t h e r n banks a n d to international finance agencies such as the World Bank. This i n d e b t e d n e s s severely restricts the effective sover­ eignty of s o u t h e r n states, because powerful financial institutions have effective power to control their internal e c o n o m i c policies, all for the sake of preserving the existing system of international trade a n d finance a n d the benefits it brings primarily to some in the n o r t h . T h e issue is n o t simply o n e of distributive inequality, that some people in some parts of the world are seriously deprived while others in other parts of the world live very well. Rather, the global institutional context sets different regions in relations of d e p e n d e n c e a n d exploitation with others, a n d this institutional system r e p r o d u c e s a n d arguably widens the distributive inequalities. Redress of unjust deprivation and regulation of the global e c o n o m y for the sake of p r o m o t i n g greater justice thus calls for institutional c h a n g e , a n d not merely a one-time or periodic transfer of wealth from richer to p o o r e r people. In the absence of institutional c h a n g e , many question the moral right of states to limit immigration. According to J o s e p h Carens, for example, excluding p e o p l e from a relatively rich country, which people wish to e n t e r from elsewhere in o r d e r to better their lives, is little different from

I R O Q U O I S FEDERALISM

251

the preservation of a feudal privilege. By the mechanism of immigration control, p e o p l e whose privilege derives from birth are able to protect that privilege from e n c r o a c h m e n t by others w h o h a p p e n to have b e e n b o r n elsewhere (Carens 1987). Internal Challenges Internally, the idea of sovereignty entails that a state has ultimate author­ ity to regulate all the activities taking place within a specific territorial jurisdiction. This often seems to m e a n , by implication, that the same form of law, regulation a n d administration o u g h t to apply to all the peoples a n d locales within the territory. Both these aspects of internal sovereignty are morally questionable, however, because they d o n o t sufficiently recognise a n d a c c o m m o d a t e the rights a n d needs of national a n d cultural minori­ ties. Polidcal recognition for distinct peoples entails that they are able to practise their culture a n d that they can affirm their own public culture in which to express a n d affirm their distinctness. To the degree that peoples are distinct, moreover, they have prima facie rights of self-governance. These points entail that peoples w h o dwell with others within a wider polity nevertheless limit the sovereignty of that wider policy over their activities (Kymlicka 1995). T h e limitation of sovereign authority of a wider polity over groups a n d locales may vary in kind or degree, from local o r group-based a u t o n o m y over nearly all affairs, to self-governance over only a small range of issues, such as family law or the m a n a g e m e n t a n d use of particular resources. As those examples indicate, moreover, local selfd e t e r m i n a t i o n may vary according to whether it is legislative or adminis­ trative or both. Despite the strong claims of most states to be sovereign over all the activities in a territory, the sovereign power of many states today is already limited or restricted in many ways that recognise or a c c o m m o d a t e national, cultural a n d religious differences within their claimed jurisdictions (Levy J. 1997). Many of these challenges c o m e from indigenous peoples. Most of the world's indigenous peoples claim rights of self-determination against the states that claim sovereign authority over them. These claims are difficult or impossible for states organised in the existing states system to accom­ m o d a t e , because they involve claims about the rights to use land a n d resources, a n d the right to develop governance practices c o n t i n u o u s with pre-colonial indigenous practices, which are often at odds with the m o r e formal a n d bureaucratic governance systems of m o d e r n E u r o p e a n law. T h e struggles of most indigenous peoples for culture rights a n d selfd e t e r m i n a t i o n reveal asymmetries between the indigenous peoples' soci­ eties a n d t h e E u r o p e a n societies that colonised them. This cultural a n d

252

IRIS M A R I O N Y O U N G

institutional clash continues to provoke many states to repress and oppress the indigenous p e o p l e . Despite unjust conquest and c o n t i n u e d oppression, however, few i n d i g e n o u s peoples seek sovereignty for themselves in the sense of the formation of an i n d e p e n d e n t , internationally recognised state with ulti­ m a t e authority over all matters within a determinately b o u n d e d territory. Most i n d i g e n o u s peoples seek significantly greater and m o r e secure selfd e t e r m i n a t i o n within the framework of a wider polity (Polanco 1997). Most seek explicit recognition as distinct peoples by the states that claim to have jurisdiction over them, a n d wider terms of a u t o n o m y and nego­ tiation with those states a n d with the o t h e r peoples living within those states. They claim or seek significant self-government rights, not only with respect to cultural issues, but with respect to land and access to resources. They claim to have rights to be distinct political entities with which o t h e r political entities, such as states, must negotiate agreements a n d over which they c a n n o t simply impose their will a n d their law. In their contribution to this volume, Roger Maaka a n d Augie Fleras detail o n e m o d e l of such indigenous self-determination in the context of a wider polity, which they refer to as 'soft' sovereignty. They explicitly eschew a notion of sovereignty as non-interference, a n d instead articu­ late a m o d e l of the relations of distinct peoples in which they engage with o n e a n o t h e r as equals on an o n g o i n g basis. I n d i g e n o u s peoples remain colonised peoples. Despite the locality of their claims, they have forged a global social m o v e m e n t that has achieved significant success since the 1980s in gaining recognition for the legiti­ macy of their claims. In some regions of the world they have had success in motivating some social a n d political changes to a c c o m m o d a t e their n e e d s a n d interests. Properly recognising the claims of indigenous peoples today, however, requires challenging the international system of sovereign states. I n d i g e n o u s peoples worldwide have long been aware of the incompatibility of their claims to justice with the concept of state sov­ ereignty that p r e d o m i n a t e s in international relations. Especially in the last two decades they have organised across different parts of the world, a n d have succeeded, to some extent, in having the uniqueness of their claims recognised by international bodies such as the World Court or the UN. T h e i r social m o v e m e n t s have p r o m p t e d some reforms in the poli­ cies of the states that claim to have jurisdiction over them. Despite these successes, many nation-states c o n t i n u e to repress indigenous move­ ments. T h e i r a c c o m m o d a t i o n to indigenous d e m a n d s for self-determi­ nation requires a degree of institutional change that most states are unwilling to allow, especially if o t h e r states in the international system are not d o i n g so. T h u s indigenous peoples' movements are both a source of 5

253

I R O Q U O I S FEDERALISM

ideas a n d a c d o n beyond the system of sovereign states, a n d at the same time show the limits of that system (Wilmer 1993). Decentred Diverse Democratic Federalism I have a r g u e d that the postcolonial project entails envisioning gover­ n a n c e without sovereignty, partly because the p r e d o m i n a n t m e a n i n g of sovereignty c a n n o t b e kept in place, a n d justice also be d o n e to indige­ n o u s p e o p l e . With some others who question the sovereignty principle, I suggest that we draw some inspiration for an imagination of the future of global g o v e r n a n c e from t h e past before states as we know t h e m h a d fully evolved. In particular, I have suggested that a revaluation of the m e a n i n g of Native American federated governance a n d the pre-state relations of colonists a n d Native Americans aids this project. While many share the criticisms of the system of sovereign states that I have summarised, they assume that we must continue to work within that system because we lack alternatives. To conclude, I sketch a vision of global governance with local self-determination that I call, in accordance with its major principles, decentred diverse democratic federalism. This vision should n o t be construed as the proposal for concrete institutional design, but rather as a set of principles that social movements a n d policy makers should keep in m i n d in their work. In articulating the vision I draw on the work of Gerald Frug, David Held a n d J a m e s Tully, a m o n g others. A long-time advocate of increasing powers of local governance in the US, Gerald Frug points o u t that most concepts of decentralised democ­ racy assume what h e calls a c e n t r e d subject. They assume that a unit of g o v e r n m e n t , w h e t h e r a state or a locale, is an i n d e p e n d e n t , b o u n d e d jurisdiction with sole authority over matters in its purview. Most visions of decentralised democracy implicitly transfer the idea of sovereignty from nation-states to smaller units. Such a c o n c e p t of t h e centred subject, how­ ever, is problematic at any level. Despite the i n t e r d e p e n d e n c e I alluded to above, this c o n c e p t of a u t o n o m y tries clearly to separate a realm of o u r business from an outside realm that is n o n e of o u r business, a n d where outsiders should m i n d their own business a n d leave us alone. Certain feminist a n d postcolonial theories question this 'sovereign self, a n d p r o p o s e to substitute the notion of a relational self that recog­ nises the constitution of selves by interaction with others a n d their inter­ d e p e n d e n c i e s (Yeatman 1994; Nedelsky 1989; 1991). In the theory of a relational self, freedom or a u t o n o m y does n o t consist in separation a n d i n d e p e n d e n c e from others, or complete control over a self-regarding s p h e r e of activity in which others have n o right to interfere. Instead, a subject is a u t o n o m o u s if it has effective control over its own sphere of 6

254

IRIS M A R I O N

YOUNG

action a n d influence over the determination of the conditions of its action, either individually or with others in collective decision-making processes. Frug proposes to extend this ideal of the relational self and the decentred subject to the e m p o w e r m e n t of local government. Instead of assuming that decentralised units must be centred, b o u n d e d and separated from their neighbours in self-regarding a n d self-interested pursuit of local wellbeing, h e proposes that more empowered localities should be understood as situated subjects. While locales or other units are or ought to be selfdetermining, at the same time we should recognise that the web of global, national a n d regional interactions draws all of us into relationships such that actions or events in o n e locale often have profound consequences for others, a n d that much about o u r local context is constituted by our rela­ tionship to those outside. While local a n d regional self-determination are important values, n o jurisdiction ought to be sovereign. To reflect this, Frug calls for strong federated a n d negotiated regional governments in which local governments a n d their citizens directly participate (Frug 1999). I propose to extend this principle of federalism to the relationship between peoples at both regional a n d global levels. T h e first element in a vision of global democracy, then, is local self-deter­ mination, but without sovereign borders. I take the claims of self-determi­ nation within the context of a wider polity made by many indigenous peoples as a model of what such local governance might mean. Regions, peoples, even non-governmental organisations, can each be thought of as having claims to self-determination, b u t n o n e ought to be sovereign. This means rejecting a conception of self-governance as non-interference, clearly separating a realm of our business from a realm outside that is n o n e of o u r business, a n d where those outside must keep o u t of o u r business. W h e t h e r at the level of individual persons, locales, local regions, nations or continents, self-determination subsidiarity decisions should be made and carried o u t at the most local level possible. Others have a right to make a claim to be party to a decision a n d its execution, or to review them, only if they can show that the issue and decision materially affect them. When issues a n d actions are thus mutually affecting, parties should make the decision together. T h u s a principle of self-determination, as distinct from the principle of sovereignty, gives prima facie right of non-interference with participatory rights in collective decision-making in those many cases when the prima facie autonomy is justifiably overridden. T h u s with David Held, T h o m a s Pogge a n d others, I envision a principle of local self-determination enacted in the context of global governance structures (Held 1995). Both international distributive justice a n d selfdetermination would be better served by m o r e global centralisation of some of the powers that supposedly sovereign states currently have, a n d at the same time m o r e regional a n d local control at the level below that

I R O Q U O I S FEDERALISM

255

of c u r r e n t nation-states. While these may sound like contrary goals, the e x p e r i e n c e of some groups with the E u r o p e a n u n i o n , for example, offers some g r o u n d s for thinking that m o r e global regulation can enable m o r e local control as c o m p a r e d with the c u r r e n t states system: locales can relate directly to global authorities in o r d e r to challenge a n d limit the ability of nation-states to control them. I imagine a global system of reg­ ulatory regimes to which locales, regions a n d states relate in a nested fed­ erated system. T h e global level of governance is 'thin', in the sense that it only lays down r a t h e r general principles with which all jurisdictions must comply. Interpretation a n d application of the principles, as well as any governance issues that d o n o t come u n d e r the principles, are left to local jurisdictions. Public administration, according to this vision, is local a n d regional, which is to say that each locale has the power to decide for itself how it complies with the general regulatory principles. My p u r p o s e is n o t to design global governance institutions, b u t only to set out a n d a r g u e for a few principles of postcolonial governance. In that spirit, I envision at this ' t h i n ' level of global governance seven kinds of issues a b o u t which moral respect a n d international justice would seem to call for a global regulatory regime: peace and security; environment; trade a n d finance; investment a n d capital utilisation; c o m m u n i c a t i o n s a n d transportation; h u m a n rights, including labour standards a n d wel­ fare rights; citizenship; a n d the m o v e m e n t of peoples. Each of these issue areas already has an evolving regime of international law that could be built u p o n to create a global regime with greater e n f o r c e m e n t strength a n d resources for carrying o u t its purpose. For the most part, however, states are the subject of what international regulation exists. An impor­ tant aspect of d e c e n t r i n g governance t h r o u g h global regulatory regimes would consist in making at least some of the activities of non-state organ­ isations, such as indigenous groups, municipalities, corporations, non­ profit service associations a n d individuals, directly addressed in global regulation, with state, regional a n d local governments serving as the tools of i m p l e m e n t a t i o n . I d o n o t envision a single sovereign g o v e r n m e n t - a world state - that legislates regulation in these areas. I share with many others a fear a n d suspicion of the very idea of a single centralised g o v e r n m e n t entity o n a global scale. At a global level, m o r e than any other, a principle of the sep­ aration of powers is vital. T h u s I imagine that each regulatory regime has a functional jurisdiction legally separate from those of the others, each with its own regulative function. Each provides a thin set of general rules that specify ways that individuals, organisations a n d governments are obliged to take a c c o u n t of the interests a n d circumstances of o n e another. T h e visionary founders of the UN h o p e d that its institutions would evolve this way, a n d some of t h e m would still have the potential to

256

IRIS M A R I O N Y O U N G

d o so if they h a d the s u p p o r t of most of the world's governments and their p e o p l e . Held imagines global governance with nested levels of jurisdiction. G o v e r n m e n t would start with the p r e s u m p t i o n that an issue or conflict should be dealt with in locales or in associations not territorially based. If conflict is n o t resolved or if additional agents have a legitimate stake in the issue, then the g o v e r n a n c e structure would kick u p to a m o r e com­ prehensive level, a n d so on to a level of global j u d g e m e n t a n d regulation. Within such a nested set of governance relationships there would be n o reason to eliminate that level of organisation now called the nation-state. T h e uniformity, centrality a n d final authority of that level, however, would b e seriously altered. Decentred federalism allows sovereignty at n o level. While t h e r e is a p r e s u m p t i o n of local or associational self-determi­ nation, outsiders have a right to claim that they are affected by a unit's or an agent's business, a n d problems a n d conflicts should be worked out t h r o u g h federated democratic negotiations and decision-making that create larger units. With Held, I envision regimes of global federation as democratic. Some might regard this as the most far-fetched of all the elements in the vision. To the d e g r e e that m o r e global coordination a n d negotiation occurs today t r a n s c e n d i n g the level of existing states, most are deeply u n d e m o ­ cratic. T h e growing global power of private corporations a n d financial institutions is explicitly u n d e m o c r a t i c . T h e tribunals of international law have few c h a n n e l s of democratic accountability. Scholars a n d journalists b e m o a n the 'democratic deficit' they observe in the operations of today's most complex a n d thoroughly developed transnational governance body, the E u r o p e a n Union. Most of its policies have been developed and imple­ m e n t e d by a relatively small g r o u p of state-based elites, with little or no opportunity for the participation of ordinary citizens and locales (Pogge 1997). Especially because of the power and structure of the Security Coun­ cil, the UN is not a democratic institution. Some might claim that at this level democratic participation and accountability is simply not possible. Of course t h e r e are h u g e questions of institutional design for making d e c e n t r e d global federalism democratic, and I c a n n o t begin to address those. At the level of vision, h e r e are some things to bear in mind. First, o n e of the reasons to insist on localism, the devolution of sovereign authority o n t o m o r e local units, is to p r o m o t e democracy. Participation a n d citizenship are always enacted best at a local level. Democratic fed­ erated regimes of global regulation, however, d o require institutions of representation a n d policy deliberation at levels far removed from the local. A global environmental regulatory decision-making body would n o t n e e d to b e any more removed from ordinary citizens than national legislatures currently are. For o n c e we move beyond a local level, any

I R O Q U O I S FEDERALISM

257

polity - national, hemispheric or global - is an 'imagined community', whose interests a n d p r o b l e m s must be discursively constructed as involv­ ing everyone, because p e o p l e d o n o t have experience of most of the oth­ ers in the polity. This p r o b l e m is n o greater for transnational a n d global regulation than it is for the existing nation-state. Institutions of repre­ sentation must b e constructed with mechanisms of p o p u l a r a n d public accountability in regional a n d global regimes. Postcolonial possibilities of transportation a n d c o m m u n i c a t i o n , finally, enable the formation of public spheres c o m p o s e d of active citizens in global civil society. By m e a n s of strong local organisation, ordinary citizens have organised knowledgeable a n d obstreperous civic publics a r o u n d many major inter­ national treaty negotiations a n d policy conferences in the last d e c a d e . With J a m e s Tully, finally, I envision d e c e n t r e d democratic global federalism as diverse. In Strange Multiplicity, Tully looks to p r e - m o d e r n political a n d legal relations to fuel o u r imagination on alternative legal discourses a n d institutions (Tully 1995). As I have d o n e earlier, h e reflects on the hybrid m o m e n t of intercultural c o m m u n i c a t i o n between i n d i g e n o u s peoples a n d E u r o p e a n s o n the North American c o n t i n e n t before the e m e r g e n c e of nation-states. Aboriginal peoples were able to a p p r o a c h the E u r o p e a n settlers to negotiate treaties a n d agreements in p a r t because they h a d long histories of dealings with o t h e r Aboriginal p e o p l e s whom they recognised as distinct, and h a d institutions a n d prac­ tices for negotiating a r r a n g e m e n t s of cooperation a n d a c c o m m o d a t i o n (as well as fierce institutions of war when they chose n o t to a c c o m m o d a t e or c o o p e r a t i o n broke d o w n ) . Tully extrapolates t h r e e 'constitutional conventions' from this e x a m p l e of treaty constitutionalism, which h e believes can b e generalised as ideals for a postcolonial politics: mutual recognition, c o n s e n t a n d continuity. Parties to negotiation on terms of c o o p e r a t i o n a n d j o i n t regulation must first mutually recognise o n e a n o t h e r as distinct b u t n o t closed political entities, with their own inter­ ests, m o d e s of discourse a n d ways of looking at the world. In their nego­ tiations they d o n o t seek o n c e a n d for all a g r e e m e n t on a general set of principles, b u t r a t h e r they seek to reach a g r e e m e n t on issues of distribu­ tion or institutional organisation o n particular matters of contention or uncertainty. In the process of negotiated interaction they maintain con­ tinuity with their pasts, each party's distinctness is affirmed, they seek to maintain continuity with previous agreements, a n d to forge new links with new a g r e e m e n t s that will have some lasting effect, t h o u g h they are always also revisable by m e a n s of new negotiations. Tully describes what emerges from such a process of interaction and negotiation a m o n g distinct groups as 'diverse federalism'. T h e local groups unite in federated a r r a n g e m e n t s that may be quite large and gov­ e r n many aspects of societal life. As federated, however, they maintain

258

IRIS M A R I O N Y O U N G

strong presumption of local or group-based self-governance. T h e feder­ ated relation to wider legal arrangements is diverse in several respects. A polity in the m o d e of diverse federalism publicly recognises the diversity of peoples, ways of life, modes of thinking a n d forms of self-government that make it u p . W h e n units of the federated polity dialogue a n d negotiate about matters of interactive or j o i n t concern, they d o n o t assume a single c o m m o n idiom of discussion, self or c o m m o n premises - or a single com­ m o n way of expressing themselves. Instead, they try to be open to the diverse discourses a n d assumptions of o n e another in order to understand how they are similar a n d how different. T h e relationships in which the diverse units a n d groups stand to the federation, finally, are not necessar­ ily uniform. Agreements a n d regulations may apply to different units in different ways a n d degrees, or indeed, some may not apply at all. T h e postcolonial project entails, I have suggested, challenging the lin­ earity of western history a n d recognising the history of both the colonis­ ers a n d the colonised as hybrid. Most places, institutions a n d practices are constituted t h r o u g h intercultural interaction without a b o u n d e d self. Politically, the postcolonial project involves recognition of the claims of i n d i g e n o u s peoples today for self-determination a n d challenging the existing international system which by m e a n s of the institutions of state sovereign preserves privileges for people in the n o r t h at the expense of those in t h e south. I have sketched some ideas of d e c e n t r e d democratic diverse federalism as a system of global governance with local selfd e t e r m i n a t i o n as an alternative to that states system.

Notes

1 Introduction 1 T h e historical material is now vast. For important recent discussions see Pagden 1982; 1995; Tuck 1999; Tully 1993, 1995; Connolly 1994; Arneil 1996; Said 1994; Chatterjee 1993; Cooper and Stoler 1997; Reynolds 1992, 1996; Walker 1987; Slattery 1987, 1991; Williams 1990, 1997; Canada, Royal Com­ mission o n Aboriginal Peoples 1996a. 2 For more discussion o n the nature of western political theory in general see the essays in Vincent 1997. 3 There were significant strands of moral and political thought that resisted such assumptions. For a discussion of some of these strands and their limits, see Pagden 1995. 4 Note that Kymlicka has been criticised by some for being unwilling to impose liberal principles on groups like indigenous peoples; see, for example, Okin 1998. 5 See, for example, the Symposium on Multicultural Citizenship in Contestations 1997: 4, 1. 6 For a development of this claim see James Tully's chapter in this book and references therein. O n the 'governmental' character of this aspect of the lib­ eral state with regard to cultural minorities see Chatterjee 1993: 220-39. 7 See the important discussion by Slattery 1987: 745-78 especially at p. 748: So far as the doctrine of aboriginal rights is concerned, a native group that in the past lived mainly by hunting, fishing and gathering may now turn its lands to farm­ ing, ranching, tourism or mineral development.

See also Delgamuukwv. British Columbia (1997) 3 SCR 1010, especially Lamar CJ at paras 116-18, 123-24. T h e chapter by Barcham also touches on these issues. 8 There has been some debate over whether or not it is appropriate to italicise words in Maori. Our contributors take different stances on these issues. Given our desire to reflect, in part, the diversity and complexity of arguments concerning indigenous peoples' claims, we see no reason to impose a stan­ dard typographical practice where, in fact, o n e does not exist.

259

260

N O T E S (PAGES 1 9 - 3 7 )

9 It has been argued on the grounds of liberal neutrality that the state has no business subsidising the cultural choices of individuals, but equally, has no business interfering with them. Hence there are no grounds for group rights, but individuals should be free to form or re-affirm their commitment to var­ ious kinds of associations (cultural or otherwise). See Kukathas 1997b. 2 Waitangi as Mystery of State: Consequences of the Ascription of Federative Capacity to the Maori 1 Colonial Office memorandum CO 209/2:409. Reference given by Paul McHugh in Kawharu 1989: 31, 57. 2 For Chief Justice Prendergast's judgment in the case Wi Parata v. Bishop of Wellington J877, see Kawharu 1989: 110-13. 3 For a short statement of the view that this was a 'Declaration of Indepen­ dence' intended to establish a Maori sovereign state and countered by the Treaty of Waitangi, see Durie 1998: 2-3. For the historical circumstances, with emphasis on the role of James Busby as resident on behalf of the Crown, see Orange 1987: 19-23. 4 For the enlargement of vocabulary from rangatiratanga into mana, see Durie 1998: 2 - 3 . He uses the latter term to constitute the entire Maori world-view as a basis of identity and sovereignty. I continue to use rangatiratanga as a starting point for the non-Maori reader who is encountering the question. 5 The term 'contact' is a key o n e in Pacific historiography, denoting the m o m e n t at which the encounter between cultures began. 6 I owe much here to conversations with Mark Hickford at St Antony's College, Oxford. 7 See Windschuttle 1994 and the ensuing exchange in La Capra, Baswick & Leeson 1999: 7 0 9 - 1 1 , alluding to the exchange between Peter Munz and Anne Salmond (Munz & Salmond 1994: 60ff). 8 For Locke on 'federative power', see Second Treatise, chapter 12, sections 143-48; it is mentioned last. 9 For a reconstitution of the Maori universe of utu, see Salmond 1997. The Maori cosmogony is set forth, and stated as the basis of cultural claim, in Durie 1998, and many other authors. 10 For questions about pakeha identity and history, and whether the word pakeha adequately ascribes them, see Sharp 1997: 64-9. 11 A meeting place where strangers are challenged, then recognised as guests, and where debate occurs among those qualified to take part in it. 12 T h e ivaka is the sailing vessel, single or double-hulled, in which Polynesians navigated the Pacific. The connotations of 'galley' make it a better English translation than 'canoe'. It is here used as a Maori translation of'ship'. For tau nw'and its ambivalences, see Sharp 1997: 65-6. 3 The Struggles of Indigenous Peoples for and of Freedom 1 For the failure of Western political theorists to enter into a just dialogue with indigenous peoples and their political traditions, see Turner 1997. I am greatly indebted to this Anishnabai political philosopher for helping me to understand the shortcomings of Western political theory in relation to indigenous political theory, as well as the possibilities for a fair dialogue. See also Turner forthcoming.

N O T E S (PAGES 3 8 - 4 7 )

261

2 T h e best introduction to how these two concepts are used by indigenous peoples is Turner 1997; forthcoming, and Alfred 1999a. I am greatly indebted to this Kanien'kehaka Mohawk political scientist for helping me to understand the system of internal colonisation and the two arts of resistance and freedom practised by indigenous peoples. See also Alfred 1995. 3 For a summary of the historical research on the four dimensions of coloni­ sation over four historical periods in Canada, see Royal Commission on Aboriginal Peoples 1996a. 4 Accordingly, the techniques of government standardly have two objectives: to cope with the immediate situation in the short term and to move indigenous peoples towards extinguishment in the long run. See, for example, the four policies analysed by the Royal Commission 1996a: 245-604. 5 For a summary of historical research o n the three strategies of extinguishing rights, see Royal Commission 1996a: 137-200, 245-604, and the subhead 'Legitimations of Internal Colonisation'. 6 For the strategies of assimilation and accommodation, see Armitage 1995; Royal Commission 1996a: 201-44, 245-604; Culhane 1998: 90-110; Warry 1998 and 'Legitimations of Internal Colonisation'. 7 For the concept of a 'word warrior', see Turner forthcoming, and the sub­ head 'Struggles for Freedom'. For a recent statement of indigenous sover­ eignty and self-determination, see Alfred 1999b. 8 T h e extensive research commissioned by the Canadian Royal Commission on Aboriginal Peoples from 1991 to 1996 is a good introduction to this field. 9 Calderet al. v. AG BC (1973), 34 DLR (3rd) 145 [1973] SCR 313: 156. For background, see Raunet 1996. 10 Delgamuukw v. BC [1997] 1 CNLR 14: 145. (Henceforth in text as Delgamuukw 1997.) For an analysis of Delgamuukw, to which I am greatly indebted, see McNeil 1998. For a broad textual and contextual analysis of the cases leading up to Delgamuukw in 1997, see Culhane 1998. 11 R. v. Sparrow [1990] DLR (4th): 404, cited in Asch 1999: 439. 12 T h e date the Court gives for the assertion of sovereignty over indigenous peoples and their lands is 1846, the year of the Treaty of Washington between the British Crown and the US in which the southern border of the colonies of British Columbia and Vancouver Island was settled between them. 'Settle­ ment' is perhaps a misnomer as the immigrant settlements were resettle­ ments on lands from which indigenous peoples had been removed (see Harris 1997). These resettlements covered a tiny portion of British Columbia and were nowhere near the Gitxsan and Wet'suwet'en territories. The indige­ nous population still outnumbered the non-indigenous population when the colony joined Canada in 1871 and their lands were transferred to the Crown in Canada without their consent. See the subhead 'Struggles for Freedom' for the rejection by the International Court ofJustice of the Supreme Court's type of argument that setdement and recognition by another European power without the consent of indigenous peoples legitimates sovereignty. 13 Delgamuukw 1997: 114, 141. For the appeal to their 'distinctness' as 'aborigi­ nals' as the sole basis of aboriginal rights in earlier judgments, see Asch 1999: 432, 436-37, 439. For the Court's rejection of any appeal to the general and universal rights of the Enlightenment as a source of aboriginal rights, see Van devPeet (1996) 137 DLR (4th): 289 (SCC): 300, cited in Asch 1999: 435, 439. Asch argues that this feature of the Court's judgments legitimates and con­ tinues the colonial status of indigenous peoples.

262

N O T E S (PAGES 4 7 - 5 2 )

14 This is the main thesis of Asch 1999. 15 For these justifications, see Turner 1997; Williams 1990; Pagden 1995; Culhane 1998: 3 7 - 7 2 and Tully 1993: 5 8 - 9 9 , 1 0 4 . McNeil 1998: 11-12 comments: This sounds very much like a familiar justification for dispossessing Aboriginal peoples in the heyday of European colonialism in Eastern North America - agri­ culturists are superior to hunters and gatherers, and so can take their land. But Lamer CJ was not referring to the seventeenth and eighteenth centuries - he was talking about the present day, as justification for infringement only became rele­ vant after Aboriginal rights were constitutionalizcd in 1982!

16 Delgamuukw 1997: 161. Lamer CJ is citing with approval an earlier case, Glad­ stone, para 73. 17 The Government of Canada, the Government of British Columbia and the Nisga'a Nation, Nisga'a Final Agreement (1998), Preamble, clauses 2, 3, 6, p.l. T h e Agreement was signed by the three parties on 4 August 1998 after twenty years of negotiation. T h e Nisga'a people ratified the Agreement by a vote of 61 per cent in a referendum and the people of British Columbia ratified it by a narrow majority vote in the provincial legislature. As of September 1999 the federal government has not ratified the Agreement. There are two court challenges to the Agreement that the self-government provisions violate the constitutional division of powers and that it violates the Charter rights of nonaboriginal citizens. O n e indigenous nation, the Gitanyow, claim that the orig­ inal Nisga'a land claim includes part of their traditional territory. For an overview of the arguments pro and contra, see the articles in British Columbian Studies 1998-99. For the legal and historical background, see Foster 1998-99 and Raunet 1996. 18 See Nisga'a 1998: 31-158 (land and resources); pp. 159-95 (self-government and justice). For details of the land settlement, see Appendices. 19 See, for example, the 1989 submission of the Attorney General of Canada in defense of the earlier, lower-court challenge by the Gitxsan and Wet'suwet'en peoples for legal recognition of their rights to jurisdiction over their tradi­ tional territories. It states (cited in Asch 1999: 444, n. 29): T h e plaintiffs' claim to ownership and jurisdiction over all the lands in the claim area. T h e Attorney General of Canada responds: Ownership and jurisdiction con­ stitute a claim to sovereignty. If the Plaintiffs ever had sovereignty, it was extin­ guished completely by the assertion of sovereignty by Great Britain.

20 Although the provincial government has heralded this treaty as a 'template' for the treaties now under negotiation with fifty other First Nations, most of the other First Nations have said that it is not a template. For a devastating criticism of the Agreement, and the modern treaty process in British Colum­ bia more generally, as a strategy of assimilation, see Alfred 1995: 119-28. 21 For hinge propositions, see 'Struggles of Freedom' and note 42. 22 This starting point is a paraphrase of John Marshall, an early Chief Justice of the US, in Worcester v. the State of Georgia in 1832 (6 Peter's Reports, 515-97). T h e two-step procedure, international treaties and continuing sovereignty are also features of Marshall's famous argument. See Tully 1993: 117-27. This is incompatible with his earlier statement that indigenous nations are domestic and dependent, unless an indigenous nation has agreed to this status in inter­ national negotiations, but there is no evidence of this. For the limitations of

N O T E S (PAGES 5 2 - 5 4 )

263

Marshall's use of the prior and continuing sovereignty argument, see Turner 1997. Another famous articulation of the prior and continuing sovereignty argument is the Kaswentha or Two Row Wampum model of treaty-making between free and coexisting peoples of the Haudenosaunee or Iroquois con­ federacy. See Tully 1993: 127-29 and Alfred 1999a: 5 2 - 3 , 104, 113. 23 This fundamental principle has been upheld by the International Court of Justice in its Advisory Opinion Concerning the Western Sahara (1975). See note 28. 24 This understanding of treaties and of the Royal Proclamation of 1763, as international treaties among equal nations or peoples, is the way treaties are understood by indigenous peoples and it has gained considerable historical and normative support by Western scholars. See Burrows 1997; Venne 1997; Royal Commission on Aboriginal Peoples 1995a: 59-70; 1996b: 18: In entering into treaties with Indian nations in the past, the Crown recognized the nationhood of its treaty partners. Treaty making . . . represents an exercise of the governing and diplomatic powers of the nations involved to recognize and respect o n e another and to make commitments to a joint future. It does not imply that o n e nation is being made subject to the other.

25 See Royal Commission on Aboriginal Peoples 1996a: 6 7 5 - 9 6 . That is, i n d i g e n o u s p e o p l e s are equal partners ivith Canada, not subordinate part­ ners already in or o/Canada. For the latter view, see Canadian Royal Com­ mission 1993. There is a tension between these two views in the final Report o f the Royal Commission. For a more detailed account o f the for­ mer view, see Tully 1999. For an attempt to discuss the argument in the context of Australia, see Tully 1998. 26 For this conception of non-state and non-exclusive sovereignty, as 'popular' sovereignty or a 'free people', see Alfred 1999a: 5 4 - 7 2 and Turner 1997: 19-30. For a comprehensive account and pragmatic defence of this and the self-determination argument, based on a critical review of the extensive lit­ erature generated by the Royal Commission, see Murphy 1997. For a similar study for Australia, with more emphasis on the self-determination argument, see Strelein 1998.1 am greatly indebted to these two excellent theses. See also the reconstruction and application of the prior and continuing sovereignty argument by Williams 1997. 27 See Murphy 1997; Strelein 1998; Venne 1998 and Macklem 1995 for the com­ plementarity of the two arguments. When these two arguments are presented from an indigenous perspective, there is always in addition the reference to the special relation that indigenous peoples have to the lands they have occu­ pied and identified with for millennia, a relation that is not captured by West­ ern notions of private property or jurisdiction. For an introduction to this holistic understanding of being-in-the-world, see Alfred 1999a: 42-4; Royal Commission on Aboriginal Peoples 1996: 4 3 4 - 6 3 and Venne 1998: 122-28. 28 See Venne 1998: 6 8 - 1 0 6 for a careful survey of these documents and the major commentaries on them. Compare Murphy 1997: 116-51 and Strelein 1998: 54—86. Recall that the Supreme Court of Canada rejected an appeal to the universal right of self-determination as a ground of Aboriginal rights (see note 13). 29 International Court of Justice (1975) summarised in Venne 1998: 4 5 - 7 . The Court continued this line of reasoning in Case Concerning East Timor (Portugal v. Australia) (1995). For the Supreme Court of Canada's use of the argument

264

30

31

32

33

34

35 36

37 38

39 40

41 42

N O T E S (PAGES 5 4 - 5 8 ) of discovery and non-consent that the ICJ rejects in Western Sahara see note 12, and for the use by the Attorney General of Canada of an extinguishment argument that the IJC also rejects, see note 19. See Venne 1998: 5 1 - 3 , 9 2 - 4 , 107-63 for the struggles over the Draft, and 2 0 5 - 2 8 for the Draft Declaration. The right of self-determination is asserted in Article 3 and qualified in Article 31. Collective rights embodied in a claim to self-determination are seen as a threat to the sovereignty of the dominant state. This tension between indige­ nous self-determination and the state's assertion of [exclusive] sovereignty is a recurrent theme throughout this discussion [at the UN] as it is the basis of arguments against the recognition of a right of Indigenous peoples to selfdetermination (Strelein 1998: 5 5 - 6 ) . Declaration on the Granting of Independence to Colonial Countries and Peoples Res­ olution 1514 (XV) 14 December 1960, GA Official Records, 15th session, Suppl. no. 16. For the studies of four Special Rapporteurs see Venne 1998: 7 5 - 8 2 , especially the study by Aureliu Cristescu, cited at 76. Declaration on the Granting of Independence to Colonial Countries and Peoples Res­ olution 1514 (XV) 14 December 1960, GA Official Records, 15th session, Suppl. no. 16, 66, paras 6-7 together with Resolution 1541 (XV) GAOR 15th session, Suppl. no. 16, Principle IV, 29. See Strelein 1998: 59-60. This saltwa­ ter restriction on self-determination was introduced in 1960 in explicit oppo­ sition to the Belgium initiative to extend it to peoples, including indigenous peoples, within independent states. 'Any attempt aimed at the partial or total disruption of national unity and the territorial integrity of a country is incompatible with the purposes and prin­ ciples of the Charter of the United Nations', Declaration on the Granting of Inde­ pendence to Colonial Countries and Peoples Resolution 1514 (XV) 14 December 1960, GA Official Records, 15th session, Suppl. no. 16, 66, paras 6-7 together with Resolution 1541 (XV) GAOR 15th session, Suppl. no. 16, Principle IV, 29. This is reinforced by the Declaration on Principles of International Law con­ cerning Friendly Relations and Cooperation among States in accordance with the Char­ ter of the United Nations, GA Resolution 2625 (XXV) of 24 October 1970. See Venne 1998: 73-4; Strelein 1998: 5 9 - 6 1 . In addition to the references in note 25, see Venne 1998: 92, Strelein 1998: 16-33 and Moss 1995. See Young forthcoming for a cogent theory of global democratic governance that recognises individuals, minorities, peoples and states, and her chapter in this volume. The Declaration on Friendly Relations, para 1. See Strelein 1998: 60-2. See Laden 1997; Murphy 1997 and Kymlicka 1995. Turner 1997: 1-30 and Murphy 1997: 5 9 - 7 4 argue that while Kymlicka's well-known theory protects indigenous peoples from assimilation, it preserves colonial accommodation. This is a paraphrase of the rights of internal self-determination in the Draft Declaration on the rights of Indigenous Peoples, in Venne 1998: 205-28. This distinction between internal and external self-determination reflects the way the right of self-determination has evolved within a framework of the territorial integrity of existing states. The Draft Declaration on the Rights of Indigenous Peoples accepts internal self-determination at Article 31. This universal principle is endorsed by the Supreme Court of Canada in Ref­ erence re Secession of Quebec, file no. 25506, 1998. For a detailed presentation of this argument with respect to Canada, see Tully forthcoming; for Australia, Strelein 1998; and in general, Young forthcoming.

N O T E S (PAGES 6 0 - 6 3 )

265

4 Beyond Regret: Mabo's Implications for Australian Constitutionalism

1 2 3

4 5

My thanks to Bill Wagner for research assistance, and to Duncan Ivison, Garth Nettheim and Paul Patton for their comments on earlier versions of this manuscript. Some of the more frequently mentioned cases have been abbreviated after their first mention in the text: Delgamuukw v. British Columbia (1997) 153 DLR (4th) 193 (SCC) becomes Delgamuukw, Mabo v. Queensland (No. 2) (1992) 107 ALR (HC) becomes Mabo; Sparrow v. R [1990] 1 SCR 1075 becomes Sparrow; Wardv. Western Australia (1998) 159 ALR 483 (FC) becomes Ward; WikPeoplesv. Queensland (1996) 141 ALR 129 (HC) becomes Wik; and Yorta Yortay. Victoria [1998] 1606 FCA (18 December 1998) becomes Yorta Yorta. Mabo v. Queensland (No. 2) (1992) 107 ALR 1. WikPeoplesv. Queensland (1996) 141 ALR 129: 230. This essay is a companion to Webber 1995a, which examined the process of moral reflection that underpinned the High Court's recognition of indige­ nous title. For a discussion of Australian constitutional law as it affects indigenous people, see Clarke 1999. This is the approach adopted in Brennan J's judgment in Mabo and implic­ itly followed by the great majority of subsequent commentators and judg­ ments. See especially his discussion of the recognition and enforcement of native title by the ordinary courts at 4 2 - 5 of that decision: Native title is conceived as specific interests in land, which survive the assertion of sovereignty by the colonial power in much the same way that, under international law, rights held by private parties survive a change in sovereignty in the wholly nonIndigenous context. Indigenous title is enforceable before the general courts by the usual legal and equitable remedies. Its content is determined by the courts as a matter of fact, based o n the customs and traditions of the people. T h e persistence of native title requires a measure of adjustment in the general property regime in order to take account of the title's continued presence, but the adjustment of rights and the enforcement of the interests is accomplished by the courts as an integral part of their adjudication of the c o m m o n law.

Some commentators have criticised the confining of indigenous title to a purely private right, although they have generally conceded that that is the effect of the definition of native title in Mabo. See, for example, Grattan and McNamara 1999. Here, I argue that that limited conception of indigenous title (as a purely private right) is untenable, even on the terms laid down in Mabo. 6 Mabo 1992: 42. See also 65 and 83, /*r Deane and Gaudron JJ. 7 Mabo 1992: 44. See also 83, per Deane and Gaudron JJ. 8 In Mabo 1992: 20-1 and 51 (per Brennan J) and 5 7 - 8 (per Deane and Gaudron JJ), the High Court held, following the Seas and Submerged Lands case, New South Walesv. Commonwealth (1975) 135 CLR 337, that the sovereignty of the Australian state could not be questioned in proceedings before the courts of Australia. See also Coe\. Commonwealth of Australia (1993) 118 ALR 193 (HC) at 198-200 and, at an earlier stage of the development of the area, Coe v. Commonwealth of Australia (1979) 24 ALR 118 (HC). The recognition of that overarching sovereignty need not exclude a lesser right of self-government, however (although there are some comments that would suggest otherwise in the first Coe decision at 129 (per Gibbs J ) ) . Within general Australian

266

9

10 11

12

13

14 15

N O T E S (PAGES 6 3 - 6 6 ) constitutional doctrine, the division of governmental authority is not strange; sovereignty is undoubtedly divided at least between the Commonwealth and States, or perhaps vested in (or shared with) the Australian people, by virtue of their ability to amend the Constitution by referendum. This is not the place to resolve all these conundrums of sovereignty. It is sufficient to note that the concept is a complex one, currently subject to sub­ stantial reconsideration, which may well have space for the recognition of sig­ nificant indigenous rights to self-government. Regardless of whether such authority is recognised as a matter of constitutional right, native title neces­ sarily presumes a measure of continued indigenous political autonomy. For this reason, in its 1986 report, the Law Reform Commission rejected cod­ ification and court enforcement as ways of recognising Aboriginal customary laws (Law Reform Commission 1986: 87-8, 147). Compare Noel Pearson's argument that native title is 'the recognition space between the c o m m o n law and the Aboriginal law' in Pearson 1997. Cherokee Nation v. State of Georgia (1831) 5 Peters 1 at 17 (US Supreme Court) per Marshall CJ. See also Worcester v. State of Georgia (1832) 6 Peters 515 at 5 5 6 - 6 0 (US Supreme Court). This, it seems to me, is the best interpretation of the natural rights theory of Jean-Marie-Etienne Portalis, who, as conseiller d'etat and orateur du gouvernement, was responsible for the provisions on ownership in the French Civil Code. See his speech, upon introducing the provisions before the Corps Legislatif on 17January 1804, in Locre 1827, vol. 8: 146-52. See also the discus­ sion of Pufendorf in Tuck 1979: 160-61. See, for example, Mabo 1992: 2 6 - 9 . Locke, of course, used the indigenous people of North America as his chief exemplars of humanity in the state of nature (Locke 1986: 328). See also Tully 1993: 137. See, for example, Cooper v. Stuart (1889) 14 App Cas 286 at 291; Re Southern Rhodesia [ 1919] AC 211 at 233-34. Section 35 of the Constitution Act, 1982 protects 'aboriginal and treaty rights' from legislative impairment, subject to justification: see Sparrow v. R [1990] 1 SCR 1075 at 1109-11 and 1113-19. The Supreme Court of Canada has attempted to deal with the problem of how to define those rights by lim­ iting 'aboriginal rights' to those activities that are 'an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right' Van der Peet\. R (1996) 137 DLR (4th) 289 at 310 (SCC, per Lamer CJ). The application of this definition has been substantially lim­ ited, in Delgamuukwv. British Columbia (1997) 153 DLR (4th) 193 (SCC), by the conclusion that 'aboriginal title' itself is not subject to it. The definition has, however, been retained for other, lesser rights. The Van der Peet test has been fiercely criticised. See Borrows 1997.

16 See also Brennan 1995: 85-7; 197-200; Bern and Dodds in this volume. Coombs' principal concern is with those aspects of native title legislation that render indigenous land more easily alienable. Land rights legislation fre­ quently allows the land to be dealt with in ways that would not have been pos­ sible before colonisation, may ratify past acts of dispossession, and may confer less protection against future dispossession than that accorded to nonindigenous interests. This has led some to suggest that the Australian legisla­ tion (especially the amendments to the Native Title Act 1993 proposed and adopted in modified form under the Howard government) is discriminatory in its treatment of indigenous title (see, for example, Dodson 1997: lOOff; Clarke 1997: 22ff; Nettheim 1999: 564ff). Unlike Commonwealth legislation, Australian states' attempts to create arrangements for the control and man-

N O T E S (PAGES 6 7 - 7 3 )

17 18

19

20 21 22

23

24

25

26

27 28 29 30

267

agement of indigenous title are subject to direct constraints imposed by the Racial Discrimination Act 1975 (Cth): Gerhardyv. Brown (1985) 1 5 9 C L R 7 0 (in which South Australia's Pitjantjatjara Land Rights Act 1981 was affirmed as a permissible 'special measure'); Western Australiav. Commonwealth (1995) 183 CLR 373 (in which the core of Western Australia's post-Mabo native title leg­ islation was held to be invalid because of inconsistency with the Racial Dis­ crimination Act). Mabo 1992: 4 8 - 9 (perBrennan J) and 84 (per Deane and Gaudron JJ). Pareroultjav. Tickner (1993) 117 ALR 206 at 214 (leave to appeal to the High Court was d e n i e d , but with the Court expressly declining to state whether the granting of land to a land trust would extinguish native title: Pareroultja v. Tickner, High Court of Australia, No. S156 of 1993, Transcript of Pro­ ceedings, 13 April 1994). In Yannerv Eaton [1999] HCA 53 at paras 76 and 77, G u m m o w J came to a similar conclusion by treating the issue as a ques­ tion of merger of estates and applying equity's approach to find n o merger had occurred. For a useful review of the use of regional agreements in the first years of the regime, see Edmunds 1998. See also Yu in Yunupingu 1997: 168ff. The 1998 amendments to the Native Title Act 1993 strengthened the capacity to resolve title issues by agreement, these particular amendments (unlike others in the 1998 package) having significant indigenous support. See Smith 1998. Wik 1996. There is considerable anthropological literature on the appropri­ ate claimant. For an especially thoughtful discussion, see Merlan 1996: 165. Mabo 1992: 3 2 - 7 (per Brennan J ) . See GummowJ's (one of the majority judges) careful discussion of the effect of native title's recognition on the interpretation of the statutes in Wik 1996: 232-34. Compare, in the majority reasons, the reasons of Toohey J (Wik 1996: 186-87), GummowJ (Wik 1996: 2 3 4 - 3 7 ) , and KirbyJ (Wik 1996: 279ff), with those of Brennan CJ (Wik 1996: 154-59). For a contrasting view, see Grattan and McNamara 1999, but note that they are talking about land law's feudal character in a manner very different from that here. See also Slattery 1987: 744—45. Indeed, the cases on indigenous title at least implicitly acknowledge this, for they make clear that the specific rights of indigenous people inter se are determined by the law of the community con­ cerned. See, for example, Mabo 1992: 44 (per Brennan J). The realisation that indigenous title is primarily about the recognition of the indigenous order, not the specific interests, may provide elements of a solution to the issue of group definition so ably presented (with intriguing proposals for resolution) by Sutton 1995a: 1. See, for example, Sparrow 1990: 1119 (per Dickson CJ and La Forest J); MacMillan BloedelLtdv. Mullin 1985: 607 (BCCA, per MacfarlaneJA); Canada, Royal Commission on Aboriginal Peoples 1996b: 561-62. See Delgamuukw 1997: 228. Delgamuukw 1997: 273. See also at 284 (per Laforest J). Proposed sections 35.Iff of the Constitution Act, 1982, Charlottetown Accord, Draft Legal Text (9 October 1992), sections 29ff. O n e wonderful example of this comes from the area north of Lakes Huron and Superior in the 1840s, when the Ojibways of the area responded to tres­ pass by miners o n their traditional lands by retaining a lawyer to press (with effect) their claims for a treaty, relying upon the provisions with respect to the alienation of Indian lands in the Royal Proclamation of 1763. Their

268

N O T E S (PAGES 7 3 - 7 6 )

arguments resulted in the Robinson-Huron and Robinson-Superior Treaties of 1850 (Morrison 1994: 4 0 - 2 , 4 7 - 6 9 ) . 31 This is certainly true of the High Court judgments: Mabo 1992; Wik 1996. This is true even when, as in Mabo, the claim was originally brought by individuals for specified parcels of land. See also Ward v Western Australia [2000] FCA 191 at paras 203—6, where the court rejected an appeal based on precisely this ground. It has also generally been the case under the Northern Territory and Queensland legislative regimes (Sutton 1995a: 9 - 1 0 ) . 32 Ward v Western Australia 1998: 529, 539-43, 638, 639. The vesting of the land in the entire community was affirmed on appeal; see Ward2000: paras 200-2. The emphasis on negotiation is suggested by the terms used by Lee J both at relevant moments in his reasons (for example, Ward 1998: 533, 542) and by a passage he quotes from Lamer CJ's judgment in Delgamuukw (Ward 1998: 499; Delgamuukw 1997). The issue is not merely a lack of proof of the sub­ groups' interest, for if this were the case, the Western Australian government would have won its argument that the lack of proof undermined proof of the people's title. Lee J dismissed this argument (at 533) by suggesting that it is the people's continuity as an organised society, rather than the continuity in descent of any of the subgroups, upon which title depends. This suggests that it is the indigenous societies' character as legal/political entities that is important to the establishment of indigenous title, not the continuity of any specific private rights to land. See also Lee J's comments at 542, when deter­ mining that native title is vested in the people rather than the subgroup: the community may be so organized that responsibility for, and, indeed, control of parts of the area occupied by the community may be exercised by sub-groups . . . but the traditional laws and customs which order the affairs of the sub-groups are the laws and customs of the community, not laws and customs of the sub-group.

33 See note 19. 34 For Coombs' remarks, see text accompanying note 16. See also Sullivan 1995: 97. T h e negotiations over the Wik amendments provided an occasion for severe misgivings as to the foundation on which indigenous title issues are resolved, not least because indigenous representatives were cut out of those negotiations. For criticisms, see Clarke 1997; Dodson 1997; Antonios 1998, especially Appendix 1. For defence, see Brennan 1998. 35 See Webber 1995a, which does not argue that moral reflection or arguments of justice operate unmediated in society (for that is clearly not the case), but nevertheless that they do operate, and sets out to chart the process of moral reflection that underlay Mabo. 36 See, for example, Markus 1996; Dodson 1997: 5-6. 37 See, for example, Kirby 1970-71. 38 But see Coombs 1994: 148 in which he argues, on the basis of the experience of the Waitangi Tribunal in New Zealand/Aotearoa, that context-sensitive adjudication may be better than 'political negotiations'. 39 Some constitutional rights also have this character. This is true, for example, of the right to schooling in minority official languages in Canada, found in section 23 of the Constitution Act 1982, where a range of potential means of implementation is acceptable: Mahev. Alberta (1990) 68 DLR (4th) 69 (SCC) at 85ff. I suspect that the same is true of the guarantee of democratic institu­ tions implicit in the Australian Constitution, especially that Constitution's stipulation (in section 24) that the members of the House of Representatives should be 'directly chosen by the people'. The High Court has been unwill-

N O T E S (PAGES 7 7 - 8 1 )

40

41

42

43 44 45 46

47

48 49 50

269

ing to find that those provisions require a particular pattern of representa­ tion (in particular, 'one vote, o n e value'), especially given the apparent acceptability yet potential variation of effective representation under the cur­ rent Australian single transferable ballot system, a first-past-the-post system, and various systems of proportional representation. Yet several judges say that the scope for variation in representation may not be absolute, and that extreme imbalance may not be permissible. This suggests the possibility of a 'framing norm' applying at a broad level of generality, compatible with a broad range of variation in particular systems of representation. See the dis­ cussions in AG Commonwealth; Ex rel McKinlay v. Commonwealth (1975) 135 CLR 1 (especially per Stephen and Mason JJ) and McGintyv. Western Australia (1996) 186 CLR 140. See Bern and Dodds in this volume and Webber 1996: 275-76. The latter arti­ cle specifically addresses issues posed by immigration. Indigenous peoples raise additional considerations, although the general point with respect to recognition remains the same. The political role too had its antecedents, notably the extension of the Com­ monwealth franchise to all Aborigines in 1962 and the constitutional amend­ ment of 1967, which permitted the counting of indigenous Australians in the national census. See Chesterman and Galligan 1998. See Parliamentary Debates 1996: 5975 (29 October) and Parliamentary Debates 1996: 6155 (30 October; John Howard); Overview 1997: 9 - 1 1 ; Blainey 1993: 11; Murray 1999: 222-25. See generally Attwood 1996a: 100-16. The forced removal of Aboriginal children is o n e of the clearest examples (but not the only example) of this. See Bringing Them Home 1997. I explore justifications for such autonomy in Webber 1994: 219-22, 263-75, and Webber 1993. I give several examples of the distinctive framing of the issues, as against the Canadian authorities, in Webber 1995a: 18-20. See, for example, the implicit debate between Prime Minister Howard and Patrick Dodson at the opening of the Australian Reconciliation Convention, Overview 1997: 8-12. On 26 August 1999, the Commonwealth House of Rep­ resentatives passed, on the Prime Minister's motion, a resolution that was intended to g o some way towards satisfying this demand. It acknowledged 'that the mistreatment of many indigenous Australians over a significant period represents the most blemished chapter in our international history' and expressed 'its d e e p and sincere regret that indigenous Australians suf­ fered injustices under the practices of past generations' (Parliamentary Debates 1999: 9205ff [26 August]). T h e phrase is that of Sir Owen Dixon, Australia's highly influential and long­ time ChiefJustice of the High Court: 'Swearing In of Sir Owen Dixon as Chief Justice' (1952) 85 CLR xi at xiv, although there is a real question whether Dixon CJ himself had such a constrained conception of the judicial role (see Gummow 1999: 7 3 - 4 ) . For useful correctives of this assertion, as description of how the courts have actually decided cases, see Zines 1997: chapter 17; Gal­ ligan 1987: 3 0 - 4 1 . See, for example, Myers 1986: 125-26. There is a very g o o d account of this p h e n o m e n o n in Morrison 1994. Of course, it is simplistic to paint the divide solely in indigenous/non-indige­ nous terms. T h e differences are also reflected within indigenous (and indeed non-indigenous) communities. See, for example, the account of different languages of justification in Macdonald 1997: 74—7. But the more general

270

N O T E S (PAGES 8 1 - 1 1 3 )

point - about the tension between the traditionalist and voluntarist modes of justification - remains. 51 Thus, in what is otherwise a very fine article, Bain Attwood's concluding sen­ tence is jarring: In political terms, [the solution to i n d i g e n o u s / n o n - i n d i g e n o u s relations] might reside in a new beginning for Australia, a republican moment in which Aborigines and settler Australians are offered the opportunity of joining and participating in a new polity o n the basis of mutual recognition and respect, such that we might all be at h o m e in this place. (Attwood 1996b: 116)

52

53

54

55

56 57 58

59

T h e aspiration is stirring, the need for a new approach important, but the republican language seems to me to be ill-chosen. See, for example, the comments of Pat Dodson reported in Sullivan 1995: 99. Patton (1995a; 1995b) has argued from different philosophical foundations for a similar resistance to definitive conclusions. Note that an attention to tradition need not be conservative, except in a weak sense. It does recognise that we define ourselves, and our current normative commitments, in relation to the past. Furthermore, the very fact that our nor­ mative arguments engage the past implies a measure of respect: we realise the need to take our past seriously, to understand it, and to define our own positions in relation to it. But that engagement is by n o means uncritical. Even when we consciously follow past ways - when we draw, in a positive fash­ ion, upon the p a s t - w e reflect upon the principles inherent in it, attempt to formulate and refine those principles, and inquire into their relationship to today. Moreover, there are times when our reflection leads to regret, and we define our present commitments in contradistinction to what went before. See Webber 1995a. See, for example, the discussion of the dissolution and reconstitution of nations in the Great Lakes region of north-eastern North America during the seventeenth century in White 1991: 1-49. See, for example, Ward 1998: 503 and 532ff, affirmed in Ward 2000 at paras 2 2 9 - 3 5 (where the possibility of adoption is expressly contemplated). In the Canadian context, see Simon v. The Queen (1985) 24 DLR (4th) 390 (SCC) at 406-7. See Sturmer 1982: 69; Levitus 1991; Brennan 1995: 197-200. See also the report commissioned by the Commonwealth government (Reeves 1998). See, for example, Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), sections 11 and 23. Rowley 1970: 423; 422ff. See also Coombs 1982: 227; 1994: 137-38, 175. It is noteworthy that the Pitjantjatjara successfully pressed for a land rights regime that did not involve proof of individual interests, but rather placed the land under Pitjantjatjara control generally. For a valuable discussion of these institutional dimensions, see Coombs 1994: 133ff. H e also discusses the emergence of hybrid forms of administration at 2 7 - 8 and 48. See also Sullivan 1997; Sutton 1995b: 48; Suchet 1996. 6 Paths Toward a Mohawk Nation: Narratives of Citizenship and Nationhood in Kahnawake This paper was presented at the Australian National University for the 'Indigenous Rights, Political Theory and the Reshaping of Institutions' con­ ference in 1997. While there, the work profited from the suggestions and

N O T E S (PAGES 1 1 3 - 1 1 8 )

271

queries of many. It has also benefited from comments in the Canadian Anthropology Society meetings in 1998 as well as the Organization of Amer­ ican Historians meetings and the American Studies Association meetings in 1999. I am especially grateful to Duncan Ivison, Julie Cruikshank, Jean-Guy Goulet, Klaus N e u m a n n , an external reviewer for CUP and others who engaged in substantial ways with the paper. Responsibility for the arguments and content therein resides with me. 1 'Aboriginality' enjoys more currency within anthropological literature than it does on the ground of day-to-day native political practice. It is nonetheless a somewhat useful concept and argument for linking 'rights' to temporality within the arena of political praxis. I will shortly argue that 'nationhood' is the more appropriate analytical framework for comprehending one native community within the context of Canada. 'Nationhood' may appear to be less strategic politically, but it reflects most accurately the historical experi­ ence and the politics of the Mohawks of Kahnawake. For further work on abo­ riginality in the context of Canada, see Levin 1993, and in the context of Australia, see Beckett 1988, Stokes 1997 and Tonkinson 1990. 2 A full review and discussion of the epistemological pitfalls (and arrogance) that surround the 'invention of tradition literature' is beyond the horizon of this essay. Suffice it to say that the underlying variable of authenticity creates this affection for and sets up the logic for 'invention' within analysis. This notion of authenticity (and its handmaid, tradition) frames culture in a fixed and an unmoving space in time. Authenticity then adds a certain value to this cultural moment. Assigning value and intentionality to these practices (or the rhetorics of tradition) is a deeply vexing practice for many. It is colonial­ ism, and the claims that it commands in the contemporary, that sets such a premium on particular moments since past. And it is colonialism and its apparatii that place the 'burden of p r o o f for tradition, for culture and authenticity upon indigenous peoples. Povinelli 1999 argues that these prac­ tices set up a certain failure for indigenous claimants with the frame of juridi­ cal practice in Australia. Nonetheless, indigenous 'nationhood', which harnesses the past to the present through consciousness and discursive prac­ tice, should not be considered to be an invention in either its most oppor­ tunistic and non-constructionist sense, as is found in Keesing 1989, nor in its most nuanced sense, as found in Smith 1991. In the context of Kahnawake it is the marriage of consciousness and being. For an excellent summary of the invention debate and attendant textual issues please see Briggs 1996. 3 For a thorough discussion of the dynamics of the Confederacy see Richter 1992, Fenton 1998 and the special volume of Recherches amerindiennes au quebec, 'Iroquois au present du passe' (vol. 29, no. 2, 1999), devoted entirely to the history of the Iroquois. 4 Of the 'colonial ironies' that c o m e to mind, one is the use of the Indian Act by contemporary elected councils to even determine membership within their communities at all. The Indian Act is a legislative instrument of colonial government that is rooted in Victorian notions of gender and civility. It enforced the protectionist and assimilative agenda of settlement but is ironi­ cally used by Indian governments to preserve and protect the contemporary Indian community today. This is not to say that the Indian Act is not recog­ nised (and reviled) by some as an instrument of colonial governance. There are within Kahnawake institutional alternatives and counter-discourses to that of the elected council and the Indian Act. These alternatives offer 'tradi­ tion' as an alternative authority and institution for governance. For further

272

N O T E S (PAGES 1 1 8 - 1 2 7 )

historical and ethnographic work in this area, please see Blanchard 1982, Jocks 1994, Dickson-Gilmore 1999b and Reid 1999. For a book-length argu­ ment in favour of returning to tradition from a perspective rooted in Kah­ nawake's history, see Alfred 1999a. 5 O n e need not look far for examples within contemporary expressive culture of native peoples in Canada. See McMaster and Martin 1992 and Kasprycki el al. 1998, two catalogues of curated exhibitions that dealt with the themes of contemporary culture, land, meaning and nationhood to native artists rep­ resenting nations in Canada and the US. The first exhibition was prompted by concern over attempts at land expropriation and coercion by the Cana­ dian government in Kanehsatake, Quebec (commonly known as 'The Oka Crisis') in the summer of 1990. 6 T h e representational tensions of text have 'real-life' equivalents in the living issues of native-State relations, tensions that are readable in the form of claims that are made upon the state. These claims — for land, for reparation and other forms of indemnity refer to a past of native-settler regime interac­ tions that are expressed in the present by the critical notion of 'cultural dif­ ference'. This difference is premised more often than not upon a baseline of cultural wholeness, continuity and authenticity, of a static and deeply essentialist notion of identity and tradition. These claims, and the role that anthro­ pologists occupy in their articulation and execution, illustrate both the anthropological and indigenous investment in 'tradition' in 'authenticity' and the power of these analytical concepts within the larger picture of justice and rights. It is in the convincing deployment of these concepts that may 'take' or may 'give' indigenous peoples their past and their rights that accrue to a particular past (Clifford 1988: 277-346; Campisi 1991; Whittaker 1994; Dominy 1995; Paine 1996; Mills 1994; Povinelli 1999). 7 The Mohawks of Kahnawake claim an additional 24 000 acres of land given to them in the form of a seignioral land grant in 1680. This grant is known as the 'Seigniory de Sault St Louis'. 8 'Band' is the terminology used in the Indian Act and is interchangeable with 'reserve'. In this context 'band list' should be understood as the communitycontrolled list of members, administered by the band council, or Mohawk Council of Kahnawake (MCK). 9 In 1995 the MCK signed a policing agreement with the provincial and federal governments that elicited two days of semi-violent protest within the com­ munity. The issues that energised the protest in 1995 trace back to the late 1970s. In 1979 the MCK fired their local police force, the Kahnawake Police, for failing to enforce their resolution to close two government-leased quar­ ries on reserve. T h e Kahnawake Police refused to close the quarries for want of an outside court injunction. Once fired, another local police force, the Kahnawake Peacekeepers, was formed in its place. Later that year, two offi­ cers of the Quebec Police Force (QPF) came into the community and shot and killed David Cross in a botched arrest attempt (Beauvais 1985: 150-52). Coupled with the issues that surrounded the firing of the police force and the quarries, the racist hues to the Cross shooting strengthened the resolve of the Kahnawakero'.non to have the Kahnawake Peacekeepers enforce the laws of the community and not outside governments. However, since 1979 the authority of the Peacekeepers was limited by their refusal to swear an oath of allegiance to the province of Quebec. In order to give them the authority that is required to issue fines and tickets with the backing of Quebec law, the MCK negotiated a tripartite policing agreement. As part of this agreement, outside

J

N O T E S (PAGES 1 2 9 - 1 3 2 )

273

police were given limited jurisdiction in the community. Considering the dif­ ficult history just detailed, this was viewed as a concession to Quebec. Some community members, especially youth associated with the '207 Longhouse', found this an affront to Mohawk sovereignty. The two days of protest that fol­ lowed the signing of the agreement involved young men defacing personal property of elected chiefs and councillors. I am grateful to Peter Thomas Sr for explaining the chronology of events in 1979. 10 These narratives cover the period of 1993 to 1996. They are direct reprints of notes taken at meetings or are textual reconstructions of certain moments that had passed without note-taking. All names have been changed to protect the identity and privacy o f the speakers. 11 'C-31' is the label used to describe community members and their children who regained their Indian status when Bill C-31 was amended to the Indian Act in 1985. Aimed at redressing the patrilineal bias of the Indian Act, which retained the Indian status of Indian men who married non-Indian women (and passed o n their status to children) and disenfranchised Indian women who married non-Indian men (and did not pass on their lost status to their children), Bill C-31 granted status to all those who had lost it due to out­ marriage and previous enfranchisement to the Canadian state. Before 1951 Indians lost their status because of enfranchisement: this may have occurred because of service in the military, post-secondary education, voting or the individual sale of status for alcohol. At the same time as the federal govern­ ment was enlarging the number of Indians on the federal registry, Bill C-31 expanded the power of band council governments to determine their own membership requirements for their communities. In the case of Kahnawake, the results have been a situation where rules were developed (such as The Mohawk Law on Membership) that appear to exclude specifically those people who the federal government now recognised as status Indians. For a thor­ ough discussion of the Indian Act and Bill C-31 from a political science per­ spective see Cassidy and Bish 1989. For a perspective o n Bill C-31 from those Indian women that fought at a grassroots level to have it passed into law see Silman 1987. With the exception of those women who are widowed or divorced, Kahnawake has refused to grant automatic re-admittance to any­ o n e o n the federal registry of Indians to the band list. 12 'The Great Law of Peace', understood by some anthropologists as the 'con­ stitution' of the Iroquois. This is one basis for a traditional mode of gover­ nance for Iroquois people. T h e other is the Gawi'io, or 'Good Message of Handsome Lake'. 13 Or Kaswentha, a 1613 treaty between the Dutch and the Iroquois represented by a belt of purple and white wampum shells. There are rows of white wampum parallel to each other, with d e e p purple wampum between and around them. T h e purple represents the sea of life that each row shares. One row represents the Iroquois vessel and the other the European vessel. Although they share the same sea and sail alongside each other, they are sep­ arate: they should not touch or disturb each other or try to steer the other's vessel even though they must share the same space. Between the vessels are chains that connect them to each other. These are occasionally shined and maintained by o n e or the other vessel. The Kaswentha has great meaning to traditional and elected Council chiefs in Kahnawake as an enduring model of Indian-white relations that comes directly from Iroquois experience and history. The Two Row Wampum has also been incorporated into the Final Report of the Royal Commission on Aboriginal Peoples as a possible model

274

N O T E S (PAGES 1 3 2 - 1 4 1 ) for government relations between Aboriginal people as self-governing nations and the Canadian state. 7 (De)Constructing the Politics of Indigeneity

1 The question of indigenous identity, of who is a 'real' Aborigine or Maori is central to recent conflicts over political and economic resources in Australia and New Zealand (Barcham 1998; Stokes 1997). For further work on the importance of indigenous identity to questions of indigenous rights, see the chapters by Simpson and Dodds and Bern in this volume. 2 A process through which indigenous peoples of the world are re-interpolated within a new spatio-temporal hierarchy of authenticity and legitimacy, sadly reminiscent of the hierarchies of domination characteristic of earlier periods of imperialism. 3 Some governments around the world have argued that land claims should only be given to indigenous groups that have maintained an 'authentic' cul­ ture. T h e Brazilian government, for example, has tried to reinterpret Indian land rights so that they only apply to 'real Indians' (Ramos 1994). 4 However, just as there may o n e day no longer exist a Maori or Kwakiutl cul­ ture and society as such - as the Roman or Eapita cultures and societies no longer exist - this should not deny the reality that their modern-day descen­ dants should in no way be considered any less authentic. For just as the shift­ ing and fluid nature of groups is not to deny their reality, so too neither should the contingent nature of identities act to deny their moral worth, or undermine claims of rights based upon those identities. Yet, in contrast to the members of western societies who are exempt from claims to authenticity due to the complexities and diversities of their histories and societies, 'proper natives are somehow assumed to represent their selves and their his­ tory, without distortion or residue' (Appadurai 1988: 37). 5 Rangatiratanga is derived from the root noun rangatira. Rangatira is often defined in older dictionaries as a chief or a person of noble breeding. More modern dictionaries similarly define rangatira us meaning a chief or a noble. Older dictionaries define rangatiratanga as evidence of breeding and great­ ness, while newer dictionaries translate it as sovereignty. The latter meaning is more in accord with modern parlance of the word. Gaining widespread popular acceptance in the 1970s and 1980s the term is now used to signify the basis of Maori rights to self-determination or empowerment. Thus while the term does not directly translate as 'indigenous rights', its modern usage as the basis for Maori rights does, however, lend itself to the inclusion of this sense of the word. The word should be interpreted in this sense throughout the remainder of the chapter. (The word tino, often found conjoined with the word in the phrase tino rangatiratanga, is a modifier that acts to intensify the meaning of the word following.) 6 Paul Patton (1995a; 1995b) has drawn attention to the operation of a similar dynamic in the Australian context. While the Mabo decision represented a rupture in previous ways of thinking about the place of notions such as dif­ ference, society and justice in Australia, the judgment itself was nevertheless based upon the understanding that the protection of newly recognised dif­ ference was dependent on the maintenance of a prior identity. 7 The Runanga Iwi Act (1990) was adopted to facilitate the devolution process through the establishment of iwi authorities capable of administering the

N O T E S (PAGES 1 4 1 - 1 4 7 )

8

9

10

11 12

13

14

15

16

275

programs previously run by government departments. This process was to occur through the establishment of an Iwi Transition Agency which was to act as the conduit through which programs would be transferred from govern­ ment to iwi control. T h e 1996 Census showed that 26 per cent of all individuals who identified as being of Maori descent gave n o iwi affiliation. T h e Census allowed for n o rea­ son to be given for this lack of iwi identification, so no differentiation can be made between individuals who were unable to identify with an iwi, or those who were unwilling to identify with an iwi. Iwi experienced a short-lived resurgence in power with the recruitment of Maori soldiers for World War II along tribal lines. This resurgence was short­ lived, as the returning soldiers settled at a variety of different locales around the country, including cities, in order to find work in the post-World War II era. This scattering of the serviceman prevented the regrowth of tribal senti­ ment gaining any political advantage. In 1936 81 per cent of the Maori population lived in tribal areas, which, more often than not, were rural. In this rural environment, regardless of the dwin­ dling political significance of these institutions, they still relied heavily on these traditional forms of social institution to provide meaning and structure to their day-to-day social interaction. From 1939 to 1989 the rural-urban ratio of Maori switched from approxi­ mately 80:20 to approximately 20:80. It is in support of ideas such as this, which led Professor Ranginui Walker to claim that the development of urban maraehzs been 'the most powerful cul­ tural statement the Maori has made in modern times' (Walker 1987: 147). T h e Waitangi Tribunal is a quasi-judicial body created by the New Zealand government to examine contemporary disputes stemming from the Treaty of Waitangi. T h e main function of the Tribunal is to inquire and make recom­ mendations to the Crown for Maori claims or grievances relating to sections of the Treaty. T h e findings of the Tribunal, however, are only recommenda­ tions and have n o binding force in law. T h e lawyers for the Trust argued that the representative status of the Trust was an important aspect to the claim because if non-tribal West Auckland Maori are found to have rights under article 2, then those rights accrue to the community and the Trust claims to be the appropriate body to exercise those rights on behalf of the community. This view can be challenged on the grounds that hapu, and not iwi, were the institutional bodies recognised by the Treaty of Waitangi. If, as some have argued, iwi are entitled to these rights as hapu are merely sub-sections of iwi, the argument can be made that since hapu were in turn made up of whanau and individuals, these monies should go to any institutional body that these individual descendants choose. I am not alone in arguing that the work of the poststructuralists provides us with a convenient heuristic device with which to approach the notion of dif­ ference and its relation to concepts of identity. Paul Patton has, in consider­ ation of the implementation of indigenous rights in Australia, argued that philosophies of poststructuralism contain within them the possibility for a 'politically open-ended space of possibilities of action, a space of becoming that allows for the non-self identical character of individual and collective agents' (1995a: 162).

276

N O T E S (PAGES 1 5 0 - 1 8 7 )

17 Wherein rangatiratanga exists between a Maori community and its leadership it includes a set of reciprocal duties and responsibilities. 8 On Display for its Aesthetic Beauty: H o w Western Institutions Fabricate Knowledge about Aboriginal Cultural Heritage 1 The term 'business' is used by Aboriginal and Torres Strait Islander peoples to refer to any religious, sacred and secret knowledge or activities that per­ tain to specific sites or landmarks. 'Business' can also be associated in strict gender terms, so effectively 'women's business' excludes participation by men in the same way that 'men's business' excludes the participation of women. 9 On the Plurality of Interests: Aboriginal Self-government and Land Rights 1 In total, fewer than 2 per cent of the Australian population. The proportion is increasing through higher net birth rate than the general population, and through increases in the numbers of people identifying as Aboriginal. 2 The land councils and native title tribunals may tend, in practice, to use a fairly broad understanding of these ideas, but there is plenty of room for legalistic definitional debate. 3 See, for example, Martin and Finlayson 1996. 4 Although Tully 1997 acknowledges the overlapping interests between First Nations and non-Aboriginal Canadians, and the intercultural interests of the Metis, he appears to accept a view of the interests within either group as h o m o g e n e o u s , or at least equally open to articulation from within. See also Tully 1995: 176. 5 However, even groups with strong kin/language/site location ties such as the Torres Strait Islanders may find that the group can experience tensions in attempting to sort out land entitlements. See, for example, Sanders 1995. 6 This is discussed in some detail in Bern and Layton 1984. 7 On the specific issue ofjunggayi, see Bern and Larbalestier 1985.

1 0 The Liberal Image of the Nation 1 It is not sufficiently considered how little there is in most men's ordinary life to give any largeness either to their conceptions or to their sentiments. Their work is a rou­ tine; not a labor of love, but of self interest . . . neither the thing done nor the process of doing it introduces the mind to thoughts or feelings extending beyond individuals; if instructive books are within their reach, there is no stimulus to read them; and in most cases the individual lacks access to any person of cultivation. (Mill 1958: 53)

Mill, certainly, wanted to lift ordinary people out of the ruts and harsh routines of ordinary life. He thought that participation in governance was o n e way to do so, in combination with reforms in education and the distrib­ ution of income. I am with Mill on these last two points. I even agree that cul­ tural elites can teach regular guys a thing or two on occasion, as long as the relation is sometimes understood to go the other way as well. I also suspect that the routines of Mill's life stopped him from thinking more creatively

N O T E S (PAGES 1 8 7 - 2 2 2 )

277

about the image of the nation. But the specific point of this quotation in this context is to bring out how prominent aristocratic, cultural constituencies are in the Millian conception of 'minority' and how concern for this minor­ ity plays such a major role in Mill's plans for proportional representation of minorities in representative government. 2 This theme is developed more extensively in Connolly 1999, particularly in chapter 6. 3 Even when the planet was crystallising into the earth a 'decisive reason why it was able to hold on to these volatile layers of melted comets was the emer­ gence of living organisms which regulated crucial climatic conditions and kept them constant' (Norretranders 1998: 340). 12 American Multiculturalism and the 'Nations Within' 1 O n e reason why this is such a daunting challenge is the worry that some mea­ sures such as affirmative action, which are aimed at tackling the special bur­ dens facing African-Americans, may perpetuate the problem by entrenching an ascriptive and stigmatising conception of Black identity. 2 For the evidence, see Kymlicka 1998a, chapter 1. 3 I should emphasise that this is just o n e criterion that has been used to dis­ tinguish indigenous peoples from stateless nations, and it doesn't cover all of the groups which claim the status of indigenous peoples. For example, the Crimean Tatars have recently asserted they are an indigenous people, although they were real contenders for state-formation, and hence are much closer to a stateless nation on my criterion. (Had the balance of power been a little different, Crimea might have been, or remained, a Tatar state, rather than a province of the Russian empire.) Partly in order to cover such cases, other criteria have sometimes been proposed to distinguish the two cate­ gories of national minorities, such as (a) that indigenous peoples exercised historical sovereignty whereas stateless nations did not; (b) that indigenous peoples lack a kin state, whereas stateless nations have kin states; (c) that indigenous peoples have a radical cultural or civilisational difference from the majority nation, whereas stateless nations typically are closer in culture. T h e first two of these proposed criteria are, I think, simply inaccurate, since many stateless nations have exercised historical sovereignty, and many lack a kin state (for example, Catalans, Scots). The third is more helpful, and is already implicit in the criteria I mentioned in the text: insofar as stateless nations and majority nations contended with each other in the process of state-formation, they tended to converge on certain cultural self-concep­ tions, and to share certain economic and social needs and influences. Indige­ nous peoples were not influenced in the same way by the pursuit of state formation. However, it would be a mistake, I think, to make radical civilisa­ tional difference a defining characteristic of indigenous peoples, since this has the potential for essentialising and freezing indigenous cultures, pre­ cluding them from adapting whatever they find most interesting or desirable in modern societies. For more o n this, see Kymlicka 1999a. 4 This is a generalisation, not an iron rule. Some national minorities have b e c o m e too decimated, dispossessed, dispersed or intermingled with settlers from other cultures for territorial autonomy to be a meaningful option. Ross Poole argues that the idea of territorial autonomy is more relevant for indigenous peoples in North America than in Australia, although he acknowledges this remains a source of ongoing controversy within the

278

N O T E S (PAGES 2 2 2 - 2 2 5 )

Australian Aboriginal community itself, and that the territorial model is applicable to the Torres Strait Islanders (Poole 1998). It's also important to emphasise that even where indigenous peoples seek territorial autonomy, this will still involve substantial degrees of interdependence with the larger society. As Borrows puts it in the Canadian context, we need to think not only about 'Aboriginal control of Aboriginal affairs' but also 'Aboriginal control of Canadian affairs' if Aboriginals are to be truly self-determining (see Borrows 2000). 5 This is evident in the way both Aboriginals and Quebecois reject the idea that their claims are covered by Canada's 'multiculturalism' policy, which focuses on issues of immigrant ethnicity. Similarly, the Maori in New Zealand deny that their claims are covered by New Zealand's immigrant multiculturalism policy. 6 See James Tully in this volume pp. 5 2 - 3 . Parenthetically, I think that this nation-to-nation relationship is absent from the 'contestatory' and 'rhi­ zomatic' models of democracy advanced by Philip Pettit and William Con­ nolly respectively in their chapters of this volume. Whatever the merits of their theories for issues of cultural, religious and sexual diversity in general, I do not think that they can accommodate the specific needs and desires of 'nations within'. 7 T h e Third World War has already begun. It began when new states tried to take over old nations . . . It began in 1948. Burma moved its army into the Karen and Shan nations and India started its military invasion of the Naga nation. T h e Third World War is now being fought on every continent except Antarctica. It has produced mil­ lions of casualties and massive forced dislocations of nation peoples who make up the majority of the world's refugees. It encompasses most of the peoples and groups who are accused of being terrorists. Each year it involves new areas, states and nations. (Nietschmann 1987: 1)

8 We are familiar with this sort of ethnocentric prejudice towards indigenous peoples, but it is important to remember that it has also been invoked against stateless nations. Recall John Stuart Mill's claim that: Experience proves it is possible for o n e nationality to merge and be absorbed in another: and when it was originally an inferior and more backward portion of the human race the absorption is greatly to its advantage. Nobody can suppose that it is not more beneficial to a Breton, or a Basque of French Navarre, to be brought into the current of the ideas and feelings of a highly civilised and cultivated people - to be a m e m b e r of the French nationality, admitted o n equal terms to all the priv­ ileges of French citizenship . . . than to sulk o n his own rocks, the half-savage relic of past times, revolving in his own little mental orbit, without participation or inter­ est in the general movement of the world. T h e same remark applies to the Welsh­ man or the Scottish Highlander as members of the British nation. (Mill 1972: 395).

Mill also opposed the attempts of the Quebecois to maintain a distinct francophone society in Canada, and encouraged their assimilation into the more 'civilised' English culture. Indeed, most nineteenth-century liberals and Marxists adopted the same denigrating attitude toward stateless nations as they did towards indigenous peoples. See Parekh 1994. 9 For a concise overview, see Minority Rights Group 1991. 10 In many countries it would have been possible to create a state or province dominated by an indigenous people in the nineteenth century, but given the massive influx of settlers since then, it is now virtually inconceivable. The one

N O T E S (PAGES 2 2 5 - 2 3 0 )

11 12

13

14 15 16

17

18 19

20

21

279

important exception concerns the Inuit in the Canadian North. And indeed the boundaries of the Northwest Territories in Canada have just been redrawn so as to create an Inuit-majority unit within the federation, known as 'Nunavut'. For the relation of Indian self-government to federalism in Canada, see Hen­ derson 1994; Cassidy and Bish 1989; Long 1991; Elkins 1992. France is perhaps the o n e major exception to this rule, which still refuses on principle to acknowledge the Corsicans as a national minority. I expect that even this bastion of Jacobin unitary statehood will eventually join the com­ munity of explicitly multi-nation democracies. It was drafted by a UN Working Group on Indigenous Populations between 1985 and 1993, and approved by the U N Subcommission on the Protection of Minorities in 1994 (an independent body of experts), but still has several barriers to overcome before ratification by the U N General Assembly. For a comprehensive overview of these developments in international law, see Anaya 1996. For a more detailed description of the theory and practice of multinational federalism, see Kymlicka 1998a: chapter 10; Kymlicka and Raviot 1997. There are important exceptions to this rule, most notably the violence in Northern Ireland and the Basque country. In response to the violence, Britain and Spain have passed laws restricting some civil rights. In this sense, the accommodation of minority nationalism has, in certain times and places, put definite strains o n democracy. But it is obvious that the violence would have been worse, and the illiberal laws even more restrictive and long-stand­ ing, had the governments not moved toward greater accommodation of the nationalist sentiment. Had Spain or Britain persisted in trying to crush the minority's sense of nationhood, the result would be an almost permanent state of authoritarianism, like we see in Turkey as a result of its efforts to crush the Kurdish desire for national recognition. For recent overviews of the rights and status of national minorities in the US, see (on Puerto Rico): Aleinikoff 1994; Martinez 1997; Portillo 1997; Rubinstein 1993; Barreto 1998. On American Indians, see O'Brien 1989; Prucha 1994. On Guam, see Statham 1998. For a more general survey, see O'Brien 1987. For example, Lind 1995; Schlesinger 1992; Glazer 1997; Gitlin 1995. See Shafir 1995. For what it's worth, if Hispanics or Blacks were to define themselves as self-governing nations within the US, then they too almost cer­ tainly would have to adopt a postethnic conception of national membership. After all, Hispanics are a complex amalgam of Europeans, Indians/mestizos, Blacks, with high rates of inter-marriage. And the same is true of Blacks. In fact, the blood quantum rules were first introduced by the Federal govern­ ments in Canada and the US, against the wishes of the indigenous peoples themselves, as a way of limiting the amount of money federal governments would have to pay to the community. T h e continuing use of blood quantum rules was soundly criticised by the Canadian Royal Commission on Aboriginal Peoples, which argued that it was not only a violation of human rights, but also a violation of traditional Indian practices, and moreover was counter-produc­ tive to ensuring cultural survival. See Canada, Royal Commission on Aborigi­ nal Peoples 1996b: 239. For an overview of the debate, see Dickson-Gilmore 1999a. For a partial defence of the practice of blood-quantum rules, see Alfred 1995: 163-75. The term 'civic nationalism' is potentially confusing. It is often used to refer to the idea that membership in a liberal nation should be based solely on

280

22

23

24

25

26

27

28

N O T E S (PAGES 2 3 0 - 2 3 9 )

adherence to political principles, and not in terms of participation in a particular national culture and language. Put this way, the idea of 'civic nationalism' is incoherent, and has no real-world referent. All nationalisms, even in the most liberal of states, have a cultural and linguistic component. In this essay, therefore, I am using 'civic' in a more restricted sense, simply as a synonym for 'postethnic' in Hollinger's sense, that is, where membership is open to all regardless of race, ethnicity or religion. For a more detailed dis­ cussion of the 'ethnic/civic' distinction, see Kymlicka 1999b: 131-40. In many countries of Eastern Europe, by contrast, both sides to the conflict are forms of ethnic nationalism: state nationalism and minority nationalism are both defined in terms of ethnic descent. It is relatively rare to find a civic nationalism opposed to an ethnic nationalism: what we find are either civic v. civic conflicts or ethnic v. ethnic conflicts. See Kymlicka forthcoming. While only postethnic forms of nationalism are consistent with liberal values this is not to say that liberal states have the right to impose such a liberal conception of group membership on indigenous peoples. From a liberal point of view, blood quantum rules are unfair, but the federal government may not have the legitimate jurisdiction to interfere with the decisions of self-governing indigenous communities on such issues. For more on this, see Kymlicka 1996. For examples of US opposition to minority rights protection, see Van Dyke 1985: 194; O'Brien 1987: 276-80; McKean 1983: 7 0 - 1 , 142-43; Sohn 1981: 272, 279. For an example, see Hughes 1999: 3, 6. Hughes notes that American advisers in Russia discouraged the adoption of a multinational conception of feder­ alism, which would give national recognition to the ethnic republics, in favour of a uni-national conception of federalism which denied any link between federalism and rights of self-government for national minorities. Fortunately, the Russians did not take this advice. In a recent article, David Bromwich suggested that Charles Taylor's essay on 'Multiculturalism and the politics of recognition' is 'in some ways a Canadian sermon to Americans' (1995: 96). I think this is a misunderstanding. Taylor's lecture is better understood as a sermon to (Americanised) English-Canadi­ ans, and his argument is not that American-style liberalism is wrong for Amer­ ican society, where minority nationalism is peripheral, but rather that it is wrong for countries like Canada where minority nationalism is central to political life. At best, it tells us nothing. At worst, it gets the wrong answer. Faced with a con­ flict between a majority seeking to centralise power in the state and a demand by a national minority for regional autonomy, many liberal commentators have assumed that the latter forms a kind of 'group right', and that liberals should therefore support the majoritarian nationalists who seek to centralise all power at a level where they dominate. It should be clear why this is not a just solution to the issue, but for a more detailed explanation of why deci­ sions about the division of powers can lead to injustice, see Kymlicka 1998c. For example, the Canadian Royal Commission on Aboriginal Peoples studied extensively the policing and judicial system run by the Navajo nation in the American southwest. 13 Hybrid Democracy: Iroquois Federalism and the Postcolonial Project

1 This strategy of reading modern world history as hybrid, where the colonised subjects act upon the colonisers as well as the reverse, should not be confined

N O T E S (PAGES 2 3 9 - 2 5 3 )

281

to histories of the colonised places. Edward Said reads classic European texts as hybrid, internally related to the imperalised Others even as they celebrate European nationalisms (Said 1994). 2 See also Countryman 1996: 'If we accept that both slaves and Indians were important components of the colonial formation, neither a the-colonieswere-born-modern perspective nor a the-colonies-were-intrinsically-an-oldorder-in-the-European-style perspective does justice to them' (350). 3 Definitions of sovereignty abound, but they vary only subtly. Morris defines it as: 'Sovereignty is the highest, final, and supreme political and legal author­ ity (and power) within the territorially defined domain of a system of direct rule' (1998 166). Thomas Pogge (1992: 48-75) distinguishes degrees of sov­ ereignty. For him, sovereignty is when an agent has unsupervised and irrevo­ cable authority over another. Given this distinction, I am concerned with absolute sovereignty. I find it a bit puzzling that Pogge includes the condition that the decisions and laws of a sovereign power are irrevocable. This seems quite unreasonable, since in practice many states revoke or revise decisions previously made and n o o n e considers this a challenge to their sovereignty. T h e condition should rather be put that a sovereign's decisions cannot be revoked or overridden by another authority. 4 Pogge 1992. Pogge distinguishes two approaches to social justice: an institu­ tional and an interactional approach. Whereas the interactional approach focuses only o n the actions of particular individuals as they affect identifiable persons, the institutional approach theories moral responsibility for the fact of others insofar as agents participate in institutions and practices that may or d o harm them. An institutional approach as distinct from an interactional approach, he suggests, makes issues of international justice and moral responsibility with respect to distant strangers more visible. I make a similar distinction between a distributive approach to justice and an approach that focuses on the way institutions produce distributions (see Young 1990). Focusing o n how structures and institutional relations produce distributive patterns, I suggest, makes a connected international society more visible and the relations of moral responsibilities of distant peoples within it. 5 In another paper I develop a model of relational self-determination inter­ preted as non-domination as distinct from non-interference; I derive this model from the way many indigenous movements talk about their aspira­ tions, and I show how application of this interpretation of self-determination to relationships between non-indigenous and indigenous governments potentially opens ways to resolve conflicts less available under other inter­ pretations of self-determination. See Young 1999. 6 J o h n Pocock is n o doubt correct to distinguish, in his essay in this volume, between confederacy, as intergovernmental relationships held together only by treaties, and federation, a relationship of self-governing entities with a more enduring and general set of procedures guiding their relations. Assum­ ing this distinction the Iroquois were more of a confederacy than a federa­ tion, perhaps, though the Great Law of Peace could be interpreted as a general set of procedures. In any case, as Pocock points out, o n e of the points of the postcolonial project is to blur the distinction between these. T h e pro­ ject aims to make relations between peoples who now understand themselves to be related to o n e another only through treaties more federated, and to make the relations between peoples within a given, existing state more like relations between treaty partners.

Bibliography

Aboriginal Land Commissioner (1981) Limmen Bight Land Claim. Canberra: AGPS. (1982) Yutpundji-Djindiwirritj (Roper Bar) Land Claim, Canberra: AGPS. (1985) Cox River (Alawa-Ngandji) Land Claim. Canberra: AGPS. (1988) Mataranka Land Claim. Canberra: AGPS. Aboriginal Law Bulletin (1996) 'Chronology of the Kumarangk/Hindmarsh Island affair', 3, 83 (September): 22. Abu-Lughod, L. (1991) 'Writing against culture' in R. G. Fox (ed.), Recapturing Anthropology: Working in the Present, Santa Fe: School of American Studies Research Press. Ackerman, B. (1991) We the People (vol. 1): Foundations, Cambridge, Mass.: Harvard University Press. Aleinikoff, A. (1994) 'Puerto Rico and the Constitution: conundrums and prospects', Constitutional Commentary, 11: 15-43. Alfred, G. R. (Taiaiake) (1995) Heeding the Voices of our Ancestors: Kahnawake Mohawk Politics and the Rise of Native Nationalism, Toronto; New York: Oxford University Press. (1999a) Peace, Power, Righteousness: An Indigenous Manifesto. Oxford: Oxford University Press. (1999b) 'Tewehid.rak (We should remember)', Agenda Item 5, Working Group on Indigenous Populations, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Commission on Human Rights, 17th session, 28 July. Anaya, S.J. (1996) Indigenous Peoples in International Law. Oxford: Oxford Uni­ versity Press. Anderson, B. (1991) Imagined Communities: Reflections on the Origin and Spread of Nationalism, London: Verso. Anderson, I. (1993) 'Black suffering, white trash', Arena, June-July: 8. Anglican Church (1990) Constitution of the Anglican Church in Aotearoa, New Zealand, and Polynesia. Antonios, Z. (1998) Native Title Report. Sydney: Human Rights and Equal Oppor­ tunity Commission. Appadurai, A. (1988) 'Putting hierarchy in its place', Cultural Anthropology, 3, 1: 36-49.

282

BIBLIOGRAPHY

283

Archie, C. (1995) Maori Sovereignty: Pakeha Perspectives. Auckland: Hodder Moa Beckett. Armitage, A. (1995) Comparing the Policy of Aboriginal Assimilation in Australia, Canada and New Zealand, Vancouver: University of British Columbia Press. Arneil, B. (1996) fohn Locke and America: The Defence ofEnglish Colonialism. Oxford: Oxford University Press. Asad, T. (ed.) (1973) Anthropology and the Colonial Encounter, New York: Ithaca Press and Humanities Press. (1979) 'Anthropology and the Analysis of Ideology', Man, 14: 607-27. Asch, M. (ed.) (1997) Aboriginal and Treaty Rights in Canada, Vancouver: Univer­ sity of British Columbia Press. (1999) 'From "Calder" to "Van der Peet": Aboriginal Rights and Canadian Law, 1973-1996' in P. Havemann (ed.), Indigenous Peoples'Rights in Australia, Canada, and New Zealand. Oxford: Oxford University Press: pp. 428-46. Attwood, B. (1996a) 'Introduction: The Past as Future: Aborigines, Australia and the (dis)course of History' and 'Mabo, Australia and the End of History' in B. Attwood (ed.), In the Age of Mabo: History, Aborigines and Australia. St Leonards: Allen & Unwin, pp. vii-xxxviii and 100-16. (1996b) 'Making History, Imagining Aborigines and Australia' in T. Bonyhady and T. Griffiths (eds), Prehistory to Politics: fohn Mulvaney, the Humani­ ties and the Public Intellectual. Carlton South: Melbourne University Press, pp. 9 8 - 1 1 6 . Awatere, D. (1984) Maori Sovereignty, Auckland: Broadsheets Publications. Ballara, A. (1998) Iwi: The Dynamics of Maori Tribal Organisation from c.1769 to c.1945, Wellington: Victoria University Press. Barcham, M. (1998) 'The Challenge of Urban Maori: Reconciling Conceptions of Indigeneity and Social Change', Asia Pacific Viewpoint, 39, 3: 303-14. Barlow, C. (1996) Tikanga Whakaaro: Key Concepts in Maori Culture, Auckland: Oxford University Press. Barreto, A. A. (1998) Language, Elites and the State: Nationalism in Puerto Rico and Quebec, Westport: Praeger. Barriero, J. (ed.) (1988) Indian Roots of American Democracy, Ithaca: Akewkon/ Cornell University Press. Baudrillard.J. (1981) For a Critique of the Political Economy of the Sign, St Louis: Telos Press. (1983) Simulations, New York: Semiotext(e). Beauvais, J. (1985) Kahnawake: A Mohawk Look at Canada and Adventures of Big fohn Canadian, Kahnawake: Khanata Industries. Beckett, J. (ed.) (1988) Past and Present: The Construction of Aboriginality, Can­ berra: Aboriginal Studies Press. Beitz, C. (1979) Political Theory and International Relations, Princeton: Princeton University Press. Belich.J. (1986) The New Zealand Wars and the Victorian Interpretation of Racial Con­ flict, Auckland: Oxford University Press. (1989) 'I Shall Not Die': Titokowaru's War; New Zealand 1868-69, Wellington: Allen & Unwin. (1996) Making Peoples: A History of the New Zealanders from Polynesian Settlement to the End of the Nineteenth Century, Auckland: Allen Lane, the Penguin Press; Honolulu: University of Hawai'i Press. Bennett, T. and Blundell, V. (1995) 'Introduction: First peoples', Cultural Studies, 9, 1: 1-10.

284

BIBLIOGRAPHY

Bern, J. (1989) 'The Politics of a Small Northern Territory Town: A History of Managing Dependency' in P. Loveday and A. Webb (eds), Small Towns in Northern Australia. Darwin: ANU, NARU. (1990) 'Community Management and Self-determination' in Report to the House of Representatives Standing Committee on Aboriginal Affairs. Canberra: AGPS. and Larbalestier, J. (1985) 'Rival Constructions of Traditional Aboriginal Ownership in the Limmen Bight Land Claim', Oceania, 56, 1: 56-76. and Layton, R. (1984) 'The Local Descent Group and the Division of Labour in the Cox River Land Claim' in L. R. Hiatt (ed.), Aboriginal Landowners. Oceania Monograph no. 27, Sydney. Berndt, R. M. (ed.) (1982) Aboriginal Sites, Rights and Resource Development. Perth: University of Western Australia Press. and Berndt, C.H. with Stanton, J. E. (1993). A World That Was: The Yaraldi of the Murray River and the Lakes, South Australia. Vancouver: UBC Press. Bhabha, H. K. (1990) 'Introduction: Narrating the nation' in H. K. Bhabha (ed.), Nation and Narration, London: Routledge. (1994) 'DissemiNation: Time, Narrative and the Margins of the Modern Nation'; 'Signs Taken for Wonders: Questions of Ambivalence and Author­ ity under a Tree outside Delhi, May 1817' in The Location of Culture, Lon­ don: Routledge: pp. 102-22, 139-70. Bin-Sallik, M. (1996) 'Black witch hunt: white silence!', Australian Feminist Stud­ ies, 11,24: 2 0 1 - 1 1 . Biolsi, T. and Zimmerman, L.J. (1997) Indians and Anthropologists: Vine Deloria Jr. and the Critique of Anthropology, Tucson: University of Arizona Press. Blainey, G. (1993) 'Drawing U p a Balance Sheet of Our History', Quadrant, 37, 7-8: 10-15. Blanchard, D. (1982) Patterns of Tradition and Change: The Re-creation of Iroquois Culture at Kahnawake, PhD Dissertation: University of Chicago. Blythe, M. (1994) Naming the Other: Images of the Maori in New Zealand Film and Tele­ vision, Metuchen, NJ: Scarecrow Press. Boer, B. (1991) 'Sustaining the heritage' in M. Behrens and B. Tsamenyi (eds), Environmental Law and Policy Workshop; Papers and Proceedings: Our Common Future, Hobart: University of Tasmania Law School. Boldt, M. (1993) Surviving as Indians: The Challenge of Self-government. Toronto: University of Toronto Press. and Long, J. A. (1985) 'Tribal Traditions and European-Western Political Ideologies: T h e Dilemma of Canada's Native Indians' in M. Boldt and J. A. Long (eds), The Quest for Justice: Aboriginal Peoples and Aboriginal Rights. Toronto: University of Toronto Press: pp. 333-46. Borrows, J. (1997a) 'The Trickster: Integral to a Distinctive Culture', Constitu­ tional Forum, 8: 27. (1997b) 'Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-government' in M. Asch (ed.), Aboriginal and Treaty Rights in Canada. Vancouver: University of British Columbia Press. (2000) '"Landed" Citizenship: Narratives of Aboriginal Political Participa­ tion' in W. Kymlicka and W. Norman (eds), Citizenship in Diverse Societies. Oxford: Oxford University Press: pp. 326-42. Brennan, F. (1995) One Land, One Nation: Mabo - Towards 2001. St Lucia: Univer­ sity of Queensland Press. (1998) The Wik Debate: Its Impact on Aborigines, Pastoralists and Miners. Sydney: University of New South Wales Press. Briggs, C. L. (1996) 'The Politics of Discursive Authority in Research on the "Invention of Tradition"', Cultural Anthropology, 11, 4: 435-69.

BIBLIOGRAPHY

285

Bringing Them Home: Report of the Inquiry into the Forcible Removal of Aboriginal and Torres Strait Islander Children from their Families (1997) Sydney: Human Rights and Equal Opportunity Commission. British Columbian Studies (1998-99) 120 (Winter). Bromwich, D. (1995) 'Culturalism: T h e Euthanasia of Liberalism', Dissent (Win­ ter): 8 9 - 1 0 2 . Brookfield, F. M. (1995) 'The Treaty of Waitangi, the Constitution and the Future', British Review of New Zealand Studies, 8: 3 - 2 1 . Brubaker, R. (1996) Nationalism Reframed: Nationhood and the National Question in the New Europe. Cambridge, Mass.: Cambridge University Press. Campisi,J. (1991) The Mashpee Indians: Tribe on Trial, Syracuse: Syracuse Univer­ sity Press. Canada, Royal Commission on Aboriginal Peoples (1993) Partners in Confedera­ tion: Aboriginal Peoples, Self-government and the Constitution, Ottawa: Minister of Supply and Services Canada. (1995a) Treaty-making in the Spirit of Co-existence, Ottawa: Minister of Supply and Services Canada. (1995b) Aboriginal Self-government: Legal and Constitutional Issues, Ottawa: Minister of Supply and Services Canada. (1996a) Looking Forward, Looking Back: Report of the Royal Commission on Aboriginal Peoples, vol. 1, Ottawa: Minister of Supply and Services Canada. (1996b) Restructuring the Relationship: Report of the Royal Commission on Aborigi­ nal Peoples, vol. 2, Ottawa: Minister of Supply and Services Canada. Cane, P. (1996) An Introduction to Administrative Law, third edn, Oxford: Oxford University Press. Caney, S. (1999) 'Cosmopolitan Justice and Political Structures', paper pre­ sented at the Morrell Symposium o n Sovereignty and Justice, September. Cardoso, F. Henrique (1993) 'North-South Relations in the Present Context: A New Dependency?' in M. Carnoy et al (eds), The New Global Economy in the Information Age, University Park: Pennsylvania State University Press: pp. 149-60. Carens,J. (1987) 'Aliens and Citizens: T h e Case for Open Borders', The Review of Politics, 49: 2 5 1 - 7 3 . (1995) 'Citizenship and Aboriginal Self-government', paper prepared for the Royal Commission on Aboriginal Peoples. Caselburg, John (ed.) (1975) Maori is My Name: Historical Writings in Translation. Dunedin:John Mclndoe Ltd. Cassidy, F. and Bish, R. L. (1989) Indian Government: Its Meaning in Practice. Lantzville: Oolichan Books. Cesaire, Aime (1972) Discourse on Colonialism. New York: Monthly Review Press. Chamberlin, P. (1995) 'Whites Out of Step in Clash over Native Lore', Age, 24 May. Chartrand, L. A. H. Paul (1993) Aboriginal Self-government: The Two Sides of Legitimacy' in S. D. Phillips (ed.), How Ottawa Spends: A More Democratic Canada...? Ottawa: Carleton University Press: pp. 231-56. (1996) 'Self-determination Without a Discrete Territorial Base?' in D. Clark and R. Williamson (eds), Self-determination: International Perspectives, Lon­ don: Macmillan, pp. 211-34. (1999) 'Aboriginal Peoples in Canada: Aspirations for Distributive Justice as Distinct Peoples' in P. Havemann (ed.), Indigenous Peoples 'Rights: In Australia, Canada and New Zealand. Auckland: Oxford University Press: pp. 88-107. Chase, A. (1981) 'Empty Vessels and Loud Noises: Views about Aboriginality Today' Social Alternatives, 2, 2: 23-7. Chatterjee, P. (1993) The Nation and its Fragments: Colonial and Postcolonial Histo­ ries. Princeton: Princeton University Press.

286

BIBLIOGRAPHY

Chesterman, J. and Galligan, B. (1998) Citizens Without Rights: Aborigines and Aus­ tralian Citizenship. Melbourne: Cambridge University Press. Cheyne, C , O'Brien, M. and Belgrave, M. (1997) Social Policy in Aolearoa/New Zealand. Auckland: Oxford University Press. Clark, D. and Williams, R. (1996) Self-determination in International Perspective. Bas­ ingstoke: Macmillan Press. Clarke, J. (1997). 'The Native Title Amendment Bill 1997: A Different Order of Uncertainty?' Discussion Paper 144/97. Canberra: Centre for Aboriginal Economic Policy Research. (1999)'"Indigenous" People and Constitutional Law' in P. Hanks and D. Cass, Australian Constitutional Law: Materials and Commentary, sixth edn, Sydney: Butter worths: 50-112. Clifford, J. (1986) 'On Ethnographic Allegory' in J. Clifford and G. E. Marcus (eds), Writing Culture: The Politics and Poetics of Ethnography. Berkeley: Uni­ versity of California Press. (1988) The Predicament of Culture: Twentieth-century Ethnography, Literature and Art. Cambridge, Mass.: Harvard University Press. and Marcus, G. E. (eds) (1986) Writing Culture: The Politics and Poetics of Ethnography. Berkeley: University of California Press. Coates, K. (1996) 'International Perspectives on the New Zealand Government's Relationship with the Maori', in K. Coates and P. McHugh (eds), Living Relationships, Kokiri Ngatahi: The Treaty of Waitangi in the New Millennium. Wellington: Victoria University Press, 1998: pp. 18-65. and McHugh, P. (eds) (1998) Living Relationships, Kokiri Ngatahi: The Treaty of Waitangi in the New Millennium. Wellington: Victoria University Press. Cohn, B. (1980) 'History and Anthropology: The State of Play', Comparative Stud­ ies in Society and History, 22 (April): 198-221. Colden, C. (1747) The History of the Five Indian Nations of Canada, London. Connerton, P. (1989) How Societies Remember. Cambridge: Cambridge University Press. Connolly, W. E. (1991) Identity/Difference: Democratic Negotiations of Political Para­ dox, Ithaca: Cornell University Press. (1994) 'Tocqueville, Territory and Violence', Theory Culture and Society, 11 (winter): 19-40. (1995) The Ethos ofPluralization. Minneapolis: University of Minnesota Press. (1998) 'Beyond Good and Evil: The Ethical Sensibility of Michel Foucault' in J. Moss (ed.), The Later Foucault. London: Sage: pp. 108-28. (1999) Why I Am Not a Secularist. Minneapolis: University of Minnesota Press. Connor, W. (forthcoming) 'National Self-determination and Tomorrow's Politi­ cal Map' in A. Cairns et al. (eds), Citizenship, Diversity and Pluralism. Mon­ treal: McGill-Queen's University Press. Coombs, H. C. (1982) 'On the Question of Government' in R. M. Berndt (ed.), Aboriginal Sites, Rights and Resource Development. Perth: University of Western Australia Press, pp. 227-32. (1994) Aboriginal Autonomy: Issues and Strategies. Cambridge: Cambridge University Press. Cooper, F. and Stoler, A. L. (eds) (1997) Tensions of Empire: Colonial Cultures in a Bourgeois World. Berkeley, California: University of California Press. Cornell, S. (1988) 'The Transformation of Tribe: Organisation and Self-concept in Native American Ethnicities', Ethnic and Racial Studies, 1 1 , 1 : 27-47. Council for Aboriginal Reconciliation (1997) Overview: Proceedings of the Aus­ tralian Reconciliation Convention: Book 1. Kingston: Council for Aboriginal Reconciliation.

BIBLIOGRAPHY

287

Countryman, E. (1996) 'Indians, the Colonial Order, and the Social Significance of the American Revolution', William and Mary Quarterly, 53, 2: pp. 342-62. Crapanzano, V. (1986) 'Hermes Dilemma: The Masking of Subversion in Ethno­ graphic Description' in J. Clifford and G. E. Marcus (eds), Writing Culture: The Politics and Poetics of Ethnography, Berkeley: University of California Press: pp. 5 1 - 7 6 . Crete, J. and Zylberberg, J. (1991) 'Une problematique floue: l'autorepresentation du citoyen au Quebec' in D. Colas et al (eds), Citoyenneteet nationalite: perspectives en France et au Quebec. Paris: Presses Universitaires de France. Culhane, D. (1998) The Pleasure of the Crown: Anthropology, Law and First Nations. Burnaby, B.C.: Talon Books. Daes, E. I. A. (1996) 'The Right of Indigenous Peoples to "Self-determination" in the Contemporary World Order' in D. Clark and R. Williamson (eds), Selfdetermination: International Perspectives. Basingstoke: Macmillan Press. Davis, M. (1996) 'Competing Knowledges? Indigenous Knowledge Systems and Western Scientific Discourses', paper presented to Science and Other Knowl­ edge Traditions Conference, James Cook University, Cairns, 23-7 August. Deleuze, G. and Guattari, F. (1987) A Thousand Plateaus: Capitalism and Schizo­ phrenia, trans. B. Massumi, Minneapolis: University of Minnesota Press. and Parnet, C. (1987) Dialogues, trans. H. Tomlinson and B. Habberjam, New York: Columbia University Press. Deloria, V. (1969) Custer Died for Your Sins. New York: MacMillan Co. Derrida.J. (1981) Positions. Chicago: University of Chicago Press. Dickson-Gilmore, E.J. (1999a) 'lati-Onkwehonwe. Blood Quantum, Membership and the Politics of Exclusion in Kahnawake', Citizenship Studies, 3, 1: 27-44. (1999b) "This is my history, I know who I am": History, Factionalist Com­ petition, and the Assumption of Imposition in the Kahnawake Mohawk Nation', Ethnohistory, 46, 3: 429-50. Dodson, M. (1994) 'The End in the Beginning: Re (de) fining Aboriginality' (the Wentworth Lecture), Australian Aboriginal Studies, 1: 2-14. (1995) Office of the Aboriginal and Torres Strait Islander Social fustice Commis­ sioner: Third Annual Report. Canberra: AGPS. (1997) Native Title Report -fuly 1996 to June 1997: Report of the Aboriginal and Torres Strait Islander Social Justice Commissioner to the Attorney-General as required by section 209 of the Native Title Act 1993. Sydney: Human Rights and Equal Opportunity Commission. Dominy, M. D. (1995) 'White Settler Assertions of Native Status', American Eth­ nologist, 22, 2: 3 5 8 - 7 4 . Doppelt, G. (1998) 'Is There a Multicultural Liberalism?' Inquiry, 41: 223-48. Dudley, M. Kioni and Agard, K. Kealoha (1993) A Call for Hawaiian Sovereignty. Honolulu: Naa Kaane O Ka Malo Press. Durie, M. H. (1995) 'Tino Rangatiratanga', He Pukenga Korero, 1,1: 66-82. (1997) 'Identity, Nationhood, and Implications for Practice in New Zealand', New Zealand Journal of Psychology, 26, 2: 3 2 - 8 . (1998) TeMana, Te Kawanatanga: The Politics ojMaori Self-determination. Auck­ land: Oxford University Press. Dworkin, R. (1978) Taking Rights Seriously. London: Duckworth. Edgeworth, B. (1994) 'Tenure, Allodialism and Indigenous Rights at Common Law: English, United States and Australian Land Law Compared after Mabo\. Queensland, Anglo-American Law Review, 23: 397-434. Edmunds, M. (ed.) (1998) Regional Agreements: Key Issues in Australia, vols 1 and 2, Canberra: Australian Institute of Aboriginal and Torres Strait Islander Studies.

288

BIBLIOGRAPHY

Elazar, DJ. (1987) Exploring Federalism. Tuscaloosa: University of Alabama Press. Elkins, D. (1992) Where Should the Majority Rule? Reflections on Non-territorial Provinces and Other Constitutional Proposals. Edmonton, Alberta: Centre for Constitutional Studies, University of Alberta. Elster, J. (1986) 'The Market and the Forum: Three Varieties of Political Theory' in J. Elser and A. Hillard (eds), Foundations of Social Choice Theory. Cam­ bridge: Cambridge University Press: pp. 103-32. Eze, E. Chukwudi (1997) 'Democracy or Consensus? A Response to Wiredu' in E. Chukwudi Eze (ed.), Postcolonial African Philosophy: A Critical Reader. Oxford: Blackwell Publishers. Fanon, F. (1963) The Wretched of the Earth. New York: Grove Press. Fay, B. (1996) Contemporary Philosophy of Social Science. Oxford: Blackwell. Fenton, W. N. (1998) The Great Law and the Longhouse: A Political History of the Iro­ quois Confederacy. Norman: University of Oklahoma Press. Ferguson, A. (1995) An Essay on the History of Civil Society (1767), ed. F. OzSalzberger, Cambridge, New York: Cambridge University Press. Finlayson, J. and Jackson-Nakano, A. (eds) (1996) Heritage and Native Title: Anthropological and Legal Perspectives. Canberra: Australian Institute of Aboriginal and Torres Strait Islander Studies. Fleras, A. (1992) 'Managing Aboriginality: Canadian Perspectives, International Lessons', paper presented to the Australian and New Zealand Association for Canadian Studies, Victoria University, Wellington, NZ, 6 December. (1996) 'The Politics of Jurisdiction' in D. A. Long and O. Dickason (eds), Visions of the Heart. Toronto: Harcourt Brace: pp. 107-42. (1999) 'Politicising Indigeneity: Ethno-politics in White Settler Dominions' in P. Havemann (ed.), Indigenous Peoples' Rights in Australia, Canada, and New Zealand. Auckland: Oxford University Press: pp. 187-234. and Elliott, J. L. (1992) The Nations Within: Aboriginal-State Relations in Canada, the United States, and New Zealand. Toronto: Oxford University Press. and Elliott, J. L. (1996) Unequal Relations: An Introduction to Race, Ethnic, and Aboriginal Dynamics in Canada, second edn, Scarborough: Prentice-Hall. and Maaka, R. (1998) 'Rethinking Claims-making as Maori Affairs Policy', HePukenga Korero, 3, 1: 3 5 - 5 1 . and Spoonley, P. (1999) Recalling Aotearoa: Ethnic Relations and Indigenous Pol­ itics in New Zealand. Auckland: Oxford University Press. Foster, H. (1998-99) 'Honouring the Queen: A Legal and Historical Perspective o n the Nisga'a Treaty', British Columbian Studies, 120 (Winter): 11-37. Foucault, M. (1980) Power/Knowledge: Selected Interviews and Other Writings 1972-1977. New York: Pantheon Books. (1998) 'What is Enlightenment?' in P. Rabinow (ed.), Ethics, Subjectivity and Truth. New York: New Press: pp. 303-20. Frideres, J. (1999) 'Altered States: Federal Policy and Aboriginal Peoples' in P.S. Li (ed.), Race and Ethnic Relations in Canada, second edn, Toronto: Oxford University Press: pp. 116-47. Frug, G. (1999) City Making: Building Communities without Building Walls, Prince­ ton: Princeton University Press. Galligan, B. (1987) Politics of the High Court: A Study of the Judicial Branch of Gov­ ernment in Australia. St Lucia: University of Queensland Press. Gardiner, W. (1996) Return to Sender: What Really Happened at the Fiscal Envelope Hui. Auckland: Reed. Gellner, E. (1983) Nations and Nationalism. Oxford: Blackwell.

BIBLIOGRAPHY

289

Gitlin, T. (1995) The Twilight of Common Dreams. New York: Metropolitan. Glazer, N. (1997) We Are All Multiculturalists Now. Cambridge, Mass.: Harvard Uni­ versity Press. Government of Canada, the Government of British Columbia and the Nisga'a Nation (1998) Nisga'a Final Agreement. Victoria, B.C.: Ministry of Aboriginal Affairs. Graff, G. (1983) 'The Pseudo-politics of Interpretation' in W.J. T. Mitchell (ed.), The Politics of Interpretation. Chicago: University of Chicago Press. Grattan, S. and McNamara, L. (1999) 'The C o m m o n Law Construct of Native Title: A "re-feudalisadon" of Australian land law', Griffith Law Review, 8: 50-85. Gray, S. (1993) 'Wheeling, Dealing and Deconstruction: Aboriginal Art and Land Post-Mabo', Aboriginal Law Bulletin, 5: 11. (1996) 'Black Enough? Urban and Non-traditional Aboriginal Art and Pro­ posed Legislation Protection for Aboriginal Art', Culture and Policy, 7, 3: 25. Greaves, T. (1996) 'Tribal rights' in S. Brush and D. Stabinsky (eds), Valuing Local Knowledge: Indigenous People and Intellectual Property Rights. Washington DC: Island Press. Greenfield,J. (1989) The Return of Cultural Treasures. Cambridge: Cambridge Uni­ versity Press. Griffiths, G. (1994) 'The Myth of Authenticity: Representation, Discourse and Social Practice' in C. Tiffin and A. Lawson (eds), De-scribing Empire: Postcohnialism and Textuality. London: Routledge: pp. 70-85. Grinde, D. A. and Johansen, B. E. (1991) Exemplar of Liberty: Native America and the Evolution of Democracy. Los Angeles: UCLA American Indian Studies and UC Press. Gummow, W. (1999) Changeand Continuity: Statute, Equity, and Federation. Oxford, Oxford University Press. Gurr, T. (1993) Minorities at Risk: A Global View of Ethnopolitical Conflict. Washing­ ton: Institute of Peace Press. Habermas, J. (1984, 1989) A Theory of Communicative Action, 2 vols, Cambridge: Polity Press. (1996) 'Postscript to Between Facts and Norms' in M. Deflem (ed.), Habermas, Modernity and Law. London: Sage: pp. 135-50. H a n n u m , H. (1990) Autonomy, Sovereignty, and Self-determination: The Adjudication of Conflicting Rights. Philadelphia: University of Pennsylvania Press. Hardimon, M. (1992) 'The Project of Reconciliation: Hegel's Social Philosophy', Philosophy and Public Affairs, 21: 165-95. Hardin, R. (1995) One for All: The Logic of Group Conflict. Princeton: Princeton University Press. Harris, C. (1997) The Resettlement of British Columbia. Vancouver: University of British Columbia Press. Harris, M. (1996) 'Scientific and Cultural Vandalism', Alternative Law Journal, 21, 1 (February): 21. Hauptman, L. M. (1986) The Iroquois Strugglefor Survival: World War II to Red Power, Syracuse: Syracuse University Press. Havemann, P. (ed.) (1999) Indigenous Peoples'Rights in Australia, Canada, andNew Zealand. Auckland: Oxford University Press. Held, D. (1995) Democracy and the Global Order. Cambridge: Polity Press. Henare, Denise (1995) 'The Ka Awatea Report: Reflections on its Process and Visions' in M. Wilson and A. Yeatman (eds), Justice and Identity: Antipodean Practices. Wellington: Bridget Williams Books, pp. 4 4 - 6 1 .

290

BIBLIOGRAPHY

Henderson, J. Youngblood (1994) 'Empowering Treaty Federalism', University of Saskatchewan Law Review, 58, 2: 211-329. Hiatt, L. R. (1989) 'Aboriginal Land Tenure and Contemporary Claims in Aus­ tralia' in E. Wilmsen (ed.), We are Here: Politics of Aboriginal Land Tenure. Berkeley: University of California Press, pp. 99-117. Hollinger, H. (1995) Postethnic America: Beyond Multiculturalism. New York: Basic Books. (1996) 'Group Preferences, Cultural Diversity, and Social Democracy: Notes towards a Theory of Affirmative Action', Representations, 55: 31-40. (1998) 'National Culture and Communities of Descent', Reviews in American History 26: 312-28. Holmes, S. (1995) Passions and Constraint: On the Theory of Liberal Democracy. Chicago: University of Chicago Press. Howitt, R. (1991), 'Aborigines and Gold Mining in Central Australia' in J. Connell and R. Howitt (eds), Mining and Indigenous Peoples in Australasia. Syd­ ney: Sydney University Press, pp. 119-37. Hughes, J. (1999) 'Institutional Responses to Separatism: Federalism and Tran­ sition to Democracy in Russia', presented to ASN Convention, New York. Hutton,J. (1996) 'Rangatiratanga', Outburst (March): 5. Hymes, D. (1969) Reinventing Anthropology. New York: Pantheon Books. Ihimaera, Witi (ed.) (1995) Visions Aotearoa: Kaupapa New Zealand. Wellington: Bridget Williams Books. International Alliance of Indigenous-Tribal Peoples of the Tropical Forests and International Work Group for Indigenous Affairs (IWGlA) (1996) Indige­ nous Peoples, Forests, and Biodiversity. London. Ivison, D. (1997) 'Postcolonialism and Political Theory' in A. Vincent (ed.), Politi­ cal Theory: Tradition and Diversity. Cambridge: Cambridge University Press: pp. 154-71. (1998) 'The Disciplinary Moment: Foucault, Law and the Reinscription of Rights' in J. Moss (ed.), The Later Foucault. London: Sage: pp. 129-48. (2000) 'Modus Vivendi Citizenship' in I. Hampsher-Monk and C. Mackinnon (eds), The Demands of Citizenship. London: Continuum. Jackson, M. (1988) Paths Toward a Clearing: Radical Empiricism and Ethnographic Inquiry. Bloomington: Indiana University Press. (1996) 'Introduction: Phenomenology, Radical Empiricism and Anthropo­ logical Critique' in M. Jackson (ed.), Things as They Are: New Directions in Phenomenological Anthropology. Bloomington: Indiana University Press: pp. 1-50. Jackson, Moana (1995) 'Comment' in G. McLay (ed.), Treaty Settlements: The Unfinished Business. New Zealand: Institute of Advanced Legal Studies/Vic­ toria University of Wellington Law Review. (1997) 'The Maori View of the Law', paper presented at Canterbury Uni­ versity, June. James Bay and Northern Quebec Agreement (1976) Quebec: Editeur Officiel du Quebec. Janke, T. (1996) 'Protecting Australian Indigenous Arts and Cultural Expression: A Matter of Legislative Reform or Cultural Policy?' Culture and Policy, 7,3: 15. (1997) 'The Application of Copyright and Other Intellectual Property Laws to Aboriginal and Torres Strait Islander Cultural and Intellectual Prop­ erty', Art Antiquity and Law, 2, 1 (March): 13. (1998) 'Museums and Indigenous Cultural and Intellectual Property Rights', Museum National, August: 7.

BIBLIOGRAPHY

291

Jennings, F. (1987) '"Pennsylvania Indians" and the Iroquois' in D. Richter and J. Merrell (eds), Beyond the Covenant Chain: The Iroquois and Their Neighbors in Indian North America, 1600-1800. Syracuse: Syracuse University Press: pp. 1-50. Jocks, C. R. (1994) Relationship Structures in Longhouse Tradition at Kahnawd:ke. Ph.D. dissertation: University of California (Santa Barbara). Johnston, P. M. G. (1994) 'Examining a State Relationship: "Legitimation" and Te Kohanga Reo', TePua, 3, 2: 22-34. Jones, A., Marshall, J., Morris, K., Matthews, G., Smith, H. and Smith, L. Tuhiwai (1995) Myths and Realities: Schooling in New Zealand, second edn, Palmerston North: Dunmore Press. Jull, P. and Craig, D. (1997) 'Reflections on Regional Agreements: Yesterday, Today, and Tomorrow, Australian Indigenous Law Reporter, 2, 4: 475-93. Kaplan, W. (ed.) (1993) Belonging: The Meaning and Sense of Citizenship in Canada. Montreal and Kingston: McGill-Queen's University Press. Kasprycki, S. S., Stambrau, D. I. and Roth, A. V. (eds) (1998) IroquoisART: Visual Expressions of Contemporary Native American Artists. Aldenstadt: ERNAS Monographs I. Kawepo, R. (1860) 'Letter to the Settlers of Hawkes Bay. November' in J. Caselberg (ed.) (1975) Maori is My Name: Historical Maori Writings in Translation. Dunedin:John Mclndoe Ltd: pp. 8 2 - 4 . Kawharu, H. (ed.) (1989) Waitangi: Maori and Pakeha Perspectives on the Treaty of Waitangi. Auckland: Oxford University Press. (1996) 'Rangatiratanga and Sovereignty by 2040', He Pukenga Korero, 1,2: 11-15. Keesing, R. (1989) 'Creating the Past: Custom and Identity in the Pacific', Con­ temporary Pacific, 1: 19-42. Kelsey, J. (1996) 'From Flagpoles to Pine Trees: Tino Rangatiratanga and Treaty Policy Today' in P. Spoonley, D. Pearson and C. McPherson (eds), Nga Patai: Racism and Ethnic Relations in Aotearoa/New Zealand. Palmerston North: Dunmore: pp. 108-30. Kerby, A. P. (1991) Narrative and the Self. Bloomington: Indiana University Press. Kickingbird, K. (1984) 'Indian Sovereignty: The American Experience' in Leroy Little Bear et al. (eds), Pathways to Self-determination: Canadian Indians and the Canadian State. Toronto: University of Toronto Press. Kirby, R. (1970-71) 'Conciliation and Arbitration in Australia - Where the Emphasis?' Federal Law Review, 4: 1-29. Koenigsberger, H. G. (1989) 'Composite States, Representative Institutions, and the American Revolution', Historical Research, 62: 135-53. Krygier, M. (1986) 'Law as Tradition', Law and Philosophy, 5: 237-62. (1988) 'The Traditionality of Statutes', Ratio Juris, 1: 20-39. (1991) 'Thinking Like a Lawyer', Poznan Studies in the Philosophy of the Sciences and the Humanities, 23: 6 7 - 9 0 . (1997) Between Fear and Hope: Hybrid Thoughts on Public Values. Sydney: ABC Books. Kukathas, C. (1992) 'Are There Any Cultural Rights?' Political Theory, 20: 105-39. (1997a) 'Cultural toleration', Nomos, 39: 69-104. (1997b) 'Liberalism, Multiculturalism and Oppresssion' in A. Vincent (ed.), Political Theory: Tradition and Diversity. Cambridge: Cambridge Uni­ versity Press: pp. 132-53. Kulchyski, P. (1995) 'Aboriginal Peoples and Hegemony in Canada', Journal of Canadian Studies, 30, 1: 6 0 - 8 .

292

BIBLIOGRAPHY

Kuper, A. (1996) Anthropology and Anthropologists: The Modern British School. Lon­ don & New York: Routledge. Kymlicka, W. (1989) Liberalism, Community and Culture. Oxford: Oxford Univer­ sity Press. (1995) Multicultural Citizenship. Oxford: Oxford University Press. (1996) 'Minority group rights: the good, the bad and the intolerable', Dissent, Summer: 22-30. (1998a) Finding Our Way: Rethinking Ethnocultural Relations in Canada. Toronto: Oxford University Press . (1998b) 'Is Federalism an Alternative to Secession?' in P. Lehning (ed.), Theories of Secession. London: Routledge: pp. 111-50. (1998c) 'Human Rights and Ethno-cultural Justice', Review of Constitutional Studies, 4, 2: 213-38. (1999a) 'Theorising Indigenous Rights', University of Toronto Law Journal, 49: 281-93. (1999b) 'Misunderstanding Nationalism' in R. Beiner (ed.), Theorising Nationalism. Albany, NY: State University of New York Press: pp. 131-40. (forthcoming) 'Ethnic Relations in Eastern Europe and Western Political Theory' in W. Kymlicka and M. Opalski (eds), Can Liberal Pluralism be Exported ? Oxford: Oxford University Press. and Raviot,J.-R. (1997) 'Living Together: International Aspects of Federal Systems', Canadian Foreign Policy, 5, 1: 1-50. La Capra, D., Baswick, D. and Leeson, D. (1999) Discussion of Windschuttle (1994), American Historical Review, 104, 2: 709-11. LaRusic, I. E. et al. (1979) 'Negotiating a Way of Life', report prepared for the Research Division, Policy, Research and Evaluation Group, Department of Indian and Northern Affairs, Canada, October. Laden, A. (1997) Constructing Shared Wills: Deliberative Liberalism and the Politics of Identity. Ph.D. thesis, Harvard University. Laitin, D. (1998) 'Liberal Theory and the Nation', Political Theory, 26: 221-36. Land Rights News (1989) March. Landmann, P. (1988) 'Co-management of Wildlife under the James Bay Treaty: the Hunting, Fishing and Trapping Coordinating Committee', unpub­ lished MA thesis, Universite Laval. Langton, M. (1994) Valuing Cultures: Recognising Indigenous Cultures as a Valued Part of Australian Heritage/Council for Aboriginal Reconciliation. Canberra: AGPS. (1997) 'Grandmothers' Law, Company Business and Succession in Chang­ ing Aboriginal Land Tenure Systems' in Yunupingu (1997): 84-116. (1999) 'Estate of Mind' in P. Havemann (ed.), Indigenous Peoples' Rights in Australia, Canada, and New Zealand. Auckland: Oxford University Press: pp. 71-87. Lapidoth, R. (1996) Autonomy: Flexible Solutions to Ethnic Conflicts. Washington: US Institute of Peace Press. Law Reform Commission (1986) Report no. 31: The Recognition of Aboriginal Cus­ tomary Laws, vol. 1, Canberra: AGPS. Laws of Australia: Aborigines (1995) Melbourne: Law Book Company. Levin, M. D. (ed.) (1993) Ethnicity and Aboriginality: Case Studies in Ethnonationalism. Toronto: University of Toronto Press. Levitus, R. (1991) 'The Boundaries of Gagudju Association Membership: Anthropology, Law, and Public Policy' in J. Connell and R. Howitt (eds), Mining and Indigenous Peoples in Australasia. Sydney: Sydney University Press, pp. 153-68. 1

BIBLIOGRAPHY

293

Levy, J. (1997) 'Classifying Cultural Rights' in I. Shapiro and W. Kymlicka (eds), NOMOS XXXIX: Ethnicity and Group Rights. New York: New York University Press: pp. 22-66. Levy, P. A. (1996) 'Exemplars of Taking Liberties: T h e Iroquois Influence Thesis and the Problem of Evidence', William and Mary Quarterly, 51, 3: 588-620. Lind, M. (1995) The Next American Nation: The New Nationalism and the Fourth Amer­ ican Revolution. New York: Free Press. Linden, W. (1994) Swiss Democracy. New York: St Martin's Press. Locke, J. (1986) Two Treatises of Government, ed. P. Laslett, New York: Cambridge University Press. (1988) 'Second Treatise of Government' in P. Laslett (ed.), Two Treatises of Government. New York: Cambridge University Press. Locre, (1827) La Legislation civile, commercial et criminelle de la France. Long, J. A. (1991) 'Federalism and Ethnic Self-determination: Native Indians in Canada', Journal of Commonwealth and Comparative Politics, 29, 2: 192-211. Maaka, R. C. A. (1993) ' P a k e k e t a n g a - T h e World of the Aged' in P. G. KoopmanBoydman (ed.), New Zealand's Ageing Society. Wellington: Daphne Brasell. (1994) 'The New Tribe: Conflicts and Continuities in the Social Organisa­ tion of Urban Maori', Contemporary Pacific, 6, 2: 3 1 1 - 3 6 . (1997) 'The Politics of Diaspora', paper given at the 'Treaty of Waitangi: Maori Political Representation Future Challenges' Conference. and Fleras, A. (1997) 'Politicizing Property Rights: Tino Rangatiratanga as Constructive Engagement', Sites, 35 (Spring): 2 0 - 4 3 . and Fleras, A. (1998) 'Te Ara Motuhake: A Passage to Self-determination', paper presented at the Pacific Island Political Science Association confer­ ence, University of Canterbury, 7-11 December. and Fleras, A. (1998-99) 'Reconceptualising Relationships: The Waitangi Tribunal', International Policy Review, 8: 7 8 - 9 1 . Macdonald, G. (1997) '"Recognition and Justice": T h e Traditional/Historical Contradiction in New South Wales' in D. E. Smith and J. Finlayson (eds), Fighting Over Country: Anthropological Perspectives. Canberra: Centre for Aboriginal Economic Policy Research: 6 5 - 8 2 . MacDuff, I. (1995) 'Resources, Rights and Recognition', Cultural Survival Quar­ terly, Fall: 3 0 - 2 . MacLaine, C. and Baxendale, M. (1991) This Land is OurLand: The Mohawk revolt at Oka. Montreal: Optimum Publishing. McBryde, I. (ed.) (1985) Who Owns the Past? Papers from the Annual Symposium of the Australian Academy of the Humanities. Melbourne: Oxford University Press. McHugh, P. (1991) The Maori Magna Carta: New Zealand Law and the Treaty of Wai­ tangi. Auckland: Oxford University Press. (1998) 'Aboriginal Identity and Relations: Models of State Practice and Law in North America and Australasia', paper presented at the Ministry of Jus­ tice, Wellington. Subsequently published in K. Coates and P. McHugh (eds), Living Relationships, Kokiri Ngatahi: The Treaty of Waitangi in the New Millennium. Wellington: Victoria University Press, 1998. (1999) 'From Sovereignty Talk to Settlement Time' in P. Havemann (ed.), Indigenous Peoples' Rights in Australia, Canada and New Zealand. Auckland: Oxford University Press: pp. 447-67. McKean, W. (1983) Equality and Discrimination under International Law. Oxford: Oxford University Press. McMaster, G. and Martin, L.-A. (eds) (1992) Indigena: Contemporary Native Per­ spectives, Vancouver: Douglas & Mclntyre.

294

BIBLIOGRAPHY

McNeil, K. (1998) 'Defining Aboriginal Title in the 90s: Has the Supreme Court finally got it Right?' Twelfth Annual Robarts Lecture, York University, Toronto, 25 March. Macklem, P. (1995) 'Normative Dimensions of the Right of Aboriginal Self-gov­ ernment' in Canadian Royal Commission, Aboriginal Self-government: Legal and Constitutional Issues. Ottawa: Minister of Supply and Services. Maddock, K. (1984) 'Aboriginal Customary Law' in P. Hanks and B. Keon-Cohen (eds), Aborigines and the Law. St Leonards: Allen & Unwin, pp. 212-37. Mahuta, R. T. K. (1996) 'Iwi Development and the Waikato-Tainui Experience' in P. Spoonley, D. Pearson and C. McPherson (eds) Nga Patai. Racism and Ethnic Relations in Aotearoa /New Zealand. Palmerston North: Dunmore Publishing. Manderson, D. (1998) 'Unutterable Shame/Unuttered Guilt: Semantics, Aporia, and the Possibility of Mabo', Law/Text/Culture, 4: 234-44. Mansell, M. (1994) 'Taking Control of Resources' in C. Fletcher (ed.), Aboriginal Self-determination in Australia. Canberra: Aboriginal Studies Press. Marcus, G. E. and Fischer, M. M.J. (1986) Anthropology as Cultural Critique: An Exper­ imental Moment in the Human Sciences. Chicago: University of Chicago Press. Marcus, J. (1990) 'Anthropology, culture and post-modernity', Social Analysis, 27 (April): 3-16. Markus, A. (1996) 'Between Mabo and a Hard Place: Race and the Contradic­ tions of Conservatism' in B. Attwood (ed.), In the Age of Mabo: History, Aborigines and Australia, St Leonards, Allen &: Unwin, pp. 88-99. Martin, D. (1995) Money, Business and Culture: Issues for Aboriginal Economic Policy. Canberra: Centre for Aboriginal Economic Policy Research. Martin, D. F. and Finlayson,J. D. (1996) Linking accountability and Self-determina­ tion in Aboriginal Organisations. Canberra: Centre for Aboriginal Economic and Policy Research, Discussion paper no. 116. Martinez, R. B. (1997) 'Puerto Rico's Decolonization', Foreign Affairs, November: 100-14. Mason, A. (1999) 'Political Community, Liberal-Nationalism and the Ethics of Assimilation', Ethics, 109: 261-86. Mead, S. Moko (1997) Landmarks, Bridges, and Visions: Aspects of Maori CultureEssays by Sidney Moko Mead. Wellington: Victoria University Press. Medicine, B. (1971) 'The Anthropologist as the Indian's Image-maker', The Indian Historian, 4, 3: 27-9. Meijl, T. van (1994) 'Maori Socio-political Organisation in Pre- and Proto­ history', Oceania 65, 4: 304-22. (1996) 'Historicising Maoritanga: Colonial Ethnography and the Reification of Maori Traditions', Journal of the Polynesian Society, 105, 3: 311-46. Melbourne, H. (1995) Maori Sovereignty: Maori Perspectives. Auckland: Hodder Moa Beckett. Merlan, F. (1996) 'Formulations of Claim and Title: A Comparative Discussion' in J. Finlayson and A. Jackson-Nakano (eds), Heritage and Native Title: Anthropological and Legal Perspectives. Canberra: AIATSIS. Metge.J. (1964) A New Maori Migration: Rural and Urban Relations in Northern New Zealand. London: University of London; The Athlone Press. Mill, J. S. (1958) Considerations on Representative Government, ed. C. V. Shields, New York: Liberal Arts Press. (1972) 'Considerations on Representative Government' (1861), in H. B. Acton (ed.), Utilitarianism: On Liberty, Considerations on Representative Gov­ ernment. London: J. M. Dent & Sons.

BIBLIOGRAPHY

295

Mills, A. (1994) Eagle Down is Our Law: Witsuwit'en Law, Feasts and Land Claims. Vancouver: University of British Columbia Press. Minister of Maori Affairs (1989) Te Urupare Rangapu: A Discussion Paper on Pro­ posals for a New Partnership. Wellington: Ministry of Maori Affairs. (1990) Ka Awatea: A Report on the Ministerial Planning Group. Wellington: Ministry of Maori Affairs. Minority Rights Group (1991) Minorities and Autonomy in Western Europe, revised edn, London: Minority Rights Group. Mitchell, T. (1988) Colonising Egypt. Cambridge: Cambridge University Press. MoodyAdams, M. (1997) Fieldwork in Familiar Places: Morality, Culture and Philo­ sophy. Cambridge, Mass.: Harvard University Press. Morris, C. (1998) An Essay on the Modern State. Cambridge: Cambridge University Press. Morrison, J. (1994) 'The Robinson Treaties of 1850: A Case Study', unpublished report prepared for the Royal Commission on Aboriginal Peoples, 31 March: 4 0 - 2 , 4 7 - 6 9 . Morse, B. W. (1992) Comparative Assessment of Indigenous Peoples in Quebec, Canada, and Abroad: A report prepared for la Commission dEtude sur toute offre d'un nouveau partenariat de nature constitutionelle. Ottawa, April. Moss, W. (1995) Tnuit perspectives on Treaty Rights and Governance' in Cana­ dian Royal Commission, Aboriginal Self-government: Legal and Constitutional Issues. Ottawa: Minister of Supply and Services Canada. Mulgan, R. (1989) Maori, Pakeha, and Democracy. Auckland: Oxford University Press. Mulvaney, J. (1985) 'A Question of Values: Museum and Cultural Property' in I. McBryde (ed.), Who Owns the Past? Papers from the Annual Symposium of the Australian Academy of the Humanities. Melbourne: Oxford University Press. Munz, P. and Salmond, A. (1994) Exchange of Letters, New ZealandJournal of His­ tory 28, 1: 60ff. Murphy, M. (1997) Nature, Culture and Authority: Multinational Democracies and the Politics of Pluralism. Ph.D. thesis, McGill University. Murray, L. (1999) The Quality of Sprawl Sydney: Duffy & Snellgrove. Myers, F. R. (1986) Pintupi Country, Pintupi Self: Sentiment, Place, and Politics among Western Desert Aborigines. Washington: Smithsonian Institution Press. Nedelsky, J. (1989) 'Relational Autonomy', Yale Journal of Law and Feminism, 1, 1: 7-36. (1991) 'Law, Boundaries and the Bounded Self in R. Post (ed.), Law and the Order of Culture. Berkeley: University of California Press. Nettheim, G. (1999) 'The Search for Certainty and the Native Title Amendment Act 1998 [Cth]', UNSWLawJournal, 22: 564-84. New Zealand Herald (1997) 'Pakeha Told Maori Law is Separate', 31 May. Nietschmann, B. (1987) 'The Third World War: Militarization and Indigenous Peoples', Cultural Survival Quarterly, 11, 3: 1-16. Nisga'a Final Agreement (1998) Victoria B.C.: Ministry of Aboriginal Affairs. Norretranders, T. (1998) The User Illusion, trans. J. Sydenham, New York: Viking. O'Brien, S. (1987) 'Cultural Rights in the United States: A Conflict of Values', Law and Inequality Journal, 5: 267-358. (1989) American Indian Tribal Governments. Norman: University of Okla­ homa Press. O'Neill, O. (1996) Toward Justice and Virtue. Cambridge: Cambridge University Press.

296

BIBLIOGRAPHY

O'Regan, T. (1994) 'Indigenous Governance: Country Study - New Zealand', paper prepared for the Canadian Royal Commission on Aboriginal Peoples, Ottawa: Minister of Supply and Services Canada. Offe, C. (1997) 'Homogeneity and Constitutional Democracy', Journal of Political Philosophy, 6: 113-41. Okin, S. M. (1998) 'Feminism and Multiculturalism: Some Tensions', Ethics, 108: 661-84. Oliver, W. H. (1997) 'Pandora's Envelope: It's All about Power' in L. Edmond, H. Richetts and B. Sewell (eds), Under Review: A Selection from New Zealand Books, 1991-1996. Lincoln, NZ: Lincoln University Press. Oman, N. (1997) Sharing Horizons: A Paradigm for Political Accommodation in Intercultural Settings. Ph.D. thesis, McGill University. Onuf, N. G. (1991) 'Sovereignty: Outline of a Conceptual History', Alternatives, 16: 425-45. Orange, C. (1987) The Treaty of Waitangi. Wellington: Allen & Unwin. (1993) 'The Treaty of Waitangi: A Historical Overview', Public Sector, 11, 4: 2-6. Overview: Proceedings of the Australian Reconciliation Convention: Book 1 (1997) Kingston: Council for Aboriginal Reconciliation. Pagden, A. (1982) The Fall of Natural Man. Cambridge: Cambridge University Press. (1995) Lords of All the World: Ideologies of Empire in Spain, Britain and France c. 1500-c. 1800. New Haven: Yale University Press . Paine, R. (1996) 'In Chief Justice McEachern's shoes: Anthropology's Ineffec­ tiveness in Court', POLAR, 19, 2: 59-70. (1999) 'Aboriginality, Multiculturalism, and Liberal Rights Philosophy', Ethnos, 64, 3: 325-49. Parata, H. (1994) 'Mainstreaming: A Maori Affairs Policy?' Social Policy Journal of New Zealand, 3 (December): 40-9. Parekh, B. (1994) 'Decolonizing liberalism' in A. Shtromas (ed.), The, End of 'isms"? Reflections on the Fate of Ideological Politics after Communism's Collapse. Oxford: Blackwell, pp. 85-103. Parkinson, P. (1994) Tradition and Change in Australian Law. North Ryde: Law Book Company. Patton, P. (1995a) 'Mabo, Freedom and the Politics of Difference', Australian Journal of Political Science, 30: 108-19. (1995b) 'Post-structuralism and the Mabo Debate: Difference, Society and Justice' in M. Wilson and A. Yeatman (eds), Justice and Identity: Antipodean Practices. St Leonards: Allen & Unwin, pp. 153-71. Paul, A. (1995) 'On Rights, Racism and Retribution: A Systematic Analysis of the Membership Issue', Onkwarihwa'shon:'a, 3 (15): 5-6. Payne, S. B. Jr. ( l 9 9 6 ) 'The Iroquois League, the Articles of Confederation, and the Constitution', William and Mary Quarterly, 53, 3: 605-20. Pearson, N. (1993) 'Reconciliation: To Be or Not To Be', Aboriginal Law Bulletin, 3: 14-17. (1997) 'The Concept of Native Title at C o m m o n Law' in Yunupingu (1997): 150-62. Pettit, P. (1997) Republicanism: A Theory of Freedom and Government. Oxford: Oxford University Press. (1999) 'Republican Freedom and Contestatory Democratisation' in I. Shapiro and C. Hacker-Cordon (eds), Democracy's Value. Cambridge: Cambridge University Press: pp. 163-90.

BIBLIOGRAPHY

297

(2000) 'Democracy, Electoral and Contestatory', Nomas, 42. Pettman, J. (1988) 'Whose Country is it Anyway? Cultural Politics, Racism and the Construction of Being Australian', Journal of Intercultural Studies, 19, 1: 3. Philpott, D. (1995) 'Sovereignty: An Introduction and Brief History', Journal of International Affairs, Winter, 2: 353-68. Poata-Smith, Evan S. T. A. (1996) 'He Pokeke Uenuku i Tu Ai: The Evolution of Contemporary Maori Protest' in P. Spoonley, D. Pearson and C. McPherson (eds), Nga Patai. Racism and Ethnic Relations in Aotearoa/New Zealand. Palmerston North: Dunmore Publishing. Pocock, J. G. A. (1992) 'Tangata whenua and Enlightenment Anthropology', New Zealand Journal of History, 24, 1: 2 8 - 5 3 . (1998) 'Law, Sovereignty and History in a Divided Culture: The Case of New Zealand and the Treaty of Waitangi', McGill Law Journal, 43: 481-506. Pogge, T. (1992) 'Cosmopolitanism and Sovereignty', Ethics, 103, October: 48-75. (1997) 'Creating Super-national Institutions Democratically: Reflections on the European Union's "democratic deficit"'', Journal of Political Philosophy, 5, 2: 163-82. Poirier, S. (1996) 'Negotiating Boundaries or When Itineraries Become Maps: Some Comments o n the Native Title Legislation in the Gibson Desert (Aus­ tralia)', paper presented to the Workshop on Negotiating Nationhood: An Intercultural Dialogue o n Contemporary Native Issues, McGill University, Montreal, 6 - 7 December. Polanco, H. Diaz (1997) Indigenous Peoples in Latin America: The Quest for Selfdetermination, trans. L. Rayas, Boulder: Westview. Poole, R. (1998) 'Self-determination and Indigenous Peoples: National Libera­ tion or Citizenship?' unpublished paper. Portillo, M. Negron (1997) 'Puerto Rico: Surviving Colonialism and National­ ism' in F. Negron-Muntaner and R. Grossfoguel (eds), Puerto Rican Jam: Essays on Culture and Politics. Minneapolis: University of Minnesota Press: pp. 39-56. Post, R. (forthcoming) 'Democratic Constitutionalism and Cultural Hetero­ geneity', Australian Journal of Legal Philosophy. Povinelli, E. (1998) 'The State of Shame: Australian Multiculturalism and the Cri­ sis of Indigenous Citizenship', Critical Inquiry, 24, 2: 575-610. (1999) 'Settler Modernity and the Quest for an Indigenous Tradition', Pub­ lic Culture, 11, 1: 19-48. Pownall, T. (1993) The Administration of the Colonies (1768): A Facsimile Reproduc­ tion. Delmar, NY: Published for the John Carter Brown Library by Scholars' Facsims. and Reprints. Prucha, F. P. (1994) American Indian Treaties: The History of a Political Anomaly. Berkeley: University of California Press. Przeworksi, A. (1999) 'Minimalist Conception of Democracy: A Defense' in I. Shapiro and C. Hacker-Cordon (eds), Democracy's Value. Cambridge: Cambridge University Press: pp. 23-55. Puri, K. (1993) 'Copyright Protection for Australian Aborigines in the light of Mabo' in M. A. Stephenson and S. Ratnapala (eds), Mabo: A Judicial Revo­ lution. St Lucia: University of Queensland Press. Ramos, A. R. (1994) 'The Hyperreal Indian', Critique of Anthropology, 14, 2: 153-71.

298

BIBLIOGRAPHY

Raunet, D. (1996) Without Surrender, Without Consent: A History of the Nisga 'a Land Claims. Vancouver: Douglas & Maclntyre. Rawls.J. (1993) Political Liberalism. New York: Columbia University Press. Reeves, J. (1998) Building on Land Rights for the Next Generation: Report of the Review of the Aboriginal Land Rights (Northern Territory) Act 1976. Canberra: AGPS. Reid, G. F. trans. Christian Ruel (1999) 'Une malaise qui est encore present: les origines du traditionalisme et de la division chez les Kanien'kehaka de Kah­ nawake au XXe siecle', Recherches amerindiennes au quebec, 29, 2: 37-50. Renan, E. (1995) 'What is a Nation?' in M. Chabour and M. R. Ishay (eds). The Nationalist Reader. New York: Humanities Press. Renwick, W. (1993) 'Decolonizing Ourselves from Within', British Review of New 'Zealand Studies, 6: 29-60. Renwick, W. (ed.) (1991) Sovereignty and Indigenous Rights: The Treaty of Waitangi in International Contexts. Wellington: Victoria University Press. Reynolds, H. (1992) The Law of the Land. Ringwood: Penguin Books . (1996) Aboriginal Sovereignly: Three Nations, One Australia?St Leonards: Allen & Unwin. Richter, D. K. (1992) The Ordeal of the Longhouse: The Peoples of the Iroquois League in the Era ofEuropean Colonization. Chapel Hill: University of North Carolina Press. Riker, W. (1982) Liberalism against Populism. San Francisco: W. H. Freeman and Co. Rose, D. B. (1996) 'Histories and Rituals: Land Claims in the Territory' in B. Attwood (ed.), In the Age of Mabo: History, Aborigines and Australia. St Leonards: Allen & Unwin, pp. 3 5 - 5 3 . Rothwell, N. (1996) 'Whose Culture is it Anyway?', The Weekend Review, 30-1 March: 9. Rotman, L. (1997) 'Creating a Still-Life Out of Dynamic Objects. Rights Reductionisms at the Supreme Court of Canada', Alberta Law Review, 36: 1-8. Rowley, C. (1970) Outcasts in White Australia. Harmondsworth: Penguin. Rubinstein, A. (1993) 'Is Statehood for Puerto Rico in the National Interest?' in Depth: A Journal for Values and Public Policy, spring: 87-99. Said, E. W. (1978) Orientalism. New York: Vintage. (1989) 'Representing the Colonized: Anthropology's Interlocutors', Critical Inquiry, 15: 205-25. (1994) Culture and Imperialism. New York: Vintage. Salee, D. (1995) 'Identities in Conflict: the aboriginal question and the politics of recognition in Quebec', Racial and Ethnic Studies 18, 2: 277-314. and Coleman, W. D. (1997) 'The Challenges of the Quebec Question: Para­ digm, Counter-paradigm, and...?' in W. Clement (ed.), Understanding Canada. Montreal/Kingston: McGill-Queen's University Press: pp. 277-314. Salmond, A. (1997) Between Worlds: Early Exchanges between Maori and Europeans, 1773-1815. Honolulu: University of Hawai'i Press. Salzman, P. C. (1994) 'The Lone Stranger in the Heart of Darkness' in R. Borofsky (ed.). Assessing Cultural Anthropology. Cambridge, Mass.: McGraw-Hill. Sanders, W. (1995) 'Reshaping Governance in Torres Strait: The Torres Strait Regional Authority and Beyond', Australian Journal of Political Science, 30, 3: 500-24. Schlesinger, A. M. (1992) The Disuniting of America. New York: Norton. Schwarz, B. (1995) 'The Diversity Myth: America's Leading Export', Atlantic Monthly, May: 57-67.

BIBLIOGRAPHY

299

Scott, C. (1996) 'Indigenous Self-determination and Decolonization of the Inter­ national Imagination', Human Rights Quarterly, 18: 815-20. Scott, J. (1990) Domination and the Arts of Resistance. New Haven: Yale University Press. Sealy, L. (1962) 'Fiduciary Relationships', Cambridge Law Journal, 1962: 6 9 - 8 1 . Senior, C. (1998) 'The Yandicoogina Process: A Model for Negotiating Land Use Agreemen ts', Regional Agreements Paper no. 6, Native Title Research Unit, Can­ berra: AIATSIS. Shafir, G. (1995) Immigrants and Nationalists: Ethnic Conflict and Accommodation in Catalonia, the Basque Country, Latvia and Estonia. Albany: State University of New York. Shapiro, I. (1996) Democracy's Place. Ithaca: Cornell University Press. Sharp, A. (1997) Justice and the Maori: The Philosophy and Practice of Maori claims in New Zealand since the 1970s, second edn, Auckland: Oxford University Press. Sharp, N. (1996) No Ordinary Judgment: Mabo, The Murray Islanders' Land Case. Canberra: Aboriginal Studies Press. Silman, J. (1987) Enough is Enough: Aboriginal Women Speak Out. Toronto: Women's Press. Simmons, A.J. (1995) 'Historical Rights and Fair Shares', Law and Philosophy, 14: 149-84. Simpson, A. (1998) 'The Empire Laughs Back: Tradition, Power and Play in the Work of Shelley Niro and Ryan Rice' in S. S. Kasprycki, D. I. Stambrau and A. V. Roth (eds), IroquoisART: Visual Expressions of Contemporary Native Amer­ ican Artists, Aldenstadt: ERNAS Monographs 1. (1999) 'Introduction: Au-dela de la tradition des etudes iroquoises traditionelles', trans. D. Legros, Recherches amerindiennes au Quebec, 29, 2: 3-9. Slattery, B. (1987) 'Understanding Aboriginal Rights', Canadian Bar Review, 66, 3: 727-83. (1991) 'Aboriginal Sovereignty and Imperial Claims', Osgoode Hall LawJour­ nal, 29, 4: 681-703. Smith, A. (1991) 'The Nation: Invented, Imagined, Reconstructed', Millennium: Journal of International Studies, 20, 3: 353-68. (1993) 'A Europe of Nations - or the Nation of Europe?', Journal of Peace Research, 30, 2: 129-35. Smith, D. E. (1998) 'Indigenous Land Use Agreements: New Opportunities and Challenges under the A m e n d e d Native Title Act', Regional Agreements Paper no 7, Native Title Research Unit, Canberra: AIATSIS. Smith, M. (1995) Our Home or Native Land? Victoria B.C.: Crown Western. Smith, R. M. (1997) Civic Ideals: Conflicting Visions of Citizenship in American His­ tory. New Haven: Yale University Press. Sohn, L. (1981) 'The Rights of Minorities' in L. Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights. New York: Columbia University Press. Spoonley, P. (1995) 'Constructing Ourselves: The Post-colonial Politics of Pakeha' in M. Wilson and A. Yeatman (eds), fustice and Identity: Antipodean Practices. Wellington: Bridget Wilson Books: pp. 96-115. (1997) 'Migration and the Reconstruction of Citizenship in Late Twentiethcentury Aotearoa', Immigration Research Network, published for the Asia-Pacific Migration Research Network, Albany, Auckland: Massey University.

300

BIBLIOGRAPHY

, Pearson, D. and McPherson, C. (eds) (1996) Nga Patai: Racism and Ethnic Relations in Aotearoa/New Zealand. Palmerston North: Dunmore. Stasiulis, D. and Yuval-Davis, N. (1995) 'Introduction - Beyond Dichotomies: Gender, Race, Ethnicity, and Class in Settler Societies' in D. Stasiulis and N. Yuval-Davis (eds), Unsettling Settler Societies. Thousand Oaks: Sage. Statham, R. (1998) 'US Citizenship Policy in the Pacific Territory of Guam', Cit­ izenship Studies, 2, 1: 89-104. Stea, D. and Wisner, B. (eds) (1984) 'The Fourth World: A Geography of Indige­ nous Struggles', Antipodes: A Radical Journal of Geography, 16, 2. Stokes, G. (1997) 'Citizenship and Aboriginality: Two Conceptions of Identity in Aboriginal Political Thought' in G. Stokes (ed.), The Politics of Identity in Australia. Cambridge: Cambridge University Press: pp. 158-74. Strelein, L. M. (1998) Indigenous Self-determination Claims and the Common Law in Australia. Ph.D. thesis, Australian National University. Sturmer, J. von (1982) Aborigines in the Uranium Industry: toward self-man­ agement in the Alligator River region?' in R. M. Berndt (ed.), Aboriginal Sites, Rights and Resource Development. Perth: University of Western Australia Press, pp. 69-116. Suchet, S. (1996) 'Nurturing Culture through Country: Resource Management Strategies and Aspirations of Local Landowning Families at Napranum', Australian Geographical Studies, 34: 200-15. Sullivan, P. (1995) 'Problems of Mediation in the National Native Title Tribunal' in J. Fingleton and J. Finlayson (eds), Anthropology in the Native Title Era. Canberra: AIATSIS, pp. 97-103. (1997) 'Dealing with Native Title Conflicts by Recognising Aboriginal Authority Systems' in D. E. Smith and J. Finlayson (eds), Fighting Over Coun­ try: Anthropological Perspectives. Canberra: Centre for Aboriginal Economic Policy Research, pp. 129-40. Sullivan, S. (1985) 'The Custodians of Aboriginal Sites in Southeastern Australia' in I. McBryde (ed.), Who Owns the Past? Papers from the Annual Symposium of the Australian Academy of the Humanities. Melbourne: Oxford University Press. Sutton, P. (1995a) 'Atomism versus Collectivism: The Problem of Group Defini­ tion in Native Title Cases' in J. Fingleton and J. Finlayson (eds), Anthropol­ ogy in the Native TitleEra. Canberra: AIATSIS, pp. 1-10. (1995b) Country: Aboriginal Boundaries and Land Ownership in Australia. Can­ berra: Aboriginal History Inc. Tanner, A. (1979), Bringing Home Animals: Religious Ideology and Mode of Production of the Mistassini Cree Hunters. St John's: Institute of Social and Economic Research, Memorial University of Newfoundland. Taylor, A. (1989) 'Feelings and Memories of a Kuia' in B. Gadd (ed.), Pacific Voices: An Anthology of Maori and Pacific Writing. Auckland: MacMillan. Taylor, C. (1992) 'The Politics of Recognition' in A. Gutman (ed.), Multicultural­ ism and "the politics of recognition". Princeton: Princeton University Press. Tehan, M. (1996) 'A Tale of Two Cultures, Hindmarsh Island Bridge: Protection Requires the Disclosure of Secrets', Alternative Law Journal, 21, 1: 7. Tobias, J. L. (1991) 'Canada's Subjugation of the Plains Cree, 1879-1885' in J. R. Miller (ed.), Sweet Promises: A Reader on Indian-White Relations. Toronto: University of Toronto Press. Tocqueville, A. de (1966) Democracy in America, two vols, trans. G. Lawrence, New York: Harper & Row.

BIBLIOGRAPHY

301

Tonkinson, M. E. (1990) 'Is it in the Blood? Australian Aboriginal Identity' in J. Linnekin and L. Poyer (eds), Cultural Identity and Ethnicity in the Pacific. Honolulu: University of Hawaii Press: pp. 191-218. Tooker, E. (1988) 'The United States Constitution and the Iroquois League', Ethnohistory, 35, 4: 305-36. Tuck, R. (1979) Natural Rights Theories: Their Origin and Development. Cambridge: Cambridge University Press. (1999) The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant. Oxford: Oxford University Press. Tully, J. (ed.) (1988) Meaning and Context: Quentin Skinner and His Critics. Cam­ bridge: Polity Press. (1993) 'Rediscovering America: T h e Two Treatises and Aboriginal Rights' in J. Tully, An Approach to Political Philosophy: Locke in Contexts. Cambridge: Cambridge University Press, pp. 137-216. (1994) 'Aboriginal Property and Western Theory: Recovering a Middle Ground', Social Philosophy and Policy, 1 1 , 2 (Summer): 153-80. (1995) Strange Multiplicity: Constitutionalism in an Age ofDiversity. Cambridge: Cambridge University Press. (1997) 'A General Framework for the Nisga'a Treaty Negotiations and Agreement-in-Principle', Submission to the Select Standing Committee on Aboriginal Issues (3 December 1996; revised May 1997). (1998) 'A Fair and Just Relationship', Meanjin, 57, 1: 146-67. (1999) 'Aboriginal Peoples: Negotiating Reconciliation' in J. Bickerton and A.-G. Gagnon (eds), Canadian Politics, third edn, Toronto: Broadview Press. (forthcoming) 'Freedom and Disclosure In Multinational Societies' in A.-G. Gagnon and J. Tully (eds), Struggles for Recognition in Multinational Societies: The European Union, Spain, Belgium, United Kingdom and Canada in Compar­ ative Perspective. Cambridge: Cambridge University Press. Turner, D. (1997) This Is Not a Peace Pipe: Towards an Understanding of Aboriginal Sovereignty. Ph.D. thesis, McGill University. (forthcoming) 'Vision: Towards an Understanding of Aboriginal Sover­ eignty' in W. Norman and R. Beiner (eds), Contemporary Canadian Political Philosophy, Toronto: University of Toronto Press. Van Dyke, V. (1985) Human Rights, Ethnicity and Discrimination. Westport: Green­ wood Press. Venables, R. W. (1992) 'American Indian Influences on the America of the Founding Fathers' in O. Lyons et al (eds), Exiled in the Land of the Free: Democracy, Indian Nations, and the US Constitution, Santa Fe: Clear Light Pub­ lishers: pp. 7 3 - 1 2 4 . Venne, S. (1997) 'Understanding Treaty 6: An Indigenous Perspective' in M. Asch (ed.), Aboriginal and Treaty Rights in Canada. Vancouver: University of British Columbia Press. (1998) OurElders Understand Our Rights: Evolving International Law Regarding Indigenous Rights. Penticton, B.C.: Theytus Books. Vincent, A. (ed.) (1997) Political Theory: Tradition and Diversity. Cambridge: Cam­ bridge University Press. Voget, F. W. (1951) 'Acculturation at Caughnawaga: A Note on the Native-modi­ fied Group', American Anthropologist, 53, 2: 2 2 0 - 3 1 . Wafer, J. (1996) 'After the field' in M.Jackson (ed.), Things as They Are: New Direc­ tions in Phenomenological Anthropology. Bloomington: Indiana University Press.

302

BIBLIOGRAPHY

Waitangi Tribunal (1987) Report of the Waitangi Tribunal on the Orakei Claim (Wai 9 ) . Wellington: Department of Justice. (1995) Kiwifruit Marketing Report. Wellington: Brookers Ltd. (1998) Te Whanau o Waipareira Report (Wai 414). Wellington: GP Publica­ tions. Waldron,J. (1992) 'Superseding Historic Injustice', Ethics. 103:4-28. (1999) Law and Disagreement. Oxford: Oxford University Press. Walker, R. (1987) Nga Tau Tohetohe: Years of Anger. Auckland: Penguin Books. (1989) 'Maori Identity' in D. Novitz and B. Wilmott (eds), Culture and Iden­ tity in New Zealand. Wellington: GP Books: pp. 35-52. (1995a) 'Maori People since 1950' in G. W. Rice (ed.), The Oxford History of New Zealand, second edn, Auckland: Oxford University Press: pp. 498-519. (1995b) Nga Pepa a Ranginui: The Walker Papers. Auckland: Penguin. (1999) 'Maori Sovereignty, Colonial and Post-colonial Discourses' in P. Havemann (ed.), Indigenous Peoples' Rights in Australia, Canada, and New Zealand. Auckland: Oxford University Press: pp. 108-22. Ward, A. and Hayward, J. (1999) 'Tino Rangatiratanga' in P. Havemann (ed.), Indigenous Peoples' Rights in Australia, Canada, and New Zealand. Auckland: Oxford University Press: pp. 378-99. Warry, W. (1998) Unfinished Dreams: Community Healing and the Reality of Aboriginal Self-government. Toronto: University of Toronto Press. Waters, M. (1990) Ethnic Options: Choosing Identities in America. Berkeley: Univer­ sity of California Press. Weatherford, J. (1988) Indian Givers: How the Indians of the Americas Transformed the World. New York: Crown Publishers. Weaver, S. M. (1991) 'A New Paradigm in Canadian Indian Policy for the 1990s', Canadian Ethnic Studies, 22, 3: 8-18. Webber, J. (1993) 'Individuality, Equality and Difference: Justifications for a Par­ allel System of Aboriginal Justice' in Royal Commission on Aboriginal Peoples, Aboriginal Peoples and theJustice System: Report on the National Round Table on Aboriginal Justice Issues. Ottawa: Minister of Supply and Services, pp. 133-160. (1994) Reimagining Canada: Language, Culture, Community, and the Canadian Constitution, Montreal: McGill-Queen's University Press. (1995a) 'The Jurisprudence of Regret: The Search for Standards of Justice in Mabo', Sydney Law Review, 17: 5-28. (1995b) 'Relations of Force and Relations of Justice: The Emergence of Normative Community between Colonists and Aboriginal Peoples', Osgoode Hall Law Journal, 33: 623-60. (1996) 'Multiculturalism and the Limits to Toleration' in A. Lapierre, P. Smart and P. Savard (eds), Language, Culture and Values in Canada at the Dawn of the Twenty-first Century. Ottawa: International Council for Canadian Studies and Carleton University Press, pp. 269-79. (1997) 'Beyond Regret: Mabo's Implications for Australian Constitutional­ ism', paper presented to Conference on Indigenous Rights, Political The­ ory, and the Reshaping of Institutions, Canberra, 8-10 August. Webster, S. (1975) 'Cognatic Descent Groups and the Contemporary Maori: A Preliminary Reassessment', Oceania, 84, 2: 121-52. (1989) 'Maori Studies and the Expert Definition of Maori Culture: A Criti­ cal History', Sites, 18: 35-56.

BIBLIOGRAPHY

303

White, R. (1991) The Middle Ground: Indians, Empires, and Republics in the Great Lakes Region, 1650-1815. Cambridge: Cambridge University Press. Whittaker, E. (1994) 'Public Discourses of Sacredness: The Transfer of Ayers Rock to Aboriginal Ownership', American Ethnologist, 21, 3: 310-34. Wickliffe, C. (1995) 'Issues for Indigenous Claims Settlement Policies Arising in Other Jurisdictions', Victoria University of Wellington Law Review, 25: 204—22. Williams, B. F. (1989) A Class Act: Anthropology and the Race to Nation Across Ethnic Terrain', Annual Review of Anthropology, 18: 401-44. Williams, R. A. (1990) The American Indian in Western Legal Thought: The Discourses of Conquest. New York: Oxford University Press. (1997) Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600-1800. New York. Oxford University Press . Wilmer, F. (1993) The Indigenous Voice in World Politics. Newbury Park: Sage. Wilmsen, E. N. and McAllister, P. (eds) (1996) The Politics of Difference: Ethnic Premises in a World of Power. Chicago: University of Chicago Press. Windschuttle, K. (1994) The Killing of History: How a Discipline is Being Murdered by Literary Critics and Social Theorists. Paddington, NSW: Macleay. Winichakul, T. (1996) 'Siam Mapped: T h e Making of Thai Nationhood', Ecologist, September-October. Wiredu, K. (1997) 'Democracy and Consensus in African Traditional Politics: A Plea for a Non-party Polity' in E. Chukwudi Eze (ed.), Postcolonial African Philosophy: A Critical Reader. Oxford: Blackwell: pp. 303-12. Wittgenstein, L. (1974) On Certainty, trans. G. E. M. Anscombe and G. H. von Wright, Oxford: Basil Blackwell. Woenne-Green, S., Johnston, R. Sultan, and Wallis A. (1994) Competing Interests: Aboriginal Participation in National Parks and Conservation Reserves in Aus­ tralia: A Review. Fitzroy: Australian Conservation Foundation. Yeatman, A. (1994) Postmodern Revisionings of The Political. New York: Routledge. (1998) 'Feminism and Citizenship' in N. Stevenson (ed.), Cultural Citizen­ ship. London: Sage. York, G. and Pindera, L. (1991) Peoples of the Pines: The Warriors and the Legacy of Oka, Toronto: Little, Brown and Co. Young, I. M. (1990) Justice and the Politics of Difference. Princeton: Princeton Uni­ versity Press. (1999) 'Two Concepts of Self-determination' in A. Sarat (ed.), Human Rights and Post-colonial legacies. Ann Arbor: University of Michigan Press. (forthcoming) Inclusion and democracy, Oxford: Oxford University Press. Yu, P. (1997) 'Multilateral Agreements - A New Accountability in Aboriginal Affairs' in Yunupingu (1997): 168-80. Yunupingu, G. (ed.) (1997) Our Land is Our Life: Land Rights - Past, Present and Future. St Lucia, University of Queensland Press. Zerilli, L. (1998) 'Doing without Knowing: Feminism's Politics of the Ordinary', Political Theory, 26, 4 (August): 435-58. Zines, L. (1997) The High Court and the Constitution, fourth edn, Sydney: Butterworths. Cases and Statutes A-G Commonwealth; Ex rel McKinlay v. Commonwealth (1975) 135 CLR 1. Calderv. AG BC [1973] SCR 313. Cherokee Nation v. State of Georgia (1831) 5 Peters 1.

304

BIBLIOGRAPHY

Coev. Commonwealth of Australia (1979) 24 ALR 118 [ H C ] , Coev. Commonwealth of Australia (1993) 118 ALR 193 [HC]. Cooper v. Stuart (1889) 14 App Cas 286 Delgamuukwv. British Columbia (1997) 153 DLR (4th) 193 (SCC) Gerhardyv. Brown (1985) 159 CLR 70 International Court of Justice (1975) Western Sahara: Advisory Opinion of 16 Octo­ ber 1975. T h e Hague: ICJ Reports: p. 12 (1995) Case Concerning East Timor (Portugal v. Australia). The Hague: ICJ Reports Mabo and Others v. Queensland (No. 2) (1992) 66 ALJR 408; 107 ALR 1. MacMillan BloedelLtdv. Mullin [1985] 3 WWR 577 (BCCA) Mahev. Alberta (1990) 68 DLR (4th) 69 (SCC) McGintyv. Western Australia (1996) 186 CLR 140 New South Wales v. Commonwealth (1975) 135 CLR 337 Pareroultjav. Tickner (1993) 117 ALR 206 Paterson, B.J. (1998) Maori Fisheries Case: Decision on Preliminary Question Remitted by Privy Council Auckland: Auckland High Court Re Southern Rhodesia [1919] AC 211 Report No. 31: The Recognition of Aboriginal Customary Laws vol. 1 (Canberra: Aus­ tralian Government Publishing Service, 1986) Simony. The Queen (1985) 24 DLR (4th) 390 (CSCC) Sparrow v. R [1990] 1 SCR 1075 Van derPeelv. R (1996) 137 DLR (4th) 289 (SCC) Ward v. Western Australia (1998) 159 ALR 483 (FC) Wards. Western Australia (2000) FCA 191 Western Australia v. Commonwealth (1995) 183 CLR 373 Wik Peoples v. Queensland (1996) 141 ALR 129 WiParatav. Bishop of Wellington (1877) 3N2JR (NS) 72 Worcesterv. State of Georgia (1832) 6 Peters 515 (US Supreme Court) Yannerv. Eaton (1999) HCA 53 Yorta Yortav. Victoria [1998] 1606 FCA (18 December 1998) Aboriginal Land Rights (Northern Territory) Act (1976) Children, Young Person, and Their Families Act (1989) Maori Fisheries Act (1989) Runanga Iwi Act 1990 The Indian Act (1985) Ottawa: Minister of Supply and Services Canada The Treaty of Waitangi Amendment Act (1985) Treaty of Waitangi (Fisheries Claims) Settlement Act (1992)

Index

Aboriginal art, 152, 154-6 Australian, 16, 25, 27, 78, 156-7, 163, 199, 222 autonomy, 174, 178 beliefs, 1 5 8 - 9 Canadian, 38, 41, 4 4 - 5 0 , 113, 199, 224 claims, 163, 224 to land, 9, 161, 164, 173, 176-7 communities, 47, 1 6 3 - 5 , 176-9 cultural heritage, 88, 152, 1 5 5 - 8 cultural property, 153, 156, 161 cultures, 16, 152, 154-6, 164, 179

descent, 165, 175-7 governments, 168, 196 groups, 164, 166, 172, 174-7, 179 history, 10, 27, 3 2 identity, 10, 16, 150 interests, 48, 165, 176, 178-9 law, 1 6 , 4 6 , 172 nation, 163-4, 222 owners, 153, 166, 175 peoples, 8, 10, 19, 32, 38, 4 5 - 9 , 86, 152-6, 158-61, 165, 171, 174, 183-4, 196, 198-9, 222, 257 rights, 9, 4 4 - 7 , 4 9 - 5 0 , 72, 174, 196, 198 land rights, 4 6 - 8 , 76, 161, 163, 176 representation, 67, 156 self-determination, 163, 172, 176, 179 self-government, 9, 49, 13, 163-4, 173-4,178 societies, 16, 46, 4 8 - 9 , 72, 88 sovereignty, 167, 173

title, 4 6 - 9 , 66 traditions, 16, 62, 175 treaties, 25, 27, 72, 257 women, 158, 175 women's knowledge, 1 5 7 - 9 see also indigenous Aboriginal land commissioner ( A u s t ) , 176-7 Aboriginal Land Rights (Northern Territory) Act (1976), 16, 67, 1 6 5 - 6 , 173-6, 178-9 aboriginality, 113-14, 1 5 0 - 1 , 155-6, 159, 162, 271 Aboriginal and Torres Strait Islander Commission (ATSIC), 174 Aboriginal and Torres Strait Islander Heritage Protection Art (1984), 158 Abu-Lughod, L., 125 academia, 36, 42, 78, 126, 139, 156, 161 accommodation, 4 - 5 , 8, 16-17, 41, 43, 45, 48, 5 5 - 7 , 6 6 - 7 , 70, 72, 7 4 - 5 , 77, 79, 83, 85, 9 3 - 5 , 108, 146, 149-51, 175, 200, 2 1 8 - 1 9 , 2 2 1 - 9 , 2 3 3 - 6 , 252, 257, 264n38 of minority nationalisms, 8, 2 1 8 - 1 9 , 2 2 1 - 9 , 2 3 3 - 6 , 251, 278n6, 2 7 9 n l 6 strategies of, 41, 43, 45, 150, 261n6 institutional, 90, 94, 151 Adams,John, 243 Adorno, Theodore, 123 aesthetic beauty, 152-3, 156-7 African Americans, 2 1 7 - 1 8 , 228, 277nl agriculture, 27, 39, 48, 185-6, 196, 2 6 2 n l 5 Alfred, G.R. (Taiaiake), 59, 98, 261, 262, 263, 272, 279

305

306

INDEX

America, 38, 52, 55, 64, 7 0 - 1 , 73, 84, 118, 141, 155, 184-6, 196, 199, 2 1 6 - 1 8 , 220, 222, 2 2 8 - 3 0 , 2 3 2 - 4 6 , 250, 253, 257, 280n26 model of multiculturalism in, 7 - 8 , 216-18, 229-30, 234-6 revolution, 240, 2 4 2 - 3 see also Canada, United States Amerindian, 186-7 Amin, Samir, 281 Anderson, Benedict 120-1 theory of nationalism, 120-1 anthropology, 4, 11, 16, 27, 86, 117, 122-5, 128, 134-5, 152-3, 156, 2 7 1 n l , 272n6 Aotearoa, 1, 13-14, 26, 2 9 - 3 0 , 32, 3 4 - 5 , 90, 9 8 - 1 0 0 , 107, 262n21, 268n38 see also New Zealand apology, 80 Asch, Michael, 12, 261 assimilation, 1, 3, 6, 10, 16, 38, 41, 45, 5 5 - 6 , 104, 191, 219, 225, 261n6, 262n20, 264n38, 271 n4, 278n8 Attwood, Bain, 78, 270 Australia colonialism, 4 1 , 54, 57, 107, 219 colonisation, 12, 27, 37, 39 constitutional theory, 4 1 , 60, 73, 7 7 - 8 2 , 265n8, 268n39 constitutionalism, 16, 6 0 - 1 , 80 culture, 7 8 - 8 0 , 152-61, 179 government, 156, 2 6 6 n l 6 history, 27, 32, 6 0 - 1 , 7 8 - 8 0 , 88, 153-4, 167 identity, 7 7 - 8 , 88, 152, 154-5 indigenous peoples, 16, 25, 27, 32, 7 6 - 9 , 88, 81, 153-61, 163, 175, 199, 222, 224, 2 6 9 - 7 0 institutions, 83, 157, 161, 173-6, 268n39 law, 6 0 - 7 0 , 7 3 - 4 , 76-7, 8 1 - 2 , 8 6 - 7 , 157 conception of, 8 0 - 1 , 158 land, 61, 6 9 - 7 0 , 152, 157 property, 6 1 , 73 political system, 4 1 , 80 republican movement, 8 0 - 1 , 270n51 society, 60, 77, 79, 155-6, 179, sovereignty, 6 0 - 4 , 69, 84, 87, 167, 173-4, 265n5, 265n8 authority chiefly, 13, 28, 9 9 - 1 0 0 , 102 democratic, 6, 200, 203

final, 94, 2 4 7 - 8 , 2 5 1 - 2 , 256 governmental, 38, 102, 106, 128, 201, 210, 253, 265n8 legal, 14, 73, 80, 92, 102, 281n3 political, 77, 86, 9 3 - 5 , 108, 281n3 public, 7 4 - 5 , 247 sovereign, 12, 26, 28, 90, 92, 100, 167, 251, 256, 281n3 state, 3, 12, 14, 28, 9 0 - 2 , 95, 247 tribal, 100, 102, 127, 150 authoritarianism, 223, 235, 2 7 9 n l 6 autonomy, 4 - 5 , 7, 14, 5 3 - 4 , 6 2 - 4 , 70, 78, 8 0 - 2 , 8 5 - 6 , 89, 9 3 - 4 , 9 7 - 1 0 0 , 102, 104, 108-9, 169-70, 174, 178, 219, 2 2 4 - 6 , 235-6,246, 251-4 cultural, 8, 99, 247 governmental, 64, 91 individual, 7-9, 202, 241, 2 5 3 - 4 internal, 8, 47, 94 legal, 16, 64, 71, 7 3 - 4 , 77, 8 6 - 7 political, 16, 6 2 - 3 , 71, 77, 9 1 , 9 8 , 101, 103, 157, 164, 170, 222, 246 relational, 93, 97, 108 territorial, 222, 225, 277n4 Ballara, Angela, 142-3 band councils (Can.), 38, 41, 128-9, 131-4, 272n8 see also Mohawk Council of Kahnawake Barcham, Manuhuia, 15-16, 179 Barriero, Jose, 240 Basques, 3, 8, 191, 221, 223, 2 2 5 - 6 , 229, 235, 278n8, 2 7 9 n l 6 Baudrillard, Jean, 147-8 becoming, 138-9, 148, 275 Beitz, Charles, 2 4 8 - 9 belonging, 15, 2 1 , 9 1 , 93, 9 6 - 7 , 101-3, 108, 128-9, 184, 192-3 Benjamin, Walter, 120 Bern,John,15—16 Best, Elsdon, 142 bi-culturalism, 9 7 - 9 , 104, 144 Blacks, 169, 217-18, 228, 233, 236, 277, 279nl9 see also African American blood quantum, 114-15, 128-9, 132-3, 229, 279n20 Borrows, J., 278 Bhabha, Homi, 120, 2 3 8 - 9 Bowie, David, 188 Brennan, Justice, 6 2 - 3 , 87, 265, 267

INDEX Bretons, 3, 223, 2 2 5 - 6 , 235, 278n8 Britain colonial rule, 31, 46, 57, 153, 2 1 9 - 2 0 , 239, 244 colonists, 25, 29, 219, 240, 2 4 2 - 3 crown, 1 2 - 1 3 , 25, 153, 2 6 1 n I 2 empire, 39, 43 law, 1, 158 settlers, 29, 31, 219, 240, 244 British Columbia, 45, 4 8 - 9 , 261 n 13, 262nl7 Bromwich, David, 280 Brubaker, Robert, 230, Buck, Peter, 142 Calderv. AG BC (1973), 12, 44, 72 Canada aboriginal peoples, 3 7 - 9 , 41, 4 3 - 5 0 , 54, 91, 107, 113-15, 118-21, 126-8, 199, 2 1 9 - 2 4 , 229, 2 7 1 n l constitution, 25, 41, 45, 47, 66, 167, 219,225 federalism, 8, 5 3 , 2 1 9 First Nations, 25, 38, 49, 107, 166 government, 38, 45, 50, 72, 219 jurisprudence, 12, 72 law, 50, 7 2 - 3 minority nationalism, 2 2 0 - 1 multiculturalism, 41, 114, 2 1 8 - 2 0 , 231 nationalism, 121, 124-6, 167, political systems, 38, 67 settler d o m i n i o n , 91, 107, 219 settler society, 53, 126, 128, 197, 219 society, 4 5 - 6 , 4 8 - 9 , 113, 127 Canassteago, 242 capitalism, 3 8 - 9 , 41, 43, 107, 186, 1 9 6 - 8 Carens, Joseph, 250-1 Cartenz.Jan, 153 Catalonia, 2 2 1 , 2 2 9 , 2 3 1 - 2 Cayuga people, 115, 240 Chaplin, Charlie, 133 Charlottetown Accord (Can.), 41, 72 Chartrand, Paul, 9 1 - 2 Christianity, 26, 153, 159, 185-7 citizen, 10, 18-19, 21, 35, 56, 59, 114, 185, 2 0 0 - 1 , 203, 216, 227, 239, 245, 249, 254, 2 5 6 - 7 ideal, 117 individual, 56, 97, 172

307

citizenship, 92, 95, 97, 107, 113-16, 126, 128, 143, 170, 175, 229, 2 5 5 - 6 , 278n8 differentiated, 97, 168 indigenous, 97, 113-16, 126 rights, 6, 56 see also membership civil disobedience, 29, 98 government, 2 7 - 9 , 31 rights, 6, 2 7 9 n l 6 society, 2 7 - 9 , 234, 241, 257 war, 191, 195 civilisation, 12, 54, 155, 183, 185-9, 193, 196, 224, 239, 245, 227n3, 278n8 Coleman, William, 92 colonial control, 94, 118 courts, 4 7 - 8 domination, 9 1 , 118 expansion, 2, 43, 89, 153, 2 6 2 n l 5 government, 12, 41, 271n4 history, 1, 21, 34, 103, 2 3 8 - 9 , 244 ideologies, 157, 159 interaction, 2 3 9 - 4 6 legacy, 10, 12, 118, 123-4, 133, 137, 237-8 native elite, 41, 58 neocolonial approach, 41, 117 non-colonial relationship, 5 0 - 2 power, 124, 239, 265n5 rule, 44, 57 societies, 1,11 sovereignty, 12, 14, 64, 92 states, 10-11, 14 system, 3 9 - 4 0 , 42, 47, 5 0 - 1 , 58, 100 territories, 246 see also postcolonial colonialism, 2, 10, 17, 21, 89, 92, 9 5 - 6 , 109, 113, 115, 117, 122, 124, 134, 138, 147, 158, 1 6 1 , 2 3 7 - 8 , 271 n2 consequences of, 20-1 see also postcolonialism colonisation, 1, 5, 12, 3 7 - 8 , 40, 4 3 - 5 , 50, 52, 5 4 - 5 , 5 8 - 9 , 6 4 - 5 , 68, 91, 95, 116, 123, 143, 147, 157, 160, 221, 247 internal, 8, 3 7 - 4 9 , 51, 5 3 - 4 , 5 6 - 9 see also decolonisation, postcolonising society colonised peoples, 2, 4 - 5 , 34, 37, 39, 43, 5 4 - 6 , 2 1 9 - 2 0 , 228, 2 3 8 - 9 , 245, 2 5 1 - 2 , 258

308

INDEX

colonists/colonisers, 34, 3 9 - 4 0 , 55, 64, 171, 228, 2 4 0 - 4 , 246, 253, 258 British, 29, 219, 240, 242, 244 European, 9, 25, 3 0 - 1 , 36, 38, 52, 157, 238, 2 4 0 - 1 , 244 c o m m o n law see law community, 3, 27, 4 8 - 9 , 63, 79, 115, 152, 169, 189-90, 205, 220, of descent, 2 1 7 - 1 8 ideal of, 139 imagined, 120, 257 interests, 172, 2 0 5 - 6 political 8 9 - 9 2 , 9 7 - 8 , 101, 103, 120, 222, 2 3 1 , compensation, 7, 9, 4 8 - 9 , 75, 103, 162, 171, 214, 231, confederation, 25, 123, 127, 142, 163, 166-7, 240 Connolly, William, 14-15, 18, 278 Connor, Walker, 223 consent, 13, 19, 30, 37, 44, 46, 48, 5 2 - 4 , 5 6 - 7 , 88, 9 0 - 2 , 95, 97, 109, 167, 193, 257, 2 6 1 n l 2 consensus, 17-18, 118, 2 1 7 - 1 8 , 240-1 constitution, 57, 192, 208, 226 Australian, 60, 73, 77, 80, 265n8, 268n39 Canadian, 41, 4 5 - 5 0 , 219, 225, 268n39 US (American), 237, 2 4 3 - 4 New Zealand, 90, 101-4 Constitution Act 1982 (Can.), 45, 49, 72, 2 6 6 n l 5 , 268n37 constitutional change, 43, 60, 77, 90, 103 conventions, 257 democracy, 41, 44 norms, 18 principles, 97 rights, 4 5 - 9 , 66, 265n8, 268n39 theory, 7 7 - 8 2 constitutionalism, 6 0 - 1 , 80, 91, 97, 108, 113-14, 2 4 1 , 2 5 7 constructive e n g a g e m e n t , 82, 89, 92, 9 6 - 8 , 103 conventions, 66, 92, 160, 167, 208, 212, 227, 244, 257 Coombs, H.C., 66, 74, 266, 268, 271 cosmopolitanism, 218, 220, 2 3 1 - 2 Council of Europe, 227 courts, 12, 43, 68, 7 0 - 1 , 245

Australian, 6 2 - 3 , 67, 69, 7 3 - 7 , 8 2 - 7 , 157, 160 Canadian, 12, 4 5 , 5 3 , 72 New Zealand, 34, 106 Federal Court of Australia, 67, 7 3 - 4 High Court of Australia, 12, 60, 62, 75, 87, 157 International Court of Justice (1JC), 12, 5 4 - 5 , 263n29 Native Land Court (NZ), 142 New Zealand Court of Appeal, 106, 145-6 New Zealand High Court, 106, 146 Supreme Court of Canada, 9, 12, 41, 4 4 - 5 0 , 72 World Court, 252 Cross, David, 273 cultural accommodation, 17, 74, 77 analysis, 123, 125-6, 136 autonomy, 8, 78, 80, 91, 99, 247 belonging, 15, 21, 184 boundaries, 4, 6, 71, 117, 120 bi-, 9 7 - 9 , 104, 144 criticism, 35, 123 difference, 3 - 4 , 9 - 1 1 , 2 0 , 114, 170, 239 diversity, 4, 107, 167, 193, 2 1 2 - 1 3 exchange, 79, 124-5 genocide, 39, 56, 226 groups, 3, 8, 113, 170 identity, 11, 14-15, 17, 148, 170, 179, 198 intercultural dialogue, 1-2, 7, 13, 51, 74, 77 membership, 6-7, 19, 166, 169-72, 202, 229 minority, 7, 19, 170, 202, 2 1 3 - 1 4 , 251 mono-, 2 1 2 - 1 3 pluralism, 154, 166, 169, 171, 191, 198 practices, 4, 7-8, 10, 19, 127-8, 155, 161, 163, 170, 199, 251 property, 152-3, 156-8, 160-1 recognition, 157, 161, 166, 169-71 rights, 6, 47, 152, 251 relativism, 4, 8 significance, 153, 158, 172 structures, 4, 19 survival, 18, 42, 108, 203, 279 symbols, 78, 152, 242 systems, 96, 160 theory, 4 , 1 1 6

309

INDEX traditions, 4, 15, 140, 156 war, 191, 194 see also multiculturalism cultural diversity and democracy, 88, 169, 179, 1 9 0 - 1 , 212-13 and indigenous peoples, 101-2, 107-8, 116, 163, 165-6, 172-3, 178-9 and justice, 7 4 - 5 , 178 and liberalism, 107, 188, 193, 198 and nationhood, 116, 167, 188, 1 9 0 - 1 , 193, 198 and politics, 173, 1 9 0 - 1 , 258 cultural heritage, 16, 88, 155-61, 179, 219-20,229 culture, 2, 6 - 8 , 10, 20, 56, 114, 116, 1 1 8 - 1 9 , 122-6, 128, 154-5, 186, 196 cultures contemporary, 135, 197, 272n5 dominant, 16, 153, 1 7 0 - 1 , 179 indigenous, 2, 4, 1 0 - 1 1 , 15-16, 18-19, 28, 42, 78, 8 2 - 3 , 92, 94, 114, 122, 146-7, 151-7, 161, 164, 179, 277n3 majority, 170, 212, 214 minority, 19, 170, 2 0 2 , 2 1 1 - 1 4 , 224, 231 national, 194, 224, 226, 2 2 9 - 3 0 native, 118, 122, 124-5, 129, 240, 245 political, 80, 188, 193 public, 18, 120, 122, 193-5, 198, 251 societal, 6-7, 203, 226 traditional, 4, 147 custodianship, 75, 158-9, 161 custom, 10, 2 9 - 3 0 , 47, 6 2 - 3 , 73, 86, 100, 114, 142, 1 9 7 , 2 1 2 , 2 2 4 , 265n5 Declaration o n the Granting of I n d e p e n d e n c e to Colonial Countries and Peoples, 1960 ( U N ) , 55 Declaration o n the Rights of Indigenous Peoples ( U N ) , 54, 226, 2 6 4 n 4 0 Declaration o n the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1993 ( U N ) , 226 Declaration of the United Tribes (NZ), 28 decolonisation, 5, 42, 5 4 - 6 , 107, 114, 123, 146, 151 Delgamuukw v. B.C. (1997), 45, 4 8 - 9 , 72, 74, 2 6 1 n l 0

democracy, 18, 2 1 , 168, 183, 186, 191, 199-200, 2 0 3 - 8 , 2 1 0 - 1 1 , 2 1 4 - 1 6 , 227, 2 3 4 - 5 , 238, 242, 245, 256 American, 186, 236, 2 4 1 - 3 , 245 contestatory, 18, 199, 2 0 4 - 6 , 209, 2 1 1 - 1 5 , 278n6 constitutional, 4 1 , 44 decentred, 2 5 3 - 8 deliberative, 188, 203 electoral, 18, 199-204, 207, 2 1 0 - 1 1 , 215 global, 19, 247, 237, 244, 2 5 4 - 7 hybrid, 237 ideal of, 210, 215 and indigenous people, 164, 167 liberal, 1,56, 2 0 2 , 2 3 5 and minorities, 2 0 3 - 4 , 212, 227, 234 multicultural, 215 two-dimensional, 18, 200, 204, 2 0 9 - 1 1 , 213 democratic civilisation, 185, 196 federalism, 227, 238, 2 5 3 - 8 government, 183-4, 2 0 0 - 1 , 2 1 1 - 1 2 , 224, 237, 241 ideal, 170, 204, 209 institutions, 9, 202, 256, 268n39 means, 58, 192 nation, 186-7, 193 participation, 168, 256 politics, 188 polity, 8 1 , 2 4 4 society, 170, 215 sovereignty, 26, 203 state, 15, 17-18, 1 9 0 , 2 1 3 - 1 4 theory, 5, 11, 18, 226, 245 democratisation, 26, 33, 169, 203, 227, 234 Derrida, Jacques, 147-8 dialogue intercultural, 4, 7, 51, 82, 88, 94, 246, 258 just, 4, 8, 17, 113 with the state, 118, 129 differance, 148, 151 difference atemporal, 139, 143, 146-8 and belonging, 93, 97 conceptual, 4, 96, 98 cultural, 3 - 4 , 9 - 1 1 , 20, 78, 114, 116, 122, 150, 170, 239, 251, 272n6

310

INDEX

difference (contd.) identity and, 5, 11, 14-17, 97, 138-40, 147-50, 274n6, 2 7 5 n l 6 of interests, 165, 179 internal, 79, 171-2, 179 multiple, 191, 194 politics of, 35, 47, 138-9, 147-9 recognition of, 7, 41, 98, 122, 137-9, 141, 143, 145-7, 149, 168, 170 theorising, 139-40, 147 working through, 89, 9 2 - 3 , 97, 108 differentiation of p e o p l e / g r o u p s , 19, 168, 199, 275n8 of rights, 6, 56, 170 discrimination, 3, 10, 93, 95, 150, 164-5, 210, 224, 239, 2 6 6 n l 6 dispossession, 1, 10, 33, 41, 48, 56, 86, 9 1 , 154, 159, 165, 171, 2 6 2 n l 5 , 2 6 6 n l 6 diversity see cultural diversity Dixon, Owen, 269 Dodds, Susan, 1 5 - 1 6 Dodson, Mick, 157 D o d s o n , Patrick, 269, 270 domination colonial, 9 1 , 118, 157 of indigenous people, 116, 156, 2 8 1 n l 6 political, 95, 119 structures of, 3 7 - 8 , 50, 57 Durie, Mason, 101-2 Edgeworth, Brendan, 69 education, 2, 39, 4 1 - 2 , 56, 133-4, 173, 187, 201, 205, 214, 2 1 9 - 2 0 , 225, 244, 273, 276 Elazar, Daniel, 225 equality of citizens, 18, 143 of contestatory standing, 210, 2 1 3 - 1 5 of electoral standing, 201, 2 0 3 - 4 , 210, 215 of governmental treatment, 18, 202, 209-10, 212-14 of individuals, 76, 202, 2 1 2 - 1 4 , 246 institutional, 108, 206 of nations, 44, 5 2 - 3 , 222, 226, 263n24 of peoples, 10, 18, 46, 5 1 - 4 , 5 6 - 7 , 9 5 - 7 , 186, 222, 246, 252, 263n24 principle of, 2, 4 - 5 , 18, 4 6 - 7 , 53, 107, 169-70, 202, 222, 2 4 1 - 2 of sovereign status, 10, 18, 5 2 - 4 , 95 of rights, 170, 191, 2 0 1 - 4

ethnic conflict, 2 3 4 - 6 groups, 19, 122, 216-17, 220, 229 minorities, 7, 236 nationalism, 221, 229, 231, 236, 280n22 relations, 125, 216, 220, 222, 2 3 4 - 6 see also postethnic ethnicity, 97, 107, 128, 1 9 0 - 1 , 2 1 6 , immigrant, 219, 278n5 ethos of engagement, 18, 183, 190-5, 198 pluralised, 195, 197 Protestant work, 119-20 Europe colonisation, 38, 43, 46, 52, 157, 247 culture, 156-7, 245 derived societies, 43, 48 descent, 197, 239, 2 4 5 - 6 Eastern, 2 3 4 - 6 , 280n22 ethnography, 142, 153 form of nationhood, 116, 119-20 immigrants, 218, 220 institutions, 4, 244—5 jurisprudence, 27, 30 nations, 12, 52, 238, 241, 246 perception of indigenous people, 151, 154, 2 4 1 - 2 , 244 settlers, 240, 244, 246, 257 societies, 151, 242, 251 tradition of political thought, 13, 27, 36 Union, 2 5 5 - 6 extinguishment of rights, 4 0 - 1 , 4 4 - 5 , 50, 53, 64, 91 strategies of, 4 0 - 1 , 43, 50 of title, 61, 63, 6 6 - 7 , 73, 83 treaties, 44, 5 3 - 4 federalism in Australia, 167 of Britain, 225 in Canada, 8, 219 decentred, 253, 2 5 6 - 8 democratic, 227, 238, 253, 2 5 6 - 8 diverse, 253, 2 5 7 - 8 and federacy, 225 global, 2 5 6 - 8 and indigenous people, 225 Iroquois, 237, 241, 243 multinational, 227, 280n25 treaty-, 53 federation, 168, 184, 221, 227, 242, 258 Australian, 59

INDEX and confederacy, 281n6 European models of, 243 global, 256 indigenous, 42 Iroquois, 2 4 0 - 6 multination, 227, 229 see also confederation First Nations (Can.), 25, 38, 49, 91, 96, 101, 107, 166, 222, 262, Flemish, 221, 229, Fleras, Augie, 11-14, 19, 252 Franklin, Benjamin, 2 4 2 - 3 feminism, 19, 253 France and British war, 242, 246 language rights, 223 and minority nationalism, 2 2 5 - 6 , 230, 235, 278n8, 2 7 9 n l 2 settlers, 31, 230, 244 speaking, 127, 278n8 freedom, 6-7, 19, 30, 200, 203, 217, 232, 2 4 1 - 2 , 244 collective, 2, 42, 44, 46, 5 0 - 1 , 58, 170, 253-4 individual, 2, 6 - 7 , 42, 188, 217, 2 2 7 - 8 , 253-4 liberal, 7, 188 of self-determination, 3 9 - 4 0 , 42 struggles for, 36, 38, 5 0 - 8 struggles of, 36, 5 8 - 9 principle of, 4, 47 Frug, Gerald, 2 5 3 - 4 Gellner, Ernest 119-21 theory of nationalism, 119-21 gender, 159, 175, 1 9 0 - 2 , 272, 2 7 6 n l Gitxsan people, 49, 261, 262 Glazer, N., 217, 237 Glenelg, Lord, 2 6 - 9 , 3 1 - 2 government Australian, 62, 81, 156 Commonwealth, 80, 173-4 state, 154, 158, 173, 178 Canadian, 12, 38, 45, 50, 72, 121-2, 128,219 federal, 4 8 - 5 0 , 128, 219 provincial, 4 8 - 9 colonial, 1 2 , 4 1 , 9 5 control of, 2 0 4 - 8 , 210-11 decision-making, 18, 208, 210, 212 democratic, 18-19, 183-4, 199-201, 205, 208, 2 1 1 - 1 2 , 224, 237, 242, 245

Sll global, 237, 246-7, 2 5 3 - 6 , 258 Indian, 127, 131, 237, 241, 2 4 3 - 4 , 246, 253 indigenous, 8, 13, 20, 28, 31, 4 0 - 1 , 43, 45, 5 1 - 2 , 54, 64, 7 1 - 2 , 87, 91, 95, 108, 149-50, 163-4, 168, 173, 178, 1 9 6 , 2 1 9 , 225 institutions, 88, 122, 245 internal, 26, 2 8 , 4 1 , 4 3 Iroquois, 116, 237, 242, 245 legislation, 173-4, 209 legitimacy of, 52, 57 local, 100, 1 7 7 - 8 , 2 5 3 - 5 New Zealand, 33, 103-5, 140-1, 144-5, 150 postcolonial, 253, 255 of property, 196, 198 representative, 186, 189-91 self-, 2, 6-9, 18-20, 25, 3 8 - 4 1 , 4 5 - 7 , 49, 5 2 - 8 , 6 3 - 4 , 68, 72, 87, 123, 163-4, 166-7, 170, 173-4, 178, 199, 214, 2 1 9 - 2 0 , 222, 2 2 4 - 8 , 2 3 1 - 2 , 2 3 5 - 6 , 240, 242, 2 4 5 - 6 , 2 5 1 - 2 , 258

settler, 53, 92, 137 state, 13, 25, 121-2 structures of, 61, 126-7 techniques of, 2, 3 8 - 4 1 , 43, 50, 58-9 United States, 38, 128, 228, 236, 245 Grand Council of the (Iroquois) Confederacy, 240-1 Great Law of Peace, 241, 243, 246, 2 7 3 n l 2 , 281n6 Grinde, Donald, 2 4 0 - 4 Gummow, Justice, 60, 77, 267 Habermas, Jurgen, 192, 203, 211 hapu (tribes), 25, 27, 90, 98, 100, 102-3, 142-3,150, 275nl5 Haudenosaunee (People of the L o n g h o u s e ) , 127, 262n22 Hawke, Bob, 159 Hayden, Bill, 155 health, 39, 42, 56, 173, 205, 225, Heidegger, Martin, 16 Held, David, 2 5 3 - 4 , 256 heritage see cultural heritage Hickford, Mark, 260 historical consciousness, 118-19, 2 3 8 - 4 6 injustice, 1, 9, 17, 19-20, 30, 33, 93, 96, 98, 101, 132, 170, 1 7 2 , 2 1 6

312

INDEX

histories of America, 50, 52, 238, 243, 245 Australian, 27, 32, 6 0 - 1 , 7 8 - 9 , 88, 269n46 Aboriginal, 27, 177-8 colonial, 10, 12, 2 3 8 - 9 , 238, 244 of dispossession, 33, 126, 171 of the idea of sovereignty, 26, 92, 222 of indigenous peoples, 3, 10, 19, 3 1 - 2 , 108, 113, 274n4 Indian, 15, 115-17, 126-7, 237, 271nl Maori, 3 0 - 4 , 9 0 , 107, 142-3, 147 of indigenous rights, 17, 20, 30 of indigenous-settler relations, 9 - 1 0 , 2 6 - 7 , 3 3 , 117, 197, 257 of indigenous sovereignty , 9 - 1 0 , 15, 26, 30, 52, 165, 167, 277n3 of indigenous-state relations, 10, 18, 20, 3 3 - 4 , 3 7 , 9 1 , 1 1 5 , 2 5 8 of indigenous title, 60, 66, 165 of internal colonisation, 37, 43 of national minorities, 7 - 8 of n a t i o n h o o d , 3, 116, 119, 183-4, 189-90, 238 indigenous conceptions of, 16, 115-7, 122, 126, 128-9, 179 of nationalism, 119, 121-2 New Zealand, 2 7 - 8 , 32, 3 4 - 5 of treaties, 34, 167, 170, 263n24 of violence, 194, 198 of Western political thought, 1-2, 113-14, 116, 119, 147 history black armband theory of, 7 8 - 9 concepts of, 26, 35, 239, 245 as hybrid, 2 3 8 - 9 , 2 4 3 - 5 , 258 indigenous conception of, 26, 30—1, 30-5 oral, 116 politics of, 3 2 - 3 stories as, 42, 125-6, 129, 134-5, 158-9 H o b s o n , Governor, 2 8 - 9 Hollinger, David, 216, 2 1 8 - 2 1 , 2 2 8 - 9 , 2 3 0 - 3 , 280 Holmes, Stephen, 203, 211 Howard, J o h n , 78, 269 Hughes, J., 280 Huron people, 3 1 , 242

identity American national, 237, 242, 245 Australian national, 152, 155, 161 Black, 217, 2 7 7 n l collective, 11, 113, 120, 127 community, 127, 139, 178 concept of, 3, 5, 21, 184, 195, 2 7 5 n l 6 construction, 121, 127-8, 179 cultural, 11, 14-15, 17, 148, 170, 179, 198, 272n6 and difference, 5, 11, 14-17, 138-40, 147-50 group, 108, 139, 143, 147, 164, 199, 217, 219, 231, 274n4 hybrid, 218, 220 indigenous, 10, 15-16, 4 ) , 89, 9 1 - 2 , 98, 114, 122, 137, 1 4 0 - 1 , 146, 149-51, 164-5, 171, 176, 178-9, 2 7 4 n l Maori, 3 3 - 5 , 108, 138, 140-3, 147, 149-50, 179 Mohawk, 116-17, 127-9, 179 individual, 11, 14, 127, 168, 170 minority national, 2 2 4 - 6 , 231 multiple, 218, 220 national, 14-15, 7 9 - 8 0 , 189, 224-7, 231-5, 238-9 pakeha, 3 3 - 4 personal, 113, 120, 161 political, 11, 14, 17, 189-90 immigrant, 39, 44, 199, 2 1 8 - 2 0 , 229, 233 ethnicity, 219, 278n5 immigration, 30, 219, 229, 250-1 Indian American, 222, 228, 233, 236 Canadian, 115, 121, 126, 128, 219 culture, 125, 240 governance, 237, 2 4 0 - 1 , 243, 2 4 5 - 6 groups, 2 4 3 - 4 , 246 identity, 116, 125-7, 129-32, 134-5 imagery, 242, 244 lands, 45, 185, 228, 246, 267n30 nationhood, 16, 115, 126-7 nations, 127, 263n24 people, 124-5, 241, 246 politics, 2 4 0 - 1 , 2 4 3 property, 27, 185 reserves, 128 rights, 127-9, 135 self-government, 219, 240 and settlers, 117-18

INDEX and the state, 114, 116, 121 status, 126, 228, 2 7 3 n l l title, 45 treaties, 240, 263n24 tribes, 228, 236 see also indigenous Indian Act, 1985 (Can.), 118, 126, 131, 179, 271 n4, 272n8, 2 7 3 n l l indigeneity, 15, 89, 9 1 - 6 , 98, 107-8, 1 3 7 - 4 1 , 146, 148, 150 as discourse, 9 1 - 3 , 102 as historical, 138-40 politics of, 8 9 - 9 0 , 9 3 , 95, 102, 137 recognition of, 91, 95, 107 indigenous art, 59, 1 5 4 - 5 Americans, 239, 245 Australians, 78, 8 0 - 1 , 153-4 authenticity, 15, 1 3 7 - 8 claims, 3, 5, 7, 9 - 1 1 , 17-20, 50, 67, 78, 83, 89, 95, 108, 138, 247 communities, 1, 7, 9, 11, 18, 4 3 - 4 , 47, 67, 71, 7 3 - 4 , 8 2 - 8 , 8 9 - 9 0 , 102 108, 114-17, 126-9, 131, 135-6, 153, 156, 163-5, 172, 174-9, 225, 229 conception of justice, 2, 19 cultural property, 152, 161 culture, 9, 15, 118, 122, 146, 155, 157, 160-1 cultures, 4, 1 0 - 1 1 , 15-16, 18-19, 42, 78, 8 2 - 3 , 1 5 1 - 3 , 157, 161 customs, 29, 6 2 - 3 , 86 governance, 13, 51 governments, 8, 40 groups, 19, 74, 94, 107, 152, 164-5, 170-2, 175, 255 group-specific rights, 1 7 0 - 2 identity, 15-16, 8 0 , 8 9 , 9 1 , 137, 141, 146, 164-5, 171, 179 institutions, 67, 73, 137, 145 interests, 4, 16, 6 4 - 6 , 68, 85, 164-5, 167, 1 7 1 - 3 , 175, 179 lands, 7, 9, 4 3 - 4 , 56, 58, 67, 7 0 - 1 , 74, 81,83, 85-6,88-91,224 land rights, 6 7 - 8 , 7 6 - 7 , 163-4, 166, 170, 172, 179 land use, 74, 8 4 - 6 , 88 language, 2, 3 6 , 5 1 , 5 9 , 224 law, 61, 62, 6 3 - 6 , 70, 81, 8 3 - 6 systems of, 7 0 - 1 , 77 legal traditions, 62, 65

313 minority, 26, 140, 146, 214 nationhood, 113-18, 122, 134, 171, 179 nations, 38, 42, 5 2 - 3 , 167, 170, 214 and non-indigenous relations, 2 - 5 , 8 - 9 , 17, 20, 50, 6 0 - 2 , 64, 73, 7 7 - 8 , 81, 84-5 peoples, 1-20, 25-6, 29, 31, 36-47, 4 9 - 6 0 , 6 3 - 5 , 6 9 - 7 0 , 73, 76, 79, 81, 83, 8 5 - 7 , 89, 91, 9 3 - 8 , 107-8, 114-17, 126, 137, 141, 146, 151-5, 159-65, 167, 169, 171-3, 175, 196, 199, 2 1 6 - 2 7 , 229-30, 233, 237, 239, 2 4 5 - 7 , 2 5 1 - 4 , 257, 277n3 political theory, 1-2, 4, 11, 36, 51 politics, 1 0 - 1 1 , 38, 41, 59, 68, 84, 89, 91, 117, 252, 254 recognition, 19, 46, 56, 7 3 , 76, 9 1 , 95, 107, 138, 252 resistance, 3 9 - 4 2 , 44, 50, 59 rights, 1 , 3 - 5 , 7-8, 12-15, 18, 2 5 - 6 , 4 0 - 1 , 4 3 - 6 , 4 9 - 5 0 , 5 4 - 7 , 61, 6 3 - 6 , 70, 72, 74, 8 1 - 2 , 84, 9 0 - 1 , 9 3 - 4 , 97, 100-1, 103, 107, 137-41, 143, 145, 147-9, 151, 1 5 8 , 2 2 6 self-determination, 52, 5 4 - 6 , 8 9 - 9 1 , 97, 100-1, 108, 163, 171-2, 237, 247, 251-2,258 self-government, 8 - 9 , 19, 40, 45, 5 6 - 8 , 64, 72, 87, 163-4, 166, 225, 252 and settler relations, 9, 51, 65, 78, 137, 197, 246 societies, 1, 10-11, 3 7 - 8 , 41, 44, 61-6, 68, 7 0 - 1 , 74, 78, 8 2 - 4 , 86, 88, 146, 151, 1 6 1 , 2 5 1 , 2 6 8 n 3 2 sovereignty, 3, 9, 14, 20, 38, 53, 6 3 - 4 , 8 9 - 9 0 , 9 3 - 4 , 97, 108, 252 and state relations, 89, 9 2 - 8 , 109 territories, 2 - 3 , 3 7 - 8 , 40, 43, 4 5 - 7 ,

5 0 - 3 , 57, 62 title, 47, 6 0 - 4 , 6 6 - 7 8 , 80, 8 3 - 8 , 164, 264n5 traditions, 6 2 , 8 2 , 160 women, 167, 169 word warriors, 51 institutional change, 250, 252 design, 11, 8 4 - 5 , 253, 2 5 5 - 6 development, 68, 8 5 - 6 , 237 innovation, 17, 88 reform, 61, 219

314

INDEX

integration, 10, 104, 125, 2 1 9 - 2 0 , 2 2 4 - 6 , 229, 233 interests aboriginal, 48, 165-6, 176, 178-9 c o m m o n , 18, 200, 2 0 5 - 6 , 209, 2 1 1 - 1 2 community, 102, 164, 179 different, 172-3 of the governed, 205, 209, 2 1 1 , 2 1 5 group, 17, 163-6, 169, 172, 175-6, 179, 205, 212, 268n32 indigenous, 4, 16, 64, 66, 68, 85, 164-9, 171-4, 179 individual, 17, 205 in land, 16, 48, 61, 6 6 - 9 , 72, 74, 83, 85, 164-6, 171-2, 174, 176, 178-9, 214, 265n5 local, 164, 173 Maori, 100, 102, 105, 144 national, 163, 167-8 non-Indigenous, 74, 82, 84, 165, 173-4, 177 and rights, 64—6 rival, 2 1 2 - 1 4 interface, law of, 71, 73, 76, 82, 85, 87 internal colonisation see colonisation Inuit people, 68, 2 2 1 - 2 , 2 7 8 n l 0 ironies, 2 1 , 63, 118, 138, 197-8, 271n4 Iroquois Confederacy, 115, 127, 237, 2 4 0 - 3 experience, 127-8, 2 7 3 n l 3 federalism, 237, 241, 243 federation, 240, 2 4 3 - 5 governance, 116, 237, 241, 254 influence, 64, 118, 2 3 7 - 9 , 241, 2 4 3 - 5 institutions, 129, 241, 243, 245 n a t i o n h o o d , 115-16, 118 people, 3 1 , 116, 2 4 2 - 3 iwi people, 25, 35, 90, 9 8 - 1 0 0 , 102-3, 106, 140-8, 150, 275 -isation of Maori society, 140-2, 147 social service, 145, 150 Jackson, Michael, 16, 117, 123-6, 135-6 radical empiricism, 16, 117, 124-5 James Bay Crees, 68, 71 Jawoyn people, 159 Johansen, Bruce, 2 4 0 - 4 jurisprudence, 1 7 , 3 0 Australian, 12 Canadian, 12, 72 European, 27, 30 jus gentium (law of nations), 3 1 - 2

justice, 7-8, 2 0 - 1 , 30, 33, 52, 59, 74, 132, 167, 170-1, 186, 188, 192, 214, 218, 25, 233, 2 3 6 - 7 , 2 4 8 - 9 'catch-up', 89, 101 conceptions of, 3 - 4 , 7, 19, 168 corrective, 76, 96 distributive, 1 0 - 1 1 , 76, 167, 254, 281nl0 egalitarian, 19-20 global, 2 4 8 - 5 0 for indigenous peoples, 1, 3, 5 - 8 , 11, 17, 2 0 - 1 , 33, 132, 172, 237, 239, 253 international, 252, 2 5 4 - 5 , 2 8 1 n l 0 theories of, 9, 19 Kahnawake, 114-18, 121, 125-9, 133, 135-6, 271n4 community, 114-17, 126-9, 131, 135-6, 272n9,273nll nationalism, 116-18, 121, 128 nationhood, 16, 116-17, 125-6, 128, 271nl police force, 127, 272n9 Kahnawakeromon (people of Kahnawake), 118, 127-9, 131, 135 Kamehameha kingdom (Hawaii), 25 kawanatanga (government), 2 8 - 9 Kawharu, Sir Hugh, 100 Kickingbird, Kirke, 101 Kingitanga Maori, 30, 106 Kosovo, 233, 2 3 5 - 6 Krygier, Martin, 79 Kukathas, Chandran, 200 Kumarangk/Hindmarsh Island bridge affair, 157-60 kupapa Maori, 30 Kymlicka, Will, 3, 7-10, 18-19, 114-15, 125, 166, 169-72, 199-200, 202, 259, 264 Lamer, Chief Justice., 262 land alienation, 70, 95 appropriation of, 29-30, 39, 4 3 - 4 , 48, 71, 103 commissioner (Aust.), 176-7 claims, 9, 19, 47, 83, 113, 127, 157, 161, 164-6, 172-4, 176-7 control over, 2, 16, 38, 42, 85, 9 4 - 5 , 102, 165, 173, 196 crown, 69, 126 dispossession of, 10, 159, 196

INDEX governance, 196, 198 holding, 62, 7 0 - 1 , 8 3 - 4 , 86, 100, 199, 212, 214 indigenous, 7, 43, 67, 7 0 - 1 , 74, 81, 8 3 - 5 , 88, 9 4 - 5 , 125, 164, 175, 224, 228 Australian aboriginal, 73, 159, 174 Maori, 13, 25, 2 8 - 3 0 , 3 4 - 5 , 100 Nisga'a, 4 4 - 5 , 49 interests in, 4, 16, 60, 67, 69, 72, 74, 8 3 - 5 , 164-6, 172, 174, 176, 178, 265n5 jurisdiction over, 54, 56, 8 9 - 9 1 , 9 5 - 6 law, 6 1 , 6 9 - 7 1 , 8 8 ownership, 66, 126, 172, 175-7, 185, 196 prior occupation of, 4 6 - 7 , 84, 108, 166-7, 185 relation to, 7 , 9 - 1 0 , 13, 20, 47, 88, 113, 126, 164-7, 1 7 2 - 3 , 175-6, 178, 190, 197, 263n27 responsibility for, 165, 175-7 restoration of, 2, 7, 9 - 1 0 , 85, 91 rights, 1, 4 4 - 8 , 56, 6 7 - 8 , 71, 7 6 - 7 , 92, 100, 141, 161, 163-7, 170-3, 176, 178-9, 225, 2 5 1 - 2 setdement of, 7 0 - 1 , 78, 224, 228, 261nl2 sovereignty over, 9, 12-13, 16, 46, 49, 92, 100, 2 6 2 n l 9 tenure, 68, 73, 176 title, 7, 4 6 - 8 , 60, 62, 67, 6 9 - 7 1 , 73, 87, 164 traditional, 2, 4 5 - 6 , 173, 176-7 treaties, 31, 44, 49, 240 Trust (Aust.), 6 6 - 7 use, 27, 44, 47, 58, 74, 8 3 - 8 , 159, 164-5, 172, 175, 185, 188, 196, 198, 212,251 Land Councils (Aust.), 6 6 - 7 , 8 5 - 6 , 164, 174-5, 178 language, 183, 189-90, 212 groups, 68, 163, 174-5 rights, 2 2 3 - 4 , 2 2 6 - 7 languages, 223 indigenous, 59, 224, 240 minority, 37, 199, 213, 224, 2 2 6 - 7 of indigenous political thought, 3 6 - 7 , 51 Maori. 13, 28, 103, 107 Mohawk, 133-4

315

of western political thought, 2 - 3 , 29, 3 6 - 7 , 43, 5 0 - 2 law, 2 - 3 , 14, 36, 40, 43, 179 American, 64 Australian, 12, 6 0 - 2 , 6 9 - 7 0 , 7 7 - 8 2 , 86, 157 British, 1, 158 Canadian, 50, 73, 220 c o m m o n , 16, 4 6 - 7 , 60, 6 2 - 4 , 66, 69, 71, 7 4 - 7 , 8 7 , 157, 265n5 constitutional, 60 customary/traditional, 6 1 - 2 , 167 equality before, 2, 107 European, 251 domestic, 12, 55, 57 general, 68, 7 2 - 5 indigenous, 46, 52, 57, 6 2 - 3 , 6 5 - 6 , 70, 8 2 - 6 , 88, 167, 172, 225, 252 conception of, 63, 81 international, 7, 12, 43, 5 2 - 7 , 76, 160, 222, 226, 2 5 5 - 6 , 265n5 Iroquois, 241, land, 61, 69-71 Maori, 100 mediated, 6 3 - 9 Mohawk, 129 on membership, 131-2 of indigenous/native title, 16, 62, 7 0 - 1 , 73, 75, 78, 85 natural, 27 New Zealand, 34, 141 property, 61, 157 rule of, 80, 186, 208, 210, 235 systems of, 46, 57, 64, 70 Western, 52, 65, 160-1 laws, 57, 197, 191, 199, 2 0 7 - 8 see also Great Law of Peace Lee, Justice, 74, 268 legal authority, 14, 281n7 cases, II, 131 doctrines, 11, 61 institutions, 11, 160, 220, 247, 257 interpretation, 61 orders, 63, 6 8 - 9 , 71, 7 3 - 4 , 77, 8 6 - 7 ownership, 170 recognition, 64, 2 6 2 n l 9 rights, 4, 1 2 , 8 7 status, 154 systems, 4, 6, 12, 65, 68, 87, 160, 2 0 2 - 3 theories, 2, 13, 36, 4 2 - 3 , 82 traditions, 16, 62, 6 5 - 6

316

INDEX

legalism, 80, 98 legitimacy of colonial states, 3, 11-13, 20, 4 1 - 6 , 5 0 - 7 , 8 8 - 9 , 9 1 - 3 , 95 of democratic authority, 6, 17-18 of indigenous title, 29, 9 0 - 3 , 95, 108, 137, 150 of internal colonisation, 4 2 - 9 , 51, 59 liberal concept of autonomy, 5, 9, 202 democracies, 3 - 4 , 7, 9 - 1 0 , 18, 21, 220, 2 2 3 - 4 , 229, 234 democracy, 1,9, 16, 56, 170, 191, 202, 235 concept of equality, 5, 169-70 freedom, 7, 188 image of the nation, 183, 186-92, 198 individualism, 9, 56, 115, 169-70, 188, 234-5 nation, 183, 188 nationalism, 193, 2 3 1 - 2 political theory, 1-2, 4 - 9 , 56, 113, 115, 184, 188, 191, 226, 230, 235 recognition of difference, 7, 9, 41, 170 state, 6-8, 16, 18, 188 theories of justice, 19 values, 9, 4 5 - 6 , 107, 169-70, 232, 280n23 liberalism, 5-7, 19, 21, 41, 170, 184, 188, 198 American, 2 3 3 - 6 , 280n26 secular, 194-5 liberty, 56, 186-7, 203, 238, 2 4 1 - 2 , 244 Locke, J o h n , 2 7 - 8 , 65, 241, 260, 266 Maaka, Roger 11-14, 19, 146, 252 Mabo and Others v. Queensland (No. 2) (1992), 12, 16, 6 0 - 3 , 67, 69, 71, 7 7 - 8 , 8 1 - 2 , 8 6 - 8 , 167, 172-3, 274n6 McLachlan, Ian, 158 Mahuta, Robert, 106 mana, 30, 3 3 - 5 , 102 chiefly, 9 9 - 1 0 0 Maori, 99, 102 whenua (suzerainty), 102, 144 Manderson, D e s m o n d , 79 Mansell, Michael, 164 Maori autonomy, 99, 101-2 communities, 102, 141, 144, 147, 150 constitutional framework, 101-2

and crown relations, 13, 2 6 - 9 , 3 1 - 4 , 90, 98, 101-2, 149-50 culture, 28, 147, 151, 274n4 difference, 147-8 dispossession, 33 federative capacity, 25, 3 1 - 2 fishing rights, 145 identity, 138, 140, 142-3, 147, 151 indigenous rights, 90, 103, 140-1, 147, 274n5 institutions, 98, 140-1, 143, 146, 150 interests, 100, 102, 105, 144 land, 13, 2 9 - 3 0 , 34, 100 language, 13, 28, 147 kin-based, 15, 141-5, 147, 150 nationhood, 99 organisations, 138, 142-5 ownership, 100, 102-3, 145 and pakeha relations, 2 9 - 3 0 , 33 political representation, 102, 104-6 people, 15, 25, 9 9 - 1 0 0 , 138, 144-5, 150 policy, 102, 140, 146-7 politics, 90, 9 8 - 9 , 101, 103-5, 142-3 pre-contact, 2 9 - 3 2 , 147 self-determination, 9 0 - 1 , 99, 101 society, 101, 140-3, 147, 151 sovereignty, 13, 2 8 - 9 , 34, 90, 9 8 - 1 0 3 , 106 title, 29 traditions, 142 traditional, 15, 146-7, 150 trusteeship, 99 unity, 102, 107 urban, 15, 106, 142-3, 145-6, 150 Maori Fisheries Act (1989), 105, 146 Maori Language Act (1987), 103, 106 Maoridom, 90, 101, 105, 108 Marshall, J o h n 2 6 2 - 3 McNeil, K., 262 membership community, 11, 63, 7 3 - 4 , 84, 86, 114-17, 126-9, 131-2, 134, 136, 229 cultural, 6-7, 166, 169-72 indigenous, 19, 73, 129, 151 group, 6, 59, 74, 107, 166, 168-9, 171, 199-200, 214, 217, 231 dominant, 41, 170,231 ethnic, 220, 229 minority, 19, 170, 202, 2 1 1 - 1 4 oppressed, 59, 168 of a nation, 79, 167, 189, 231

INDEX indigenous, 113-15, 118, 1 2 6 - 3 6 of a society, 36, 88 Canadian, 41, 46 dominant, 41, 51, 56 indigenous, 83 settler, 41 state, 56, 140, 2 4 8 - 9 Metis nation, 91, 166, 276n4 Mill.J.S., 1 8 6 - 9 3 , 2 7 6 - 7 , 278 Milosevic, S„ 2 3 5 - 6 minority claims, 1 9 9 - 2 0 1 , 211, 213, 215, 236 creative, 186-8 cultures, 7, 19, 95, 170, 199, 202, 2 1 2 - 1 4 , 219, 251 ethnic, 7, 219, 236 groups, 3, 9, 18, 139, 147, 170, 172, 183, 191-3, 195, 199-200, 2 1 3 - 1 4 indigenous, 26, 3 7 - 8 , 50, 55, 108, 140, 146, 225 interests, 2 1 1 - 1 2 internal, 6, 11, 17 language, 37, 199, 213, 224, 227 national, 7, 114, 171, 2 2 0 - 3 1 , 2 3 3 - 6 , 251, 277n3 national identity, 2 2 4 - 6 , 231 nations, 199, 2 1 4 - 1 5 , 2 3 1 - 2 religious, 214, 227 rights, 7, 18, 147, 199, 2 0 1 - 4 , 211, 213, 215, 222, 236, 251 special treatment, 205, 213 minority nationalism, 8, 125, 2 1 7 - 2 4 , 226-36 France and, 2 2 5 - 6 , 230, 235, 278n8, 279nl2 Mohawk identity, 116, 118, 128-9, 134, 179 of Kahnawake, 114, 116, 118, 121, 125-8, 132 language, 131, 1 3 3 - 4 Law o n Membership, 131-2, 2 7 3 n l l nation, 113, 118 nationalism, 116, 118, 121 nationhood, 16, 116, 124-5, 128, 135, 271nl people, 31, 115, 1 2 7 , 2 4 0 sovereignty, 16, 129 Mohawk Council of Kahnawake (MCK), 129, 1 3 1 - 2 , 272n8, 272n9, 2 7 3 n l l see also band council Montesquieu, 242

317

morality, 32, 80, 149, 186, 193 public, 184-6, 193 multicultural democracy, 2 1 4 - 1 5 state, 1 8 , 2 1 2 - 1 3 , 232 multiculturalism, 90, 93, 95, 108, 113, 154, 220 American, 7-8, 216-18, 229,236 Canadian, 41, 1 1 4 , 2 1 8 cosmopolitan, 218, 220, 2 3 1 - 2 fluid, 217, 220, 229, 232 hybridic, 220, 229, 232 pluralist, 2 1 8 - 1 9 , 221, 2 3 1 - 2 policy, 1 1 4 , 2 1 9 - 2 0 postethnic, 229, 231 theories of, 41, 45, 218, 236 see also bi-culturalism Mundine, Djon, 155 Murphy, Michael, 264 narratives of citizenship, 113, 130-4 of national identity, 2 3 8 - 9 of nationhood, 3, 16, 117, 135 national, 78, 80 nation, 14, 118-21, 129, 183-4, 189-90, 192, 197, 219, 238 Aboriginal, 163-4 American, 185, 196, 217, 228, 232 Australian, 7 7 - 8 , 154-5, 163 democratic, 186-7, 193 image of, 183, 188, 193, 196 liberal, 188, 192,231 Millian, 192-3, 2 7 6 n l Tocqueville, 184-6, 193 liberal, 183, 188 majority, 10, 214-15, 230-1 minority, 199, 214-15, 231 Mohawk, 118, 127-8 and states, 1, 14, 51, 5 4 - 8 , 108, 123, 125, 226, 2 3 7 - 8 , 2 4 6 - 8 , 2 5 2 - 7 territorial, 184-5, 187-8, 190 nationhood, 60, 108, 116-17, 119, 126, 135-6, 183, 186, 189-90, 193, 195, 197, 222, 2 2 4 - 5 , 238 indigenous, 16, 99, 113-17, 122, 134, 171, 179 Mohawk, 16, 124-5, 117, 127-8, 135 theories of, 117, 122 nations domestic dependent, 64, 228, 236

318

INDEX

nations (contd.) European, 12, 43, 52, 190-1, 238 indigenous, 38, 42, 44, 5 2 - 3 , 115, 117, 167, 214, 222 First, 25, 38, 49, 91, 96, 101, 107, 166, 222 Nisga'a, 44, 4 9 - 5 0 , 2 6 2 n l 7 relations between, 167, 222, 278n6 self-governing, 46, 225, 274 sovereign, 26, 38, 52, 55 stateless, 3, 9, 52, 2 2 1 - 3 , 2 2 5 - 7 , 2 7 7 n 3 within, 7-8, 94, 2 1 6 - 1 7 , 2 1 9 - 2 1 , 223, 2 2 7 - 8 , 231, 236 national identity, 14-15, 7 9 - 8 0 , 224-7, 2 3 1 - 2 , 234-5,238-9 American, 242 Australian, 152, 155 imaginary, 183-4, 196 interests, 109, 163, 167 minorities, 7, 114, 171, 2 2 0 - 3 1 , 2 3 3 - 6 , 251, 2 7 7 n 3 nationalism, 8, 113, 116-17, 119-22, 128, 186, 217, 220, 222, 227, 231 bi-, 90, 9 7 - 8 , 100 civic (postethnic), 2 3 0 - 2 , 235, 279n21 ethnic, 221, 2 2 9 - 3 1 , 280n22 liberal, 193, 2 3 1 - 2 Mohawk, 117-18, 121, 128 minority, 125, 2 1 7 - 2 4 , 2 2 6 - 3 6 Quebecois, 221, 229 theories of, 117, 122 Gellnerian theory of, 119-21 Anderson's theory of, 120-1 Native Land Court (NZ), 142 native title see title Native Title Act, 1993 (Aust.), 6 6 - 7 , 70, 7 3 - 4 , 8 1 , 165, 173 1998 a m e n d m e n t , 8 1 , 173, 2 6 6 n l 6 , 267nl9 Navajo people, 2 8 0 n 2 8 negotiations, 8 - 9 , 21, 3 3 - 5 , 43, 49, 5 2 - 4 , 68, 7 2 - 6 , 8 3 , 87, 102, 105-6, 144, 166-9, 172, 174, 177, 179, 183, 193-6, 198, 2 4 0 - 1 , 244, 246, 252, 2 5 6 - 8 , 268n32 New Zealand government, 33, 105, 140-1, 145, 150 government policy, 1 4 0 - 1 , 144 history, 2 7 - 8 , 32, 3 4 - 5 , 103 indigenous rights, 41, 138, 1 4 0 - 1 , 145

Maori, 15, 27, 106-7, 137-8, 140, 145-7,221 Maori-crown relations, 90 settlement, 25, 41 society, 29, 99, 103-4, 138, 147 sovereignty, 13, 29, 3 4 - 5 state, 29 as treaty, 35 treaty partnership, 27, 149 uniqueness of, 2 5 - 6 wars, 30, 32 see also Aotearoa Ngai Tahu people, 35, 104 Ngata, Sir Apirana, 142 Nisga'a people (Can.), 4 4 - 5 , 4 9 - 5 0 Final Agreement (1998), 49, 2 6 2 n l 7 nomads, 185-6, 196, 198 norms, 4, 9, 11, 15, 18, 2 0 - 1 , 5 8 , 6 5 - 6 , 77, 80, 140. 1 4 3 , 2 1 9 , 2 2 6 , framing, 76, 83 Northern Territory, 16, 85, 159, 166, 174, 176, 178 Local Government Act, 178 see also Aboriginal Land Rights (Northern Territory) Act Oneida people, 115, 240 O'Neill, Onora, 248 O'Regan, Sir Tipene, 106 pakeha, 26, 99, 104 history, 3 3 - 4 and Maori relations, 26, 2 9 - 3 4 people, 3 3 - 4 political philosophy, 28, 108 pastoral lease, 69, 177 Paterson, Justice B.J., 106, 146 Patton, Paul, 270, 274, 275 Pearson, N., 266 Pettit, Philip, 18, 278 pluralism, 166-8, 184, 190, 218, 220 cultural, 154, 166, 169, 171 multi-dimensional, 18, 190-2, 194-5, 197-8 and politics, 166, 195 see also multiculturalism Pocock.J.G.A., 13, 15, 262, 281 Pogge, Thomas, 248, 254, 281 political associations, 19, 2 2 3 - 4 authority, 77, 86, 9 3 - 4 , 108

INDEX autonomy, 6 2 - 3 , 71, 157, 164, 170, 222, 246 belonging, 21 boundaries, 224 change, 85, 252 communities, 4 8 - 9 , 89, 9 1 - 2 , 9 7 - 8 , 101, 103, 108, 120, 177, 222, 231 culture, 118, 188, 193 Australian, 80 decisions, 19, 7 5 - 6 , 203 disadvantage, 1 9 - 2 0 force, 163-4, 179 identities, 11, 14-15, 17 institutions, 2, 1 1 , 5 1 , 9 2 , 143, 160, 166-7,220, 239,242-3 interaction, 73, 246 legitimacy, 92, 94, 119-21 life, 10, 5 8 , 8 1 , 174, 194, 223 nation, 118-19, 230 order, 9 1 , 93, 95, 97, 108 organisation, 12, 38, 54, 68, 1 4 2 - 3 , 191 parties, 104, 228 pluralism, 166, 190, 195 practices, 36, 41, 114, 203, 241 problem of sovereignty, 13-14 power, 2, 104, 143, 221, 235 rights, 4, 12 recognition, 170, 251 representation, 104-5, 164 self-determination, 170 self-understanding, 36, 43 societies, 25, 38 structures, 13-14, 67, 116 systems, 14, 4 1 - 2 , 161, 2 0 2 - 3 , 228 Canadian, 38 of internal colonisation, 43 United States, 38 voice, 89, 9 1 - 2 , 168, 172-3 will, 163, 203 political t h e o r y / t h o u g h t , 1-5, 7, 11, 2 0 - 1 , 25, 3 2 , 3 6 , 4 3 , 5 1 , 5 8 , 107, 113, 116, 119, 134-5, 138, 156, 164-6, 172, 193, 223, 242 indigenous, 1, 4, 11, 3 6 - 7 , 51, 117, 196 liberal, 1-2, 4 - 7 western, 1-5, 13-14, 17, 2 7 - 8 , 3 6 - 7 , 43, 5 0 - 2 , 59 politics of difference, 35, 47, 138-9, 147-9 of indigeneity, 8 9 - 9 0 , 9 3 - 4 , 137, 154

319

indigenous, 122, 163-4, 175-7, 239, 243 Maori, 98, 103, 105 Poole, R., 2 7 7 - 8 postcolonial project, 237-9, 246-7, 253, 258, 281n6 society, 15, 17, 19, 21, 35, 107-9, 109, 120, 146, 245, 255, 257 theory, 2, 17, 253 postcolonialism, 120, 237 postcolonising society, 89, 9 1 - 2 , 99, 107, 109 postethnic minority nationalisms, 2 2 9 - 3 0 multiculturalism, 229-31 nationalism, 2 3 0 - 2 , 2 7 9 - 8 0 societies, 2 1 8 - 2 1 , 228, 231, 233 postmodern, 35, 96, 118, 120, 140 post-sovereignty, 108, 238, 244, 247 poststructuralism, 138, 147-8, 1 5 1 , 2 7 5 n l 6 power, 40, 4 2 - 3 , 50, 99, 102, 104, 109, 124, 157, 206, 239, 246 balance of, 104, 240 colonial, 4 6 - 7 , 64, 71, 95, 117, 2 3 8 - 9 division of, 8, 225, 2 6 2 n l 7 governmental, 60, 2 5 3 - 5 hydro-electric, 48 military, 123, 143 political, 2, 104, 117, 143, 221, 235 public, 209, 213 relations of, 17-18, 42, 74, 117, 123-4, 155, 221 sharing, 9 7 - 8 , 109, 227 sovereign, 1 4 , 9 2 - 3 , 101, 251 state, 18, 50, 58, 184, 2 4 7 - 9 powers, 17-18, 31, 37, 42, 101, 222, 225, 241 self-government, 18, 214, 2 2 6 - 7 separation of, 208, 255 property, 2, 2 6 - 3 0 , 32, 70, 80, 85, 167, 188, 191, 194-6, 198 cultural, 152-3, 156-8, 161 interest, 69, 83 in land/soil, 2 6 - 9 , 31 law, 61, 157 private, 249, 263n27 rights, 3, 2 9 - 3 0 , 6 5 - 6 , 8 5 - 7 , 100, 145, 173, 175, 196 theory of, 65, 197 Puerto Rico, 221, 2 2 8 - 3 6 Pufendorf, S., 266

320

INDEX

Quebec, 37, 68, 71, 127, 2 2 9 - 3 1 , 234 Quebecois, 3, 8, 199, 2 1 9 - 2 1 , 2 2 3 - 4 , 230, 232, 234 race, 76, 81, 114, 122, 132, 147. 153, 183-4, 1 8 8 - 9 1 , 2 2 9 - 3 0 , 278n8 racism, 12, 1 3 1 - 2 , 221 radical empiricism, 16, 117, 124-5 rangatira (chiefs), 25, 30, 274n5 rangatiratanga, 2 8 - 3 0 , 33, 9 9 - 1 0 2 , 104, 108, 141, 144, 150, 274n5, 2 7 6 n l 7 see also tino rangatiratanga Rata, Matiu, 99 Rawls.J., 192 recognition, 19-20, 45, 66, 77, 138, 167 of autonomy, 63, 7 3 - 5 , 7 7 - 8 , 85, 87, 178 of claims, 5, 9, 12, 75, 2 1 1 , 2 1 3 , 252, 258 of difference, 7, 20, 137-9, 141, 143, 145-9, 168, 170, 172, 179 group specific, 3, 166, 172 of indigenous culture, 7 8 - 8 0 , 157, 161 of indigenous people, 41, 46-7, 49, 51, 5 3 - 7 , 6 2 - 6 , 7 8 - 8 0 , 8 3 - 4 , 88, 115, 141, 157, 163, 172, 222, 234, 237, 240, 252 of indigeneity, 91, 95, 107 of interests, 66, 1 6 4 - 5 , 169, 171-3, 176, 178-9 mutual, 17, 1 9 , 5 1 , 5 3 , 257 of rights, 3 - 4 , 6 - 8 , 20, 4 5 - 7 , 49, 5 4 - 6 , 64, 66, 68, 73, 91, 9 5 - 6 , 102-4, 106, 138, 140, 144-5, 151, 164-6, 172, 176, 2 2 0 - 1 , 225, 251 of sovereignty, 20, 28, 46, 53, 103, 173, 247-8 of title, 16, 6 0 - 3 , 6 6 - 7 1 , 73, 7 5 - 7 , 8 0 - 1 , 8 6 - 7 , 157, 164 reconciliation, 4, 8, 41, 4 8 - 9 , 72, 74, 76-7, 8 1 , 8 4 , 8 7 , 9 0 - 1 , 9 7 , 113, 125, 137 Reid, Bill, 35 Renan, Ernst, 1 8 3 - 4 Renwick, W., 9 9 , 108 resistance, 1, 3 7 - 9 , 4 1 - 2 , 44, 50, 118, 179 a m of, 37, 40, 42, 5 8 - 9 practices of, 37, 4 2 - 3 responsibility, 17, 19, 64, 77, 102 for land, 71, 164, 177 spiritual, 165, 1 7 5 - 8 rights and, 63, 71, 164

Reynolds, Henry, 12, 108, 163 rights, 3, 17, 2 7 - 8 , 30, 33, 6 4 - 5 , 98, aboriginal, 41, 4 5 - 5 0 appeal, 47, 53 citizenship, 92 collective, 157, 199 common-law, 46 communal, 194 community, 84, 139 constitutional, 4 5 - 8 countermajoritarian, 2 0 3 - 4 , 215 cultural, 6, 47, 251 customary, 9 1 - 2 , 100, 103 differential, 170 e c o n o m i c , 47 equal, 170, 191 extinguishment of, 4 0 - 5 , 53, 64 fishing, 105, 145 governance, 149, 251 general, 199, 2 0 2 - 3 , 211 group, 6-9, 17, 41, 50, 141, 170-2, 200, 218, 2 2 1 , 2 2 9 , 235 group-specific, 164, 167, 170-2, 199 human, 2, 1 1 , 5 4 , 249, 255 indigenous, 1, 3 - 1 1 , 13-15, 20, 2 5 - 6 , 4 0 - 1 , 4 3 - 6 , 50, 5 4 - 6 , 61, 6 3 - 8 , 70-2, 74, 77, 8 1 - 4 , 9 0 - 1 , 9 3 - 4 , 97, 100-1, 103, 137-41, 143, 145-9, 1 5 1 - 2 , 158, 164-6. 172, 174, 2 2 5 - 6 , 251 individual, 4, 6, 17, 56, 81, 84, 107, 141, 194, 200, 218, 227, 235 land, 44, 4 6 - 8 , 56, 62, 6 7 - 8 , 71, 76-7, 100, 141, 16), 163, 165-7, 170-6, 178-9,225 occupation, 46, 103 use, 47, 251 language, 2 2 3 - 4 . 226 legal. 4, 12, 87 liberal, 7, 113, 188 Maori, 102-3, 107 mediated, 4, 66 membership, 129 mining, 172, 196 minority, 7, 18, 147, 199, 222, 236, 251 national, 219, 227, 231, 235 national minorities, 227, 233, 236, 251 natural, 65, 240 ownership, 105, 145 political, 4, 12

INDEX polyethnic, 140 private, 70, 76 property, 2 9 - 3 0 , 6 5 - 6 , 8 5 - 7 , 100, 145, 173, 175, 196 cultural, 152, 158, 161 proprietary, 47, 49, 57, 71, 73, 76 rangatiratanga, 99, 1 0 1 - 2 remedial, 9 residency, 126, 132 self-determination, 6, 5 4 - 7 , 94, 1 0 0 - 1 , 170, 251 internal and external, 56 self-government, 2, 6 - 9 , 18, 20, 40, 47, 49, 6 3 - 4 , 164, 170, 174, 214, 220, 2 2 4 - 5 , 228, 2 3 1 - 2 , 2 3 5 - 6 , 2 5 1 - 2 sovereignty, 9 3 - 4 , 103, 2 5 0 - 1 special minority, 18, 20, 146, 188, 197, 199-204,211,213-15 representation, 168, 1 7 0 - 1 , 199 status Indians, 126-7, 129 treaty, 50, 72, 105, 141, 143, 150 welfare, 255 Rousseau, J.-J., 242 Rowley, C , 86 Royal Commission o n Aboriginal Peoples (Can.), 14, 17, 19, 44, 109, 2 6 3 , 273nl3, 279n20 Royal Proclamation (1763), 46, 263n24, 267n30 Runanga Iwi Act, 1990 (NZ), 141, 274n7 Said, Edward, 281 Salee, Daniel, 9 2 , 9 6 Sami people, 2 2 1 , 225 Schwarz, Benjamin, 236 Scotland, 3, 9, 221, 229-31 Sealord Fisheries deal, 105, 145 segregation, 217, 221, 229 selfconsciousness, 59, 80, 1 1 5 - 8 determination, 6, 14, 16, 19, 30, 39, 42, 46, 52, 5 4 - 7 , 8 9 - 9 1 , 9 3 - 4 , 97, 9 9 - 1 0 2 , 106, 108, 163-6, 1 6 9 - 7 2 , 176, 179, 2 4 1 , 2 4 5 - 7 , 2 5 1 - 4 , 256, 258, 264, 274, 2 7 8 - 8 1 , 212, 281n5 formation, 2, 33 government, 2, 6 - 9 , 18-20, 25, 3 8 - 4 2 , 4 5 - 7 , 49, 5 3 - 4 , 5 6 - 8 , 6 3 - 4 , 68, 72, 87, 123, 163-4, 166-7, 170, 173, 178k, 1 9 9 , 2 1 4 , 2 1 9 - 2 0 , 222, 2 2 4 - 3 1 , 2 2 6 - 7 , 228 2 3 1 - 2 , 236, 240,

321

242, 245-6, 2 5 1 - 2 , 254, 254, 258, 266, 274, 2 7 9 - 8 0 interest, 161, 254 management, 9 9 - 1 0 0 rule, 1, 38, 42, 56 understanding, 6, 20, 43, 52, 230, 238, 2 5 3 - 4 , 320 Seneca people, 115, 240, 243, 246 settlement of land, 12, 25, 27, 29, 33, 4 1 , 43, 46, 48, 52, 7 0 - 1 , 78, 81, 116, 2 2 3 - 4 , 244,261nl2 legal, 14, 44, 50, 72, 76, 104-6, 115, 122, 145, 198, 2 3 4 - 5 treaty, 103, 105, 145 settler and indigenous relations, 27, 114, 118, 137, 197, 240, 246, 272n6 societies, 2, 38, 41, 44, 5 1 , 53, 65, 78, 87, 117, 123, 126, 128, 197, 219 states, 9 - 1 0 , 19, 92, 196 see also white settler dominions settlers, 185, 228, 246 British, 29, 219, 240, 244 European, 240, 246, 257 French, 230, 244 Simpson, Audra, 15-16, 18, 179 Smallacombe, Sonia, 16, 179 Smith, Percy, 142 sovereign authority, 28, 90, 2 5 1 , 2 5 6 borders, 19, 238, 254 colonial, 12 equality, 10, 1 8 , 9 5 federative capacity, 32 foreign, 54, 71 nation states, 55 peoples, 12-13, 38, 52, 56, 89, 92, 103 power, 14, 92, 251 relations between, 3 1 - 2 , 90 self, 253 state, 14, 19, 92, 244, 2 4 7 - 9 , 2 5 2 - 4 treaties between, 28, 35 sovereignty, 5, 11, 13-14, 16, 18, 21, 35, 9 2 - 3 , 1 2 1 , 1 6 7 , 2 4 7 - 9 , 251, 2 5 3 - 4 , 256 absolute, 9 3 - 4 acquisition of, 11-13 assertion of, 40, 4 5 - 7 , 49, 5 2 - 3 , 63, 84 Australian, 174 Canadian, 4 4 - 6 , 48, 50

322

INDEX

sovereignty (contd.) co-existing, 53 colonial, 64 Crown, 2 5 - 6 , 2 8 - 9 , 40, 4 5 - 9 , 5 2 - 3 , 69, 72, 101 de-facto, 9 3 - 4 establishment of, 29, 32 external challenges to, 247 functional, 9 3 - 4 indigenous, 3, 12, 14, 20, 42, 46, 6 3 - 4 , 89, 9 3 - 4 , 97, 108, 125, 127, 135, 167, 173, 252 First Nations, 25 Maori, 13, 28, 90, 9 8 - 1 0 3 , 106 Mohawk, 16, 129 inherent, 9, 19 internal challenges to, 251 mediated, 60, 62, 87 New Zealand, 26, 34 nominal, 93—4 popular (of the p e o p l e ) , 18, 53, 57, 2 0 1 - 3 , 210 post, 108, 238, 244, 247 prior and co-existing, 5 2 - 4 secessionless, 14, 89, 92, 108 shared, 9 1 - 3 , 103-4, 225 soft, 93, 251 state, 8, 12, 14, 53, 56, 108-9, 222, 238, 247, 252 transfer of, 13 tribal, 143 white settler, 1 1 - 1 2 , 92, 109 Sparrow v. R. (1990), 45, 72, state American, 118 Australian, 156, 160 authority, 3, 12, 9 1 , 248 Canadian, 45, 54, 116, 118, 125-6, 129 capitalist, 196-8 colonial, 1 0 - 1 1 , 14, 54 c o n c e p t of, 14, 122 democratic, 16, 18, 1 9 0 , 2 1 3 - 1 4 European, 221, 246 federal, 25 government, 13, 25, 154, 173, 255 and indigenous relations, 89, 9 1 - 8 , 108-9, 114, 116-17, 121, 125 institutions, 166-9, 179, 2 4 7 - 8 liberal, 6-8, 16, 18, 183, 188 listening, 117

membership, 170, 249 multicultural, 212 multination, 226-7, 229, 236 nation, I, 14, 51, 5 4 - 8 , 108, 123, 125-6, 2 3 7 - 8 , 2 4 6 - 8 , 252-7 nationalism, 230 New Zealand, 29 postcolonial, 15, 17 power, 18, 248 reason of, 31 rhizomatic, 198 settler, 9 - 1 0 , 1 9 , 9 2 , 196 sovereign, 14, 19, 28, 55, 92, 222, 244, 247-9,252-4,258 sovereignty, 12, 14, 53, 56, 92, 108-9, 238, 2 4 7 - 8 , 252 territorial, 184, 193 theories of, 11, 113 Western, 116, 222, 224, 245 state of nature, 65, 241 statehood, 9 3 - 4 , 108, 119, 121, 190 stateless nations, 3, 9 - 1 0 , 52, 2 2 1 - 3 , 225-7, 277 Statement of the Government of Canada on Indian Policy (1969), 41 stolen generations, 165 Tainui people, 103-4, 106 tangata whenua (people of the land), 25, 35, 90, 101-3. 108 Taylor, Apirana, 137 Taylor, Charles, 1 1 5 , 2 8 0 terra nullius, 3, 12, 27, 32, 40, 46, 54, 76, Te Whanau o Waipareira Trust, 144-5, 148-50 tino rangatiratanga, 13-14, 8 9 - 9 0 , 98-107, 140 see also rangatiratanga title aboriginal, 4 6 - 9 , 66 communal, 68, 73 indigenous, 6 0 - 4 , 6 6 - 7 8 , 80, 8 3 - 8 land, 7, 62 native, 16, 6 2 - 3 , 6 5 - 7 0 , 73, 79, 8 3 - 5 , 87, 157, 164, 172, 265n5 radical, 69 traditional, 67 Tocqueville, Alexis de, 184-7, 193, 196 Tickner, Robert, 158 Tooker, Elisabeth, 244 treaty, 2 7 - 8

INDEX making, 39, 4 3 , 7 1 , 7 3 negotiations, 53, 2 4 0 - 1 partnership, 90, 141, 144-5, 149-50 process, 41, 45, 49, 73, 244, 257 rights, 50, 72, 105, 141, 143-5, 150 settlements, 103, 106, 145 Treaty of Waitangi (NZ), 13-14, 2 5 - 3 5 , 90, 9 9 - 1 0 1 , 103, 141, 143-5, 149, 225 Treaty of Waitangi Act, 1975 (NZ), 103 Treaty of Waitangi Amendment Act, 1985 (NZ), 141 Treaty of Waitangi (Fisheries Claims) Settlement Act, 1992 (NZ), 105, 146 Treaty of Waitangi Fisheries Commission (Te O h u Kaimoana, TOKM), 105, 145 Tryonoga (Hendrick), 243 Tully, James, 4, 13, 18, 35, 114, 116-17, 135, 166-8, 171, 200, 222, 253, 257, 259, 276, 278 Turner, Dale, 5 1 , 260 Tuscarora people, 115, 240 United Nations ( U N ) , 42, 5 4 - 5 , 226, 252, 255-6 Declaration o n the Rights of Indigenous Peoples, 54, 226, 264n40 Subcommission on the Protection of Minorities, 42, 54, 2 7 9 n l 3 United States (US) government, 38, 52, 237, 2 4 1 - 3 , 245, 253 influence, 216, 220, 2 3 4 - 6 , 280n25 indigenous peoples, 7, 55, 64, 107, 127-8, 229, 237, 239. 2 4 2 - 5 institutions, 237, 239, 2 4 2 - 3 minority nationalism, 221, 223, 2 2 8 - 3 4 multiculturalism, 7-8, 2 1 6 - 1 8 , 220, 236 universal and particular, 3 - 4 , 21, 37 principles, 2, 4 6 - 7 , 54, 107, 170, 238

323

VanderPeetv. ft (1996), 12, 2 6 6 n l 5 Venables, Robert, 240 Voltaire, 242 Waitangi Tribunal (NZ), 100, 103, 144, 149-50, 2 7 5 n l 3 see also Treaty of Waitangi Waldron, Jeremy, 9 - 1 0 Walker, R., 275 war, 3 0 - 2 , 38, 117, 191, 194-5, 240, 243, 246, 257 Ward\. Western Australia (1998), 7 3 - 4 , 268n32 Weatherfordjack, 239 Webber, Jeremy, 4 - 5 , 15-16, 269 welfare, 39, 56, 128, 143-4, 147, 174, 255 Welsh, 191, 221, 278n8 western democracies, 221, 2 2 3 - 3 4 , 245 legal system, 11, 52, 57, 6 5 - 6 , 152, 160-1 legal theory, 13, 1 9 , 5 2 , 6 5 political theory/thought, 1-5, 13-14, 1 7 , 3 6 - 7 , 43, 5 0 - 2 , 5 9 , 115 societies, 1, 3 7 - 8 , 43, 119, 157, 227 Western Sahara, Advisory opinion o n , 1975 (IJC), 12, 54, 263n23 whanau (family), 142, 2 7 5 n l 5 white settler dominions, 11,89, 9 1 - 2 , 9 4 - 5 , 107-9 Wik Peoples v. Queensland (1996), 60, 6 8 - 7 0 , 7 7 , 8 1 , 173 Williams, Brackette, 122 Williams, Hank, 133 Williams, Roger, 240 women's business, 158, 276 word warriors, 42, 51 Yorta Yortas. Victoria (1988), 84 Young, I.M., 13-14, 19, 166, 168-9, 171-2, 176, 264